Exhibit
4.1


 


EXECUTION
COPY


 


CREDIT AGREEMENT


 


among


 


CDRV ACQUISITION
CORPORATION

 (The Rights and Obligations of which Hereunder are to be Assumed by 

VWR INTERNATIONAL, INC.)


 


THE FOREIGN
SUBSIDIARY BORROWERS

FROM TIME TO TIME PARTIES HERETO


 


THE SEVERAL
LENDERS


 


FROM TIME TO TIME
PARTIES HERETO,


 


DEUTSCHE BANK AG,
NEW YORK BRANCH,

as Administrative Agent


 


CITICORP NORTH
AMERICA, INC.,

as Syndication Agent


 


and


 


BANK OF AMERICA,
N.A., 

BNP PARIBAS

and

BARCLAYS BANK PLC,

as Documentation Agents


 


Dated as of
April 7, 2004


 






 


DEUTSCHE BANK
SECURITIES INC.,

CITIGROUP GLOBAL MARKETS INC.

and

BANC OF AMERICA SECURITIES LLC,

 as Joint Lead Arrangers and Joint Bookrunners


 






 


DEUTSCHE BANK AG, NEW YORK BRANCH,

CITICORP NORTH AMERICA, INC.,

BANK OF AMERICA, N.A.,

BNP PARIBAS,

BARCLAYS BANK PLC,

PNC BANK, NATIONAL ASSOCIATION,

NATEXIS BANQUES POPULAIRES, NEW YORK BRANCH,

NATIONAL CITY BANK,

and


GENERAL ELECTRIC CAPITAL CORPORATION,

as European Co-Arrangers


 

















 


Table
of Contents


 


	
  SECTION 1. 
  DEFINITIONS

  	
   

  
	
   

  	
   

  
	
   

  	
  1.1. 
  Defined Terms

  	
   

  
	
   

  	
  1.2.  Other Definitional Provisions

  	
   

  
	
   

  	
   

  
	
  SECTION 2. 
  AMOUNT AND TERMS OF COMMITMENTS

  	
   

  
	
   

  	
   

  
	
   

  	
  2.1.  Revolving Credit Commitments

  	
   

  
	
   

  	
  2.2.  Procedure for Revolving Credit
  Borrowing

  	
   

  
	
   

  	
  2.3.  Termination or Reduction of
  Revolving Credit Commitments

  	
   

  
	
   

  	
  2.4.  Swing Line Commitments

  	
   

  
	
   

  	
  2.5. 
  Term Loans

  	
   

  
	
   

  	
  2.6. 
  Tranche B Term Notes

  	
   

  
	
   

  	
  2.7.  Procedure for Term Loan Borrowing

  	
   

  
	
   

  	
  2.8.  Repayment of Loans

  	
   

  
	
   

  	
   

  
	
  SECTION 3. 
  LETTERS OF CREDIT

  	
   

  
	
   

  	
   

  
	
   

  	
  3.1.  L/C Commitment

  	
   

  
	
   

  	
  3.2.  Procedure for
  Issuance of Letters of Credit

  	
   

  
	
   

  	
  3.3.  Fees, Commissions and Other Charges

  	
   

  
	
   

  	
  3.4.  L/C
  Participations

  	
   

  
	
   

  	
  3.5.  Reimbursement
  Obligation of the Parent Borrower

  	
   

  
	
   

  	
  3.6. 
  Obligations Absolute

  	
   

  
	
   

  	
  3.7.  Letter of Credit Payments

  	
   

  
	
   

  	
  3.8. 
  Letter of Credit Request

  	
   

  
	
   

  	
  3.9.  Additional
  Issuing Lenders

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4. 
  GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1.  Interest Rates and Payment Dates

  	
   

  
	
   

  	
  4.2.  Conversion and Continuation Options

  	
   

  
	
   

  	
  4.3.  Minimum Amounts of Sets

  	
   

  
	
   

  	
  4.4.  Optional and Mandatory Prepayments

  	
   

  
	
   

  	
  4.5.  Commitment Fees; Administrative
  Agent’s Fee; Other Fees

  	
   

  
	
   

  	
  4.6.  Computation of Interest and Fees

  	
   

  
	
   

  	
  4.7.  Inability to Determine Interest Rate

  	
   

  
	
   

  	
  4.8.  Pro Rata Treatment and Payments

  	
   

  
	
   

  	
  4.9. 
  Illegality

  	
   

  
	
   

  	
  4.10.  Requirements of Law

  	
   

  
	
   

  	
  4.11. 
  Taxes

  	
   

  
	
   

  	
  4.12. 
  Indemnity

  	
   

  



 


 


i

















 


	
   

  	
  4.13.  Certain Rules Relating to the
  Payment of Additional Amounts

  	
   

  
	
   

  	
  4.14.  Controls
  on Prepayment if Aggregate Outstanding Revolving Credit Exceeds Aggregate
  Revolving Credit Commitments

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.  REPRESENTATIONS AND
  WARRANTIES.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1.  Financial Condition

  	
   

  
	
   

  	
  5.2.  No Change; Solvent

  	
   

  
	
   

  	
  5.3.  Corporate
  Existence; Compliance with Law

  	
   

  
	
   

  	
  5.4.  Corporate Power;
  Authorization; Enforceable Obligations

  	
   

  
	
   

  	
  5.5.  No Legal Bar

  	
   

  
	
   

  	
  5.6.  No Material Litigation

  	
   

  
	
   

  	
  5.7.  No Default

  	
   

  
	
   

  	
  5.8.  Ownership of Property;
  Liens

  	
   

  
	
   

  	
  5.9.  Intellectual Property

  	
   

  
	
   

  	
  5.10.  No Burdensome
  Restrictions

  	
   

  
	
   

  	
  5.11.  Taxes

  	
   

  
	
   

  	
  5.12.  Federal Regulations

  	
   

  
	
   

  	
  5.13.  ERISA

  	
   

  
	
   

  	
  5.14.  Collateral

  	
   

  
	
   

  	
  5.15.  Investment Company Act;
  Other Regulations

  	
   

  
	
   

  	
  5.16.  Subsidiaries

  	
   

  
	
   

  	
  5.17.  Purpose of Loans

  	
   

  
	
   

  	
  5.18.  Environmental Matters

  	
   

  
	
   

  	
  5.19.  No Material
  Misstatements

  	
   

  
	
   

  	
  5.20.  Delivery of
  the Acquisition Agreement

  	
   

  
	
   

  	
  5.21. 
  Representations and Warranties Contained in the Acquisition Agreement

  	
   

  
	
   

  	
  5.22.  Senior Indebtedness

  	
   

  
	
   

  	
  5.23.  Labor Matters

  	
   

  
	
   

  	
  5.24.  Special Purpose
  Corporation

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.  CONDITIONS PRECEDENT.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1.  Conditions to
  Initial Extension of Credit

  	
   

  
	
   

  	
  6.2.  Conditions to
  Each Other Extension of Credit

  	
   

  
	
   

  	
  6.3.  Additional
  Conditions Applicable to Foreign Subsidiary Borrowers

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.  AFFIRMATIVE COVENANTS.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  7.1.  Financial Statements

  	
   

  
	
   

  	
  7.2.  Certificates; Other
  Information

  	
   

  
	
   

  	
  7.3.  Payment of Obligations

  	
   

  
	
   

  	
  7.4.  Conduct of
  Business and Maintenance of Existence

  	
   

  
	
   

  	
  7.5.  Maintenance of
  Property; Insurance

  	
   

  
	
   

  	
  7.6.  Inspection
  of Property; Books and Records; Discussions

  	
   

  
	
   

  	
  7.7.  Notices

  	
   

  
	
   

  	
  7.8.  Environmental Laws

  	
   

  



 


 


ii

















 


	
   

  	
  7.9.  After-Acquired
  Real Property and Fixtures

  	
   

  
	
   

  	
  7.10.  Interest Rate
  Protection

  	
   

  
	
   

  	
  7.11.  Surveys

  	
   

  
	
   

  	
  7.12.  Maintenance of New
  York Process Agent

  	
   

  
	
   

  	
  7.13.  Consummation of
  Transactions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.  NEGATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1.  Financial Condition
  Covenants

  	
   

  
	
   

  	
  8.2.  Limitation on
  Indebtedness

  	
   

  
	
   

  	
  8.3.  Limitation on Liens

  	
   

  
	
   

  	
  8.4.  Limitation on
  Guarantee Obligations

  	
   

  
	
   

  	
  8.5.  Limitation on
  Fundamental Changes

  	
   

  
	
   

  	
  8.6.  Limitation on Sale of
  Assets

  	
   

  
	
   

  	
  8.7.  Limitation on Dividends

  	
   

  
	
   

  	
  8.8.  Limitation on
  Capital Expenditures

  	
   

  
	
   

  	
  8.9.  Limitation on Investments, Loans
  and Advances

  	
   

  
	
   

  	
  8.10.  Limitations on Certain
  Acquisitions

  	
   

  
	
   

  	
  8.11.  Limitation on
  Transactions with Affiliates

  	
   

  
	
   

  	
  8.12.  Limitation on Sale and
  Leaseback Transactions

  	
   

  
	
   

  	
  8.13.  Limitations on
  Dispositions of Collateral

  	
   

  
	
   

  	
  8.14.  Limitation on
  Optional Payments and Modifications of Debt Instruments and Other Documents

  	
   

  
	
   

  	
  8.15.  Limitation on Changes
  in Fiscal Year

  	
   

  
	
   

  	
  8.16.  Limitation on Negative
  Pledge Clauses

  	
   

  
	
   

  	
  8.17.  Limitation on Lines of
  Business

  	
   

  
	
   

  	
  8.18.  Limitations on Currency
  and Commodity Hedging Transactions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.  EVENTS OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.  THE ADMINISTRATIVE AGENT
  AND THE OTHER REPRESENTATIVES.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1.  Appointment

  	
   

  
	
   

  	
  10.2.  Delegation of Duties

  	
   

  
	
   

  	
  10.3.  Exculpatory Provisions

  	
   

  
	
   

  	
  10.4.  Reliance by
  Administrative Agent

  	
   

  
	
   

  	
  10.5.  Notice of Default

  	
   

  
	
   

  	
  10.6. 
  Acknowledgements and Representations by Lenders

  	
   

  
	
   

  	
  10.7.  Indemnification

  	
   

  
	
   

  	
  10.8. 
  Administrative Agent and Other Representatives in Their Individual Capacity

  	
   

  
	
   

  	
  10.9.  Collateral Matters

  	
   

  
	
   

  	
  10.10.  Successor
  Administrative Agent

  	
   

  
	
   

  	
  10.11.  Other Representatives

  	
   

  
	
   

  	
  10.12.  Swing Line Lender

  	
   

  



 


 


iii

















 


	
  SECTION 11.  MISCELLANEOUS.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  11.1.  Amendments and Waivers

  	
   

  
	
   

  	
  11.2.  Notices

  	
   

  
	
   

  	
  11.3.  No Waiver;
  Cumulative Remedies

  	
   

  
	
   

  	
  11.4.  Survival of
  Representations and Warranties

  	
   

  
	
   

  	
  11.5.  Payment of Expenses
  and Taxes

  	
   

  
	
   

  	
  11.6.  Successors
  and Assigns; Participations and Assignments

  	
   

  
	
   

  	
  11.7.  Adjustments;
  Set-off; Calculations; Computations

  	
   

  
	
   

  	
  11.8.  Judgment

  	
   

  
	
   

  	
  11.9.  Counterparts

  	
   

  
	
   

  	
  11.10.  Severability

  	
   

  
	
   

  	
  11.11.  Integration

  	
   

  
	
   

  	
  11.12.  GOVERNING LAW

  	
   

  
	
   

  	
  11.13.  Submission To
  Jurisdiction; Waivers

  	
   

  
	
   

  	
  11.14.  Acknowledgements

  	
   

  
	
   

  	
  11.15.  WAIVER OF JURY TRIAL

  	
   

  
	
   

  	
  11.16.  Confidentiality

  	
   

  
	
   

  	
  11.17.  USA Patriot Act Notice

  	
   

  
	
   

  	
  11.18.  Special
  Provisions Regarding Pledges of Capital Stock in, and Promissory Notes Owed
  by, Persons Not Organized in the U.S.

  	
   

  



 


 


iv

















 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
  A

  	
  Commitments and
  Addresses

  
	
  B

  	
  Indicative Terms of
  Permitted Receivables Transactions

  
	
  C

  	
  Existing Letters of
  Credit

  
	
  D

  	
  Designated Foreign
  Currencies

  
	
  E

  	
  Foreign Subsidiary
  Borrowers

  
	
  4.10(c)

  	
  Mandatory Cost Formula

  
	
  5.2

  	
  Material Adverse Effect
  Disclosure

  
	
  5.4

  	
  Consents Required

  
	
  5.6

  	
  Litigation

  
	
  5.8

  	
  Real Property

  
	
  5.9

  	
  Intellectual Property
  Claims

  
	
  5.16

  	
  Subsidiaries

  
	
  6.1(d)

  	
  Intercompany
  Transactions

  
	
  6.1(i)

  	
  Lien Searches

  
	
  6.1(j)

  	
  Local and Foreign
  Counsel

  
	
  6.1(l)

  	
  Filing Jurisdictions

  
	
  6.1(p)

  	
  Title Insurance Policies

  
	
  7.9(e)

  	
  Leased U.S. Inventory
  Locations

  
	
  8.2(h)

  	
  Permitted Indebtedness

  
	
  8.3(j)

  	
  Permitted Liens

  
	
  8.4(a)

  	
  Permitted Guarantee
  Obligations

  
	
  8.6(i)

  	
  Permitted Asset Sales

  
	
  8.9(c)

  	
  Permitted Investments

  
	
  8.11(v)

  	
  Permitted Transactions
  with Affiliates

  



 


 


v

















 


	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  A-1

  	
  Form of Revolving
  Credit Note

  
	
  A-2

  	
  Form of Swing Line Note

  
	
  A-3

  	
  Form of Tranche B
  Dollar Term Note

  
	
  A-4

  	
  Form of Tranche B Euro
  Term Note

  
	
  B

  	
  Form of Guarantee and
  Collateral Agreement

  
	
  C

  	
  Form of Mortgage

  
	
  D-1

  	
  Form of Opinion of
  Debevoise & Plimpton, Special New York Counsel to the Loan Parties

  
	
  D-2

  	
  Form of Opinion of
  Richards, Layton & Finger, P.A., Special Delaware Counsel to Certain of
  the Loan Parties

  
	
  D-3

  	
  Form of Opinion of
  Stephen J. Kunst, Counsel to Certain of the Loan Parties

  
	
  D-4

  	
  Form of Opinion of
  Counsel to the Foreign Subsidiary Borrowers

  
	
  E

  	
  Form of U.S. Tax
  Compliance Certificate

  
	
  F

  	
  Form of Assignment and
  Acceptance

  
	
  G

  	
  Form of Swing Line Loan
  Participation Certificate

  
	
  H

  	
  Form of Borrowing
  Certificate

  
	
  I

  	
  Form of Landlord Waiver

  
	
  J

  	
  Form of Closing
  Certificate

  
	
  K

  	
  Form of Letter of
  Credit Request

  
	
  L

  	
  Form of Assumption
  Agreement

  
	
  M

  	
  Form of Joinder
  Agreement

  



 


vi

















 


CREDIT AGREEMENT, dated
as of April 7, 2004, among CDRV ACQUISITION CORPORATION, a Delaware
corporation (“Acquisition Corp.” and, together with any assignee of, or
successor by merger to, Acquisition Corp.’s rights and obligations hereunder as
provided herein, the “Parent Borrower”), the Foreign Subsidiary
Borrowers (as hereinafter defined) (the Foreign Subsidiary Borrowers together
with the Parent Borrower, being collectively referred to as the “Borrowers”
and each being individually referred to as a “Borrower”), the several
banks and other financial institutions from time to time parties to this
Agreement (as further defined in Section 1.1, the “Lenders”),
DEUTSCHE BANK AG, NEW YORK BRANCH (“DBAG”), as administrative agent
for the Lenders hereunder (in such capacity, the “Administrative Agent”),
CITICORP NORTH AMERICA, INC. (“CNAI”), as syndication agent (in such
capacity, the “Syndication Agent”), and BANK OF AMERICA, N.A. (“BOA”),
BNP PARIBAS (“BNPP”) and BARCLAYS BANK PLC (“Barclays”), as
documentation agent (in such capacity, individually, each a “Documentation
Agent” and, collectively, the “Documentation Agents”).


 


The parties hereto hereby
agree as follows:


 


W I  T  N  E  S
S  E  T  H:


 


WHEREAS, CDRV Holdings,
Inc., a Delaware corporation (“Holding”), and its Wholly Owned
Subsidiaries (such term and each other capitalized term used in these recitals
and not otherwise previously defined, as hereinafter defined), CDRV
International Holdings I, Inc., a Delaware corporation to be renamed CDRV
International Holdings, Inc. (“Small FSHCo”), CDRV International
Holdings II, Inc., a Delaware corporation to be renamed VWR International
Holdings, Inc. (“Large FSHCo”) and CDRV Delaware, Inc., a Delaware
corporation (“DelawareCo”) and Acquisition Corp., are each newly formed
companies organized by Clayton, Dubilier & Rice Fund VI Limited
Partnership, a Cayman Islands exempted limited partnership (“CD&R Fund
VI”) or one of its Affiliates;


 


WHEREAS, (i) Acquisition
Corp. proposes to acquire in a stock purchase transaction (the “VWR
Acquisition”) all of the outstanding Capital Stock of VWR International
Corporation, a Delaware corporation (“VWR”), (ii) Small FSHCo
proposes to acquire in a stock purchase transaction (the “Small FSHCo
Immobilien Acquisition”) approximately 6% of the outstanding equity ownership
interest of VWR International Immobilien GmbH (“Immobilien”) and (iii)
Large FSHCo proposes to acquire in a stock purchase transaction (the “Large
FSHCo Immobilien Acquisition” and, together with the Small FSHCo Immobilien
Acquisition, the “Immobilien Acquisition”, and, together with the VWR
Acquisition, the “Acquisition”) approximately 4% of the outstanding
equity ownership interest of Immobilien (the stock purchase acquisition
consummated pursuant to the Immobilien Acquisition constituting the acquisition
of all of the outstanding equity ownership interest of Immobilien not owned
directly or indirectly by VWR), in each case, pursuant to the Stock Purchase
Agreement, dated as of February 15, 2004 (the “Acquisition Agreement”),
among Merck KGaA, a German partnership limited by shares, Merck Holding GmbH, a
German private limited liability company, VWR International Holding Europe
GmbH, a German private limited liability company, EMD Chemicals, Inc., a
New York corporation and Acquisition Corp.;


 

















 


WHEREAS, Holding will
receive a direct or indirect cash investment from CD&R Fund VI and/or one
or more other investors determined by CD&R, in an aggregate amount of at
least $550,000,000 and will contribute such cash (net of (x) amounts contributed
by Holding to Small FSHCo to consummate the Small FSHCo Immobilien Acquisition
in accordance with the Acquisition Agreement and (y) the costs and expenses of
Holding incurred on or prior to the Closing Date in respect to the Transactions
(as defined herein)) (which amount represents not less than 30% of the total
consolidated capitalization of Holding) as a common equity contribution to the
Parent Borrower (the “Equity Financing”);


 


WHEREAS, Acquisition
Corp. will issue $520,000,000 in combined aggregate principal amount of its
senior unsecured notes (in an aggregate principal amount of $200,000,000) and
senior subordinated unsecured notes (in an aggregate principal amount of
$320,000,000) (the “Note Offering”);


 


WHEREAS, following the
Acquisition, VWR will merge with and into VWR International, Inc., a
Pennsylvania corporation and Wholly Owned Subsidiary of VWR (“VWR
Pennsylvania”) (the “First Merger”) with VWR Pennsylvania being the
surviving corporation of the First Merger;


 


WHEREAS, thereafter,
Acquisition Corp. will merge with and into VWR Pennsylvania (the “Second
Merger”) with VWR Pennsylvania being the surviving corporation of the
Second Merger;


 


WHEREAS, thereafter, VWR
Pennsylvania will merge with and into DelawareCo (the “Reincorporation
Merger” and, together with the First Merger and the Second Merger, the “Mergers”,
and, together with the Acquisition, the Equity Financing, the Note Offering,
the Intercompany Transactions and the Name Change described below, the “Transactions”)
with DelawareCo being the surviving corporation of the Reincorporation Merger;


 


WHEREAS, DelawareCo will
change its name (the “Name Change”) to VWR International, Inc. (“VWR
International, Inc.”);


 


WHEREAS, immediately upon
consummation of the Acquisition and the Mergers described above, and on the
Closing Date, Acquisition Corp. will assign to VWR International, Inc. and VWR
International, Inc. will assume from Acquisition Corp. (the “Assumption”)
all of the rights and obligations of Acquisition Corp., as successor in
interest to Acquisition Corp. under this Agreement, pursuant to the Assumption
Agreement (as defined below), and VWR International, Inc. shall assume the
obligations of Acquisition Corp. by operation of law upon consummation of the
Mergers, whereupon VWR International, Inc. shall be the Parent Borrower
hereunder for all purposes hereof; and


 


WHEREAS, in order to (i)
finance a portion of the purchase price of the Acquisition, (ii) pay certain
fees and expenses related to the Acquisition and the related transactions, and
(iii) finance the working capital and other business requirements of the Parent
Borrower and its Subsidiaries following the consummation of the Acquisition and
the related transactions, Acquisition Corp. has requested that the Lenders make
the Loans and issue and participate in the Letters of Credit provided for
herein;


 


2

















 


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


 


SECTION 1.          
DEFINITIONS.


 


1.1.         
Defined Terms.  As used in this Agreement, the following terms
shall have the following meanings:


 


“ABR”:  for
any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of
1%) equal to the greatest 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%. 
For purposes hereof:  “Prime Rate” shall mean the rate of interest
per annum publicly announced from time to time by DBAG (or another bank of
recognized standing reasonably selected by the Administrative Agent and
reasonably satisfactory to the Parent Borrower) as its prime rate in effect at
its principal office in New York City (the Prime Rate not being intended
to be the lowest rate of interest charged by DBAG in connection with extensions
of credit to debtors). “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 of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for the day of such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.  Any change in the ABR due to a change
in the Prime Rate or the Federal Funds Effective Rate shall be effective as of
the opening of business on the effective day of such change in the Prime Rate
or the Federal Funds Effective Rate, respectively.


 


“ABR Loans”: 
Loans the rate of interest applicable to which is based upon the ABR.


 


“Acceleration”: 
as defined in subsection 9(e).


 


“Accounts”: 
as defined in the Uniform Commercial Code as in effect in the State of
New York from time to time; and, with respect to the Parent Borrower and
its Domestic Subsidiaries, all such Accounts of such Persons, whether now
existing or existing in the future, including, without limitation, (a) all
accounts receivable of such Person (whether or not specifically listed on
schedules furnished to the Administrative Agent), including, without
limitation, all accounts created by or arising from all of such Person’s sales
of goods or rendition of services made under any of its trade names, or through
any of its divisions, (b) all unpaid rights of such Person (including
rescission, replevin, reclamation and stopping in transit) relating to the
foregoing or arising therefrom, (c) all rights to any goods represented by any
of the foregoing, including, without limitation, returned or repossessed goods,
(d) all reserves and credit balances held by such Person with respect to any
such accounts receivable of any Obligors, (e) all letters of credit, guarantees
or collateral for any of the foregoing and (f) all insurance policies or rights
relating to any of the foregoing.


 


“Acquisition”: as
defined in the Recitals hereto.


 


“Acquisition Agreement”: 
as defined in the Recitals hereto.


 


3

















 


“Acquisition Corp.”:
as defined in the Preamble hereto.


 


“Acquisition Documents”:
the Acquisition Agreement and the letter agreement from CDRV Acquisition
Corporation to Merck KGaA, dated as of the April 7, 2004, among the
parties to the Acquisition Agreement, in each case as the same may be amended,
modified and/or supplemented from time to time in accordance with the terms
hereof and thereof.


 


“Adjustment Date”: 
each date, on or after the last day of the Parent Borrower’s first fiscal
quarter ended at least 6 months after the Closing Date, that is the second
Business Day following receipt by the Lenders of both (a) the financial
statements required to be delivered pursuant to subsection 7.1(a) or
7.1(b), as applicable, for the most recently completed fiscal period and (b)
the related compliance certificate required to be delivered pursuant to
subsection 7.2(b) with respect to such fiscal period.


 


“Administrative Agent”: 
as defined in the Preamble hereto and shall include any successor to the
Administrative Agent appointed pursuant to Section 10.10.


 


“Affected Eurocurrency
Loans”:  as defined in subsection 4.9.


 


“Affected Eurocurrency
Rate”:  as defined in subsection 4.7.


 


“Affiliate”: 
as to any Person, any other Person (other than a Subsidiary) which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person.  For purposes of this definition, “control” of a Person
means the power, directly or indirectly, either to (a) vote 20% or more of the
securities having ordinary voting power for the election of directors of such
Person or (b) direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise.


 


“Agents”: 
the collective reference to the Administrative Agent, the Syndication Agent and
the Documentation Agents.


 


“Aggregate Outstanding
Revolving Credit”:  as to any Revolving Credit Lender at any time, an
amount equal to the sum of (a) the aggregate principal amount of all Revolving
Credit Loans made by such Revolving Credit Lender then outstanding (including,
without limitation, in the case of Revolving Credit Loans then outstanding in
any Designated Foreign Currency, the Dollar Equivalent of the aggregate
principal amount thereof), (b) such Revolving Credit Lender’s Revolving Credit
Commitment Percentage of the L/C Obligations then outstanding and (c) such
Revolving Credit Lender’s Revolving Credit Commitment Percentage of the Swing
Line Loans then outstanding (including, without limitation, in the case of any
Swing Line Loans, the Dollar Equivalent of the aggregate principal amount
thereof).


 


“Agreement”: 
this Credit Agreement, as amended, supplemented, waived or otherwise modified,
from time to time.


 


“Applicable Margin”: 
(a) as applied to any given Type of Tranche B Euro Term Loans, 2.75% per annum;
(b) as applied to any given Type of Tranche B Dollar Term Loans, the rate per
annum is determined as follows: during the period from the Closing Date until
the first Adjustment Date, the Applicable Margin in respect of Tranche B Dollar
Term Loans shall equal


 


4

















 


(A) with respect to ABR Loans, 1.50% per annum and (B)
with respect to Eurocurrency Loans, 2.50% per annum; and (c) as applied to any
given type of Revolving Credit Loans and Swing Line Loans, the rate per annum
is determined as follows: during the period from the Closing Date until the
first Adjustment Date, the Applicable Margin in respect of Revolving Credit
Loans and Swing Line Loans shall equal (A) with respect to ABR Loans, 1.50% per
annum and (B) with respect to Eurocurrency Loans, 2.50% per annum.  The
Applicable Margins in respect of Tranche B Dollar Term Loans, Revolving Credit
Loans and Swing Line Loans will be adjusted on each subsequent Adjustment Date
to the applicable rate per annum set forth under the heading “Applicable Margin
for ABR Loans” or “Applicable Margin for Eurocurrency Loans” on the applicable
Pricing Grid which corresponds to the Consolidated Leverage Ratio determined
from the financial statements and compliance certificate relating to the end of
the fiscal quarter immediately preceding such Adjustment Date; provided
that in the event that the financial statements required to be delivered
pursuant to subsection 7.1(a) or 7.1(b), as applicable, and the related
compliance certificate required to be delivered pursuant to
subsection 7.2(b), are not delivered when due, then:


 


(1)           if such financial statements and certificate
are delivered after the date such financial statements and certificate were
required to be delivered (without giving effect to any applicable cure period)
and the Applicable Margin increases from that previously in effect as a result
of the delivery of such financial statements, then the Applicable Margin in
respect of Revolving Credit Loans and Swing Line Loans during the period from
the date upon which such financial statements were required to be delivered
(without giving effect to any applicable cure period) until the date upon which
they actually are delivered shall, except as otherwise provided in clause (3)
below, be the Applicable Margin as so increased;


 


(2)           if such financial statements and
certificate are delivered after the date such financial statements and
certificate were required to be delivered and the Applicable Margin decreases
from that previously in effect as a result of the delivery of such financial
statements, then such decrease in the Applicable Margin shall not become
applicable until the date upon which the financial statements and certificate
actually are delivered; and


 


(3)           if such financial statements and
certificate are not delivered prior to the expiration of the applicable cure
period, then, effective upon such expiration, for the period from the date upon
which such financial statements and certificate were required to be delivered
(after the expiration of the applicable cure period) until two Business Days
following the date upon which they actually are delivered, the Applicable
Margin in respect of Tranche B Dollar Term Loans, Revolving Credit Loans and
Swing Line Loans shall be 1.50% per annum, in the case of ABR Loans, and 2.50%
per annum, in the case of Eurocurrency Loans (it being understood that the
foregoing shall not limit the rights of the Administrative Agent and the
Lenders set forth in Section 9).


 


In addition, at all times while an Event of Default
shall have occurred and be continuing, the Applicable Margin shall not decrease
from that previously in effect as a result of the delivery of such financial
statements and certificate.


 


5

















 


“Approved Fund”: 
as defined in subsection 11.6(b).


 


“Asset Sale”: 
any sale, issuance, conveyance, transfer, lease or other disposition
(including, without limitation, through a Sale and Leaseback Transaction) (a “Disposition”)
by the Parent Borrower or any of its Subsidiaries, in one or a series of
related transactions, of any real or personal, tangible or intangible, property
(including, without limitation, Capital Stock) of the Parent Borrower or such
Subsidiary to any Person (other than to the Parent Borrower or any of its
Wholly Owned Subsidiaries).


 


“Assignee”: 
as defined in subsection 11.6(b).


 


“Assignment and
Acceptance”:  an Assignment and Acceptance, substantially in the form
of Exhibit F.


 


“Assumption”:
 as defined in the Recitals hereto.


 


“Assumption Agreement”: 
an Assumption Agreement, substantially in the form of Exhibit L.


 


“Available Revolving
Credit Commitment”:  as to any Revolving Credit Lender at any time, an
amount equal to the excess, if any, of (a) the amount of such Revolving Credit
Lender’s Revolving Credit Commitment at such time over (b) the sum of
(i) the aggregate unpaid principal amount at such time of all Revolving Credit
Loans made by such Revolving Credit Lender (including, without limitation, in
the case of Revolving Credit Loans made by such Revolving Credit Lender in any
Designated Foreign Currency, the Dollar Equivalent of the aggregate unpaid
principal amount thereof), (ii) an amount equal to such Revolving Credit
Lender’s Revolving Credit Commitment Percentage of the aggregate unpaid
principal amount at such time of all Swing Line Loans (including, without
limitation, in the case of any Swing Line Foreign Currency Loans, the Dollar
Equivalent of the aggregate unpaid principal amount thereof), provided
that for purposes of calculating Available Revolving Credit Commitments
pursuant to subsection 4.5(a) such amount shall be zero, and (iii) an
amount equal to such Revolving Credit Lender’s Revolving Credit Commitment
Percentage of the outstanding L/C Obligations at such time; collectively, as to
all the Lenders, the “Available Revolving Credit Commitments”.


 


“Average Life”: 
at the date of determination thereof, with respect to any Indebtedness, the
quotient obtained by dividing (a) the sum of the products of the number of
years from such date of determination to the dates of each successive scheduled
principal payment of such Indebtedness multiplied by the amount of such
principal payment by (b) the sum of all such principal payments.


 


“BAS”:  Banc
of America Securities LLC, in its individual capacity, and any successor
corporation thereto by merger, consolidation or otherwise.


 


“benefited Lender”: 
as defined in subsection 11.7(a).


 


“BOA”:  as
defined in the Preamble hereto, in its individual capacity, and any successor
corporation thereto by merger, consolidation or otherwise.


 


6

















 


“Board”:  the
Board of Governors of the Federal Reserve System.


 


“Borrowers”: 
as defined in the Preamble hereto.


 


“Borrowing Date”: 
any Business Day specified in a notice pursuant to subsection 2.2, 2.4,
2.7 or 3.2 as a date on which the Parent Borrower requests the Lenders to make
Loans hereunder or the Issuing Lender to issue Letters of Credit hereunder.


 


“Business Day”: 
a day other than a Saturday, Sunday or other day on which commercial banks in
New York, New York (or, with respect only to Letters of Credit issued
by an Issuing Lender not located in the City of New York, the location of
such Issuing Lender) are authorized or required by law to close, except that,
when used in connection with a Eurocurrency Loan, “Business Day” shall mean, in
the case of any Eurocurrency Loan in Dollars, any Business Day on which
dealings in Dollars between banks may be carried on in London, England and
New York, New York and, in the case of any Eurocurrency Loan in any
Designated Foreign Currency, a day on which dealings in such Designated Foreign
Currency between banks may be carried on in London, England, New York,
New York and the principal financial center of such Designated Foreign
Currency as set forth on Schedule D; provided, however,
that, with respect to notices and determinations in connection with, and
payments of principal and interest on, Loans denominated in Euros, such day is
also a day on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer System (TARGET) (or, if such clearing system ceases to be
operative, such other clearing system (if any) determined by the Administrative
Agent to be a suitable replacement) is open for settlement of payment in Euros.


 


“Capital Expenditures”: 
with respect to any Person for any period, the sum of the aggregate of all
expenditures by such Person and its consolidated Subsidiaries during such
period (exclusive of expenditures made for Investments permitted by
subsection 8.9 and for acquisitions permitted by subsection 8.10)
which, in accordance with GAAP, are or should be included in “capital
expenditures.”


 


“Capital Stock”: 
any and all shares, interests, participations or other equivalents (however
designated) of capital stock of a corporation, any and all equivalent ownership
interests in a Person (other than a corporation) and any and all warrants or
options to purchase any of the foregoing.


 


“Cash Equivalents”: 
(a) securities issued or fully guaranteed or insured by the United States
Government or any agency or instrumentality thereof, (b) time deposits,
certificates of deposit or bankers’ acceptances of (i) any Lender or affiliate
thereof or (ii) any commercial bank having capital and surplus in excess of
$500,000,000 and the commercial paper of the holding company of which is rated
at least A-2 or the equivalent thereof by Standard & Poor’s Ratings
Group (a division of The McGraw Hill Companies Inc.) or any successor rating
agency (“S&P”) or at least P-2 or the equivalent thereof by Moody’s
Investors Service, Inc. or any successor rating agency (“Moody’s”) (or
if at such time neither is issuing ratings, then a comparable rating of such
other nationally recognized rating agency as shall be approved by the
Administrative Agent in its reasonable judgment), (c) commercial paper rated at
least A-2 or the equivalent thereof by S&P or at least P-2 or the
equivalent thereof by Moody’s (or if at such time neither is issuing ratings,
then a comparable rating of such other nationally recognized rating


 


7

















 


agency as shall be approved by the Administrative
Agent in its reasonable judgment), (d) investments in money market funds
complying with the risk limiting conditions of Rule 2a-7 or any successor rule
of the Securities and Exchange Commission under the Investment Company Act, and
(e) investments similar to any of the foregoing denominated in foreign
currencies approved by the board of directors of the Parent Borrower, in each
case provided in clauses (a), (b), (c) and (e) above only, maturing within twelve
months after the date of acquisition.


 


“CD&R”: 
Clayton, Dubilier & Rice, Inc., a Delaware corporation, and its successors
and assigns.


 


“CD&R Fund VI”: 
as defined in the Recitals hereto.


 


“CGMI”: 
Citigroup Global Markets Inc, in its individual capacity, and any successor
corporation thereto by merger, consolidation or otherwise.


 


“Change in
Consolidated Working Capital”:  for any period, a positive or negative
number equal to the amount of Consolidated Working Capital at the beginning of
such period minus the amount of Consolidated Working Capital at the end of such
period.


 


“Change of Control”: 
the occurrence of any of the following events:  (a) at any time prior to
the initial registered public offering of Investors’ or Holding’s Voting Stock
the Permitted Holders shall in the aggregate be the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act) of (x) so long as
Holding is a Subsidiary of Investors, shares of Voting Stock having less than
51% of the total voting power of all outstanding shares of Investors and (y) if
Holding is not a Subsidiary of Investors, shares of Voting Stock having less
than 51% of the total voting power of all outstanding shares of Holding, (b) on
and after the date of the initial registered public offering of Investors’ or
Holding’s Voting Stock (i) (x) the Permitted Holders shall in the aggregate be
the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act) of (A) so long as Holding is a Subsidiary of Investors, shares of Voting
Stock having less than 35% of the total voting power of all outstanding shares
of Investors and (B) if Holding is not a Subsidiary of Investors, shares of
Voting Stock having less than 35% of the total voting power of all outstanding
shares of Holding and (y) any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted
Holders, shall be the “beneficial owner” of (A) so long as Holding is a
Subsidiary of Investors, shares of Voting Stock having more than 35% of the
total voting power of all outstanding shares of Investors and (B) if Holding is
not a Subsidiary of Investors, shares of Voting Stock having more than 35% of
the total voting power of all outstanding shares of Holding or (ii) (A) so long
as Holding is a Subsidiary of Investors, the Continuing Directors shall cease
to constitute a majority of the members of the board of directors of Investors
and (B) if Holding is not a Subsidiary of Investors, the Continuing Directors
shall cease to constitute a majority of the members of the board of directors
of Holding; (c) Holding shall cease to own, directly or indirectly, 100% of the
Capital Stock of the Parent Borrower (or any successor to the Parent Borrower
permitted pursuant to subsection 8.5); or (d) a “Change of Control” as
defined in either the 2004 Senior Note Indenture or the 2004 Senior
Subordinated Note Indenture under which any 2004 Senior Notes or 2004 Senior
Subordinated Notes are then outstanding; as used in this paragraph “Voting
Stock” shall mean shares of Capital Stock entitled to vote generally in the
election of directors.


 


8

















 


“Closing Date”: 
the date on which all the conditions precedent set forth in subsection 6.1
shall be satisfied or waived.


 


“CNAI”:  as
defined in the Preamble hereto, in its individual capacity, and any successor
corporation thereto by merger, consolidation or otherwise.


 


“Code”:  the
Internal Revenue Code of 1986, as amended from time to time.


 


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


 


“Commercial Letter of
Credit”:  as defined in subsection 3.1(a).


 


“Commitment”: 
as to any Lender, the sum of the Tranche B Term Loan Commitments and the
Revolving Credit Commitment of such Lender.


 


“Commitment Fee Rate”: 
0.50% per annum.


 


“Commonly Controlled
Entity”:  an entity, whether or not incorporated, which is under
common control with the Parent Borrower within the meaning of Section 4001
of ERISA or is part of a group which includes the Parent Borrower and which is
treated as a single employer under Section 414(b) or (c) of the Code or,
solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Sections 414(m) and (o) of the
Code.


 


“Conduit Lender”: 
any special purpose corporation organized and administered by any Lender for
the purpose of making Loans otherwise required to be made by such Lender and
designated by such Lender in a written instrument delivered to the
Administrative Agent (a copy of which shall be provided by the Administrative
Agent to the Parent Borrower on request); provided that the designation
by any Lender of a Conduit Lender shall not relieve the designating Lender of
any of its obligations under this Agreement, including, without limitation, its
obligation to fund a Loan if, for any reason, its Conduit Lender fails to fund
any such Loan, and the designating Lender (and not the Conduit Lender) shall
have the sole right and responsibility to deliver all consents and waivers
required or requested under this Agreement with respect to its Conduit Lender,
and provided, further, that no Conduit Lender shall (a) be
entitled to receive any greater amount pursuant to any provision of this
Agreement, including without limitation subsection 4.10, 4.11, 4.12 or
11.5, than the designating Lender would have been entitled to receive in
respect of the extensions of credit made by such Conduit Lender if such
designating Lender had not designated such Conduit Lender hereunder, (b) be
deemed to have any Term Loan Commitment or Revolving Credit Commitment or (c)
be designated if such designation would otherwise increase the costs of any Facility
to any Borrower.


 


“Confidential
Information Memorandum”:  that certain Confidential Information
Memorandum (Private Version) dated March 2004 and furnished to the
Lenders.


 


“Consolidated Current
Portion Of Long Term Debt”:  at the date of determination thereof, the
current portion of Consolidated Long Term Debt that is included in Consolidated
Short Term Debt.


 


9

















 


“Consolidated Funded
Indebtedness”:  at the date of determination thereof, the sum of (a)
Consolidated Long Term Debt plus (b) Consolidated Current Portion Of Long Term
Debt.


 


“Consolidated
Indebtedness/Securitization”:  at the date of determination thereof,
the sum (without duplication) of (a) Consolidated Long Term Debt, plus (b)
Consolidated Short Term Debt, plus (c) an amount equal to the aggregate cash
proceeds received by the Parent Borrower or any of its Subsidiaries from an
unrelated third party (net of amounts repaid) from the financing of Accounts
pursuant to any Permitted Receivables Transaction.  In determining under
clauses (a) and (b) of this definition the Indebtedness of the Parent Borrower
and its consolidated Subsidiaries under or in respect of any Permitted
Receivables Transaction or under clause (c) of this definition the amount equal
to the aggregate cash proceeds received by the Parent Borrower or any such
Subsidiary from the financing of any Receivable or other asset, as the case may
be, pursuant to any Permitted Receivables Transaction, such Indebtedness or
amount shall be reduced by any escrowed or pledged cash proceeds which
effectively secure such Indebtedness or the obligations of the Parent Borrower
or any such Subsidiary under such Permitted Receivables Transaction.


 


“Consolidated Interest
Expense”:  for any period, an amount equal to (a) interest
expense (accrued and paid or payable in cash for such period, and in any event
excluding any amortization or write off of financing costs) on Indebtedness of
the Parent Borrower and its consolidated Subsidiaries for such period minus (b)
interest income (accrued and received or receivable in cash for such period) of
the Parent Borrower and its consolidated Subsidiaries for such period, in each
case determined on a consolidated basis in accordance with GAAP; provided
that in the event of the consummation of any Permitted Receivables Transaction,
“Consolidated Interest Expense” shall be adjusted to include (without
duplication) an amount equal to the interest (or other fees in the nature of
interest or discount accrued and paid or payable in cash for such period) on
such Permitted Receivables Transaction; provided that for purposes of
calculating the Consolidated Interest Expense Ratio for any period of four
fiscal quarters ending prior to March 31, 2005, Consolidated Interest
Expense for such period of four fiscal quarters shall be deemed to be (i) in
the case of the period ended at the end of the fiscal quarter ended
June 30, 2004, Consolidated Interest Expense for such fiscal quarter
multiplied by 4, (ii) in the case of the period ended at the end of the fiscal
quarter ended September 30, 2004, Consolidated Interest Expense for the
period of two fiscal quarters ended at the end of such fiscal quarter
multiplied by 2 and (iii) in the case of the period ended at the end of the fiscal
quarter ended December 31, 2004, Consolidated Interest Expense for the
period of three fiscal quarters ended at the end of such fiscal quarter
multiplied by 4/3.


 


“Consolidated Interest
Expense Ratio”:  for any period, the ratio of (a) EBITDA for such
period to (b) Consolidated Interest Expense for such period.


 


“Consolidated Leverage
Ratio”:  as of the last day of any period, the ratio of (a)
Consolidated Indebtedness/Securitization on such day to (b) EBITDA for the
period of four full fiscal quarters ending on such date.


 


“Consolidated Long
Term Debt”:  at the date of determination thereof, all long term debt
of the Parent Borrower and its consolidated Subsidiaries as determined on a


 


10

















 


consolidated basis in accordance with GAAP and as
disclosed on the Parent Borrower’s consolidated balance sheet.


 


“Consolidated Net
Income”:  for any period, net income of the Parent Borrower and its
consolidated Subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP.


 


“Consolidated Short
Term Debt”:  at the date of determination thereof, all short term debt
of the Parent Borrower and its consolidated Subsidiaries as determined on a
consolidated basis in accordance with GAAP and as disclosed on the Parent
Borrower’s consolidated balance sheet.


 


“Consolidated Working
Capital”:  at the date of determination thereof, the aggregate amount
of all current assets (excluding cash, Cash Equivalents and deferred taxes
recorded as assets) minus the aggregate amount of all current liabilities
(excluding the Revolving Credit Loans and Swing Line Loans, Consolidated
Current Portion of Long Term Debt, working capital debt of Foreign Subsidiaries
and deferred taxes recorded as liabilities), in each case determined on a
consolidated basis for the Parent Borrower and its consolidated Subsidiaries.


 


“Continuing Directors”: 
the directors of Holding or Investors, as the case may be, on the Closing Date,
after giving effect to the Transactions and the other transactions contemplated
thereby, and each other director if, in each case, such other director’s
nomination for election to the board of directors of Holding or Investors, as
the case may be, is recommended by at least a majority of the then Continuing
Directors or such other director receives the affirmative vote of one or more
Permitted Holders in his or her election by the shareholders of Holding or
Investors.


 


“Contractual
Obligation”:  as to any Person, any provision of any material security
issued by such Person or of any material agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.


 


“DBAG”:  as
defined in the Preamble hereto, in its individual capacity, and any successor
corporation thereto by merger, consolidation or otherwise.


 


“DBSI”: 
Deutsche Bank Securities Inc, in its individual capacity, and any successor
corporation thereto by merger, consolidation or otherwise.


 


“Default”: 
any of the events specified in Section 9, whether or not any requirement
for the giving of notice (other than, in the case of subsection 9(e), a
Default Notice), the lapse of time, or both, or any other condition specified
in Section 9, has been satisfied.


 


“Default Notice”: 
as defined in subsection 9(e).


 


“Defaulting Lender”:
as defined in subsection 4.8(c).


 


“DelawareCo”: 
as defined in the Recitals hereto.


 


11

















 


“Designated Foreign
Currencies”:  (x) in the case of Tranche B Euro Term Loans, Euros, and
(y) in the case of Revolving Credit Loans, the currencies set forth on
Schedule D and any other available and freely convertible foreign currency
selected by the Parent Borrower and approved by the Administrative Agent and
all of the Revolving Credit Lenders in accordance with subsection 11.1(b).


 


“Disinterested
Director”:  as defined in subsection 8.11.


 


“Disposition”: as
defined in the definition of the term “Asset Sale” in this subsection 1.1.


 


“Documentation Agents”: 
as defined in the Preamble hereto.


 


“Dollar Equivalent”: 
with respect to the principal amount of any Eurocurrency Loan made or
outstanding in any Designated Foreign Currency, the principal amount of any
Swing Line Foreign Currency Loan or any amount in respect of any Letter of
Credit denominated in any Designated Foreign Currency, at any date of
determination thereof, an amount in Dollars equivalent to such principal amount
or such other amount calculated on the basis of the Spot Rate of Exchange.


 


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


 


“Domestic Subsidiary”: 
any Subsidiary of the Parent Borrower which is not a Foreign Subsidiary.


 


“EBITDA”: 
for any period, Consolidated Net Income for such period adjusted (I) to exclude
the following items (without duplication) of income or expense to the extent
that such items are included in the calculation of Consolidated Net Income: (a)
Consolidated Interest Expense, (b) any non-cash expenses and charges, (c) total
income tax expense, (d) depreciation expense, (e) the expense associated with
amortization of intangible and other assets (including amortization or other
expense recognition of any costs associated with asset write-ups in accordance
with APB Nos. 16 and 17), (f) non-cash provisions for reserves for discontinued
operations, (g) any extraordinary, unusual or non-recurring gains or losses or
charges or credits, including but not limited to any expenses relating to the
Transactions and any non-recurring or extraordinary items paid or accrued
during such period relating to deferred compensation owed to any Management
Investor that was cancelled, waived or exchanged in connection with the grant
to such Management Investor of the right to receive or acquire shares of common
stock of Investors or Holding, (h) any gain or loss associated with the sale or
write-down of assets not in the ordinary course of business, and (i) any income
or loss accounted for by the equity method of accounting (except in the case of
income to the extent of the amount of cash dividends or cash distributions paid
to the Parent Borrower or any of its Subsidiaries by the entity accounted for
by the equity method of accounting) and (II) by reducing EBITDA (as otherwise
determined above) by the amount of all dividends paid by the Parent Borrower
during the relevant period pursuant to any of clauses (a) and (b) of
subsection 8.7 (in each case, unless and to the extent (x) the amount paid
with such dividends by Investors or Holding would not, if the respective
expense or other item had been incurred directly by the Parent Borrower, have
reduced EBITDA determined in accordance with the foregoing provisions of this
definition or (y) such dividend is paid by the


 


12

















 


Parent Borrower in respect of an expense or other item
that has resulted in, or will result in, a reduction of EBITDA, as calculated
pursuant to clause (I) above).  For the purposes of calculating EBITDA for
any period of four consecutive fiscal quarters (each, a “Reference Period”)
pursuant to any determination of the Consolidated Leverage Ratio, (i) if at any
time during such Reference Period (and after the Closing Date) the Parent
Borrower or any of its Subsidiaries shall have made any Material Disposition,
the EBITDA for such Reference Period shall be reduced by an amount equal to the
EBITDA (if positive) attributable to the property that is the subject of such
Material Disposition for such Reference Period or increased by an amount equal
to the EBITDA (if negative) attributable thereto for such Reference Period and
(ii) if during such Reference Period (and after the Closing Date) the Parent
Borrower or any of its Subsidiaries shall have made a Material Acquisition,
EBITDA for such Reference Period shall be calculated after giving pro forma
effect thereto in accordance with Regulation S-X as if such Material
Acquisition occurred on the first day of such Reference Period.  As used
in this definition, “Material Acquisition” means any acquisition of
property or series of related acquisitions of property that (x) constitutes
assets comprising all or substantially all of an operating unit of a business
or constitutes all or substantially all of the common stock of a Person and (y)
involves the payment of consideration by the Parent Borrower or any of its
Subsidiaries in excess of $5,000,000; and “Material Disposition” means
any Disposition of property or series of related Dispositions of property that
(x) constitutes assets comprising all or substantially all of an operating unit
of a business or constitutes all or substantially all of the common stock of a
Person and (y) yields gross proceeds to the Parent Borrower or any of its
Subsidiaries in excess of $5,000,000; provided that for any applicable
periods prior to the Closing Date EBITDA shall be determined in respect to VWR
and its predecessors.


 


“ECF Percentage”: 
50%, provided that with respect to any fiscal year of the Parent
Borrower ending on or after December 31, 2005, the ECF Percentage shall be
reduced to 0% if the Consolidated Leverage Ratio as of the last day of such
fiscal year is less than 4.0 to 1.0, so long as no Default or Event of Default
has occurred and is continuing as of such date and the Parent Borrower shall be
in compliance with the financial covenants contained subsection 8.1 for
the fiscal year then ended.


 


“EMU”: 
Economic and Monetary Union as contemplated in the Treaty.


 


“Environmental Costs”: 
any and all costs or expenses (including, without limitation, attorney’s and
consultant’s fees, investigation and laboratory fees, response costs, court
costs and litigation expenses, fines, penalties, damages, settlement payments,
judgments and awards), of whatever kind or nature, known or unknown, contingent
or otherwise, arising out of, or in any way relating to, any violation of,
noncompliance with or liability under any Environmental Laws or any orders,
requirements, demands, or investigations of any person related to any
Environmental Laws.  Environmental Costs include any and all of the
foregoing, without regard to whether they arise out of or are related to any
past, pending or threatened proceeding of any kind.


 


“Environmental Laws”: 
any and all foreign, Federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, and such requirements of any
Governmental Authority properly promulgated and having the force and effect of
law or other Requirements of Law (including common law) regulating, relating to
or imposing liability


 


13

















 


or standards of conduct concerning protection of human
health or the environment, as have been, or now or at any relevant time
hereafter are, in effect.


 


“Environmental Permits”: 
any and all permits, licenses, registrations, notifications, exemptions and any
other authorization required under any Environmental Law.


 


“Equity Financing”: 
as defined in the Recitals hereto.


 


“Equity Financing
Documents”: Acquisition Agreement, Stock Subscription Agreement, dated as
of April 7, 2004, between CDRV Investors, Inc. and Clayton, Dubilier &
Rice Fund VI Limited Partnership, Stock Subscription Agreement, dated as of
April 7, 2004, between CDRV Investors, Inc., a Delaware corporation and
SSB Capital Partners (Master Fund) I, L.P., a Delaware limited partnership,
Stock Subscription Agreement, dated as of dated as of April 7, 2004,
between CDRV Investors, Inc., a Delaware corporation and CGI Private Equity
L.P., LLC, a Delaware limited liability company, and the Stock Subscription
Agreement, dated as of April 7, 2004, between CDRV Investors, Inc., a
Delaware corporation, and Banc of America Capital Investors, L.P. a Delaware
limited partnership, in each case as the same may be amended, modified and/or
supplemented from time to time in accordance with the terms thereof.


 


“Equity Investors”: 
(a) CD&R Fund VI, (b) any of SSB Capital Partners (Master Fund) I, L.P.,
CGI Private Equity L.P., LLC, Banc of America Capital Investors, L.P., the
partners of or other investors in CD&R Fund VI, and the respective Affiliates
of SSB Capital Partners (Master Fund) I, L.P., CGI Private Equity L.P., LLC,
Banc of America Capital Investors L.P. or any such partner or investor, that is
or becomes a holder of Voting Stock of Investors prior to the first anniversary
of the Closing Date, (c) any other Person that is (x) a Person that directly or
indirectly acquires Voting Stock of Investors from CD&R Fund VI (including
but not limited to by way of issuance of Voting Stock by Investors in
connection with its repurchase, redemption or other retirement of Voting Stock
thereof owned by CD&R Fund VI) prior to the first anniversary of the
Closing Date, and any Affiliate of any such Person, in an aggregate amount not
exceeding (as to all such Persons)) ten percent (10%) of the Voting Stock of
Investors owned by CD&R Fund VI on the Closing Date or (y) an Affiliate of
any such Person (it being understood and agreed that, if any such Persons and
any such Affiliates of such Persons acquires Voting Stock representing Voting
Stock in excess of twenty percent (20%) of the Voting Stock of Investors owned
by CD&R Fund VI on the Closing Date, such Persons (and such Affiliates)
shall not be considered an Equity Investor or a Permitted Holder with respect
to such excess Voting Stock), and (d) any of their respective successors in
interest.


 


“ERISA”:  the
Employee Retirement Income Security Act of 1974, as amended from time to time.


 


“Eurocurrency Base
Rate”:  with respect to each day during each Interest Period
pertaining to a Eurocurrency Loan, the rate per annum determined by the
Administrative Agent to be the arithmetic mean (rounded to the nearest 1/100th
of 1%) of the offered rates for deposits in Dollars or (in the case of Loans
made in a Designated Foreign Currency) in the applicable Designated Foreign
Currency with a term comparable to such Interest Period that appears on the
Telerate British Bankers Assoc. Interest Settlement Rates Page (as defined
below) at approximately 11:00 A.M., London time, on the second full Business
Day preceding the first day


 


14

















 


of such Interest Period; provided, however,
that if there shall at any time no longer exist a Telerate British Bankers
Assoc. Interest Settlement Rates Page, “Eurocurrency Base Rate” shall mean,
with respect to each day during each Interest Period pertaining to a
Eurocurrency Loan, the rate per annum equal to the rate at which the DBAG is
offered deposits in Dollars or in the applicable Designated Foreign Currency at
or about 10:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurocurrency market where
the eurocurrency and foreign currency and exchange operations in respect of
Dollars or such Designated Foreign Currency, as the case may be, are then being
conducted for delivery on the first day of such Interest Period for the number
of days comprised therein and in an amount comparable to the amount of its
Eurocurrency Loan to be outstanding during such Interest Period.  “Telerate
British Bankers Assoc. Interest Settlement Rates Page” shall mean the
display designated as Page 3750 (or such other page on which any Designated
Foreign Currency then appears) on the Telerate System (or such other page as
may replace such page on such service for the purpose of displaying the rates
at which Dollar deposits or deposits in any Designated Foreign Currency are
offered by leading banks in the London interbank deposit market).


 


“Eurocurrency Loans”: 
Loans the rate of interest applicable to which is based upon the Eurocurrency
Rate.


 


“Eurocurrency Rate”: 
with respect to each day during each Interest Period pertaining to a
Eurocurrency Loan, a rate per annum determined for such day in accordance with
the following formula (rounded upward to the nearest 1/100th of 1%):


 




	
  Eurocurrency
  Base Rate

  
	
  1.00 -
  Eurocurrency Reserve Requirements

  






 


“Eurocurrency Reserve
Requirements”:  for any day as applied to a Eurocurrency Loan, the
aggregate (without duplication) of the rates (expressed as a decimal fraction)
of reserve requirements in effect on such day (including, without limitation,
basic, supplemental, marginal and emergency reserves under any regulations of
the Board or other Governmental Authority having jurisdiction with respect
thereto) dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as “Eurocurrency Liabilities” in Regulation D of the
Board) maintained by a member bank of the Federal Reserve System.


 


“European
Co-Arrangers”: shall mean Deutsche Bank AG, New York Branch, Citicorp North
America, Inc., Bank of America, N.A., BNP Paribas, Barclays Bank PLC, PNC Bank,
National Association, Natexis Banques Populaires, New York Branch, National
City Bank, General Electric Capital Corporation, each in their respective
capacities as European Co-Arrangers.


 


“Euros”:  and
the designation “€” shall mean the currency introduced on
January 1, 1999 at the start of the third stage of European economic and
monetary union pursuant to the Treaty (expressed in euros).


 


15

















 


“Event of Default”: 
any of the events specified in Section 9, provided that any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.


 


“Excess Cash Flow”: 
for any period, EBITDA minus (a) any Capital Expenditures made in cash during
such period (excluding the principal amount of Indebtedness incurred in
connection with such expenditures and any such expenditures financed with the
proceeds of any Reinvested Amount), minus (b) any principal payments (other
than principal payments during such period pursuant to subsection 4.4(b),
(c) or (e) unless and to the extent that the event giving rise to such
mandatory prepayment causes an increase in EBITDA) of the Term Loans made
during such period, minus (c) any principal payments resulting in a permanent
reduction of any other Indebtedness of the Parent Borrower or any of its
consolidated Subsidiaries made during such period, minus (d) Consolidated
Interest Expense for such period, minus (e) any taxes paid or payable in cash
during such period, minus (f) the Net Cash Proceeds from any Asset Sale to the
extent that such Net Cash Proceeds (i) (without duplication of clause (a) or
(g) of this definition) consist of any Reinvested Amount or are otherwise
applied in accordance with subsection 4.4(b) and (ii) are included in the
calculation of EBITDA, minus (g) (without duplication of clause (a) of this
definition) any Investment made in accordance with subsection 8.9(e), (g),
(k) or (l), minus (h) (without duplication of clause (b) or (c) of this
definition) the proceeds of any Sale and Leaseback Transactions entered into by
the Parent Borrower or any of its Subsidiaries in accordance with
subsection 8.12 during such period in the ordinary course of its business
to the extent included in EBITDA, minus (i) any earnings included in EBITDA for
such period (except to the extent that any such earnings are used for any
purposes described in clauses (a) through (h) above) of a Receivables
Subsidiary to the extent the terms of any Permitted Receivables Transaction
prohibit the distribution thereof to the Parent Borrower or any of its other
Subsidiaries, minus (j) to the extent not otherwise subtracted from EBITDA in
this definition of “Excess Cash Flow”, any cash dividends, and other loans and
advances, made during such period by the Parent Borrower or any of its
Subsidiaries to Holding, so long as such dividends, loans and advances are
expressly permitted by subsection 8.7, minus (k) to the extent not
included in EBITDA, the amount of any cash contributions required by law to be
made by the Parent Borrower or any of its Subsidiaries to any Plan, plus (l)
the Change in Consolidated Working Capital for such period.


 


“Exchange Act”: 
the Securities Exchange Act of 1934, as amended from time to time.


 


“Excluded Properties”: 
the collective reference to the fee or leasehold interest in real properties
owned by the Parent Borrower or any of its Subsidiaries described in Part III
of Schedule 5.8.


 


“Existing Letters of
Credit”:  on any date, the letters of credit listed or described on
Schedule C that are outstanding on such date.


 


“Existing Note
Indentures”:  the collective reference to the following: (a) the
2004 Senior Note Indenture and (b) 2004 Senior Subordinated Note Indenture.


 


16

















 


“Existing Notes”: 
the collective reference to the following: (a) the 2004 Senior Notes and (b)
2004 Senior Subordinated Notes.


 


“Extension of Credit”: 
as to any Lender, the making of, or, in the case of subsection 2.4(d)(ii),
participation in, a Loan by such Lender or the issuance of, or participation
in, a Letter of Credit by such Lender.


 


“Facility”: 
each of (a) the Tranche B Dollar Term Loan Commitments and the Tranche B Dollar
Term Loans made thereunder, (b) the Tranche B Euro Term Loan Commitments and
the Tranche B Euro Term Loans made thereunder and (c) the Revolving Credit
Commitments and the Extensions of Credit made thereunder.


 


“Federal Funds
Effective Rate”:  as defined in the definition of the term “ABR” in
this subsection 1.1.


 


“Final Maturity Date”: 
April 7, 2011.


 


“Financing Lease”: 
any lease of property, real or personal, the obligations of the lessee in
respect of which are required in accordance with GAAP to be capitalized on a
balance sheet of the lessee.


 


“FIRREA”: 
the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as
amended from time to time.


 


“First Merger”: 
as defined in the Recitals hereto.


 


“Foreign Backstop
Letters of Credit”:  any Standby Letter of Credit issued to any Person
for the account of the Parent Borrower to provide credit support for
Indebtedness of any Foreign Subsidiary to such Person which is permitted under
subsection 8.2.


 


“Foreign Subsidiary”: 
any Subsidiary of the Parent Borrower which is organized and existing under the
laws of any jurisdiction outside of the United States of America or that is a
Foreign Subsidiary Holdco.


 


“Foreign Subsidiary
Borrower”:  any Foreign Subsidiary which is listed as a Foreign
Subsidiary Borrower on Schedule E, as such schedule may be amended
from time to time pursuant to subsection 11.1(b) (including, without
limitation, the delivery of the documents required by subsection 11.1(b));
provided that, with respect to each such listed Foreign Subsidiary, its
status as a Foreign Subsidiary Borrower hereunder shall not be effective until
(a) such Foreign Subsidiary and its Subsidiaries shall have become a Granting
Party, Grantor, Guarantor and Pledgor, to the extent applicable, under and as
defined in the Guarantee and Collateral Agreement or shall otherwise have
entered into collateral and security documents reasonably satisfactory to the
Administrative Agent and providing, to the extent reasonably practicable under
relevant law, substantially the equivalent of the lien and security interests
contemplated to be provided by Granting Parties, Grantors and Pledgors under
the Guarantee and Collateral Agreement, and (b) such Foreign Subsidiary shall
have delivered its initial notice of borrowing pursuant to subsection 2.2.


 


17

















 


“Foreign Subsidiary
Holdco”:  any Subsidiary of the Parent Borrower, so long as such
Subsidiary has no material assets other than securities of one or more Foreign
Subsidiaries and Indebtedness issued by such Foreign Subsidiaries, and other
assets relating to an ownership interest in any such securities, Indebtedness
or Subsidiaries.  As of the Closing Date, each of Large FSHCo and Small
FSHCo are Foreign Subsidiary Holdcos.


 


“GAAP”:  with
respect to subsection 4.4(c) and the covenants contained in subsections
8.1, 8.2 and 8.8 and all defined terms relating thereto, generally accepted
accounting principles in the United States of America in effect on the Closing
Date, and, for all other purposes under this Agreement, generally accepted
accounting principles in the United States of America in effect from time to
time.


 


“Governmental
Authority”:  any nation or government, any state or other political
subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government,
including, without limitation, the European Union.


 


“Guarantee and
Collateral Agreement”:  the Guarantee and Collateral Agreement
delivered to the Administrative Agent as of the date hereof, substantially in
the form of Exhibit B, as the same may be amended, supplemented, waived or
otherwise modified from time to time.


 


“Guarantee Obligation”: 
as to any Person (the “guaranteeing person”), any obligation of (a) the
guaranteeing person or (b) another Person (including, without limitation, any
bank under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the “primary
obligations”) of any other third Person (the “primary obligor”) in
any manner, whether directly or indirectly, including, without limitation, any
such obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation or (B) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business.  The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation shall be
such guaranteeing person’s maximum reasonably anticipated liability in respect
thereof as determined by the Parent Borrower in good faith.


 


18

















 


“Guarantors”: 
the collective reference to Holding and each Subsidiary of the Parent Borrower
(other than any Foreign Subsidiary, any Subsidiary of a Foreign Subsidiary, and
any Receivables Subsidiary), which is from time to time party to the Guarantee
and Collateral Agreement; individually, a “Guarantor”.


 


“Holding”: 
as defined in the Recitals hereto.


 


“Immobilien”: 
as defined in the Recitals hereto.


 


“Immobilien
Acquisition”:  as defined in the Recitals hereto.


 


“Indebtedness”: 
of any Person at any date, (a) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property or services (other than
trade liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) any other indebtedness of such Person
which is evidenced by a note, bond, debenture or similar instrument, (c) all
obligations of such Person under Financing Leases, (d) all obligations of such
Person in respect of acceptances issued or created for the account of such
Person, (e) for purposes of subsection 8.2 and subsection 9(e) only,
all obligations of such Person in respect of interest rate protection
agreements, interest rate futures, interest rate options, interest rate caps
and any other interest rate hedge arrangements, and (f) all indebtedness or
obligations of the types referred to in the preceding clauses (a) through (e)
to the extent secured by any Lien on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof.


 


“Insolvency”: 
with respect to any Multiemployer Plan, the condition that such Plan is
insolvent within the meaning of Section 4245 of ERISA.


 


“Insolvent”: 
pertaining to a condition of Insolvency.


 


“Insured Fee
Properties”:  the collective reference to the real properties owned in
fee by the Loan Parties described on Part I(a) of Schedule 5.8, including
without limitation, all buildings, improvements, structures and fixtures now or
subsequently located thereon and owned by any such Loan Party.


 


“Intellectual Property”: 
as defined in subsection 5.9.


 


“Intercompany
Transaction Documents”:  the promissory notes evidencing the
intercompany loans identified on Schedule 6.1(d), in each case as the same
may be amended, modified or supplemented from time to time in accordance with
the terms hereof and thereof.


 


“Intercompany Transactions”: 
has the meaning provided in subsection 6.1(d).


 


“Interest Payment Date”: 
(a) as to any ABR Loan, the last day of each March, June, September and
December to occur while such Loan is outstanding, and the final maturity
date of such Loan, (b) as to any Eurocurrency Loan having an Interest Period of
three months or less, the last day of such Interest Period, (c) as to any
Eurocurrency Loan having an Interest Period longer than three months, (i) each
day which is three months, or a whole multiple thereof, after the first day of
such Interest Period and (ii) the last day of such Interest Period, and (d) as
to


 


19

















 


any Swing Line Foreign Currency Loan, the last day of
such Interest Period or any day agreed to by the Parent Borrower and the Swing
Line Lender.


 


“Interest Period”: 
(a) as to any Swing Line Foreign Currency Loan, the period commencing on the
date of such borrowing and ending on the day that is designated in the notice
delivered pursuant to subsection 2.4(a) with respect to such borrowing,
which shall not be later than the seventh day thereafter, and (b) with respect
to any Eurocurrency Loan:


 


(x)            initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect to such
Eurocurrency Loan and ending one, two, three or six months (or if required
pursuant to subsections 2.2 or 2.7, one week) thereafter, as selected by the
Parent Borrower in its notice of borrowing or notice of conversion, as the case
may be, given with respect thereto; and


 


(y)           thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to such Eurocurrency
Loan and ending one, two, three or six months (or if required pursuant to subsections
2.2 or 2.7, one week) thereafter, as selected by the Parent Borrower by
irrevocable notice to the Administrative Agent not less than three Business
Days prior to the last day of the then current Interest Period with respect
thereto;


 


provided that all of the foregoing provisions relating to
Interest Periods are subject to the following:


 


(i)            if any Interest Period would otherwise
end on a day that is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month in which event
such Interest Period shall end on the immediately preceding Business Day;


 


(ii)           (A) in the case of the Revolving Credit Loans
and the Swing Line Foreign Currency Loans, any Interest Period that would
otherwise extend beyond the Termination Date shall (for all purposes other than
subsection 4.12) end on the Termination Date and (B) in the case of the
Term Loans, any Interest Period that would otherwise extend beyond the Final
Maturity Date shall (for all purposes other than subsection 4.12) end on
the Final Maturity Date;


 


(iii)          any Interest Period (other than an
Interest Period in respect of a Swing Line Foreign Currency Loan) that begins
on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and


 


(iv)          the Parent Borrower shall select Interest
Periods so as not to require a scheduled payment of any Eurocurrency Loan
during an Interest Period for such Loan.


 


“Interest Rate
Protection Agreement”:  any interest rate protection agreement, interest
rate future, interest rate option, interest rate cap or collar or other
interest rate hedge


 


20

















 


arrangement in form and substance, and for a term,
reasonably satisfactory to the Administrative Agent and with (a) any Lender or
(b) any financial institution reasonably acceptable to the Administrative
Agent, to or under which the Parent Borrower or any of its Subsidiaries is or
becomes a party or a beneficiary.


 


“Inventory”: 
as defined in the Uniform Commercial Code as in effect in the State of
New York from time to time; and, with respect to the Parent Borrower and
its Domestic Subsidiaries, all such Inventory of the Parent Borrower and such
Domestic Subsidiaries (other than any Receivables Subsidiary), including,
without limitation: (a) all goods, wares and merchandise held for sale or
lease; and (b) all goods returned or repossessed by the Parent Borrower or such
Domestic Subsidiaries.


 


“Investment Company
Act”:  the Investment Company Act of 1940, as amended from time to
time.


 


“Investments”: 
as defined in subsection 8.9.


 


“Investors”: 
CDRV Investors, Inc., a Delaware corporation.


 


“Investors Expenses”: 
expenses, taxes and other amounts incurred or payable by Investors in respect
of which the Parent Borrower is permitted to make Restricted Payments pursuant
to subsection 8.7.


 


“Issuing Lender”: 
as the context may require, (a) the Administrative Agent or any affiliate
thereof, in its capacity as issuer of any Letter of Credit, (b) with respect to
any Existing Letter of Credit, the issuer thereof named on Schedule C or
(c) any other Lender that may become an Issuing Lender under Section 3.9.


 


“Interim Funding Side
Letter”: the Interim Funding Letter Agreement, dated as of April 7,
2004, among DBSI, Citigroup Global Markets Inc., Banc of America Securities
LLC, BNP Paribas Securities Corp. and Barclays Capital Inc. and CDRV
Acquisition Corporation.


 


“Joinder Agreement”: 
as defined in subsection 11.1(b)(i).


 


“KMF Acquisition”: 
the acquisition of the option (the “KMF Option”) to acquire the Capital
Stock of W. Knipp Vermögensverwaltungs GmbH, the indirect owner of
approximately 76% of Capital Stock of KMF-Laborchemie-Handels GmbH (“Knipp
GmbH”), any exercise of the KMF Option and, if so exercised, the
acquisition of the Capital Stock of Knipp GmbH and its Subsidiaries pursuant to
the KMF Option and any transactions related thereto.


 


“Large FSHCo”: 
as defined in the Recitals hereto.


 


“Large FSHCo
Immobilien Acquisition”:  as defined in the Recitals hereto.


 


“L/C Fee Payment Date”: 
with respect to any Letter of Credit, the last day of each January, April,
July and October to occur after the date of issuance thereof to and
including the first such day to occur on or after the date of expiry thereof.


 


21

















 


“L/C Obligations”: 
at any time, an amount equal to the sum of (a) the aggregate then undrawn and
unexpired amount of the then outstanding Letters of Credit (including, without
limitation, in the case of outstanding Letters of Credit in any Designated
Foreign Currency, the Dollar Equivalent of the aggregate then undrawn and
unexpired amount thereof) and (b) the aggregate amount of drawings under
Letters of Credit which have not then been reimbursed pursuant to
subsection 3.5(a) (including, without limitation, in the case of Letters
of Credit in any Designated Foreign Currency, the Dollar Equivalent of the
unreimbursed aggregate amount of drawings thereunder, to the extent that such
amount has not been converted into Dollars in accordance with
subsection 3.5(a)).


 


“L/C Participants”: 
the collective reference to all the Revolving Credit Lenders other than the
Issuing Lender.


 


“Lead Arrangers”:
shall mean and include Deutsche Bank Securities Inc., Citigroup Global Markets
Inc. and Banc of America Securities LLC, as Joint Lead Arrangers and Joint
Bookrunners.


 


“Lenders”: 
the several banks and other financial institutions from time to time parties to
this Agreement together with, in each case, any affiliate of any such bank or
financial institution through which such bank or financial institution elects,
by notice to the Administrative Agent and the Parent Borrower, to make any
Revolving Credit Loans or Swing Line Loans available to any Foreign Subsidiary
Borrower; provided that for all purposes of voting or consenting with
respect to (a) any amendment, supplementation or modification of any Loan
Document, (b) any waiver of any of the requirements of any Loan Document or any
Default or Event of Default and its consequences or (c) any other matter as to
which a Lender may vote or consent pursuant to subsection 11.1 hereof, the
bank or financial institution making such election shall be deemed the “Lender”
rather than such affiliate, which shall not be entitled to so vote or consent.


 


“Lending Office”: 
as defined in subsection 4.10(c).


 


“Letters
of Credit”:  as defined in subsection 3.1(a).


 


“Letter of Credit
Request”:  a letter of credit request in the form of Exhibit K
attached hereto or, in such form as the Issuing Lender may specify from time to
time, requesting the Issuing Lender to open a Letter of Credit.


 


“Lien”:  any
mortgage, pledge, hypothecation, assignment, security deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or
any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation ,
any conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the foregoing).


 


“Loan”:  a
Revolving Credit Loan, a Tranche B Dollar Term Loan, a Tranche B Euro Term Loan
or a Swing Line Loan, as the context shall require; collectively, the “Loans”.


 


“Loan Documents”: 
this Agreement, the Assumption Agreement, any Notes, the Letter of Credit
Requests, the Guarantee and Collateral Agreement, any other Security


 


22

















 


Documents and any Joinder Agreement, each as amended,
supplemented, waived or otherwise modified from time to time.


 


“Loan Parties”: 
Holding, the Parent Borrower, each Foreign Subsidiary Borrower and each other
Subsidiary of the Parent Borrower that is a party to a Loan Document;
individually, a “Loan Party”.


 


“Management Investors”: 
the collective reference to the officers, directors, employees and other
members of the management of Holding, the Parent Borrower or any of their
Subsidiaries, or family members or relatives thereof or trusts for the benefit
of any of the foregoing, who at any particular date shall beneficially own or
have the right to acquire, directly or indirectly, common stock of Holding or
Investors.


 


“Management
Subscription Agreements”:  one or more stock subscription, stock
option, grant or other agreements which have been or may be entered into
between Holding or Investors and one or more Management Investors (or any of
their heirs, successors, assigns, legal representatives or estates), with
respect to the issuance to and/or acquisition, ownership and/or disposition by
any of such parties of common stock of Holding or Investors or options,
warrants, units or other rights in respect of common stock of Holding or
Investors, any agreements entered into from time to time by transferees of any
such stock, options, warrants or other rights in connection with the sale,
transfer or reissuance thereof, and any assumptions of any of the foregoing by
third parties, as amended, supplemented, waived or otherwise modified from time
to time.


 


“Mandatory Cost”: 
the percentage rate per annum calculated by the Administrative Agent in
accordance with Schedule 4.10(c).


 


“Mandatory Revolving
Credit Loan Borrowing”:  as defined in subsection 2.4(c).


 


“Material Adverse
Effect”:  a material adverse effect on (a) the business, operations,
property or condition (financial or otherwise) of Holding and its Subsidiaries,
taken as a whole or (b) the validity or enforceability as to any Loan Party
thereto of this Agreement or any of the other Loan Documents or the rights or
remedies of the Administrative Agent and the Lenders under the Loan Documents
taken as a whole.


 


“Material Subsidiaries”: 
Subsidiaries of the Parent Borrower constituting, individually or in the
aggregate (as if such Subsidiaries constituted a single Subsidiary), a
“significant subsidiary” in accordance with Rule 1-02 under Regulation S-X.


 


“Materials of
Environmental Concern”:  any gasoline or petroleum (including, without
limitation, crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances or materials or wastes defined or regulated as
such in or under or which may give rise to liability under any applicable
Environmental Law, including, without limitation, asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.


 


“Mergers”: 
as defined in the Recitals hereto.


 


23

















 


“Moody’s”: 
as defined in the definition of “Cash Equivalents” in this subsection 1.1.


 


“Mortgaged Fee
Properties”:  the collective reference to the real properties owned in
fee by the Loan Parties described on Part I(b) of Schedule 5.8, including,
without limitation, all buildings, improvements, structures and fixtures now or
subsequently located thereon and owned by any such Loan Party.


 


“Mortgaged Leased
Properties”:  the collective reference to the real properties leased
by the Loan Parties described on Part II of Schedule 5.8, including,
without limitation, all buildings, improvements, structures and fixtures now or
subsequently located thereon and owned or leased by any such Loan Party.


 


“Mortgaged Properties”: 
the collective reference to each of the Insured Fee Properties, the Mortgaged
Fee Properties and the Mortgaged Leased Properties.


 


“Mortgages”: 
each of the mortgages and deeds of trust, if any, executed and delivered by any
Loan Party to the Administrative Agent, substantially in the form of Exhibit C,
as the same may be amended, supplemented, waived or otherwise modified from
time to time.


 


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


 


“Name Change”: 
as defined in the Recitals hereto.


 


“Net Cash Proceeds”: 
with respect to any Asset Sale (including, without limitation, any Sale and
Leaseback Transaction), any Recovery Event, the issuance of any debt securities
or any borrowings by the Parent Borrower or any of its Subsidiaries (other than
issuances and borrowings permitted pursuant to subsection 8.2, except as
otherwise specified), or any Permitted Receivables Transaction, an amount equal
to the gross proceeds in cash and Cash Equivalents of such Asset Sale, Recovery
Event, sale, issuance, borrowing or Permitted Receivables Transaction, net of
(a) reasonable attorneys’ fees, accountants’ fees, brokerage, consultant and other
customary fees, underwriting commissions and other reasonable fees and expenses
actually incurred in connection with such Asset Sale, Recovery Event, sale,
issuance, borrowing or Permitted Receivables Transaction, (b) taxes paid or
reasonably estimated to be payable as a result thereof, (c) appropriate amounts
provided or to be provided by the Parent Borrower or any of its Subsidiaries as
a reserve, in accordance with GAAP, with respect to any liabilities associated
with such Asset Sale or Recovery Event and retained by the Parent Borrower or
any such Subsidiary after such Asset Sale or Recovery Event and other
appropriate amounts to be used by the Parent Borrower or any of its
Subsidiaries to discharge or pay on a current basis any other liabilities associated
with such Asset Sale or Recovery Event, (d) in the case of a sale, Recovery
Event or Sale and Leaseback Transaction of or involving an asset subject to a
Lien securing any Indebtedness, payments made and installment payments required
to be made to repay such Indebtedness, including, without limitation, payments
in respect of principal, interest and prepayment premiums and penalties and (e)
in the case of any Permitted Receivables Transaction, any escrowed or pledged
cash proceeds which effectively secure, or are required to be maintained as
reserves by the applicable Receivables Subsidiary for, the


 


24

















 


Indebtedness of the Parent Borrower and its
Subsidiaries in respect of, or the obligations of the Parent Borrower and its
Subsidiaries under, such Permitted Receivables Transaction.


 


“New York Process
Agent”:  as defined in subsection 11.13(b).


 


“No More Favorable
Terms and Conditions”:  with respect to any Indebtedness with
reference to other specified Indebtedness, (a) such Indebtedness has a maturity
date no earlier than the reference Indebtedness, (b) such Indebtedness has an
Average Life at the time such Indebtedness is incurred that is equal to or
greater than the reference Indebtedness as of such date, (c) such Indebtedness
is subordinated to the Loans to the same or greater extent as the reference
Indebtedness and (d) such Indebtedness contains covenants, events of default,
remedies, acceleration rights, amortization schedules and other material terms
that (i) are no more favorable to the holders of such Indebtedness than the
similar terms of the reference Indebtedness and (ii) are no less favorable to
the Lenders under the Loan Documents as of the date that such Indebtedness is
incurred.


 


“Non-Excluded Taxes”: 
as defined in subsection 4.11.


 


“Notes”:  the
collective reference to the Revolving Credit Notes, the Term Notes and the
Swing Line Note.


 


“Obligor”: 
any purchaser of goods or services or other Person obligated to make payment to
the Parent Borrower or any of its Subsidiaries (other than any Receivables
Subsidiaries and the Foreign Subsidiaries) in respect of a purchase of such
goods or services.


 


“Other Representatives”: 
each of DBSI, in its capacity as joint bookrunner and joint lead arranger of
the Commitments hereunder, CGMI, in its capacity as joint bookrunner and joint
lead arranger of the Commitments hereunder, BAS, in its capacity as joint
bookrunner and joint lead arranger of the Commitments hereunder, CNAI, in its
capacity as Syndication Agent and as a European Co-Arranger, BOA, in its
capacity as a Documentation Agent and as a European Co-Arranger, BNPP, in its
capacity as a Documentation Agent and as a European Co-Arranger, Barclays, in
its capacity as a Documentation Agent and as a European Co-Arranger, DBAG, in
its capacity as a European Co-Arranger, PNC Bank, in its capacity as a European
Co-Arranger, National Association, Natexis Banques Populaires, New York Branch,
in its capacity as a European Co-Arranger, National City Bank, in its capacity
as a European Co-Arranger, General Electric Capital Corporation, in its
capacity as a European Co-Arranger, and the Issuing Lender, each in its
capacity as such.


 


“Parent Borrower”: 
as defined in the Preamble hereto.


 


“Participants”: 
as defined in subsection 11.6(c).


 


“Participating Member
State”:  each state so described in any EMU legislation.


 


“PBGC”:  the
Pension Benefit Guaranty Corporation established pursuant to Subtitle A of
Title IV of ERISA (or any successor thereto).


 


25

















 


“Permitted Acquisition
Amount”:  with respect to any incurrence of Indebtedness permitted by
subsection 8.2(b), that portion of the Net Cash Proceeds thereof as shall,
according to a certificate of a Responsible Officer of the Parent Borrower
delivered to the Administrative Agent no later than the date of incurrence of
such Indebtedness, be applied to pay the cash consideration for an acquisition
expressly permitted by subsection 8.10(b) within 90 days of the receipt of
such Net Cash Proceeds, provided that any Net Cash Proceeds not so
applied by the date that is 90 days after the receipt of such Net Cash Proceeds
shall be utilized on such date to prepay the Loans pursuant to
subsection 4.4(b).


 


“Permitted Hedging
Arrangement”:  as defined in subsection 8.18.


 


“Permitted Holders”: 
(a) any of the Equity Investors, Management Investors, CD&R and their
respective Affiliates; (b) any investment fund or vehicle managed, sponsored or
advised by CD&R or any Equity Investor or Affiliate thereof, and any
Affiliate of or successor to any such investment fund or vehicle; and (c) any
Person acting in the capacity of an underwriter in connection with a public or
private offering of Capital Stock of Investors, Holding or the Parent Borrower.


 


“Permitted Liens”: 
as defined in subsection 8.3.


 


“Permitted Receivables
Transaction”:  any transaction or series of related transactions
providing for the financing of any Receivables; provided that any such
transaction shall be consummated (a) on terms that include terms substantially
as described on Schedule B or as the Required Lenders may otherwise
consent, such consent not to be unreasonably withheld, and (b) pursuant to
documentation in form and substance reasonably satisfactory to the
Administrative Agent, as evidenced by its written approval thereof (such
approval not to be unreasonably withheld).


 


“Permitted Receivables
Transaction Prepayment Amount”:  with respect to the initial transfer
of Receivables pursuant to any Permitted Receivables Transaction, an amount
equal to 100% of the Net Cash Proceeds thereof.


 


“Person”:  an
individual, partnership, corporation, limited liability company, business
trust, joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.


 


“Plan”:  at a
particular time, any employee benefit plan which is covered by ERISA and in
respect of which the Parent Borrower or a Commonly Controlled Entity is an
“employer” as defined in Section 3(5) of ERISA.


 


“Potentially
Restricted Revolving Credit Lender”: (x) each Revolving Credit Lender party
to this Agreement on the Closing Date, which notified the Administrative Agent
prior thereto that it is unwilling to make Extensions of Credit pursuant to its
Revolving Credit Commitment to Foreign Subsidiary Borrowers in certain
jurisdictions and (y) any other Revolving Credit Lender that becomes a party to
this Agreement after the Closing Date which the Administrative Agent in its
sole discretion agrees at any time to treat as a Potentially Restricted
Revolving Credit Lender, with the consent of the Parent Borrower.


 


26

















 


“Pricing Grid”: 
(a) with respect to Revolving Credit Loans and Swing Line Loans:


 




	
  Consolidated
  Leverage Ratio

  	
   

  	
  Applicable
  Margin for

  ABR Loans

  	
   

  	
  Applicable
  Margin for

  Eurocurrency Loans

  	
   

  
	
  Greater than 5.00:1.00

  	
   

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  
	
  Greater than 4.50:1.00, but less than or equal to
  5.00:1.00

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  
	
  Greater than 4.00:1.00, but less than or equal to
  4.50:1.00

  	
   

  	
  1.00

  	
  %

  	
  2.00

  	
  %

  
	
  Less than or equal to 4.00:1.00

  	
   

  	
  0.75

  	
  %

  	
  1.75

  	
  %

  






 


(b)           with respect to Tranche B Dollar Term
Loans:


 




	
  Consolidated
  Leverage Ratio

  	
   

  	
  Applicable
  Margin for

  ABR Loans

  	
   

  	
  Applicable
  Margin for

  Eurocurrency Loans

  	
   

  
	
  Greater than 5.00:1.00

  	
   

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  
	
  Less than or equal to 5.00:1.00

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  






 


Each determination of the Consolidated Leverage Ratio
pursuant to the Pricing Grids shall be made in a manner consistent with the
determination thereof pursuant to subsection 8.1.


 


“Prime Rate”: 
as defined in the definition of the term “ABR” in this subsection 1.1.


 


“Pro Forma Date”: 
as defined in subsection 5.1(b).


 


“Pro Forma Financial
Statements”:  as defined in subsection 5.1(b).


 


“Receivables”: 
all Accounts and accounts receivable of the Parent Borrower or any of its
Domestic Subsidiaries (other than any Receivables Subsidiaries), including,
without limitation, any thereof constituting or evidenced by chattel paper,
instruments or general intangibles, and all proceeds thereof and rights
(contractual and other) and collateral related thereto.


 


“Receivables
Subsidiary”:  any special purpose, bankruptcy-remote Subsidiary of the
Parent Borrower that purchases, on a revolving basis, Receivables generated by
the Parent Borrower or any of its Subsidiaries.


 


27

















 


“Recovery Event”: 
any settlement of or payment in respect of any property or casualty insurance
claim or any condemnation proceeding relating to any asset of the Parent
Borrower or any of its Subsidiaries giving rise to Net Cash Proceeds to the
Parent Borrower or such Subsidiary, as the case may be, in excess of $500,000,
to the extent that such settlement or payment does not constitute reimbursement
or compensation for amounts previously paid by the Parent Borrower or any of
its Subsidiaries in respect of such casualty or condemnation.


 


“Refinance”: 
with respect to any then outstanding Indebtedness, the issuance of Indebtedness
issued or given in exchange for, or the proceeds of which are used to, extend,
refinance, renew, replace, substitute or refund such theretofore outstanding
Indebtedness.


 


“Refinancing Senior
Notes”:  senior unsecured notes or loans issued or incurred by the
Parent Borrower to refinance the 2004 Senior Notes in whole or in part on or
prior to the 6 month anniversary of the Closing Date, but only if the
provisions of Section 2 of the Interim Funding Side Letter result in any
modification to the terms of the 2004 Senior Notes originally issued, as the
same may be exchanged for substantially similar unsecured senior notes that
have been registered under the Securities Act; provided that such notes
(x) shall be on market terms and conditions, (y) shall not have a maturity date
earlier than the 2004 Senior Notes originally issued and (z) shall have no
required amortization, sinking fund payments, mandatory prepayments or
redemptions, or mandatory offers to purchase, in each case prior to the date
occurring six months after the Final Maturity Date, except that the Refinancing
Senior Notes may have mandatory offers to purchase based upon “changes of
control” and/or “asset dispositions” on terms substantially similar to those
contained in the 2004 Senior Note Indenture as originally in effect (and which,
in the case of asset dispositions, permit repayment of Indebtedness pursuant to
this Agreement before requiring a mandatory offer to purchase the Refinancing
Senior Notes).


 


“Refinancing
Subordinated Notes”:  senior unsecured subordinated notes or loans
issued or incurred by the Parent Borrower to refinance the 2004 Senior Notes in
whole or in part and/or the 2004 Senior Subordinated Notes in whole or in part
on or prior to the 6 month anniversary of the Closing Date, but only if the provisions
of Section 2 of the Interim Funding Side Letter result in any modification
to the terms of the 2004 Senior Subordinated Notes originally issued, as the
same may be exchanged for substantially similar unsecured subordinated notes
that have been registered under the Securities Act; provided that such
notes (w) shall be on market terms and conditions, (x) shall not have a
maturity date earlier than the 2004 Senior Subordinated Notes originally
issued, (y) shall be subordinated to the Indebtedness incurred pursuant to the
Credit Agreement on market terms and conditions, which, in the aggregate are
not less favorable to the Lenders than those of the 2004 Senior Subordinated
Notes originally issued in any material respect and (z) shall have no required amortization,
sinking fund payments, mandatory prepayments or redemptions, or mandatory
offers to purchase, in each case prior to the date occurring 32 months after
the Final Maturity Date, except that the Refinancing Subordinated Notes may
have mandatory offers to purchase based upon “changes of control” and/or “asset
dispositions” on terms substantially similar to those contained in the 2004
Senior Subordinated Note Indenture as originally in effect (and which, in the
case of asset dispositions, permit repayment of Indebtedness pursuant to this
Agreement before requiring a mandatory offer to purchase the Refinancing
Subordinated Notes).


 


28

















 


“Refunded Swing Line
Loans”:  as defined in subsection 2.4(c).


 


“Register”: 
as defined in subsection 11.6(b).


 


“Regulation S-X”: 
Regulation S-X promulgated by the Securities and Exchange Commission, as in
effect on the Closing Date.


 


“Regulation T”: 
Regulation T of the Board as in effect from time to time.


 


“Regulation U”: 
Regulation U of the Board as in effect from time to time.


 


“Regulation X”: 
Regulation X of the Board as in effect from time to time.


 


“Reimbursement
Obligations”:  the obligation of the Parent Borrower to reimburse the
Issuing Lender pursuant to subsection 3.5(a) for amounts drawn under
Letters of Credit.


 


“Reincorporation
Merger”:  as defined in the Recitals hereto.


 


“Reinvested Amount”: 
with respect to any Asset Sale permitted by subsection 8.6(i) or Recovery
Event, that portion of the Net Cash Proceeds thereof (which portion shall not
exceed, with respect to any Asset Sale occurring on or after the Closing Date
(but not any Recovery Event), $35,000,000 minus the aggregate Reinvested
Amounts with respect to all such Asset Sales on or after the Closing Date) as
shall, according to a certificate of a Responsible Officer of the Parent
Borrower delivered to the Administrative Agent within 30 days of such Asset
Sale or Recovery Event, be reinvested in the business of the Parent Borrower
and its Subsidiaries in a manner consistent with the requirements of
subsection 8.17 and the other provisions hereof within 180 days of the
receipt of such Net Cash Proceeds with respect to any such Asset Sale or
Recovery Event or, if such reinvestment is in a project authorized by the board
of directors of the Parent Borrower that will take longer than such 180 days to
complete, the period of time necessary to complete such project; provided
that (a) if any such certificate of a Responsible Officer is not delivered to
the Administrative Agent on the date of such Asset Sale or Recovery Event, any
Net Cash Proceeds of such Asset Sale or Recovery Event shall be immediately (i)
deposited in a cash collateral account established at DBAG to be held as
collateral in favor of the Administrative Agent for the benefit of the Lenders
on terms reasonably satisfactory to the Administrative Agent and shall remain
on deposit in such cash collateral account until such certificate of a
Responsible Officer is delivered to the Administrative Agent or (ii) used to
make a prepayment of the Revolving Credit Loans in accordance with
subsection 4.4(a); provided that, notwithstanding anything in this
Agreement to the contrary, the Parent Borrower may not request any Extension of
Credit under the Revolving Credit Commitments that would reduce the aggregate
amount of the Available Revolving Credit Commitments to an amount that is less
than the amount of any such prepayment until such certificate of a Responsible
Officer is delivered to the Administrative Agent and (b) any Net Cash Proceeds
not so reinvested by the date required pursuant to the terms of this definition
shall be utilized on such day to prepay the Loans pursuant to
subsection 4.4(b).


 


“Reorganization”: 
with respect to any Multiemployer Plan, the condition that such plan is in
reorganization within the meaning of Section 4241 of ERISA.


 


29

















 


“Reportable Event”: 
any of the events set forth in Section 4043(c) of ERISA, other than those
events as to which the thirty day notice period is waived under subsections
..13, .14, .16, .18, .19 or .20 of PBGC Reg. § 2615 or any successor
regulation thereto.


 


“Required Collateral
Release Lenders”:  at any time, Lenders the Total Credit Percentages
of which aggregate at least 80%.


 


“Required Lenders”: 
at any time, Lenders the Total Credit Percentages of which aggregate greater
than 50%.


 


“Requirement of Law”: 
as to any Person, the certificate of incorporation and by-laws or other
organizational or governing documents of such Person, and any law, statute,
ordinance, code, decree, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its material property or to which such
Person or any of its material property is subject, including, without
limitation, laws, ordinances and regulations pertaining to zoning, occupancy
and subdivision of real properties; provided that the foregoing shall
not apply to any non-binding recommendation of any Governmental Authority.


 


“Responsible Officer”: 
as to any Person, any of the following officers of such Person:  (a) the
chief executive officer or the president of such Person and, with respect to
financial matters, the chief financial officer, the treasurer or the controller
of such Person, (b) any vice president of such Person or, with respect to
financial matters, any assistant treasurer or assistant controller of such
Person, who has been designated in writing to the Administrative Agent as a
Responsible Officer by such chief executive officer or president of such Person
or, with respect to financial matters, such chief financial officer of such
Person, (c) with respect to subsection 7.7 and without limiting the
foregoing, the general counsel of such Person and (d) with respect to ERISA
matters, the senior vice president - human resources (or substantial
equivalent) of such Person.


 


“Restricted Revolving
Credit Lender”: as defined in subsection 11.1(b).


 


“Revolving Credit
Commitment”:  as to any Revolving Credit Lender, its obligation to
make Revolving Credit Loans to, and/or make or participate in Swing Line Loans
made to, and/or issue or participate in Letters of Credit issued on behalf of,
the Borrowers in an aggregate amount not to exceed at any one time outstanding
the amount set forth opposite such Revolving Credit Lender’s name in
Schedule A under the heading “Revolving Credit Commitment” or, in the case
of any Lender that is an Assignee, the amount of the assigning Lender’s
Revolving Credit Commitment assigned to such Assignee pursuant to
subsection 11.6(b) (in each case as such amount may be adjusted from time
to time as provided herein); collectively, as to all the Revolving Credit
Lenders, the “Revolving Credit Commitments”.  The original amount of the
aggregate Revolving Credit Commitments of the Revolving Credit Lenders is
$150,000,000.


 


“Revolving Credit
Commitment Percentage”:  as to any Revolving Credit Lender, the
percentage of the aggregate Revolving Credit Commitments constituted by its
Revolving Credit Commitment (or, if the Revolving Credit Commitments have
terminated or expired, the


 


30

















 


percentage which (a) the sum of (i) such Lender’s then
outstanding Revolving Credit Loans plus (ii) such Lender’s interests in the
aggregate L/C Obligations and Swing Line Loans then outstanding then
constitutes of (b) the sum of (i) the aggregate Revolving Credit Loans of all
the Revolving Credit Lenders then outstanding plus (ii) the aggregate L/C
Obligations and Swing Line Loans then outstanding).


 


“Revolving Credit
Commitment Period”:  the period from and including the Closing Date to
but not including the Termination Date, or such earlier date as the Revolving
Credit Commitments shall terminate as provided herein.


 


“Revolving Credit
Lender”:  any Lender having a Revolving Credit Commitment hereunder
and/or a Revolving Credit Loan outstanding hereunder.


 


“Revolving Credit
Loans”:  as defined in subsection 2.1(a).


 


“Revolving Credit Note”: 
as defined in subsection 2.1(c).


 


“Sale and Leaseback
Transaction”:  as defined in subsection 8.12.


 


“S&P”: 
as defined in the definition of the term “Cash Equivalents” in this
subsection 1.1.


 


“Second Merger”: 
as defined in the Recitals hereto.


 


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


 


“Securities Act”: 
the Securities Act of 1933, as amended from time to time.


 


“Security Documents”: 
the collective reference to the Mortgages, the Guarantee and Collateral
Agreement and all other similar security documents hereafter delivered to the
Administrative Agent granting a Lien on any asset or assets of any Person to
secure the obligations and liabilities of the Loan Parties hereunder and/or
under any of the other Loan Documents or to secure any guarantee of any such
obligations and liabilities, including, without limitation, any security
documents executed and delivered or caused to be delivered to the
Administrative Agent pursuant to subsection 7.9(b) or 7.9(c), in each
case, as amended, supplemented, waived or otherwise modified from time to time.


 


“Set”:  the
collective reference to Eurocurrency Loans of a single Tranche, the then
current Interest Periods with respect to all of which begin on the same date
and end on the same later date (whether or not such Loans shall originally have
been made on the same day).


 


“Single Employer Plan”: 
any Plan which is covered by Title IV of ERISA, but which is not a
Multiemployer Plan.


 


“Small FSHCo”: 
as defined in the Recitals hereto.


 


“Small FSHCo
Immobilien Acquisition”:  as defined in the Recitals hereto.


 


31

















 


“Solvent” and
“Solvency”:  with respect to any Person on a particular date, the condition
that, on such date, (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person’s ability to pay as such
debts and liabilities mature, and (d) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person’s property would constitute an unreasonably small amount of
capital.


 


“Spot
Rate of Exchange”: (i) with respect to any Designated Foreign Currency
(except as provided in clause (ii) below), at any date of determination
thereof, the spot rate of exchange in London that appears on the display page
applicable to such Designated Foreign Currency on the Telerate System (or such
other page as may replace such page for the purpose of displaying the spot rate
of exchange in London), provided that if there shall at any time no longer
exist such a page, the spot rate of exchange shall be determined by reference
to another similar rate publishing service selected by the Administrative Agent
and, if no such similar rate publishing service is available, by reference to
the published rate of the Administrative Agent in effect at such date for
similar commercial transactions or (ii) with respect to any Letters of Credit
denominated in any Designated Foreign Currency (x) for the purposes of
determining the Dollar Equivalent of L/C Obligations and for the calculation of
Letter of Credit fees and commissions, the spot rate of exchange quoted in the
Wall Street Journal on the first Business Day of each month (or, if same does
not provide rates, by such other means reasonably satisfactory to the
Administrative Agent and the Borrower) and (y) for the purpose of determining
the Dollar Equivalent of any Letter of Credit with respect to (A) a demand for
payment of any drawing under such Letter of Credit (or any portion thereof) to
any L/C Participants pursuant to subsection 3.4(a) or (B) a notice from
any Issuing Lender for reimbursement of the Dollar Equivalent of any drawing
(or any portion thereof) under such Letter of Credit by the Parent Borrower
pursuant to subsection 3.5(a), the market spot rate of exchange quoted by
the Administrative Agent on the date of such drawing or notice, as applicable.


 


“Standby Letter of
Credit”:  as defined in subsection 3.1(a).


 


“Sterling”: 
British pounds sterling.


 


“Subsidiary”: 
as to any Person, a corporation, partnership, limited liability company or
other entity (a) of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such corporation,
partnership, limited liability company or other entity are at the time owned by
such Person, or (b) the management of which is otherwise controlled, directly
or indirectly through one or more intermediaries, or both, by such Person and,
in the case of this clause (b), which is treated as a consolidated subsidiary
for accounting purposes.  Unless otherwise qualified, all references to a
“Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary
or Subsidiaries of the Parent Borrower.


 


32

















 


“Swing Line Commitment”: 
the Swing Line Lender’s obligation to make Swing Line Loans pursuant to
subsection 2.4.


 


“Swing Line Foreign
Currency Loan”:  any Swing Line Loan made in a Designated Foreign
Currency the rate of interest applicable to which is based upon the Swing Line
Foreign Currency Rate.


 


“Swing Line Foreign
Currency Rate”: with respect to any Swing Line Loan made in a Designated Foreign
Currency, (a) for Interest Periods of up to and including seven days, the rate
per annum determined by the Administrative Agent to be the arithmetic mean
(rounded upwards to the nearest 1/100th of 1%) of the offered rates
for deposits in the applicable Designated Foreign Currency for a period equal
to such Interest Period by reference to the British Bankers Association
Interest Settlement Rates displayed on the appropriate page of the Telerate
screen at approximately 11.00 A.M., London time, on the second full Business
Day preceding the first day of such Interest Period (the “Quotation Day”)
or (b) for any other Interest Period the average (rounded upwards to the next
1/100th of 1%) of the interest rates per annum at which the deposits
of the relevant Designated Foreign Currency are offered for such Interest
Period to major banks in the London interbank market by the Administrative
Agent on the Quotation Day.


 


“Swing Line Lender”: 
DBAG, in its capacity as provider of the Swing Line Loans.


 


“Swing Line Loan
Participation Certificate”:  a certificate in substantially the form
of Exhibit G.


 


“Swing Line Loans”: 
as defined in subsection 2.4(a).


 


“Swing Line Note”: 
as defined in subsection 2.4(b).


 


“Syndication Agent”: 
as defined in the Preamble hereto.


 


“Synthetic Purchase
Agreement”:  any agreement pursuant to which the Parent Borrower or
any of its Subsidiaries is or may become obligated to make any payment (except
as otherwise permitted by this Agreement) to any third party (other than
Holding or any of its Subsidiaries) in connection with the purchase or the
notional purchase by such third party or any Affiliate thereof from a Person
other than Holding or any of its Subsidiaries of any Capital Stock of Investors
or Holding or any Existing Notes; provided that the term “Synthetic
Purchase Agreement” shall not be deemed to include (a) any phantom stock, stock
appreciation rights, equity purchase or similar plan or arrangement providing
for payments only to current or former officers, directors, employees and other
members of the management of Holding, the Parent Borrower or any of their
respective Subsidiaries, or family members or relatives thereof or trusts for
the benefit of any of the foregoing (or to their heirs, successors, assigns,
legal representatives or estates), or (b) any agreement evidencing or relating
to (i) one or more Guarantee Obligations in connection with Indebtedness
incurred by any Management Investors in connection with any Management
Subscription Agreements or other purchases by them of Capital Stock of
Investors (so long as Investors applies the net cash proceeds of such purchases
to make capital contributions to, or purchase Capital Stock of, Holding or
applies such proceeds to pay Investors


 


33

















 


Expenses) or Holding, or any refinancing, refunding,
extension or renewal thereof, or (ii) one or more loans or advances to one or
more Management Investors in connection with the purchase by such Management
Investors of Capital Stock of Investors (so long as Investors applies the net
cash proceeds of such purchases to make capital contributions to, or purchase
Capital Stock of, Holding or applies such proceeds to pay Investors Expenses)
or Holding (including in each case under this clause (b), without limitation,
any agreement evidencing any right or option to acquire any such stock in
connection with payment under any such Guarantee Obligation or in partial or
full satisfaction of any such loan or advance).


 


“Tax Sharing Agreement”: 
the Tax Sharing Agreement among Investors, Holding and the Parent Borrower, in
form and substance reasonably satisfactory to the Administrative Agent, to be
entered into on or prior to the Closing Date, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
subsection 8.14(e).


 


“Term Loan”: 
a Tranche B Term Loan; collectively, the “Term Loans”.


 


“Term Loan Commitment”: 
a Tranche B Term Loan Commitment; collectively, the “Term Loan Commitments”.


 


“Term Loan Lender”: 
any Lender having a Term Loan Commitment hereunder and/or a Term Loan
outstanding hereunder.


 


“Term Note”: 
a Tranche B Dollar Term Note or a Tranche B Euro Term Note, as the context may
require, collectively, the “Term Notes”.


 


“Termination Date”: 
April 7, 2009.


 


“Total Credit
Percentage”:  as to any Lender at any time, the percentage of the
aggregate Revolving Credit Commitments (or, in the case of the termination or
expiration of the Revolving Credit Commitments, the Aggregate Outstanding Revolving
Credit of the Lenders) and aggregate outstanding Tranche B Term Loans of the
Lenders, and aggregate unused Term Loan Commitments of the Lenders, then
constituted by such Lender’s Revolving Credit Commitment (or, in the case of
the termination or expiration of the Revolving Credit Commitments, such
Lender’s Aggregate Outstanding Revolving Credit) and outstanding Tranche B Term
Loans and unused Term Loan Commitments (if any).  In making determinations
pursuant to the preceding sentence, the Dollar Equivalent of all amounts
expressed in currencies other than Dollars shall be utilized.


 


“Tranche”: 
each Tranche of Loans available hereunder, with there being four tranches on
the Closing Date; namely Revolving Credit Loans, Swing Line Loans, Tranche B
Dollar Term Loans and Tranche B Euro Term Loans.


 


“Tranche B Dollar Term
Loan”:  as defined in subsection 2.5(a).


 


“Tranche B Dollar Term
Loan Commitment”:  as to any Tranche B Dollar Term Loan Lender, its
obligation to make Tranche B Dollar Term Loans to the Parent Borrower in an
aggregate amount not to exceed at any one time outstanding the amount set forth
opposite such


 


34

















 


Tranche B Dollar Term Loan Lender’s name in
Schedule A under the heading “Tranche B Dollar Term Loan Commitment” or,
in the case of any Lender that is an Assignee, the amount of the assigning
Lender’s Tranche B Dollar Term Loan Commitment assigned to such Assignee
pursuant to subsection 11.6(b) (in each case as such amount may be adjusted
from time to time as provided herein); collectively, as to all the Tranche B
Dollar Term Loan Lenders, the “Tranche B Dollar Term Loan Commitments”. 
The original aggregate amount of the Tranche B Dollar Term Loan Commitments on
the Closing Date is $415,000,000.


 


“Tranche B Dollar Term
Loan Lender”:  any Lender having a Tranche B Dollar Term Loan
Commitment hereunder and/or a Tranche B Dollar Term Loan outstanding hereunder.


 


“Tranche B Dollar Term
Loan Percentage”:  as to any Tranche B Dollar Term Loan Lender at any
time, the percentage which (a) the sum of (i) such Lender’s Tranche B Dollar
Term Loans then outstanding and (ii) such Lender’s unused Tranche B Dollar Term
Loan Commitment then outstanding constitutes of (b) the sum of (i) the
aggregate Tranche B Dollar Term Loans of all the Tranche B Dollar Term Loan
Lenders then outstanding and (ii) the aggregate unused Tranche B Dollar Term
Loan Commitments then outstanding (or, if the Tranche B Dollar Term Loan
Commitments have terminated or expired, the percentage which such Lender’s
Tranche B Dollar Term Loans then outstanding constitutes of the aggregate
Tranche B Term Loans then outstanding).


 


“Tranche B Dollar Term
Note”:  as defined in subsection 2.6(a)(i).


 


“Tranche B Euro Term
Loan”:  as defined in subsection 2.5(b).


 


“Tranche B Euro Term
Loan Commitment”:  as to any Tranche B Euro Term Loan Lender, its
obligation to make Tranche B Euro Term Loans to the Parent Borrower in an
aggregate amount not to exceed at any one time outstanding the amount set forth
opposite such Tranche B Euro Term Loan Lender’s name in Schedule A under
the heading “Tranche B Euro Term Loan Commitment” or, in the case of any Lender
that is an Assignee, the amount of the assigning Lender’s Tranche B Euro Term
Loan Commitment assigned to such Assignee pursuant to subsection 11.6(b)
(in each case as such amount may be adjusted from time to time as provided
herein); collectively, as to all the Tranche B Euro Term Loan Lenders, the
“Tranche B Euro Term Loan Commitments”.  The original aggregate amount of
the Tranche B Euro Term Loan Commitments on the Closing Date is €145,000,000.


 


“Tranche B Euro Term
Loan Lender”:  any Lender having a Tranche B Euro Term Loan Commitment
hereunder and/or a Tranche B Euro Term Loan outstanding hereunder.


 


“Tranche B Euro Term
Loan Percentage”:  as to any Tranche B Euro Term Loan Lender at any
time, the percentage which (a) the sum of (i) such Lender’s Tranche B Euro Term
Loans then outstanding and (ii) such Lender’s unused Tranche B Euro Term Loan
Commitment then outstanding constitutes of (b) the sum of (i) the aggregate
Tranche B Euro Term Loans of all the Tranche B Euro Term Loan Lenders then
outstanding and (ii) the aggregate unused Tranche B Euro Term Loan Commitments
then outstanding (or, if the Tranche B Euro Term Loan Commitments have
terminated or expired, the percentage which such Lender’s Tranche B


 


35

















 


Euro Term Loans then outstanding constitutes of the
aggregate Tranche B Term Loans then outstanding).


 


“Tranche B Euro Term Note”:  as defined in
subsection 2.6(a)(ii).


 


“Tranche B Term Loans”: 
as defined in subsection 2.5(b).


 


“Tranche B Term Loan
Commitment”:  either or both of the Tranche B Dollar Term Loan
Commitment or Tranche B Euro Term Loan Commitment, as the context may require.


 


“Tranche B Term Loan
Lender”:  any Lender having either or both (i) a Tranche B Dollar Term
Loan Commitment hereunder and/or a Tranche B Dollar Term Loan outstanding
hereunder and/or (ii) a Tranche B Euro Term Loan Commitment hereunder and/or a
Tranche B Euro Term Loan outstanding hereunder.


 


“Tranche B Term Loan
Percentage”:  either or both of the Tranche B Term Dollar Term Loan
Percentage or Tranche B Euro Term Loan Percentage, as the context may require.


 


“Transactions”: 
as defined in the Recitals hereto.


 


“Transaction Documents”: 
(i) the Loan Documents, (ii) the Acquisition Documents, (iii) the Equity
Financing Documents, (iv) Intercompany Transaction Documents, (v) the 2004
Senior Note Documents and (vi) the 2004 Senior Subordinated Note Documents.


 


“Transferee”:
 any Participant or Assignee.


 


“Treaty”: 
the Treaty establishing the European Economic Community, being the Treaty of
Rome of March 25, 1957 as amended by the Single European Act 1986 and the
Maastricht Treaty (which was signed on February 7, 1992 and came into
force on November 1, 1993) and as may, from time to time, be further
amended, supplemented or otherwise modified.


 


“Type”:  the
type of Loan determined based on the currency in which the same is denominated,
and the interest option applicable thereto, with there being multiple Types of
Loans hereunder, namely ABR Loans, Eurocurrency Loans in each of the Designated
Currencies, and Swing Line Foreign Currency Loans in each of the Designated
Currencies.


 


“2004 Senior Note
Documents”:  the collective reference to the 2004 Senior Notes and the
2004 Senior Note Indenture; individually, a “2004 Senior Note Document”.


 


“2004 Senior Note
Indenture”:  the indenture dated as of April 7, 2004 between the
Parent Borrower and Wells Fargo Bank, National Association, as trustee, and any
agreement pursuant to which any Refinancing Senior Notes are issued or
incurred, as the same may be amended, supplemented, waived or otherwise
modified from time to time in accordance with subsection 8.14 to the
extent applicable.


 


“2004 Senior Notes”: 
the 67/8% Senior Notes due 2012 in an aggregate initial
principal amount of $200,000,000 issued by the Parent Borrower, as the same may
be exchanged


 


36

















 


for substantially similar unsecured senior notes that
have been registered under the Securities Act or replaced by Refinancing Senior
Notes, and as the same or such substantially similar notes may be amended,
supplemented, waived or otherwise modified from time to time in accordance with
subsection 8.14 to the extent applicable.


 


“2004 Senior
Subordinated Note Documents”:  the collective reference to the 2004
Senior Subordinated Notes and the 2004 Senior Subordinated Note Indenture;
individually, a “2004 Senior Subordinated Note Document”.


 


“2004 Senior
Subordinated Note Indenture”:  the indenture dated as of April 7,
2004 between the Parent Borrower and Wells Fargo Bank, National Association, as
trustee, and any agreement pursuant to which any Refinancing Subordinated Notes
are issued or incurred, as the same may be amended, supplemented, waived or
otherwise modified from time to time in accordance with subsection 8.14 to
the extent applicable.


 


“2004 Senior
Subordinated Notes”:  the 8% Senior Subordinated Notes due 2014 in an
initial aggregate principal amount of $320,000,000 issued by the Parent
Borrower, as the same may be exchanged for substantially similar unsecured
senior subordinated notes that have been registered under the Securities Act or
replaced by Refinancing Subordinated Notes, and as the same or such
substantially similar notes may be amended, supplemented, waived or otherwise
modified from time to time in accordance with subsection 8.14 to the
extent applicable.


 


“Underfunding”: 
the excess of the present value of all accrued benefits under a Plan (based on
those assumptions used to fund such Plan), determined as of the most recent
annual valuation date, over the value of the assets of such Plan allocable to
such accrued benefits.


 


“Uniform Customs”: 
the Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500, as the same may be
amended from time to time.


 


“U.S. Tax Compliance
Certificate”:  as defined in subsection 4.11(b).


 


“VWR”:  as
defined in the Recitals hereto.


 


“VWR Acquisition”: 
as defined in the Recitals hereto.


 


“VWR International,
Inc.”:  as defined in the Recitals hereto.


 


“VWR Pennsylvania”: 
as defined in the Recitals hereto.


 


“Wholly Owned
Subsidiary”:  as to any Person, any Subsidiary of such Person of which
such Person owns, directly or indirectly through one or more Wholly Owned
Subsidiaries, all of the Capital Stock of such Subsidiary other than directors
qualifying shares or shares held by nominees.


 


37

















 


1.2.         
Other Definitional Provisions.  (a)  Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes, any other Loan Document or any certificate or other
document made or delivered pursuant hereto.


 


(b)          
As used herein and in
any Notes and any other Loan Document, and any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms relating to
Holding and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP.


 


(c)          
The words “hereof”,
“herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, subsection, Schedule and Exhibit
references are to this Agreement unless otherwise specified.


 


(d)          
The meanings given to
terms defined herein shall be equally applicable to both the singular and
plural forms of such terms.


 


SECTION 2.          
AMOUNT AND TERMS
OF COMMITMENTS.


 


2.1.         
Revolving Credit Commitments.  (a)  Subject to the terms and conditions
hereof, each Revolving Credit Lender severally agrees to make revolving credit
loans (“Revolving Credit Loans”) to each of the Borrowers from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding which, when added to such Revolving Credit
Lender’s Revolving Credit Commitment Percentage of the sum of the then
outstanding L/C Obligations and the then outstanding Swing Line Loans, does not
exceed the amount of such Lender’s Revolving Credit Commitment then in effect; provided
that (x) no Revolving Credit Lender shall make any Revolving Credit Loan in any
Designated Foreign Currency if, after giving effect to the making of such
Revolving Credit Loan, the sum of the Dollar Equivalent of the then outstanding
Revolving Credit Loans in Designated Foreign Currencies, the then outstanding
Swing Line Foreign Currency Loans and the then outstanding L/C Obligations in
respect of Foreign Backstop Letters of Credit would exceed $75,000,000 and (y)
the aggregate principal amount of Revolving Credit Loans and Swing Line Loans
made to Foreign Subsidiary Borrowers shall at no time exceed $25,000,000 (it
being understood and agreed that the Administrative Agent shall calculate the
Dollar Equivalent of the then outstanding Revolving Credit Loans in any
Designated Foreign Currency, the then outstanding Swing Line Foreign Currency
Loans and, to the extent applicable, the then outstanding L/C Obligations in
respect of any Foreign Backstop Letters of Credit on the date on which the
Parent Borrower has given the Administrative Agent a notice of borrowing with
respect to any Revolving Credit Loan for purposes of determining compliance
with this subsection).  During the Revolving Credit Commitment Period each
of the Borrowers may use the Revolving Credit Commitments by borrowing,
prepaying the Revolving Credit Loans in whole or in part, and reborrowing, all
in accordance with the terms and conditions hereof.


 


(b)          
The Revolving Credit
Loans shall be made in Dollars or any Designated Foreign Currency and may from
time to time be (i) Eurocurrency Loans, (ii) ABR Loans or (iii) a
combination thereof, as determined by the Parent Borrower and notified to the
Administrative


 


38

















 


Agent in accordance with subsections 2.2 and 4.2, provided
that no Revolving Credit Loan shall be made as a Eurocurrency Loan after the
day that is one month prior to the Termination Date.


 


(c)          
Each Borrower agrees
that, upon the request to the Administrative Agent by any Revolving Credit
Lender made on or prior to the Closing Date or in connection with any
assignment pursuant to subsection 11.6(b), in order to evidence such
Lender’s Revolving Credit Loans, such Borrower will execute and deliver to such
Lender a promissory note substantially in the form of Exhibit A-1, with
appropriate insertions as to payee, date and principal amount (each, as
amended, supplemented, replaced or otherwise modified from time to time, a “Revolving
Credit Note”), payable to the order of such Lender and in a principal
amount equal to the aggregate unpaid principal amount of all Revolving Credit
Loans made by such Revolving Credit Lender to such Borrower.  Each
Revolving Credit Note shall (i) be dated the Closing Date, (ii) be stated to
mature on the Termination Date and (iii) provide for the payment of interest in
accordance with subsection 4.1.


 


2.2.         
Procedure for Revolving Credit Borrowing.  Each of the Borrowers may borrow
under the Revolving Credit Commitments during the Revolving Credit Commitment
Period on any Business Day, provided that the Parent Borrower (on behalf
of itself or such other Borrower as the case may be) shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to (a) 12:30 P.M., New York City time, at least
three Business Days prior to the requested Borrowing Date, if all or any part
of the requested Revolving Credit Loans are to be initially Eurocurrency Loans
made in Dollars, (b) 11:00 A.M., London time, at least three Business Days
prior to the requested Borrowing Date, if all or any part of the requested
Revolving Credit Loans are to be initially Eurocurrency Loans made in any
Designated Foreign Currency, or (c) 12:30 P.M., New York City time, at
least one Business Day prior to the requested Borrowing Date, for ABR Loans)
specifying (i) the identity of the Borrower, (ii) the amount to be borrowed,
(iii) the requested Borrowing Date, (iv) whether the borrowing is to be of
Eurocurrency Loans, ABR Loans or a combination thereof and (v) if the borrowing
is to be entirely or partly of Eurocurrency Loans, the respective amounts of
each such Type of Loan, the respective lengths of the initial Interest Periods
therefor and, if the Eurocurrency Loans in respect of such borrowing are to be
made entirely or partly in any Designated Foreign Currency, the Designated
Foreign Currency thereof.  All Revolving Credit Loans incurred and/or
maintained during the first and second weeks following the Closing Date shall
be incurred and/or maintained as ABR Loans (in the case of Revolving Credit
Loans denominated in Dollars) or as Eurocurrency Loans (in the case of Loans
made in Designated Foreign Currencies), with a one-week Interest Period
applicable thereto.  Each borrowing under the Revolving Credit Commitments
shall be in an amount equal to (x) in the case of ABR Loans, except any ABR
Loan to be used solely to pay a like amount of outstanding Reimbursement
Obligations or Swing Line Loans, $2,000,000 or a whole multiple of $1,000,000
in excess thereof (or, if the then Available Revolving Credit Commitments are
(A) less than $2,000,000, $1,000,000 or a whole multiple thereof or (B) less
than $1,000,000, such lesser amount) and (y) in the case of Eurocurrency Loans
(or, in the case of Eurocurrency Loans to be made in any Designated Foreign
Currency, the Dollar Equivalent of the principal amount thereof shall be in an
amount equal to), $5,000,000 or a whole multiple of $1,000,000 in excess
thereof.  Upon receipt of any such notice from the Parent Borrower, the
Administrative Agent shall promptly notify each Revolving Credit Lender
thereof.  Subject to the satisfaction of the conditions precedent
specified in subsection 6.2 (and subsection 6.3 in the case of a
Foreign Subsidiary


 


39

















 


Borrower), each Revolving Credit Lender will make the
amount of its pro rata share of each borrowing of Revolving Credit Loans
available to the Administrative Agent for the account of the Borrower
identified in such notice at the office of the Administrative Agent specified
in subsection 11.2 prior to 12:30 P.M. (or 10:00 A.M., in the case of the
initial borrowing hereunder), New York City time, or at such other office
of the Administrative Agent or at such other time as to which the
Administrative Agent shall notify such Revolving Credit Lender and the Parent
Borrower reasonably in advance of the Borrowing Date with respect thereto, on
the Borrowing Date requested by the Parent Borrower in Dollars or the
applicable Designated Foreign Currency and in funds immediately available to
the Administrative Agent.  Such borrowing will then be made available to
the Borrower identified in such notice by the Administrative Agent crediting
the account of such Borrower on the books of such office with the aggregate of
the amounts made available to the Administrative Agent by the Revolving Credit
Lenders and in like funds as received by the Administrative Agent.


 


2.3.         
Termination or Reduction of Revolving Credit Commitments.  The Parent Borrower shall have
the right, upon not less than three Business Days’ notice to the Administrative
Agent (which will promptly notify the Lenders thereof), to terminate the
Revolving Credit Commitments or, from time to time, to reduce the amount of the
Revolving Credit Commitments; provided that no such termination or
reduction shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans and Swing Line Loans made on the
effective date thereof, the aggregate principal amount of the Revolving Credit
Loans and Swing Line Loans then outstanding (including, without limitation, in
the case of Revolving Credit Loans and Swing Line Loans then outstanding in any
Designated Foreign Currency, the Dollar Equivalent of the aggregate principal
amount thereof), when added to the sum of the then outstanding L/C Obligations,
would exceed the Revolving Credit Commitments then in effect.  Any such
reduction shall be in an amount equal to $10,000,000 or a whole multiple of
$1,000,000 in excess thereof and shall reduce permanently the Revolving Credit
Commitments then in effect.


 


2.4.         
Swing Line Commitments.  (a)  Subject to the terms and conditions
hereof, the Swing Line Lender agrees to make swing line loans (individually, a
“Swing Line Loan”; collectively, the “Swing Line Loans”) to any
of the Borrowers from time to time during the Revolving Credit Commitment
Period in an aggregate principal amount at any one time outstanding not to
exceed $25,000,000 (provided that the Dollar Equivalent of the aggregate
principal amount at any one time outstanding of Foreign Currency Swing Line
Loans shall not exceed $5,000,000), provided that at no time may the sum
of the then outstanding Swing Line Loans, Revolving Credit Loans (including,
without limitation, in the case of Revolving Credit Loans and Swing Line Loans
then outstanding in any Designated Foreign Currency, the Dollar Equivalent of
the aggregate principal amount thereof) and L/C Obligations exceed the
Revolving Credit Commitments then in effect, provided, further, that the Swing
Line Lender shall not make any Swing Line Foreign Currency Loan if, after
giving effect to the making thereof, (x) the sum of the then outstanding
Revolving Credit Loans in Designated Foreign Currencies, the then outstanding
Swing Line Foreign Currency Loans and the then outstanding L/C Obligations in
respect of Foreign Backstop Letters of Credit would exceed $75,000,000 and (y)
the aggregate principal amount of Revolving Credit Loans and Swing Line Loans
made to Foreign Subsidiary Borrowers shall at no time exceed $25,000,000 (it
being understood and agreed that the Administrative Agent shall calculate the
Dollar Equivalent of the then outstanding Revolving


 


40

















 


Credit Loans in any Designated Foreign Currency, the
then outstanding Swing Line Foreign Currency Loans and, to the extent
applicable, the then outstanding L/C Obligations in respect of any Foreign
Backstop Letters of Credit on the date the notice of borrowing of Swing Line
Loans is given for purposes of determining compliance with this
subsection).  Amounts borrowed by any Borrower under this
subsection 2.4 may be repaid and, through but excluding the Termination
Date, reborrowed.  All Swing Line Loans made to any Borrower shall be made
in either (x) Dollars as ABR Loans and shall not be entitled to be
converted into Eurocurrency Loans or Swing Line Foreign Currency Loans or (y)
any Designated Foreign Currency selected by the relevant Borrower, and shall be
Swing Line Foreign Currency Loans and shall not be entitled to be converted
into Eurocurrency Loans or ABR Loans.  The Parent Borrower (on behalf of
itself or any other Borrower as the case may be) shall give the Swing Line
Lender irrevocable notice (which notice must be received by the Swing Line
Lender prior to (x) 12:00 Noon, New York City time, in the case of any
Swing Line Loan made in Dollars, and (y) 11:00 A.M., London time, in the case
of any Swing Line Foreign Currency Loans) on the requested Borrowing Date
specifying (1) the identity of the Borrower, (2) the currency of such Swing
Line Loan (either Dollars or the Designated Foreign Currency) and, in the case
of Foreign Currency Swing Line Loans, the Interest Period to be applicable
thereto which shall be a period contemplated by clause (a) of the definition of
the term “Interest Period”, and (3) the amount of the requested Swing Line
Loan, which shall be in a minimum amount of (or, in the case of Swing Line
Foreign Currency Loans, the Dollar Equivalent of the principal amount thereof
shall be in an amount equal to) $100,000 or whole multiples of $50,000 in
excess thereof.  The proceeds of the Swing Line Loan will be made available
by the Swing Line Lender to the Borrower identified in such notice at an office
of the Swing Line Lender by crediting the account of such Borrower at such
office with such proceeds in Dollars or in the Designated Foreign Currency
specified in such notice.


 


(b)          
Each of the Parent
Borrower and any Foreign Subsidiary Borrower agrees that, upon the request to
the Administrative Agent by the Swing Line Lender made on or prior to the
Closing Date or in connection with any assignment pursuant to subsection 11.6(b),
in order to evidence the Swing Line Loans such Borrower will execute and
deliver to the Swing Line Lender a promissory note substantially in the form of
Exhibit A-2, with appropriate insertions (as the same may be amended, supplemented,
replaced or otherwise modified from time to time, the “Swing Line Note”),
payable to the order of the Swing Line Lender and representing the obligation
of such Borrower to pay the amount of the Swing Line Commitment or, if less,
the unpaid principal amount of the Swing Line Loans made to such Borrower, with
interest thereon as prescribed in subsection 4.1.  The Swing Line
Note shall (i) be dated the Closing Date, (ii) be stated to mature on the
Termination Date and (iii) provide for the payment of interest in accordance
with subsection 4.1.


 


(c)          
The Swing Line
Lender, at any time in its sole and absolute discretion may, and, at any time
as there shall be a Swing Line Loan outstanding for more than seven Business
Days, the Swing Line Lender shall, on behalf of the Borrower to which the Swing
Line Loan has been made (which hereby irrevocably directs and authorizes such
Swing Line Lender to act on its behalf), request (provided that such
request shall be deemed to have been automatically made upon the occurrence of
an Event of Default under subsection 9(f)) each Revolving Credit Lender,
including the Swing Line Lender (i) to make a Revolving Credit Loan as an ABR
Loan in an amount equal to such Revolving Credit Lender’s Revolving Credit


 


41

















 


Commitment Percentage of the principal amount of all
Swing Line Loans made in Dollars and (ii) with respect to all of the Swing Line
Loans in any Designated Foreign Currency, to make a Eurocurrency Loan in such
Designated Foreign Currency and having an Interest Period of one month (each, a
“Mandatory Revolving Credit Loan Borrowing”) in an amount equal to such
Revolving Credit Lender’s Revolving Credit Commitment Percentage of the
principal amount of all of the Swing Line Loans (collectively, the “Refunded
Swing Line Loans”) outstanding on the date such notice is given; provided
that the provisions of this subsection shall not affect the obligations of
any Borrower to prepay Swing Line Loans in accordance with the provisions of
subsection 4.4(d).  Unless the Revolving Credit Commitments shall
have expired or terminated (in which event the procedures of paragraph (d) of
this subsection 2.4 shall apply), each Revolving Credit Lender hereby
agrees to make the proceeds of its Revolving Credit Loan (including, without
limitation, any Eurocurrency Loan) available to the Administrative Agent for
the account of the Swing Line Lender at the office of the Administrative Agent
prior to 12:00 Noon, New York City time, in funds immediately available on
the Business Day next succeeding the date such notice is given notwithstanding
(i) that the amount of the Mandatory Revolving Credit Loan Borrowing may not
comply with the minimum amount for Revolving Credit Loans otherwise required hereunder,
(ii) whether any conditions specified in Section 6 are then satisfied,
(iii) whether a Default or an Event of Default then exists, (iv) the date of
such Mandatory Revolving Credit Loan Borrowing and (v) the amount of the
Revolving Credit Commitment of such, or any other, Revolving Credit Lender at
such time.  The proceeds of such Revolving Credit Loans (including without
limitation, any Eurocurrency Loan) shall be immediately applied to repay the
Refunded Swing Line Loans.


 


(d)          
If the Revolving
Credit Commitments shall expire or terminate at any time while Swing Line Loans
are outstanding, each Revolving Credit Lender shall, at the option of the Swing
Line Lender, exercised reasonably, either (i) notwithstanding the expiration or
termination of the Revolving Credit Commitments, make a Revolving Credit Loan
as an ABR Loan or, in the case of Swing Line Foreign Currency Loans, as a
Eurocurrency Loan having an Interest Period of one month (which Revolving
Credit Loan shall be deemed a “Revolving Credit Loan” for all purposes of this
Agreement and the other Loan Documents) or (ii) purchase an undivided
participating interest in such Swing Line Loans, in either case in an amount
equal to such Revolving Credit Lender’s Revolving Credit Commitment Percentage
determined on the date of, and immediately prior to, expiration or termination
of the Revolving Credit Commitments of the aggregate principal amount of such
Swing Line Loans; provided, that in the event that any Mandatory
Revolving Credit Loan Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under any bankruptcy, reorganization, dissolution,
insolvency, receivership, administration or liquidation or similar law with
respect to any Borrower), then each Revolving Credit Lender hereby agrees that
it shall forthwith purchase (as of the date the Mandatory Revolving Credit Loan
Borrowing would otherwise have occurred, but adjusted for any payments received
from such Borrower on or after such date and prior to such purchase) from the
Swing Line Lender such participations in such outstanding Swing Line Loans as
shall be necessary to cause such Revolving Credit Lenders to share in such
Swing Line Loans ratably based upon their respective Revolving Credit
Commitment Percentages, provided, further, that (x) all interest
payable on the Swing Line Loans shall be for the account of the Swing Line
Lender until the date as of which the respective participation is required to
be purchased and, to the extent attributable to the purchased participation,
shall be payable to the participant from and


 


42

















 


after such date and (y) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing
Revolving Credit Lender shall be required to pay the Swing Line Lender interest
on the principal amount of the participation purchased for each day from and
including the day upon which the Mandatory Revolving Credit Loan Borrowing
would otherwise have occurred to but excluding the date of payment for such
participation, at the rate otherwise applicable to Revolving Loans made as ABR
Loans.  Each Revolving Credit Lender will make the proceeds of any
Revolving Credit Loan made pursuant to the immediately preceding sentence
available to the Administrative Agent for the account of the Swing Line Lender
at the office of the Administrative Agent prior to 12:00 Noon, New York
City time, in funds immediately available on the Business Day next succeeding
the date on which the Revolving Credit Commitments expire or terminate and in
the currency in which such Swing Line Loans were made.  The proceeds of
such Revolving Credit Loans shall be immediately applied to repay the Swing
Line Loans outstanding on the date of termination or expiration of the
Revolving Credit Commitments.  In the event that the Revolving Credit
Lenders purchase undivided participating interests pursuant to the first
sentence of this paragraph (d), each Revolving Credit Lender shall immediately
transfer to the Swing Line Lender, in immediately available funds and in the
currency in which such Swing Line Loans were made, the amount of its
participation and upon receipt thereof the Swing Line Lender will deliver to
such Revolving Credit Lender a Swing Line Loan Participation Certificate dated
the date of receipt of such funds and in such amount.


 


(e)          
Whenever, at any time
after the Swing Line Lender has received from any Revolving Credit Lender such
Revolving Credit Lender’s participating interest in a Swing Line Loan, the
Swing Line Lender receives any payment on account thereof (whether directly
from the Parent Borrower or any other Borrower in respect of such Swing Line
Loan or otherwise, including proceeds of Collateral applied thereto by the
Swing Line Lender), or any payment of interest on account thereof, the Swing
Line Lender will, if such payment is received prior to 1:00 P.M., New York
City time (or, in the case of Swing Line Foreign Currency Loans, London time),
on a Business Day, distribute to such Revolving Credit Lender its pro rata
share thereof prior to the end of such Business Day and otherwise, the Swing
Line Lender will distribute such payment on the next succeeding Business Day
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Revolving Credit Lender’s participating
interest was outstanding and funded); provided, however, that in
the event that such payment received by the Swing Line Lender is required to be
returned, such Revolving Credit Lender will return to the Swing Line Lender any
portion thereof previously distributed by the Swing Line Lender to it.


 


(f)           
Each Revolving Credit
Lender’s obligation to make the Revolving Credit Loans and to purchase
participating interests with respect to Swing Line Loans in accordance with
subsections 2.4(c) and 2.4(d) shall be absolute and unconditional and shall not
be affected by any circumstance, including without limitation (i) any set-off,
counterclaim, recoupment, defense or other right that such Revolving Credit
Lender or any of the Borrowers may have against the Swing Line Lender, any of
the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence
or continuance of a Default or an Event of Default; (iii) any adverse change in
condition (financial or otherwise) of any of the Borrowers; (iv) any breach of
this Agreement or any other Loan Document by any of the Borrowers, any other
Loan Party or any other Revolving Credit Lender; (v) any inability of any of
the Borrowers to satisfy the conditions precedent to borrowing set forth in
this Agreement on the date upon which such


 


43

















 


Revolving Credit Loan is to be made or participating
interest is to be purchased or (vi) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.


 


2.5.         
Term
Loans.  (a)  Subject to the terms
and conditions hereof, each Tranche B Dollar Term Loan Lender severally agrees
to make, in Dollars in a single draw on the Closing Date, one or more term
loans (each, a “Tranche B Dollar Term Loan”) to the Parent Borrower in
an aggregate principal amount not to exceed the amount set forth opposite such
Lender’s name in Schedule A under the heading “Tranche B Dollar Term Loan
Commitment”.  The Tranche B Dollar Term Loans may from time to time be (x)
Eurocurrency Loans in Dollars, (y) ABR Loans in Dollars or (z) a combination
thereof, as determined by the Parent Borrower and notified to the
Administrative Agent in accordance with subsections 2.7 and 4.2.  The
portion of each Tranche B Dollar Term Loan Lender’s Tranche B Dollar Term Loan
Commitment which is not utilized on the Closing Date shall be automatically and
permanently cancelled.


 


(b)          
Subject to the terms
and conditions hereof, each Tranche B Euro Term Loan Lender severally agrees to
make, in Euros in a single draw on the Closing Date, one or more term loans
(each, a “Tranche B Euro Term Loan” and, together with the Tranche B
Dollar Term Loans, the “Tranche B Term Loans”) to the Parent Borrower in
an aggregate principal amount not to exceed the amount set forth opposite such
Lender’s name in Schedule A under the heading “Tranche B Euro Term Loan
Commitment”.  The Tranche B Euro Term Loans will be Eurocurrency Loans in
Euros.  The portion of each Tranche B Euro Term Loan Lender’s Tranche B
Euro Term Loan Commitment which is not utilized on the Closing Date shall be
automatically and permanently cancelled.


 


2.6.         
Tranche
B Term Notes.  (a) (i) The Parent Borrower
agrees that, upon the request to the Administrative Agent by any Tranche B
Dollar Term Loan Lender made on or prior to the Closing Date or in connection
with any assignment pursuant to subsection 11.6(b), in order to evidence
such Lender’s Tranche B Dollar Term Loan, the Parent Borrower will execute and
deliver to such Lender a promissory note substantially in the form of Exhibit
A-3 (each, as amended, supplemented, replaced or otherwise modified from time
to time, a “Tranche B  Dollar Term Note”), with appropriate
insertions therein as to payee, date and principal amount, payable to the order
of such Tranche B Dollar Term Loan Lender and in a principal amount equal to
the unpaid principal amount of the Tranche B Dollar Term Loans made (or
acquired by assignment pursuant to subsection 11.6(b)) by such Tranche B
Dollar Term Loan Lender to the Parent Borrower.  Each Tranche B Dollar
Term Note shall (x) be dated the Closing Date, (y) be payable as provided in
subsection 2.6(b)(i) and (z) provide for the payment of interest in
accordance with subsection 4.1.


 


(ii)          
The Parent Borrower
agrees that, upon the request to the Administrative Agent by any Tranche B Euro
Term Loan Lender made on or prior to the Closing Date or in connection with any
assignment pursuant to subsection 11.6(b), in order to evidence such
Lender’s Tranche B Euro Term Loan, the Parent Borrower will execute and deliver
to such Lender a promissory note substantially in the form of Exhibit A-4
(each, as amended, supplemented, replaced or otherwise modified from time to
time, a “Tranche B Euro Term Note”), with appropriate insertions therein
as to payee, date and principal amount, payable to the order of such Tranche B
Euro Term Loan Lender and in a principal amount equal to the unpaid principal
amount of the Tranche B Euro Term Loans made (or acquired by assignment
pursuant


 


44

















 


to subsection 11.6(b)) by such Tranche B Euro
Term Loan Lender to the Parent Borrower.  Each Tranche B Euro Term Note
shall (x) be dated the Closing Date, (y) be payable as provided in
subsection 2.6(b)(ii) and (z) provide for the payment of interest in
accordance with subsection 4.1.


 


(b) (i)      The aggregate Tranche B Dollar Term Loans
of all the Tranche B Dollar Term Loan Lenders shall be payable in consecutive
annual installments up to and including April 7, 2010 and thereafter in
consecutive quarterly installments (in each case, subject to reduction as
provided in subsection 4.4), on the dates and in the principal amounts,
subject to adjustment as set forth below, equal to the respective amounts set
forth below (together with all accrued interest thereon) opposite the
applicable installment dates (or, if less, the aggregate amount of the Tranche
B Dollar Term Loans then outstanding):


 


	
  Date

  	
   

  	
  Amount

  	
   

  
	
  April 7, 2005

  	
   

  	
  $

  	
  4,150,000

  	
   

  
	
  April 7, 2006

  	
   

  	
  $

  	
  4,150,000

  	
   

  
	
  April 7, 2007

  	
   

  	
  $

  	
  4,150,000

  	
   

  
	
  April 7, 2008

  	
   

  	
  $

  	
  4,150,000

  	
   

  
	
  April 7, 2009

  	
   

  	
  $

  	
  4,150,000

  	
   

  
	
  April 7, 2010

  	
   

  	
  $

  	
  4,150,000

  	
   

  
	
  July 7, 2010

  	
   

  	
  $

  	
  97,525,000

  	
   

  
	
  October 7, 2010

  	
   

  	
  $

  	
  97,525,000

  	
   

  
	
  January 7, 2011

  	
   

  	
  $

  	
  97,525,000

  	
   

  
	
  Final Maturity Date

  	
   

  	
  $

  	
  97,525,000

  	
   

  



 


(ii)          
The aggregate Tranche
B Euro Term Loans of all the Tranche B Euro Term Loan Lenders shall be payable
in consecutive annual installments up to and including April 7, 2010 and
thereafter in consecutive quarterly installments (in each case, subject to
reduction as provided in subsection 4.4), on the dates and in the
principal amounts, subject to adjustment as set forth below, equal to the
respective amounts set forth below (together with all accrued interest thereon)
opposite the applicable installment dates (or, if less, the aggregate amount of
the Tranche B Euro Term Loans then outstanding):


 


45

















 


	
  Date

  	
   

  	
  Amount

  	
   

  
	
  April 7, 2005

  	
   

  	
   

  	
  €

  	
  1,450,000

  	
   

  
	
  April 7, 2006

  	
   

  	
   

  	
  €

  	
  1,450,000

  	
   

  
	
  April 7, 2007

  	
   

  	
   

  	
  €

  	
  1,450,000

  	
   

  
	
  April 7, 2008

  	
   

  	
   

  	
  €

  	
  1,450,000

  	
   

  
	
  April 7, 2009

  	
   

  	
   

  	
  €

  	
  1,450,000

  	
   

  
	
  April 7, 2010

  	
   

  	
   

  	
  €

  	
  1,450,000

  	
   

  
	
  July 7, 2010

  	
   

  	
   

  	
  €

  	
  34,075,000

  	
   

  
	
  October 7, 2010

  	
   

  	
   

  	
  €

  	
  34,075,000

  	
   

  
	
  January 7, 2011

  	
   

  	
   

  	
  €

  	
  34,075,000

  	
   

  
	
  Final Maturity Date

  	
   

  	
   

  	
  €

  	
  34,075,000

  	
   

  



 


2.7.         
Procedure for Term Loan Borrowing.  The Parent Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:30 P.M., New York City time), at least
(a) three Business Days prior to the Closing Date, if all or any part of the
Term Loans are to be initially Eurocurrency Loans or (b) one Business Day prior
to the Closing Date, otherwise, specifying (i) the amount to be borrowed,
(ii) whether the Term Loans are to be initially Eurocurrency Loans, ABR
Loans or a combination thereof and (iii) if the Term Loans are to be entirely
or partly Eurocurrency Loans, the respective amounts of each such Type of Loan
and the respective lengths of the initial Interest Periods therefor.  All
Term Loans incurred and/or maintained during the first and second weeks
following the Closing Date shall be incurred and/or maintained as ABR Loans (in
the case of Tranche B Dollar Term Loans) or as Eurocurrency Loans with a
one-week Interest Period applicable thereto.  Upon receipt of such notice
the Administrative Agent shall promptly notify each Term Loan Lender
thereof.  Each Term Loan Lender will make the amount of its pro rata share
(based on its Tranche B Dollar Term Loan Percentage or Tranche B Euro Term Loan
Percentage, as the case may be) of each Tranche of the Term Loans available to
the Administrative Agent for the account of the Parent Borrower at the office
of the Administrative Agent specified in subsection 11.2 prior to 10:00
A.M., New York City time, on the Closing Date in Dollars (in the case of
Tranche B Dollar Term Loans) or in Euros (in the case of Tranche B Euro Term
Loans) and in funds immediately available to the Administrative Agent. 
The Administrative Agent shall on such date credit the account of the Parent
Borrower on the books of such office of the Administrative Agent with the
aggregate of the amounts made available to the Administrative Agent by the Term
Loan Lenders and in like funds as received by the Administrative Agent.


 


2.8.         
Repayment of Loans.  (a)  Each Borrower hereby
unconditionally promises to pay to the Administrative Agent (in Dollars or, in
the case of any Revolving Credit Loan, Swing Line Loan or Term Loan denominated
in a currency other than Dollars, in the


 


46

















 


respective Designated Foreign Currency in which such
Loan is denominated) for the account of:  (i) each Revolving Credit
Lender, the then unpaid principal amount of each Revolving Credit Loan of such
Lender made to such Borrower, on the Termination Date (or such earlier date on
which the Revolving Credit Loans become due and payable pursuant to
Section 9); (ii) the Swing Line Lender, the then unpaid principal amount
of the Swing Line Loans made to such Borrower, on the Termination Date (or such
earlier date on which the Swing Line Loans become due and payable pursuant to
Section 9); and (iii) in the case of the Parent Borrower only, each
Tranche B Term Loan Lender, the amounts specified in subsection 2.6(b)
(or, if less in any case, the aggregate amount of the Tranche B Term Loans made
to the Parent Borrower then outstanding), on the dates set forth in
subsection 2.6(b) (or such earlier date on which the Tranche B Term Loans
become due and payable pursuant to Section 9).  Each Borrower hereby
further agrees to pay interest (which payments shall be in the same currency in
which the respective Loan is denominated) on the unpaid principal amount of the
Loans from time to time outstanding from the date hereof until payment in full
thereof at the rates per annum, and on the dates, set forth in
subsection 4.1.


 


(b)          
Each Lender
(including the Swing Line Lender) shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the each of the
Borrowers to such Lender resulting from each Loan of such Lender from time to
time, including, without limitation, 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 the Register pursuant to subsection 11.6(b), and a
subaccount therein for each Lender, in which shall be recorded (i) the amount
of each Loan made hereunder, the Type thereof and each Interest Period, if any,
applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from each of the Borrowers to each Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from each of the Borrowers and each Lender’s share thereof.


 


(d)          
The entries made in
the Register and the accounts of each Lender maintained pursuant to
subsection 2.8(b) shall, to the extent permitted by applicable law, be
prima facie evidence of the existence and amounts of the obligations of each of
the Borrowers therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the any Borrower to repay (with applicable interest) the Loans
made to such Borrower by such Lender in accordance with the terms of this
Agreement.


 


SECTION 3.          
LETTERS OF CREDIT.


 


3.1.         
L/C Commitment.  (a)  Subject to the terms
and conditions hereof, each Issuing Lender, in reliance on the agreements of
the other Revolving Credit Lenders set forth in subsection 3.4(a), agrees
to continue under this Agreement the Existing Letters of Credit and issue
letters of credit (the letters of credit issued on and after the Closing Date
pursuant to this Section 3, together with the Existing Letters of Credit,
collectively, the “Letters of Credit”) for the account of the Parent
Borrower on any Business Day during the Revolving Credit Commitment Period but
in no event later than the 30th day prior to the Termination Date in
such


 


47

















 


form as may be approved from time to time by the
Issuing Lender; provided that the Issuing Lender shall not issue any
Letter of Credit if, after giving effect to such issuance, (i) the sum of the
Dollar Equivalent of the then outstanding Revolving Credit Loans in any
Designated Foreign Currency, the then outstanding Swing Line Foreign Currency
Loans and the then outstanding L/C Obligations in respect of any Foreign
Backstop Letters of Credit would exceed $75,000,000 (it being understood and
agreed that the Administrative Agent shall calculate the Dollar Equivalent of
the then outstanding Revolving Credit Loans in any Designated Foreign Currency,
the then outstanding Swing Line Foreign Currency Loans and, to the extent
applicable, the then outstanding L/C Obligations in respect of any Foreign
Backstop Letters of Credit on the date on which the Parent Borrower has
requested that the Issuing Lender issue a Letter of Credit for purposes of
determining compliance with this clause (i)), (ii) the L/C Obligations in
respect of Letters of Credit would exceed $70,000,000 or (iii) the Aggregate
Outstanding Revolving Credit of all the Revolving Credit Lenders would exceed
the Revolving Credit Commitments of all the Revolving Credit Lenders then in
effect.  Each Letter of Credit shall (i) be denominated in Dollars or, in
the case of any Foreign Backstop Letters of Credit, in Dollars or any other Designated
Foreign Currency requested by the Parent Borrower and shall be either (A) a
standby letter of credit issued to support obligations of the Parent Borrower
or any of its Subsidiaries, contingent or otherwise, which finance the working
capital and business needs of the Parent Borrower and its Subsidiaries incurred
in the ordinary course of business (a “Standby Letter of Credit”), or
(B) a commercial letter of credit in respect of the purchase of goods or
services by the Parent Borrower or any of its Subsidiaries in the ordinary
course of business (a “Commercial Letter of Credit”), and (ii) unless
otherwise agreed by the Administrative Agent, expire no later than the earlier
of (A) one year after its date of issuance and (B) the 10th day
prior to the Termination Date, in the case of Standby Letters of Credit, or (A)
180 days after its date of issuance and (B) the 30th day prior to
the Termination Date, in the case of Commercial Letters of Credit.  Each
Letter of Credit shall be deemed to constitute a utilization of the Revolving
Loan Commitments and shall be participated in (as more fully described in
following subsection 3.4) by the Revolving Credit Lenders in accordance
with their respective Revolving Credit Commitment Percentages.  All
Letters of Credit shall be denominated in Dollars or in the respective
Designated Foreign Currency requested by the Parent Borrower and shall be
issued for the account of the Parent Borrower.


 


(b)          
Unless otherwise
agreed by the Issuing Lender and the Parent Borrower, each Letter of Credit
shall be subject to the Uniform Customs and, to the extent not inconsistent
therewith, the laws of the State of New York.  All Letters of Credit
shall be issued on a sight basis only.


 


(c)          
The Issuing Lender
shall not at any time issue any Letter of Credit hereunder if such issuance
would conflict with, or cause the Issuing Lender or any L/C Participant to
exceed any limits imposed by, any applicable Requirement of Law.


 


3.2.         
Procedure for Issuance of Letters of Credit.  (a)  The Parent Borrower may
from time to time request during the Revolving Credit Commitment Period but in
no event later than the 30th day prior to the Termination Date that
the Issuing Lender issue a Letter of Credit by delivering to the Issuing Lender
and the Administrative Agent, at their respective addresses for notices
specified herein, a Letter of Credit Request therefor in the form Exhibit K
hereto (completed to the reasonable satisfaction of the Issuing Lender), and
such other certificates,


 


48

















 


documents and other papers and information as the
Issuing Lender may reasonably request.  Each Letter of Credit Request
shall specify the Designated Foreign Currency in which the requested Letter of
Credit is to be denominated (or specify that the requested Letter of Credit is
to be denominated in Dollars).  Upon receipt of any Letter of Credit
Request, the Issuing Lender will process such Letter of Credit Request and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall
the Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Letter of Credit Request therefor and
all such other certificates, documents and other papers and information
relating thereto) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed by the Issuing Lender and the
Parent Borrower.  The Issuing Lender shall furnish a copy of such Letter
of Credit to the Parent Borrower promptly following the issuance thereof. 
Promptly after the issuance or amendment of any Standby Letter of Credit, the
Issuing Lender shall notify the Parent Borrower and the Administrative Agent,
in writing, of such issuance or amendment and such notice shall be accompanied
by a copy of such issuance or amendment. Upon receipt of such notice, the
Administrative Agent, shall promptly notify the Lenders, in writing, of such
issuance or amendment, and if so requested by a Lender the Administrative Agent
shall provide to such Lender copies of such issuance or amendment. With regards
to Commercial Letters of Credit, the Issuing Lender shall on the first Business
Day of each week provide the Administrative Agent, by facsimile, with a report
detailing the aggregate daily outstanding Commercial Letters of Credit during
the previous week.


 


(b)          
The
making of each request for a Letter of Credit by the Parent Borrower shall be
deemed to be a representation and warranty by the Parent Borrower that such
Letter of Credit may be issued in accordance with, and will not violate the
requirements of, subsection 3.1.  Unless the respective Issuing
Lender has received notice from the Required Lenders before it issues a Letter
of Credit that one or more of the applicable conditions specified in
Section 6 are not then satisfied, or that the issuance of such Letter of
Credit would violate subsection 3.1, then such Issuing Lender may issue
the requested Letter of Credit for the account of the Parent Borrower in
accordance with such Issuing Lender’s usual and customary practices.


 


3.3.         
Fees, Commissions and Other Charges.  (a)  The Parent Borrower
agrees to pay to the Administrative Agent, for the account of the relevant
Issuing Lender and the L/C Participants, a letter of credit commission with
respect to each Letter of Credit issued by such Issuing Lender, computed for
the period from and including the date of issuance of such Letter of Credit
through to the expiration date of such Letter of Credit, computed at a rate per
annum equal to the Applicable Margin then in effect for Eurocurrency Loans that
are Revolving Credit Loans calculated on the basis of a 365- (or 366-, as the
case may be) day year, of the aggregate amount available to be drawn under such
Letter of Credit, payable quarterly in arrears on each L/C Fee Payment Date
with respect to such Letter of Credit and on the Termination Date or such
earlier date as the Revolving Credit Commitments shall terminate as provided
herein. Such commission shall be payable to the Administrative Agent for the
account of the Revolving Credit Lenders to be shared ratably among them in
accordance with their respective Revolving Credit Commitment Percentages. 
The Parent Borrower shall pay to the Administrative Agent for the account of
the relevant Issuing Lender a fee equal to 1/4 of 1% per annum (but in no event
less than $500 per annum for each Letter of Credit) of the aggregate amount
available to be drawn


 


49

















 


under such Letter of Credit, payable quarterly in
arrears on each L/C Fee Payment Date with respect to such Letter of Credit and
on the Termination Date or such other date as the Revolving Credit Commitments
shall terminate.  Such commissions and fees shall be nonrefundable. 
Such fees and commissions shall be payable in Dollars, notwithstanding that a Letter
of Credit may be denominated in any Designated Foreign Currency.  In
respect of a Letter of Credit denominated in any Designated Foreign Currency,
such fees and commissions shall be converted into Dollars at the Spot Rate of
Exchange on the date on which they are paid (or, if such date is not a Business
Day, at the Spot Rate of Exchange on the Business Day next preceding such
date).


 


(b)          
In addition to the
foregoing commissions and fees, the Parent Borrower agrees to pay or reimburse
the Issuing Lender for such normal and customary costs and expenses as are
incurred or charged by the Issuing Lender in issuing, effecting payment under,
amending or otherwise administering any Letter of Credit issued by such Issuing
Lender.


 


(c)          
The Administrative
Agent shall, promptly following its receipt thereof, distribute to the Issuing
Lender and the L/C Participants all commissions and fees received by the
Administrative Agent for their respective accounts pursuant to this
subsection 3.3.


 


3.4.         
L/C Participations. 
(a)  The Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the Issuing Lender, without recourse or
warranty, on the terms and conditions hereinafter stated, for such L/C
Participant’s own account and risk an undivided interest equal to such L/C
Participant’s Revolving Credit Commitment Percentage (determined on the date of
issuance of the relevant Letter of Credit) in the Issuing Lender’s obligations
and rights under each Letter of Credit issued or continued hereunder, the
amount of each draft paid by the Issuing Lender thereunder and the obligations
of the Parent Borrower under this Agreement with respect thereto (although
Letter of Credit fees and commissions shall be payable directly to the
Administrative Agent for the account of the Issuing Lender and L/C Participants,
as provided in subsection 3.3 and the L/C Participants shall have no right
to receive any portion of any facing fees with respect to any such Letters of
Credit) and any security therefor or guaranty pertaining thereto.  Each
L/C Participant unconditionally and irrevocably agrees with the Issuing Lender
that, if a draft is paid under any Letter of Credit for which the Issuing
Lender is not reimbursed in full by the Parent Borrower in respect of such
Letter of Credit in accordance with subsection 3.5(a), such L/C
Participant shall pay to the Issuing Lender upon demand (which demand, in the
case of any demand made in respect of any draft under a Letter of Credit
denominated in any Designated Foreign Currency, shall not be made prior to the
date that the amount of such draft shall be converted into Dollars in
accordance with subsection 3.5(a)) at the Issuing Lender’s address for
notices specified herein an amount equal to such L/C Participant’s Revolving
Credit Commitment Percentage of the amount of such draft, or any part thereof,
which is not so reimbursed; provided that nothing in this paragraph
shall relieve the Issuing Lender of any liability resulting from the gross
negligence or willful misconduct of the Issuing Lender, or otherwise affect any
defense or other right that any L/C Participant may have as a result of such
gross negligence or willful misconduct.  All calculations of the L/C
Participants’ Revolving Credit Commitment Percentages shall be made from time
to time by the Administrative Agent, which calculations shall be conclusive
absent manifest error.


 


50

















 


(b)          
If
any amount required to be paid by any L/C Participant to the Issuing Lender on
demand by the Issuing Lender pursuant to subsection 3.4(a) in respect of
any unreimbursed portion of any payment made by the Issuing Lender under any
Letter of Credit is paid to the Issuing Lender within three Business Days after
the date such demand is made, such L/C Participant shall pay to the Issuing Lender
on demand an amount equal to the product of such amount, times the daily
average Federal Funds Effective Rate during the period from and including the
date such payment is required to the date on which such payment is immediately
available to the Issuing Lender, times a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360.  If any such amount required to be paid by any L/C Participant
pursuant to subsection 3.4(a) is not in fact made available to the Issuing
Lender by such L/C Participant within three Business Days after the date such
payment is due, the Issuing Lender shall be entitled to recover from such L/C
Participant, on demand, such amount with interest thereon (with interest based
on the Dollar Equivalent of any amounts denominated in Designated Foreign
Currencies) calculated from such due date at the rate per annum applicable to
Revolving Credit Loans maintained as ABR Loans hereunder.  A certificate
of the Issuing Lender submitted to any L/C Participant with respect to any
amounts owing under this subsection (which shall include calculations of
any such amounts in reasonable detail) shall be conclusive in the absence of
manifest error.


 


(c)          
Whenever,
at any time after the Issuing Lender has made payment under any Letter of
Credit and has received from any L/C Participant its pro rata share of such
payment in accordance with subsection 3.4(a), the Issuing Lender receives
any payment related to such Letter of Credit (whether directly from the Parent
Borrower in respect of such Letter of Credit or otherwise, including proceeds
of Collateral applied thereto by the Issuing Lender), or any payment of
interest on account thereof, the Issuing Lender will, if such payment is received
prior to 1:00 P.M., New York City time, on a Business Day, distribute to
such L/C Participant its pro rata share thereof prior to the end of such
Business Day and otherwise the Issuing Lender will distribute such payment on
the next succeeding Business Day; provided, however, that in the
event that any such payment received by the Issuing Lender shall be required to
be returned by the Issuing Lender, such L/C Participant shall return to the
Issuing Lender the portion thereof previously distributed by the Issuing Lender
to it.


 


3.5.         
Reimbursement Obligation of the Parent Borrower.  (a)  The Parent Borrower
hereby agrees to reimburse the Issuing Lender, upon receipt by the Parent
Borrower of notice from the Issuing Lender of the date and amount of a draft
presented under any Letter of Credit and paid by the Issuing Lender, for the
amount of such draft so paid and any taxes, fees, charges or other costs or
expenses reasonably incurred by the Issuing Lender in connection with such
payment.  Each such payment shall be made to the Issuing Lender, at its
address for notices specified herein in the currency in which such Letter of
Credit is denominated (except that, in the case of any Letter of Credit
denominated in any Designated Foreign Currency, in the event that such payment
is not made to the Issuing Lender within three Business Days of the date of
receipt by the Parent Borrower of such notice, upon notice by the Issuing
Lender to the Parent Borrower, such payment shall be made in Dollars, in an amount
equal to the Dollar Equivalent of the amount of such payment converted on the
date of such notice into Dollars at the Spot Rate of Exchange on such date) and
in immediately available funds, on the date on which the Parent Borrower
receives such notice, if received prior to 11:00 A.M., New York City time,
on a Business Day and otherwise on the next succeeding Business Day.  Any
conversion by the


 


51

















 


Issuing Lender of any payment to be made in respect of
any Letter of Credit denominated in any Designated Foreign Currency into
Dollars in accordance with this subsection 3.5(a) shall be conclusive and
binding upon the Parent Borrower and the Revolving Credit Lenders in the
absence of manifest error; provided that upon the request of the Parent
Borrower or any Revolving Credit Lender, the Issuing Lender shall provide to
the Parent Borrower or Revolving Credit Lender a certificate including
reasonably detailed information as to the calculation of such conversion.


 


(b)          
Interest shall be
payable on any and all amounts remaining unpaid (taking the Dollar Equivalent
of any amounts denominated in any Designated Foreign Currency, as determined by
the Administrative Agent) by the Parent Borrower under this subsection 3.5
(i) from the date the draft presented under the affected Letter of Credit is
paid to the date on which the Parent Borrower is required to pay such amounts
pursuant to paragraph (a) above at the rate which would then be payable on any
outstanding ABR Loans that are Revolving Credit Loans and (ii) thereafter until
payment in full at the rate which would be payable on any outstanding ABR Loans
that are Revolving Credit Loans which were then overdue.


 


3.6.         
Obligations Absolute.  (a)  The Parent Borrower’s obligations
under this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Parent Borrower may have or have had against the Issuing Lender,
any L/C Participant or any beneficiary of a Letter of Credit, provided
that this paragraph shall not relieve the Issuing Lender or any L/C Participant
of any liability resulting from the gross negligence or willful misconduct of
the Issuing Lender or such L/C Participant, or otherwise affect any defense or
other right that the Parent Borrower may have as a result of any such gross
negligence or willful misconduct.


 


(b)          
The Parent Borrower
and each Lender also agrees with the Issuing Lender that the Issuing Lender and
the L/C Participants shall not be responsible for, and the Parent Borrower’s
Reimbursement Obligations under subsection 3.5(a) shall not be affected
by, among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Parent
Borrower and any beneficiary of any Letter of Credit or any other party to
which such Letter of Credit may be transferred or any claims whatsoever of the
Parent Borrower against any beneficiary of such Letter of Credit or any such
transferee, provided that this paragraph shall not relieve the Issuing
Lender or any L/C Participant of any liability resulting from the gross
negligence or willful misconduct of the Issuing Lender or such L/C Participant,
or otherwise affect any defense or other right that the Parent Borrower may
have as a result of any such gross negligence or willful misconduct.


 


(c)          
Neither the Issuing
Lender nor any L/C Participant shall be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except
for errors or omissions caused by such Person’s gross negligence or willful
misconduct.


 


(d)          
The Parent Borrower
agrees that any action taken or omitted by the Issuing Lender under or in
connection with any Letter of Credit or the related drafts or documents, if done
in the absence of gross negligence or willful misconduct and in accordance


 


52

















 


with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Parent
Borrower and shall not result in any liability of the Issuing Lender or any L/C
Participant to the Parent Borrower.


 


3.7.         
Letter of Credit Payments.  If any draft shall be presented for payment
under any Letter of Credit, the Issuing Lender shall promptly notify the Parent
Borrower of the date and amount thereof.  The responsibility of the
Issuing Lender to the Parent Borrower in respect of any Letter of Credit in
connection with any draft presented for payment under such Letter of Credit
shall, in addition to any payment obligation expressly provided for in such
Letter of Credit, be limited to determining that the documents (including each
draft) delivered under such Letter of Credit in connection with such
presentment are in conformity with such Letter of Credit, provided that
this paragraph shall not relieve the Issuing Lender of any liability resulting
from the gross negligence or willful misconduct of the Issuing Lender, or
otherwise affect any defense or other right that the Parent Borrower may have
as a result of any such gross negligence or willful misconduct.


 


3.8.         
Letter of Credit Request.  To the extent that any provision of any Letter
of Credit Request related to any Letter of Credit is inconsistent with the
provisions of this Section 3, the provisions of this Section 3 shall
apply.


 


3.9.         
Additional Issuing Lenders.  The Parent Borrower may, at any time and from
time to time with the consent of the Administrative Agent (which consent shall
not be unreasonably withheld) and such Lender, designate one or more additional
Lenders to act as an issuing lender under the terms of this Agreement. 
Any Lender designated as an issuing bank pursuant to this subsection 3.9
shall be deemed to be an “Issuing Lender” (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 Lender or Issuing Lenders and such Lender.


 


SECTION 4.          
GENERAL PROVISIONS
APPLICABLE TO LOANS AND LETTERS OF CREDIT.


 


4.1.         
Interest Rates and Payment Dates.  (a)  Each Eurocurrency Loan shall
bear interest for each day during each Interest Period with respect thereto at
a rate per annum equal to the Eurocurrency Rate determined for such day plus
the Applicable Margin in effect for such day.


 


(b)          
Each
ABR Loan shall bear interest for each day that it is outstanding at a rate per
annum equal to the ABR for such day plus the Applicable Margin in effect for
such day.  Each Swing Line Foreign Currency Loan shall bear interest for
each day during each Interest Period with respect thereto at a rate per annum
equal to the Swing Line Foreign Currency Rate for such day plus 1.50% per annum
plus the Applicable Margin in effect for such day for Eurocurrency Loans that
are Revolving Credit Loans.


 


(c)          
If
all or a portion of (i) the principal amount of any Loan, (ii) any interest
payable thereon or (iii) any commitment fee, letter of credit commission,
letter of credit fee or other amount payable hereunder shall not be paid when
due (whether at the stated maturity, by


 


53

















 


acceleration or otherwise), such
overdue amount shall bear interest at a rate per annum which is (x) in the case
of overdue principal, the rate that would otherwise be applicable thereto
pursuant to the relevant foregoing provisions of this subsection plus
2.00%, (y) in the case of overdue interest, the rate that would be otherwise
applicable to principal of the related Loan pursuant to the relevant foregoing
provisions of this subsection (other than clause (x) above) plus 2.00% and
(z) in the case of, fees, commissions or other amounts, the rate described in
paragraph (b) of this subsection for ABR Loans that are Revolving Credit
Loans plus 2.00%, in each case from the date of such non-payment until such
amount is paid in full (as well after as before judgment).


 


(d)          
Interest shall be
payable in arrears on each Interest Payment Date, provided that interest
accruing pursuant to paragraph (c) of this subsection shall be payable
from time to time on demand.


 


(e)          
It is the intention
of the parties hereto to comply strictly with applicable usury laws;
accordingly, it is stipulated and agreed that the aggregate of all amounts
which constitute interest under applicable usury laws, whether contracted for,
charged, taken, reserved, or received, in connection with the indebtedness
evidenced by this Agreement or any Notes, or any other document relating or
referring hereto or thereto, now or hereafter existing, shall never exceed
under any circumstance whatsoever the maximum amount of interest allowed by
applicable usury laws.


 


4.2.         
Conversion and Continuation Options.  (a)  The Parent Borrower may elect
from time to time to convert outstanding Term Loans and Revolving Credit Loans
from Eurocurrency Loans made or outstanding in Dollars to ABR Loans by giving
the Administrative Agent at least two Business Days’ prior irrevocable notice
of such election, provided that any such conversion of Eurocurrency
Loans made or outstanding in Dollars may only be made on the last day of an
Interest Period with respect thereto.  The Parent Borrower may elect from
time to time to convert outstanding Term Loans and Revolving Credit Loans made
or outstanding in Dollars from ABR Loans to Eurocurrency Loans outstanding in
Dollars by giving the Administrative Agent at least three Business Days’ prior
irrevocable notice of such election.  Any such notice of conversion to
Eurocurrency Loans outstanding in Dollars shall specify the length of the
initial Interest Period or Interest Periods therefor.  Upon receipt of any
such notice the Administrative Agent shall promptly notify each affected Lender
thereof.  All or any part of outstanding Eurocurrency Loans made or
outstanding in Dollars and ABR Loans may be converted as provided herein, provided
that (i) (unless the Required Lenders otherwise consent) no Loan may be
converted into a Eurocurrency Loan when any Default or Event of Default has
occurred and is continuing and, in the case of any Default, the Administrative
Agent has given notice to the Parent Borrower that no such conversions may be
made and (ii) no Loan may be converted into a Eurocurrency Loan after the date
that is one month prior to either the Termination Date (in the case of
conversions of Revolving Credit Loans) or the Final Maturity Date (in the case
of Term Loans).


 


(b)          
Any Eurocurrency Loan
may be continued as such upon the expiration of the then current Interest
Period with respect thereto by the Parent Borrower giving notice to the
Administrative Agent of the length of the next Interest Period to be applicable
to such Loan, determined in accordance with the applicable provisions of the
term “Interest Period” set forth in subsection 1.1, provided that
no Eurocurrency Loan may be continued as such (i) (unless the


 


54

















 


Required Lenders otherwise consent) when any Default
or Event of Default has occurred and is continuing and, in the case of any
Default, the Administrative Agent has given notice to the Parent Borrower that
no such continuations may be made or (ii) after the date that is one month
prior to either the Termination Date (in the case of continuations of Revolving
Credit Loans) or the Final Maturity Date (in the case of continuations of Term
Loans), and provided, further, that (A) in the case of
Eurocurrency Loans made or outstanding in Dollars, if the Parent Borrower shall
fail to give any required notice as described above in this paragraph or if
such continuation is not permitted pursuant to the preceding proviso such
Eurocurrency Loans shall be automatically converted to ABR Loans on the last
day of such then expiring Interest Period and (B) in case of Eurocurrency
Loans made or outstanding in any Designated Foreign Currency, if the Parent
Borrower shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to clause (i) of
the preceding proviso, such Eurocurrency Loans will be continued for the
shortest available Interest Periods as determined by the Administrative
Agent.  Upon receipt of any such notice of continuation pursuant to this
subsection 4.2(b), the Administrative Agent shall promptly notify each
affected Lender thereof.


 


4.3.         
Minimum Amounts of Sets.  All borrowings, conversions and continuations
of Loans hereunder and all selections of Interest Periods hereunder shall be in
such amounts and be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of the Eurocurrency Loans
outstanding in Dollars comprising each Set shall be equal to $5,000,000 or a
whole multiple of $1,000,000 in excess thereof, the Dollar Equivalent of the
aggregate principal amount of the Eurocurrency Loans outstanding in any
Designated Foreign Currency comprising each Set shall be equal to $5,000,000 or
a whole multiple of $1,000,000 in excess thereof and so that there shall not be
more than 15 Sets at any one time outstanding.


 


4.4.         
Optional and Mandatory Prepayments.  (a)  Each of the
Borrowers may at any time and from time to time prepay the Loans made to it and
the Reimbursement Obligations in respect of Letters of Credit issued for its
account, in whole or in part, subject to subsection 4.12, without premium
or penalty, upon at least three Business Days’ irrevocable notice by the Parent
Borrower to the Administrative Agent (in the case of Eurocurrency Loans
outstanding in Dollars or any Designated Foreign Currency and Reimbursement
Obligations outstanding in any Designated Foreign Currency), at least one
Business Day’s irrevocable notice by the Parent Borrower to the Administrative
Agent (in the case of (x) ABR Loans other than Swing Line Loans
outstanding in Dollars, (y) Reimbursement Obligations outstanding in
Dollars and (z) any Swing Line Loans outstanding in any Designated Foreign
Currency) or same-day irrevocable notice by the Parent Borrower to the Administrative
Agent (in the case of Swing Line Loans outstanding in Dollars), specifying, in
the case of any prepayment of Loans, the identity of the prepaying Borrower,
the date and amount of prepayment and whether the prepayment is (i) of Tranche
B Dollar Term Loans, Tranche B Euro Term Loans, Revolving Credit Loans or Swing
Line Loans, or a combination thereof, and (ii) of Eurocurrency Loans,
Swing Line Foreign Currency Loans, ABR Loans or a combination thereof, and, in
each case if a combination thereof, the principal amount allocable to each and,
in the case of any prepayment of Reimbursement Obligations, the date and amount
of prepayment, the identity of the applicable Letter of Credit or Letters of
Credit and the amount allocable to each of such Reimbursement
Obligations.  Upon the receipt of any such notice the Administrative Agent
shall promptly notify each affected Lender thereof.  If any such notice is
given, the amount specified in such notice


 


55

















 


shall be due and payable on the date specified
therein, together with (if a Eurocurrency Loan or Swing Line Foreign Currency
Loan is prepaid other than at the end of the Interest Period applicable
thereto) any amounts payable pursuant to subsection 4.12 and, in the case
of prepayments of the Term Loans only, accrued interest to such date on the
amount prepaid.  Partial prepayments of (i) the Term Loans pursuant to
this subsection (x) shall be made pro rata between the Term Loans
according to the respective outstanding principal amounts thereof (i.e., each
Tranche of outstanding Term Loans shall be required to be prepaid on a pro rata
basis) and (y) shall be applied pro rata to the respective installments of
principal thereof, provided that notwithstanding clauses (x) and (y)
above, any such partial prepayment may, at the option of the Parent Borrower,
be first allocated to the Term Loans pro rata based upon the aggregate amount
of the installments thereof due in the next twelve months and then applied, at
the option of the Parent Borrower, against any of such installments of the Term
Loans, and, thereafter, the remainder of such partial prepayment shall be
allocated and applied as provided in clauses (x) and (y) above, and (ii) the
Revolving Credit Loans and the Reimbursement Obligations pursuant to this
subsection shall (unless the Parent Borrower otherwise directs) be
applied, first, to payment of the Swing Line Loans then outstanding, second,
to payment of the Revolving Credit Loans then outstanding, third, to
payment of any Reimbursement Obligations then outstanding and, last, to
cash collateralize any outstanding L/C Obligation on terms reasonably
satisfactory to the Administrative Agent; provided, further, than
any pro rata calculations required to be made pursuant to this
subsection 4.4(a) in respect to any Loan denominated in a Designated
Foreign Currency shall be made on a Dollar Equivalent basis.  Partial
prepayments pursuant to this subsection 4.4(a) shall be in an aggregate
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof (or, in the case of Eurocurrency Loans outstanding in any Designated
Foreign Currency or Swing Line Foreign Currency Loans, the Dollar Equivalent of
an aggregate principal amount of at least approximately $5,000,000), provided
that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.


 


(b)          
If on or after the
Closing Date (i) the Parent Borrower or any of its Subsidiaries shall incur
Indebtedness for borrowed money (other than Indebtedness permitted pursuant to
subsection 8.2, except as otherwise specified in subsection 8.2)
pursuant to a public offering or private placement or otherwise, (ii) the
Parent Borrower or any of its Subsidiaries shall make an Asset Sale pursuant to
subsection 8.6(i), (iii) a Recovery Event occurs or (iv) the Parent
Borrower or any of its Subsidiaries shall enter into a Sale and Leaseback
Transaction, then, in each case, the Borrowers shall prepay, in accordance with
subsection 4.4(f), the Loans and cash collateralize the L/C Obligations in
an amount equal to: (x) in the case of the incurrence of any such Indebtedness,
100% of the Net Cash Proceeds thereof minus any Permitted Acquisition Amount;
(y) in the case of any such Asset Sale or Recovery Event, 100% of the Net Cash
Proceeds thereof minus any Reinvested Amounts; and (z) in the case of any such
Sale and Leaseback Transaction, 100% of the Net Cash Proceeds thereof, in each
case with such prepayment to be made on the Business Day following the date of
receipt of any such Net Cash Proceeds except that, in the case of clause (x),
if any such Net Cash Proceeds are eligible to be used to pay the cash
consideration for an acquisition permitted by subsection 8.10(b) in
accordance with the definition of the term “Permitted Acquisition Amount” in
subsection 1.1 and the Parent Borrower has not elected to so apply such
proceeds, such prepayment to be made on the earlier of (1) the date occurring
90 days after the receipt of such Net Cash Proceeds and (2) the date on which
the Parent Borrower shall have determined not to acquire any business, assets
or Capital Stock in an acquisition permitted by subsection 8.10(b) with
all or any portion of such


 


56

















 


Net Cash Proceeds and except that, in the case of
clause (y), if any such Net Cash Proceeds are eligible to be reinvested in
accordance with the definition of the term “Reinvested Amount” in
subsection 1.1 and the Parent Borrower has not elected to reinvest such
proceeds, such prepayment to be made on the earlier of (1) the date on which
the certificate of a Responsible Officer of the Parent Borrower to such effect
is delivered to the Administrative Agent in accordance with such definition and
(2) the last day of the period within which a certificate setting forth such
election is required to be delivered in accordance with such definition). 
Nothing in this paragraph (b) shall limit the rights of the Administrative
Agent and the Lenders set forth in Section 9.


 


(c)          
Commencing
March 31, 2006, and on each March 31 thereafter, the Parent Borrower
shall apply toward the prepayment, in accordance with subsection 4.4(f),
of the Loans and the cash collateralization of the L/C Obligations the ECF
Percentage of the Parent Borrower’s Excess Cash Flow for the fiscal year ending
on the immediately preceding December 31.


 


(d)          
The Parent Borrower
shall prepay all Swing Line Loans then outstanding simultaneously with each
borrowing of Revolving Credit Loans.


 


(e)          
If
the Parent Borrower or any of its Subsidiaries enters into any Permitted
Receivables Transaction, on the next Business Day the Parent Borrower shall
prepay, in accordance with subsection 4.4(f), the Loans and cash
collateralize the L/C Obligations in an aggregate amount equal to the Permitted
Receivables Transaction Prepayment Amount in respect of such Permitted
Receivables Transaction.


 


(f)           
Prepayments
pursuant to subsections 4.4(b), 4.4(c) and 4.4(e) shall be applied, first,
to prepay Term Loans then outstanding, second, to prepay Swing Line
Loans then outstanding, third, to prepay Revolving Credit Loans then
outstanding, fourth, to pay any Reimbursement Obligations then
outstanding and, last, to cash collateralize any outstanding L/C
Obligations on terms reasonably satisfactory to the Administrative Agent. 
Prepayments of Term Loans pursuant to subsections 4.4(b), 4.4.(c) and 4.4(e)
shall be applied (i) pro rata (based on outstanding principal amount) to the
Term Loans and (ii) pro rata to the respective installments of principal
thereof; provided that notwithstanding clauses (i) and (ii) above, any
such payment may, at the option of the Parent Borrower, be first allocated to
the Term Loans pro rata based upon the aggregate amount of the installments
thereof due in the next twelve months and then applied, at the option of the
Parent Borrower, against any of such installments of the Term Loans and,
thereafter, the remainder of such prepayment shall be allocated and applied as
provided in clauses (i) and (ii) above; provided, further, that
any pro rata calculations required to be made pursuant to this
subsection 4.4(f) in respect to any Loan denominated in a Designated
Foreign Currency shall be made on a Dollar Equivalent basis.


 


(g)          
Amounts
prepaid on account of Term Loans pursuant to subsection 4.4(a), 4.4(b),
4.4(c) or 4.4(e) may not be reborrowed.


 


(h)          
The
Revolving Credit Commitments shall be permanently reduced by the amount of all
prepayments of Revolving Credit Loans, payments of Reimbursement Obligations


 


57

















 


and cash collateralizations of L/C Obligations, in
each case, made under subsections 4.4(b), 4.4(c) or 4.4(e).


 


(i)           
Notwithstanding
the foregoing provisions of this subsection 4.4, if at any time any
prepayment of the Loans pursuant to subsection 4.4(b), 4.4(c) or 4.4(e)
would result, after giving effect to the procedures set forth in this
Agreement, in the Parent Borrower incurring breakage costs under
subsection 4.12 as a result of Eurocurrency Loans being prepaid other than
on the last day of an Interest Period with respect thereto, then, the relevant
Borrower may, so long as no Default or Event of Default shall have occurred and
be continuing, in its sole discretion, initially (i) deposit a portion (up to
100%) of the amounts that otherwise would have been paid in respect of such
Eurocurrency Loans with the Administrative Agent (which deposit must be equal
in amount to the amount of such Eurocurrency Loans not immediately prepaid) to
be held as security for the obligations of the Borrowers to make such
prepayment pursuant to a cash collateral agreement to be entered into on terms
reasonably satisfactory to the Administrative Agent, with such cash collateral
to be directly applied upon the first occurrence thereafter of the last day of
an Interest Period with respect to such Eurocurrency Loans (or such earlier
date or dates as shall be requested by the Parent Borrower) or (ii) make a
prepayment of the Revolving Credit Loans in accordance with
subsection 4.4(a) with an amount equal to a portion (up to 100%) of the
amounts that otherwise would have been paid in respect of such Eurocurrency
Loans (which prepayment, together with any deposits pursuant to clause (i)
above, must be equal in amount to the amount of such Eurocurrency Loans not
immediately prepaid); provided that, notwithstanding anything in this
Agreement to the contrary, none of the Borrowers may request any Extension of
Credit under the Revolving Credit Commitments that would reduce the aggregate
amount of the Available Revolving Credit Commitments to an amount that is less
than the amount of such prepayment until the related portion of such
Eurocurrency Loans have been prepaid upon the first occurrence thereafter of
the last day of an Interest Period with respect to such Eurocurrency Loans; provided
that, in the case of either clause (i) or (ii), such unpaid Eurocurrency Loans
shall continue to bear interest in accordance with subsection 4.1 until
such unpaid Eurocurrency Loans or the related portion of such Eurocurrency
Loans, as the case may be, have or has been prepaid.


 


4.5.         
Commitment Fees; Administrative Agent’s Fee; Other Fees.  (a)  The Parent
Borrower agrees to pay to the Administrative Agent, for the account of each
Revolving Credit Lender, a commitment fee for the period from and including the
first day of the Revolving Credit Commitment Period to the Termination Date,
computed at the Commitment Fee Rate on the average daily amount of the
Available Revolving Credit Commitment of such Revolving Credit Lender during
the period for which payment is made, payable quarterly in arrears on the last
day of each March, June, September and December and on the Termination
Date or such earlier date as the Revolving Credit Commitments shall terminate
as provided herein, commencing on June 30, 2004.


 


(b)          
The Parent Borrower
agrees to pay to the Administrative Agent and the Other Representatives any
fees in the amounts and on the dates previously agreed to in writing by the
Parent Borrower, the Other Representatives and the Administrative Agent in
connection with this Agreement.


 


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4.6.         
Computation of Interest and Fees.  (a)  Interest (other than interest based
on the Prime Rate) shall be calculated on the basis of a 360-day year for the
actual days elapsed; and commitment fees and interest based on the Prime Rate
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed.  The Administrative Agent shall as soon
as practicable notify the Parent Borrower and the affected Lenders of each
determination of a Eurocurrency Rate.  Any change in the interest rate on
a Loan resulting from a change in the ABR, the Swing Line Foreign Currency Rate
or the Eurocurrency Reserve Requirements shall become effective as of the
opening of business on the day on which such change becomes effective. 
The Administrative Agent shall as soon as practicable notify the Parent
Borrower and the affected Lenders of the effective date and the amount of each
such change in interest rate.


 


(b)          
Each determination of
an interest rate by the Administrative Agent pursuant to any provision of this
Agreement shall be conclusive and binding on each of the Borrowers and the
Lenders in the absence of manifest error.  The Administrative Agent shall,
at the request of the Parent Borrower or any Lender, deliver to the Parent
Borrower or such Lender a statement showing in reasonable detail the
calculations used by the Administrative Agent in determining any interest rate
pursuant to subsection 4.1 , excluding any Eurocurrency Base Rate which is
based upon the Telerate British Bankers Assoc. Interest Settlement Rates Page
and any ABR which is based upon the Prime Rate.


 


4.7.         
Inability to Determine Interest Rate.  If prior to the first day of any
Interest Period, the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon each of the Borrowers) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurocurrency Rate with
respect to any Eurocurrency Loan or the Swing Line Foreign Currency Rate for
any Swing Line Foreign Currency Loan (in either case, the “Affected Rate”)
for such Interest Period, the Administrative Agent shall give telecopy or
telephonic notice thereof to the Parent Borrower and the Lenders as soon as
practicable thereafter.  If such notice is given (a) any Eurocurrency
Loans the rate of interest applicable to which is based on the Affected
Eurocurrency Rate requested to be made on the first day of such Interest Period
shall be made as ABR Loans (to the extent otherwise permitted by
subsection 4.2), (b) any Loans that were to have been converted on
the first day of such Interest Period to or continued as Eurocurrency Loans the
rate of interest applicable to which is based upon the Affected Eurocurrency
Rate shall be converted to or continued as ABR Loans (to the extent otherwise
permitted by subsection 4.2), (c) in the case of Tranche B Euro Term Loans
or Swing Line Foreign Currency Loans subject to an Affected Rate, same shall
remain outstanding and bear interest at the rate which reflects, as to each
Tranche B Euro Term Loan Lender or the Swing Line Lender, as the case may be,
such Lender’s cost of funding such Eurocurrency Loans, or Swing Line Foreign
Currency Loans as reasonably determined by such Lender, plus the Applicable
Margin hereunder (plus 1.50% per annum in the case of Swing Line Foreign
Currency Loans), and (d) any outstanding Eurocurrency Loans that are Revolving
Credit Loans that were to have been converted on the first day of such Interest
Period to or continued as Eurocurrency Loans the rate of interest applicable to
which is based upon the Affected Eurocurrency Rate and that are not otherwise
permitted to be converted to or continued as ABR Loans by subsection 4.2
shall, upon demand by the Revolving Credit Lenders the Revolving Credit
Commitment Percentage of which aggregate greater than 50%, be immediately
repaid by the applicable Borrower on the last day of the then current Interest
Period


 


59

















 


with respect thereto together with accrued interest
thereon or otherwise, at the option of the Parent Borrower, shall remain
outstanding and bear interest at a rate which reflects, as to each of the
Revolving Credit Lenders, such Revolving Credit Lender’s cost of funding such
Eurocurrency Loans, as reasonably determined by such Revolving Credit Lender,
plus the Applicable Margin hereunder. If any such repayment occurs on a day
which is not the last day of the then current Interest Period with respect to
such affected Eurocurrency Loan, the applicable Borrower shall pay to each of
the Revolving Credit Lenders such amounts, if any, as may be required pursuant
to subsection 4.12.  Until such notice has been withdrawn by the
Administrative Agent, no further Eurocurrency Loans the rate of interest
applicable to which is based upon the Affected Eurocurrency Rate shall be made
or continued as such, nor shall any of the Borrowers have the right to convert
ABR Loans to Eurocurrency Loans the rate of interest applicable to which is based
upon the Affected Eurocurrency Rate.


 


4.8.         
Pro Rata Treatment and Payments.  (a)  Each borrowing of Revolving Credit
Loans (other than Swing Line Loans) by any of the Borrowers from the Lenders
hereunder shall be made, each payment by any of the Borrowers on account of any
commitment fee in respect of the Revolving Credit Commitments hereunder shall
be allocated by the Administrative Agent, and any reduction of the Revolving
Credit Commitments of the Lenders shall be allocated by the Administrative
Agent, pro rata according to the relevant Revolving Credit Commitment
Percentages of the Lenders.  Each payment (including each prepayment) by
any of the Borrowers on account of principal of and interest on any Revolving
Credit Loans shall be allocated by the Administrative Agent pro rata according
to the respective outstanding principal amounts of such Revolving Credit Loans
then held by the Revolving Credit Lenders. Each payment (including each
prepayment) by any of the Borrowers on account of principal of and interest on
any Tranche of Term Loans shall be allocated by the Administrative Agent pro
rata according to the respective outstanding principal amounts of the Term
Loans of such Tranche then held by the respective Lenders.  All payments
(including prepayments) to be made by any of the Borrowers hereunder, whether
on account of principal, interest, fees, Reimbursement Obligations or
otherwise, shall be made without set-off or counterclaim and shall be made
prior to 1:00 P.M., New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders holding the relevant Loans
or the L/C Participants, as the case may be, at the Administrative Agent’s
office specified in subsection 11.2, in Dollars or, in the case of Loans
outstanding in any Designated Foreign Currency and L/C Obligations in any
Designated Foreign Currency, such Designated Foreign Currency and, whether in
Dollars or any Designated Foreign Currency, in immediately available
funds.  Payments received by the Administrative Agent after such time
shall be deemed to have been received on the next Business Day.  The
Administrative Agent shall distribute such payments to such Lenders, if any
such payment is received prior to 1:00 P.M., New York City time, on a Business
Day, in like funds as received prior to the end of such Business Day and
otherwise the Administrative Agent shall distribute such payment to such
Lenders on the next succeeding Business Day.  If any payment hereunder
(other than payments on the Eurocurrency Loans) becomes due and payable on a
day other than a Business Day, the maturity of such payment shall be extended
to the next succeeding Business Day, and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension.  If any payment on a Eurocurrency Loan becomes due and
payable on a day other than a Business Day, the maturity of such payment shall
be extended to the next succeeding Business Day (and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate


 


60

















 


during such extension) unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day.


 


(b)          
Unless the
Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its
Revolving Credit Commitment Percentage or Tranche B Term Loan Percentage, as
the case may be, of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Lender is making such amount
available to the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to any of the Borrowers in
respect of such borrowing a corresponding amount.  If such amount is not
made available to the Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on
demand, such amount with interest thereon at a rate equal to (i) in the case of
Loans to be made in any Designated Foreign Currency, the rate customary in such
Designated Foreign Currency for settlement of similar inter-bank obligations,
or (ii) in the case of Loans to be made in Dollars, the daily average Federal
Funds Effective Rate, as quoted by the Administrative Agent, in each case for
the period until such Lender makes such amount immediately available to the
Administrative Agent.  A certificate of the Administrative Agent submitted
to any Lender with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error.  If
such Lender’s Revolving Credit Commitment Percentage or Tranche B Term Loan
Percentage, as the case may be, of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such
Borrowing Date, (x) the Administrative Agent shall notify the Parent Borrower
of the failure of such Lender to make such amount available to the
Administrative Agent and the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to,
in the case of Loans to be made in Dollars, ABR Loans hereunder or, in the case
of Loans to be made in any Designated Foreign Currency, the rate per annum
applicable to such Loans pursuant to subsection 4.1, in either case on
demand, from such Borrower and (y) then such Borrower may, without waiving or
limiting any rights or remedies it may have against such Lender hereunder or
under applicable law or otherwise, (i) borrow a like amount on an unsecured
basis from any commercial bank for a period ending on the date upon which such
Lender does in fact make such borrowing available, provided that at the
time such borrowing is made and at all times while such amount is outstanding
such Borrower would be permitted to borrow such amount pursuant to
subsection 2.1 and/or (ii) take any action permitted by the following
subsection 4.8(c).


 


(c)          
Notwithstanding
anything contained in this Agreement:


 


(i)            If at any time a Revolving Credit Lender
shall not make a Revolving Credit Loan required to be made by it hereunder (any
such Lender, a “Defaulting Lender”), the Parent Borrower shall have the
right to seek one or more Persons reasonably satisfactory to the Administrative
Agent and the Parent Borrower to each become a substitute Revolving Credit
Lender and assume all or part of the Revolving Credit Commitment of such
Defaulting Lender.  In such event, the Parent Borrower, the Administrative
Agent and any such substitute Revolving Credit Lender shall execute and
deliver, and such Defaulting Lender


 


61

















 


shall thereupon be deemed to have executed and
delivered, an appropriately completed Assignment and Acceptance to effect such
substitution.


 


(ii)           In determining the Required Collateral
Release Lenders or Required Lenders, any Lender that at the time is a
Defaulting Lender (and the Revolving Credit Loans and/or Revolving Credit
Commitment of such Defaulting Lender) shall be excluded and disregarded.
 No commitment fee shall accrue for the account of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender.


 


(iii)          If at any time any Borrower shall be
required to make any payment under any Loan Document to or for the account of a
Defaulting Lender, then such Borrower, so long as it is then permitted to
borrow Revolving Credit Loans hereunder, may set off and otherwise apply its
obligation to make such payment against the obligation of such Defaulting
Lender to make such Defaulted Loan.  In such event, the amount so set off and
otherwise applied shall be deemed to constitute a Revolving Credit Loan by such
Defaulting Lender made on the date of such set-off and included within any
borrowing of Revolving Credit Loans as the Administrative Agent may reasonably
determine.


 


(iv)          If, with respect to any Defaulting
Lender, which for the purposes of this subsection 4.8(c)(iv), shall
include any Revolving Credit Lender that has taken any action or become the
subject of any action or proceeding of a type described in subsection 9(f),
any Borrower shall be required to pay any amount under any Loan Document to or
for the account of such Defaulting Lender, then such Borrower, so long as it is
then permitted to borrow Revolving Credit Loans hereunder, may satisfy such
payment obligation by paying such amount to the Administrative Agent, to be (to
the extent permitted by applicable law and to the extent not utilized by the
Administrative Agent to satisfy obligations of the Defaulting Lender owing to
it) held by the Administrative Agent in escrow pursuant to its standard terms
(including as to the earning of interest), and applied (together with any
accrued interest) by it from time to time to make any Revolving Credit Loans or
other payments as and when required to be made by such Defaulting Lender
hereunder.


 


4.9.         
Illegality.  Notwithstanding any other provision herein, if the adoption of
or any change in any Requirement of Law or in the interpretation or application
thereof occurring after the Closing Date shall make it unlawful for any Lender
to make or maintain any Eurocurrency Loans or Swing Line Foreign Currency Loans
as contemplated by this Agreement (“Affected Loans”), (a) such Lender
shall promptly give written notice of such circumstances to the Parent Borrower
and the Administrative Agent (which notice shall be withdrawn whenever such
circumstances no longer exist), (b) the commitment of such Lender hereunder to
make Affected Loans, continue Affected Loans as such and convert an ABR Loan to
an Affected Loan shall forthwith be cancelled and, until such time as it shall
no longer be unlawful for such Lender to make or maintain such Affected Loans,
such Lender shall then have a commitment only to make an ABR Loan (or a Swing
Line Loan denominated in Dollars) when an Affected Loan is requested (to the
extent otherwise permitted by subsection 4.2), (c) such Lender’s Loans
then


 


62

















 


outstanding as Affected Loans, if any, shall be
converted automatically to ABR Loans on the respective last days of the then
current Interest Periods with respect to such Loans or within such earlier
period as required by law (to the extent otherwise permitted by
subsection 4.2) and (d) such Lender’s Loans then outstanding as Affected
Loans, if any, not otherwise permitted to be converted to ABR Loans by
subsection 4.2 (whether because such Loans are denominated in a Designated
Foreign Currency or otherwise) shall, upon notice to the Parent Borrower, be
prepaid with accrued interest thereon on the last day of the then current
Interest Period with respect thereto (or such earlier date as may be required
by any such Requirement of Law).  If any such conversion or prepayment of
an Affected Loan occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the applicable Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to
subsection 4.12.


 


4.10.       
Requirements of Law. 
(a)  If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender, or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in each case made
subsequent to the Closing Date (or, if later, the date on which such Lender
becomes a Lender):


 


(i)            shall subject such Lender to any tax of
any kind whatsoever with respect to any Letter of Credit, any Letter of Credit
Request, or any Eurocurrency Loans or any Swing Line Foreign Currency Loans
made or maintained by it or its obligation to make or maintain Eurocurrency
Loans or Swing Line Foreign Currency Loans, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded Taxes
covered by subsection 4.11 (including Non-Excluded Taxes imposed solely by
reason of any failure of such Lender to comply with its obligations (if any)
under subsections 4.11(b) or 4.11(c) or with respect to fees paid under this
Agreement) and changes in taxes measured by or imposed upon the overall net
income, or franchise taxes, or taxes measured by or imposed upon overall
capital or net worth, or branch taxes (in the case of such capital, net worth
or branch taxes, imposed in lieu of such net income tax), of such Lender or its
applicable lending office, branch, or any affiliate thereof);


 


(ii)           shall impose, modify or hold applicable
any reserve, special deposit, compulsory loan or similar requirement against
assets held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other acquisition of
funds by, any office of such Lender which is not otherwise included in the
determination of the Eurocurrency Rate or Swing Line Foreign Currency Rates, as
the case may be, hereunder; or


 


(iii)          shall impose on such Lender any other
condition (excluding any tax of any kind whatsoever);


 


and the result of any of the foregoing is to increase
the cost to such Lender, by an amount which such Lender deems to be material,
of making, converting into, continuing or maintaining Eurocurrency Loans or
Swing Line Foreign Currency Loans or issuing or participating in Letters of
Credit or to reduce any amount receivable hereunder in respect thereof, then,
in any such case, upon notice to the Parent Borrower from such Lender, through
the Administrative Agent, in


 


63

















 


accordance herewith, the applicable Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable
with respect to such Eurocurrency Loans, Swing Line Foreign Currency or Letters
of Credit, provided that, in any such case, such Borrower may elect to
convert the Eurocurrency Loans made by such Lender hereunder to ABR Loans (to
the extent denominated in Dollars and otherwise permitted by
subsection 4.2) by giving the Administrative Agent at least one Business
Day’s notice of such election, in which case such Borrower shall promptly pay
to such Lender, upon demand, without duplication, amounts theretofore required
to be paid to such Lender pursuant to this subsection 4.10(a) and such
amounts, if any, as may be required pursuant to subsection 4.12.  If
any Lender becomes entitled to claim any additional amounts pursuant to this
subsection, it shall provide prompt notice thereof to the Parent Borrower,
through the Administrative Agent, certifying (x) that one of the events described
in this paragraph (a) has occurred and describing in reasonable detail the
nature of such event, (y) as to the increased cost or reduced amount resulting
from such event and (z) as to the additional amount demanded by such Lender and
a reasonably detailed explanation of the calculation thereof.  Such a
certificate as to any additional amounts payable pursuant to this
subsection submitted by such Lender, through the Administrative Agent, to
the Parent Borrower shall be conclusive in the absence of manifest error. 
This covenant shall survive the termination of this Agreement and the payment
of the Loans and all other amounts payable hereunder.


 


(b)          
If any Lender shall
have determined that the adoption of or any change in any Requirement of Law regarding
capital adequacy or in the interpretation or application thereof or compliance
by such Lender or any corporation controlling such Lender with any request or
directive regarding capital adequacy (whether or not having the force of law)
from any Governmental Authority, in each case, made subsequent to the Closing
Date, does or shall have the effect of reducing the rate of return on such
Lender’s or such corporation’s capital as a consequence of such Lender’s
obligations hereunder or under or in respect of any Letter of Credit to a level
below that which such Lender or such corporation could have achieved but for
such change or compliance (taking into consideration such Lender’s or such
corporation’s policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, within ten Business Days
after submission by such Lender to the Parent Borrower (with a copy to the
Administrative Agent) of a written request therefor certifying (x) that
one of the events described in this paragraph (b) has occurred and describing
in reasonable detail the nature of such event, (y) as to the reduction of the
rate of return on capital resulting from such event and (z) as to the
additional amount or amounts demanded by such Lender or corporation and a
reasonably detailed explanation of the calculation thereof, the applicable
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender or corporation for such reduction.  Such a certificate
as to any additional amounts payable pursuant to this subsection submitted
by such Lender, through the Administrative Agent, to the Parent Borrower shall
be conclusive in the absence of manifest error.  This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.


 


(c)          
For so long as any
Lender incurs any costs as a result of complying with any reserve asset,
liquidity, special deposit or other regulatory requirements affecting it as a
result of participating in any Eurocurrency Loans or Swing Line Foreign
Currency Loans through a branch or office (a “Lending Office”) located
in the United Kingdom or Participating


 


64

















 


Member State, then that Lender shall be entitled to
require the applicable Borrower to pay on each relevant Interest Payment Date
additional interest on such Loan at a rate per annum equal to the Mandatory
Costs Rate calculated in accordance with the formula and in the manner set out
in Schedule 4.10(c) hereto.


 


4.11.       
Taxes. 
(a)  Except as provided below in this subsection, all payments made by
each of the Borrowers under this Agreement and any Notes shall be made free and
clear of, and without deduction or withholding for or on account of, any
present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding taxes
measured by or imposed upon the overall net income of any Lender or its
applicable lending office, or any branch or affiliate thereof, and all
franchise taxes, branch taxes, taxes on doing business or taxes measured by or
imposed upon the overall capital or net worth of any Lender or its applicable
lending office, or any branch or affiliate thereof, in each case imposed: 
(i) by the jurisdiction under the laws of which such Lender, applicable lending
office, branch or affiliate is organized or is located, or in which its
principal executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii) by reason
of any connection between the jurisdiction imposing such tax and such Lender,
applicable lending office, branch or affiliate other than a connection arising
solely from such Lender having executed, delivered or performed its obligations
under, or received payment under or enforced, this Agreement or any
Notes.  If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings (“Non-Excluded Taxes”) are required to
be withheld from any amounts payable to the Administrative Agent or any Lender
hereunder or under any Notes, the amounts so payable to the Administrative
Agent or such Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement, provided, however, that each
of the Borrowers shall be entitled to deduct and withhold any Non-Excluded
Taxes and shall not be required to increase any such amounts payable to any
Lender that is not organized under the laws of the United States of America or
a state thereof, as the case may be, (x) if such Lender fails to comply with
the requirements of paragraphs (b) or (c) of this subsection or (y) with
respect to any Non-Excluded Taxes imposed in connection with the payment of any
fees paid under this Agreement unless such Non-Excluded Taxes are imposed as a
result of a change in treaty, law or regulation that occurred after such Lender
becomes a Lender hereunder (or, if such Lender is a foreign intermediary or
flow-through entity for U.S. federal income tax purposes, after the relevant
beneficiary or member of such Lender became such a beneficiary or member, if
later).  Whenever any Non-Excluded Taxes are payable by any of the
Borrowers, as promptly as possible thereafter the applicable Borrower shall
send to the Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official receipt
received by such Borrower showing payment thereof.  If any of the Borrowers
fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts
or other required documentary evidence, such Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as
a result of any such failure.  The agreements in this subsection 4.11
shall survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.


 


65

















 


(b)          
Each Lender that is
not incorporated under the laws of the United States of America or a state
thereof shall:


 


(X)          (i)  on or before the date of any
payment by any of the Borrowers under this Agreement or any Notes to such
Lender, deliver to the Parent Borrower and the Administrative Agent (A) two
duly completed copies of United States Internal Revenue Service Form W-8BEN
(certifying that it is a resident of the applicable country within the meaning
of the income tax treaty between the United States and that country) or Form
W-8ECI, or successor applicable form, as the case may be, certifying that it is
entitled to receive all payments under this Agreement and any Notes without
deduction or withholding of any United States federal income taxes and (B) such
other forms, documentation or certifications, as the case may be, certifying
that it is entitled to an exemption from United States backup withholding tax
with respect to payments under this Agreement and any Notes;


 


(ii)           deliver to the Parent Borrower and the
Administrative Agent two further copies of any such form or certification on or
before the date that any such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a change in the most recent
form or certificate previously delivered by it to the Parent Borrower; and


 


(iii)          obtain such extensions of time for filing
and completing such forms or certifications as may reasonably be requested by
the Parent Borrower or the Administrative Agent; or


 


(Y)           in the case of any such Lender that is
not a “bank” within the meaning of Section 881(c)(3)(A) of the Code,


 


(i)            represent to the Parent Borrower (for the
benefit of each of the Borrowers and the Administrative Agent) that it is not a
bank within the meaning of Section 881(c)(3)(A) of the Code;


 


(ii)           agree to furnish to the Parent Borrower
on or before the date of any payment by any of the Borrowers, with a copy to
the Administrative Agent, (A) two certificates substantially in the form
of Exhibit E (any such certificate a “U.S. Tax Compliance Certificate”)
and (B) two accurate and complete original signed copies of Internal Revenue
Service Form W-8BEN, or successor applicable form certifying to such Lender’s
legal entitlement at the date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 871(h) or
Section 881(c) of the Code with respect to payments to be made under this
Agreement and any Notes (and to deliver to the Parent Borrower and the
Administrative Agent two further copies of such form or certificate on or
before the date it expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recently provided form or certificate and,
if necessary, obtain any extensions of time reasonably requested by the Parent 


 


66

















 


Borrower or the Administrative Agent for filing and
completing such forms or certificates); and


 


(iii)          agree, to the extent legally entitled to
do so, upon reasonable request by the Parent Borrower, to provide to the Parent
Borrower (for the benefit of each of the Borrowers and the Administrative
Agent) such other forms as may be reasonably required in order to establish the
legal entitlement of such Lender to an exemption from withholding with respect
to payments under this Agreement and any Notes, provided that in determining
the reasonableness of a request under this clause (iii) such Lender shall be
entitled to consider the cost (to the extent unreimbursed by any of the
Borrowers) which would be imposed on such Lender of complying with such request;
or


 


(Z)           in the case of any such Lender that is a
foreign intermediary or flow-through entity for U.S. federal income tax
purposes,


 


(i)            on or before the date of any payment by
any of the Borrowers under this Agreement or any Notes to such Lender, deliver
to the Parent Borrower and the Administrative Agent two accurate and complete
original signed copies of United States Internal Revenue Service Form W-8IMY;
and


 


(A)          with respect to each beneficiary or
member of such Lender that is a bank within the meaning of
Section 881(c)(3)(A) of the Code, on or before the date of any payment by
any of the Borrowers under this Agreement or any Notes to such Lender, also
deliver to the Parent Borrower and the Administrative Agent  (I) two duly
completed copies of United States Internal Revenue Service Form W-8BEN
(certifying that such beneficiary or member is a resident of the applicable
country within the meaning of the income tax treaty between the United States
and that country), Form W-8ECI or Form W-9, or successor applicable form, as
the case may be, in each case certifying that each such beneficiary or member
is entitled to receive all payments under this Agreement and any Notes without
deduction or withholding of any United States federal income taxes and (II)
such other forms, documentation or certifications, as the case may be,
certifying that each such beneficiary or member is entitled to an exemption
from United States backup withholding tax with respect to all payments under
this Agreement and any Notes; and


 


(B)           with respect to each beneficiary or
member of such Lender that is not a bank within the meaning of
Section 881(c)(3)(A) of the Code, (I) represent to the Parent Borrower
(for the benefit of each of the Borrowers and the Administrative Agent) that
such beneficiary or member is not a bank within the meaning of
Section 881(c)(3)(A) of the Code, and (II) also deliver to the Parent
Borrower and the Administrative Agent on or before the date of any payment by
any of the Borrowers under this Agreement or any Notes to such Lender, (x) two
accurate and complete original signed copies of Internal Revenue Service Form
W-9, or successor applicable


 


67

















 


form, certifying that each such beneficiary or member
is entitled to receive all payments under this Agreement and any Notes without
deduction or withholding of any United States federal income taxes, or (y) two
U.S. Tax Compliance Certificates from each beneficiary or member and two
accurate and complete original signed copies of Internal Revenue Service Form
W-8BEN, or successor applicable form, certifying to such beneficiary’s or
member’s legal entitlement at the date of such certificate to an exemption from
U.S. withholding tax under the provisions of Section 871(h) or
Section 881(c) of the Code with respect to payments to be made under this
Agreement and any Notes;


 


(ii)           deliver to the Parent Borrower and the
Administrative Agent two further copies of any such forms, certificates or
certifications referred to above on or before the date any such form,
certificate or certification expires or becomes obsolete, or any beneficiary or
member changes, and after the occurrence of any event requiring a change in the
most recently provided form, certificate or certification and, obtain such
extensions of time reasonably requested by the Parent Borrower or the
Administrative Agent for filing and completing such forms, certificates or
certifications; and


 


(iii)          agree, to the extent legally entitled to
do so, upon reasonable request by the Parent Borrower, to provide to the Parent
Borrower (for the benefit of each of the Borrowers and the Administrative
Agent) such other forms as may be reasonably required in order to establish the
legal entitlement of such Lender (or beneficiary or member) to an exemption
from withholding with respect to payments under this Agreement and any Notes,
provided that in determining the reasonableness of a request under this clause
(iii) such Lender shall be entitled to consider the cost (to the extent
unreimbursed by any of the Borrowers) which would be imposed on such Lender (or
beneficiary or member) of complying with such request;


 


unless in any such case any change in treaty, law or regulation
has occurred after the date such Person becomes a Lender hereunder (or a
beneficiary or member in the circumstances described in clause (Z) above, if
later) which renders all such forms inapplicable or which would prevent such
Lender (or such beneficiary or member) from duly completing and delivering any
such form with respect to it and such Lender so advises the Parent Borrower and
the Administrative Agent.


 


(c)          
Each Lender shall,
upon request by any Borrower, deliver to such Borrower or the applicable
governmental or taxing authority, as the case may be, any form or certificate
required in order that any payment by any Foreign Subsidiary Borrower under
this Agreement or any Notes to such Lender may be made free and clear of, and
without deduction or withholding for or on account of any Non-Excluded Taxes
(or to allow any such deduction or withholding to be at a reduced rate) imposed
on such payment under the laws of any jurisdiction located outside the United
States, provided that such Lender is legally entitled to complete, execute and
deliver such form or certificate and such completion, execution or submission
would not materially prejudice the legal, regulatory or overall policy
positions of such Lender.  Each Person that shall become a Lender or a
Participant pursuant to subsection 11.6 shall, upon the effectiveness of
the related transfer, be required to provide all of the forms, certifications
and


 


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statements required pursuant to this subsection,
provided that in the case of a Participant the obligations of such Participant
pursuant to paragraphs (b) or (c) of this subsection shall be determined
as if such Participant were a Lender except that such Participant shall furnish
all such required forms, certifications and statements to the Lender from which
the related participation shall have been purchased.


 


4.12.       
Indemnity. 
Each of the Borrowers agrees to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur (other
than through such Lender’s gross negligence or willful misconduct) as a
consequence of (a) default by such Borrower in making a borrowing of,
conversion into or continuation of Eurocurrency Loans or Swing Line Foreign
Currency Loans after the Parent Borrower has given a notice requesting the same
in accordance with the provisions of this Agreement, (b) default by such
Borrower in making any prepayment or conversion of Eurocurrency Loans or Swing
Line Foreign Currency Loans after the Parent Borrower has given a notice
thereof in accordance with the provisions of this Agreement or (c) the making
of a payment or prepayment of Eurocurrency Loans or Swing Line Foreign Currency
Loans or the conversion of Eurocurrency Loans on a day which is not the last
day of an Interest Period with respect thereto.  Such indemnification may
include an amount equal to the excess, if any, of (i) the amount of interest
which would have accrued on the amount so prepaid, or converted, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or conversion or of such failure to borrow, convert or continue to
the last day of the applicable Interest Period (or, in the case of a failure to
borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Eurocurrency Loans (or Swing Line Foreign Currency Loans, as applicable)
provided for herein (excluding, however, the Applicable Margin included
therein, if any) over (ii) the amount of interest (as reasonably determined by
such Lender) which would have accrued to such Lender on such amount by placing
such amount on deposit for a comparable period with leading banks in the
interbank eurocurrency market.  If any Lender becomes entitled to claim
any amounts under the indemnity contained in this subsection 4.12, it
shall provide prompt notice thereof to the Parent Borrower, through the
Administrative Agent, certifying (x) that one of the events described in clause
(a), (b) or (c) has occurred and describing in reasonable detail the nature of
such event, (y) as to the loss or expense sustained or incurred by such Lender
as a consequence thereof and (z) as to the amount for which such Lender seeks
indemnification hereunder and a reasonably detailed explanation of the
calculation thereof.  Such a certificate as to any indemnification
pursuant to this subsection submitted by such Lender, through the Administrative
Agent, to the Parent Borrower shall be conclusive in the absence of manifest
error.  This covenant shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.


 


4.13.       
Certain Rules Relating to the Payment of Additional Amounts.  (a)  Upon the request,
and at the expense of the applicable Borrower, each Lender to which any of the
Borrowers is required to pay any additional amount pursuant to
subsection 4.10 or 4.11, and any Participant in respect of whose
participation such payment is required, shall reasonably afford such Borrower
the opportunity to contest, and reasonably cooperate with such Borrower in
contesting, the imposition of any Non-Excluded Tax giving rise to such payment;
provided that (i) such Lender shall not be required to afford such
Borrower the opportunity to so contest unless such Borrower shall have
confirmed in writing to such Lender its obligation to pay such amounts pursuant
to this Agreement and (ii) such Borrower shall reimburse such Lender for its
reasonable


 


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attorneys’ and accountants’ fees and disbursements
incurred in so cooperating with such Borrower in contesting the imposition of
such Non-Excluded Tax; provided, however, that notwithstanding
the foregoing no Lender shall be required to afford any Borrower the
opportunity to contest, or cooperate with such Borrower in contesting, the
imposition of any Non-Excluded Taxes, if such Lender in its sole discretion in
good faith determines that to do so would have an adverse effect on it.


 


(b)          
If a Lender changes
its applicable lending office (other than pursuant to paragraph (c) below) and
the effect of such change, as of the date of such change, would be to cause any
of the Borrowers to become obligated to pay any additional amount under
subsection 4.10 or 4.11, such Borrower shall not be obligated to pay such
additional amount.


 


(c)          
If a condition or an
event occurs which would, or would upon the passage of time or giving of
notice, result in the payment of any additional amount to any Lender by any of
the Borrowers pursuant to subsection 4.10 or 4.11, such Lender shall
promptly notify the applicable Borrower and the Administrative Agent and shall
take such steps as may reasonably be available to it to mitigate the effects of
such condition or event (which shall include efforts to rebook the Loans held
by such Lender at another lending office, or through another branch or an
affiliate, of such Lender); provided that such Lender shall not be
required to take any step that, in its reasonable judgment, would be materially
disadvantageous to its business or operations or would require it to incur
additional costs (unless the Parent Borrower agrees to reimburse such Lender
for the reasonable incremental out-of-pocket costs thereof).


 


(d)          
If any of the
Borrowers shall become obligated to pay additional amounts pursuant to
subsection 4.10 or 4.11 and any affected Lender shall not have promptly
taken steps necessary to avoid the need for payments under subsection 4.10
or 4.11, the applicable Borrower shall have the right, for so long as such
obligation remains, (i) with the assistance of the Administrative Agent, to
seek one or more substitute Lenders reasonably satisfactory to the
Administrative Agent and such Borrower to purchase the affected Loan, in whole
or in part, at an aggregate price no less than such Loan’s principal amount
plus accrued interest, and assume the affected obligations under this Agreement,
or (ii) so long as no Default or Event of Default then exists or will exist
immediately after giving effect to the respective prepayment, upon at least
four Business Days’ irrevocable notice to the Administrative Agent, to prepay
the affected Loan, in whole or in part, subject to subsection 4.12,
without premium or penalty.  In the case of the substitution of a Lender,
the Parent Borrower (and any other applicable Borrower), the Administrative
Agent, the affected Lender, and any substitute Lender shall execute and deliver
an appropriately completed Assignment and Acceptance pursuant to
subsection 11.6(b) to effect the assignment of rights to, and the
assumption of obligations by, the substitute Lender; provided that any
fees required to be paid by subsection 11.6(b) in connection with such
assignment shall be paid by the Parent Borrower or the substitute Lender. 
In the case of a prepayment of an affected Loan, the amount specified in the
notice shall be due and payable on the date specified therein, together with
any accrued interest to such date on the amount prepaid.  In the case of
each of the substitution of a Lender and of the prepayment of an affected Loan,
the applicable Borrower shall first pay the affected Lender any additional
amounts owing under subsections 4.10 and 4.11 (as well as any commitment fees
and other amounts then due and owing to such Lender, including, without
limitation, any amounts under subsection 4.13) prior to such substitution
or prepayment.


 


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(e)          
For purposes of
subsections 4.10 and 4.11, a change in treaty, law, rule or regulation shall
not include the ratification or entry into force of (i) the protocol amending
the income tax treaty between Canada and the United States, signed
August 31, 1995, (ii) the protocols amending the income tax treaty between
the Netherlands and the United States, signed October 15, 1995 and
March 8, 2004, (iii) the income tax treaty between Italy and the United
States, signed August 25, 1999 and (iv) the protocol amending the income
tax treaty between Mexico and the United States, signed November 26, 2002.


 


(f)           
If the Administrative
Agent or any Lender receives a refund directly attributable to taxes for which
any of the Borrowers has made additional payments pursuant to
subsection 4.10(a) or 4.11(a), the Administrative Agent or such Lender, as
the case may be, shall promptly pay such refund (together with any interest
with respect thereto received from the relevant taxing authority) to such
Borrower, provided, however, that such Borrower agrees promptly
to return such refund (together with any interest with respect thereto due to
the relevant taxing authority) (free of all Non-Excluded Taxes) to the
Administrative Agent or the applicable Lender, as the case may be, upon receipt
of a notice that such refund is required to be repaid to the relevant taxing
authority.


 


(g)          
The obligations of a
Lender or Participant under this subsection 4.13 shall survive the
termination of this Agreement and the payment of the Loans and all amounts
payable hereunder.


 


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4.14.       
Controls on Prepayment if Aggregate Outstanding Revolving Credit Exceeds Aggregate
Revolving Credit Commitments.  (a)  The Parent Borrower will
implement and maintain internal controls to monitor the borrowings and
repayments of Loans by the Borrowers and the issuance of and drawings under
Letters of Credit, with the object of preventing any request for an Extension
of Credit that would result in the Aggregate Outstanding Revolving Credit with
respect to all of the Revolving Credit Lenders (including the Swing Line
Lender) being in excess of the aggregate Revolving Credit Commitments then in
effect and of promptly identifying any circumstance where, by reason of changes
in exchange rates, the Aggregate Outstanding Revolving Credit with respect to
all of the Revolving Credit Lenders (including the Swing Line Lender) exceeds
the aggregate Revolving Credit Commitments then in effect.  In the event
that at any time the Parent Borrower determines that the Aggregate Outstanding
Revolving Credit with respect to all of the Revolving Credit Lenders (including
the Swing Line Lender) exceeds the aggregate Revolving Credit Commitments then
in effect by more than 5%, the Parent Borrower will, as soon as practicable but
in any event within five Business Days of making such determination, first,
make such repayments or prepayments of Loans (together with interest accrued to
the date of such repayment or prepayment), second, pay any Reimbursement
Obligations then outstanding and, third, cash collateralize any outstanding
L/C Obligations on terms reasonably satisfactory to the Administrative Agent,
as shall be necessary to cause the Aggregate Outstanding Revolving Credit with
respect to all of the Revolving Credit Lenders (including the Swing Line
Lender) to no longer exceed the aggregate Revolving Credit Commitments then in
effect.  If any such repayment or prepayment of a Eurocurrency Loan
pursuant to this subsection occurs on a day which is not the last day of
the then current Interest Period with respect thereto, the Parent Borrower
shall pay to the Revolving Credit Lenders such amounts, if any, as may be
required pursuant to subsection 4.12.


 


(b)          
The Administrative
Agent will calculate the Aggregate Outstanding Revolving Credit with respect to
all of the Revolving Credit Lenders (including the Swing Line Lender) from time
to time, and in any event not less frequently than once during each calendar
week.  In making such calculations, the Administrative Agent will rely on
the information most recently received by it from the Swing Line Lender in
respect of outstanding Swing Line Loans and from the Issuing Lender in respect
of outstanding L/C Obligations.


 


(c)          
In the event that on
any date the Administrative Agent calculates that the Aggregate Outstanding
Revolving Credit with respect to all of the Revolving Credit Lenders (including
the Swing Line Lender) exceeds the aggregate Revolving Credit Commitments then
in effect by more than 5%, the Administrative Agent will give notice to such
effect to the Parent Borrower and the Revolving Credit Lenders.  Following
receipt of any such notice, the Parent Borrower will, as soon as practicable
but in any event within five Business Days of receipt of such notice, first,
make such repayments or prepayments of Loans (together with interest accrued to
the date of such repayment or prepayment), second, pay any Reimbursement
Obligations then outstanding and, third, cash collateralize any
outstanding L/C Obligations on terms reasonably satisfactory to the Administrative
Agent as shall be necessary to cause the Aggregate Outstanding Revolving Credit
with respect to all of the Revolving Credit Lenders (including the Swing Line
Lender) to no longer exceed the aggregate Revolving Credit Commitments then in
effect.  If any such repayment or prepayment of a Eurocurrency Loan
pursuant to this subsection occurs on a day which is not the last day of
the then current Interest Period with


 


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respect thereto, the Parent Borrower shall pay to the
Revolving Credit Lenders such amounts, if any, as may be required pursuant to
subsection 4.12.


 


SECTION 5.          
REPRESENTATIONS AND
WARRANTIES.


 


To induce the
Administrative Agent and each Lender to make the Extensions of Credit requested
to be made by it on the Closing Date and on each Borrowing Date thereafter, the
Parent Borrower hereby represents and warrants, on the Closing Date, in each
case after giving effect to the Transactions, and on every Borrowing Date
thereafter to the Administrative Agent and each Lender that:


 


5.1.         
Financial Condition.  (a)  The audited consolidated
balance sheets of VWR and its consolidated Subsidiaries as of December 31,
2001, December 31, 2002 and December 31, 2003 and the related consolidated
statements of income, shareholders’ equity and cash flows for the fiscal years
ended on such dates, reported on by and accompanied by unqualified reports from
KPMG, present fairly, in all material respects, the consolidated financial
condition as at such date, and the consolidated results of operations and
consolidated cash flows for the respective fiscal years then ended, of VWR and
its consolidated Subsidiaries. All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
consistently applied throughout the periods covered thereby (except as approved
by a Responsible Officer, and disclosed in any such schedules and notes, and
subject to the omission of footnotes from such unaudited financial
statements).  During the period from December 31, 2003 to and
including the Closing Date, except as provided in the Acquisition Agreement and
in connection with the consummation of the Transactions, there has been no
sale, transfer or other disposition by VWR International Corporation and its
consolidated Subsidiaries of any material part of the business or property of
VWR and its consolidated Subsidiaries, taken as a whole, and no purchase or
other acquisition by any of them of any business or property (including any
Capital Stock of any other Person) material in relation to the consolidated
financial condition of VWR and its consolidated Subsidiaries, taken as a whole,
in each case, which is not reflected in the foregoing financial statements or in
the notes thereto and has not otherwise been disclosed in writing to the
Lenders on or prior to the Closing Date.


 


(b)          
The pro forma balance
sheet and statements of operations of VWR International, Inc. and its
consolidated Subsidiaries (the “Pro Forma Financial Statements”), copies
of which have heretofore been furnished to each Lender, are the balance sheet
and statements of operations of VWR International, Inc. and its consolidated
Subsidiaries as of December 31, 2003 (the “Pro Forma Date”),
adjusted to give effect (as if such events had occurred on such date for
purposes of the balance sheet and on January 1, 2003 for purposes of the
statement of operations), to the consummation of the Transaction, and the
Extensions of Credit hereunder on the Closing Date.


 


5.2.         
No Change; Solvent.  Since December 31, 2003,
except as and to the extent disclosed on Schedule 5.2, (a) there has been
no development or event relating to or affecting any Loan Party which has had
or would be reasonably expected to have a Material Adverse Effect (after giving
effect to (i) the consummation of the Transactions, (ii) the making of the
Extensions of Credit to be made on the Closing Date and the application of the
proceeds thereof as contemplated hereby, and (iii) the payment of actual or
estimated fees, expenses,


 


73

















 


financing costs and tax payments related to the
transactions contemplated hereby) and (b) except in connection with the
Transactions or as otherwise permitted under this Agreement or any other Loan
Document, and except for dividends or other distributions by VWR and VWR
Pennsylvania made or declared prior to the Closing Date, no dividends or other
distributions have been declared, paid or made upon the Capital Stock of the
Parent Borrower, nor has any of the Capital Stock of the Parent Borrower been
redeemed, retired, purchased or otherwise acquired for value by the Parent
Borrower or any of its Subsidiaries.  As of the Closing Date, after giving
effect to the consummation of the transactions described in preceding clauses
(i) through (iii) in clause (a) above, each Borrower is Solvent.


 


5.3.         
Corporate Existence; Compliance with Law.  Each of the Loan Parties (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation, (b) has the corporate power and
authority, and the legal right, to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, except to the extent that the failure to have such legal
right would not be reasonably expected to have a Material Adverse Effect, (c)
is duly qualified as a foreign corporation or limited liability company and in
good standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing would not be reasonably expected to have a
Material Adverse Effect and (d) is in compliance with all Requirements of Law,
except to the extent that the failure to comply therewith would not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.


 


5.4.         
Corporate Power; Authorization; Enforceable Obligations.  Each Loan Party has the corporate
power and authority, and the legal right, to make, deliver and perform the Loan
Documents to which it is a party and, in the case of each of the Borrowers, to
obtain Extensions of Credit hereunder, and each such Loan Party has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Loan Documents to which it is a party and, in the case of each of the
Borrowers, to authorize the Extensions of Credit to it, if any, on the terms
and conditions of this Agreement, any Notes and the Letter of Credit
Requests.  No consent or authorization of, filing with, notice to or other
similar act by or in respect of, any Governmental Authority or any other Person
is required to be obtained or made by or on behalf of any Loan Party in
connection with the execution, delivery, performance, validity or
enforceability of the Loan Documents to which it is a party or, in the case of
each of the Borrowers, with the Extensions of Credit to it, if any, hereunder,
except for (a) consents, authorizations, notices and filings described in
Schedule 5.4, all of which have been obtained or made prior to the Closing
Date, (b) filings to perfect the Liens created by the Security Documents, (c)
filings pursuant to the Assignment of Claims Act of 1940, as amended (31 U.S.C.
§ 3727 et seq.), in respect of Accounts of the Parent Borrower and its
Subsidiaries the Obligor in respect of which is the United States of America or
any department, agency or instrumentality thereof and (d) consents,
authorizations, notices and filings which the failure to obtain or make would
not reasonably be expected to have a Material Adverse Effect.  This Agreement
has been duly executed and delivered by each of the Borrowers, and each other
Loan Document to which any Loan Party is a party will be duly executed and
delivered on behalf of such Loan Party.  This Agreement constitutes a
legal, valid and binding obligation of each of the Borrowers and each other
Loan Document to which any Loan Party is a party when executed and delivered
will constitute a legal, valid and binding obligation of such Loan Party,
enforceable 


 


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against such Loan Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).


 


5.5.         
No
Legal Bar.  The execution, delivery and
performance of the Loan Documents by any of the Loan Parties, the Extensions of
Credit hereunder and the use of the proceeds thereof (a) will not violate any
Requirement of Law or Contractual Obligation of such Loan Party in any respect
that would reasonably be expected to have a Material Adverse Effect and (b)
will not result in, or require, the creation or imposition of any Lien (other
than the Liens permitted by subsection 8.3) on any of its properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation.


 


5.6.         
No Material Litigation.  No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Parent Borrower, threatened by or against Holding or any of
its Subsidiaries or against any of their respective properties or revenues, (a)
except as described on Schedule 5.6, which is so pending or threatened at
any time on or prior to the Closing Date and relates to any of the Loan
Documents or any of the transactions contemplated hereby or thereby or (b)
which would be reasonably expected to have a Material Adverse Effect.


 


5.7.         
No
Default.  Neither the Parent Borrower nor
any of its Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect which would be reasonably expected to
have a Material Adverse Effect.  No Default or Event of Default has
occurred and is continuing.


 


5.8.         
Ownership of Property; Liens.  Each of the Parent Borrower and its
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its material real property, and good title to, or a
valid leasehold interest in, all its other material property, and none of such
property is subject to any Lien, except for Liens permitted by
subsection 8.3.  Except for the Excluded Properties, the Insured Fee
Properties as listed on Part I(a) of Schedule 5.8 and the Mortgaged Fee
Properties as listed on Part I(b) of Schedule 5.8 together constitute all
the material real properties owned in fee by the Loan Parties as of the Closing
Date and the Mortgaged Leased Properties listed on Part II of Schedule 5.8
constitute all of the material real properties leased by the Loan Parties as of
the Closing Date.


 


5.9.         
Intellectual Property.  The Parent Borrower and each of its
Subsidiaries owns, or has the legal right to use, all United States patents,
patent applications, trademarks, trademark applications, trade names,
copyrights, technology, know-how and processes necessary for each of them to
conduct its business as currently conducted (the “Intellectual Property”)
except for those the failure to own or have such legal right to use would not
be reasonably expected to have a Material Adverse Effect.  Except as
provided on Schedule 5.9, no claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does the
Parent Borrower know of any such claim, and, to the knowledge of the Parent
Borrower, the use of such Intellectual Property by the Parent Borrower and its
Subsidiaries does not infringe on


 


75

















 


the rights of any Person, except for such claims and
infringements which in the aggregate, would not be reasonably expected to have
a Material Adverse Effect.


 


5.10.       
No Burdensome Restrictions.  Neither the Parent Borrower nor any of its
Subsidiaries is in violation of any Requirement of Law or Contractual
Obligation of or applicable to the Parent Borrower or any of its Subsidiaries
that would be reasonably expected to have a Material Adverse Effect.


 


5.11.       
Taxes.  To the knowledge of the Parent Borrower, each
of Holding, the Parent Borrower and its Subsidiaries has filed or caused to be
filed all United States federal income tax returns and all other material tax
returns which are required to be filed and has paid (a) all taxes shown to be
due and payable on such returns and (b) all taxes shown to be due and payable
on any assessments of which it has received notice made against it or any of
its property (including, without limitation, the Mortgaged Properties) and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any (i) taxes, fees or other charges with
respect to which the failure to pay, in the aggregate, would not have a
Material Adverse Effect or (ii) taxes, fees or other charges the amount or
validity of which are currently being contested in good faith by appropriate
proceedings diligently conducted and with respect to which reserves in
conformity with GAAP have been provided on the books of Holding, the Parent
Borrower or its Subsidiaries, as the case may be); and no tax Lien has been
filed, and no claim is being asserted, with respect to any such tax, fee or
other charge.


 


5.12.       
Federal Regulations.  No part of the proceeds of any Extensions of
Credit will be used for any purpose which violates the provisions of the
Regulations of the Board, including without limitation, Regulation T,
Regulation U or Regulation X of the Board.  If requested by any Lender or
the Administrative Agent, the Parent Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-3 or FR Form U-1, referred to in
said Regulation U.


 


5.13.       
ERISA. 
During the five year period prior to each date as of which this representation
is made, or deemed made, with respect to any Plan (or, with respect to (f) or
(h) below, as of the date such representation is made or deemed made), none of
the following events or conditions, either individually or in the aggregate,
has resulted or is reasonably likely to result in a Material Adverse
Effect:  (a) a Reportable Event; (b) an “accumulated funding deficiency”
(within the meaning of Section 412 of the Code or Section 302 of
ERISA); (c) any noncompliance with the applicable provisions of ERISA or the
Code; (d) a termination of a Single Employer Plan (other than a standard
termination pursuant to Section 4041(b) of ERISA); (e) a Lien on the
property of the Parent Borrower or its Subsidiaries in favor of the PBGC or a
Plan; (f) any Underfunding with respect to any Single Employer Plan; (g) a
complete or partial withdrawal from any Multiemployer Plan by the Parent
Borrower or any Commonly Controlled Entity; (h) any liability of the Parent
Borrower or any Commonly Controlled Entity under ERISA if the Parent Borrower
or any such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the annual valuation date most closely preceding the
date on which this representation is made or deemed made; or (i) the
Reorganization or Insolvency of any Multiemployer Plan.  There have been
no transactions that resulted or could


 


76

















 


reasonably be expected to result in any liability to
the Parent Borrower or any Commonly Controlled Entity under Section 4069
of ERISA or Section 4212(c) of ERISA.


 


5.14.       
Collateral.  Upon execution and delivery thereof by the parties thereto, the
Guarantee and Collateral Agreement and the Mortgages will be effective to
create (to the extent described therein) in favor of the Administrative Agent,
for the ratable benefit of the Secured Parties, a legal, valid and enforceable
security interest in the Collateral described therein, except as may be limited
by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing. 
When (a) the actions specified in Schedule 3 to the Guarantee and
Collateral Agreement have been duly taken, (b) all applicable Instruments,
Chattel Paper and Documents (each as described therein) a security interest in
which is perfected by possession have been delivered to, and/or are in the
continued possession of, the Administrative Agent, (c) all Deposit Accounts,
Electronic Chattel Paper and Pledged Stock (each as defined in the Guarantee
and Collateral Agreement) a security interest in which is required to be or is
perfected by “control” (as described in the Uniform Commercial Code as in
effect in the State of New York from time to time) are under the “control”
of the Administrative Agent and (d) the Mortgages have been duly recorded, the
security interests granted pursuant thereto shall constitute (to the extent
described therein) a perfected security interest in, all right, title and
interest of each pledgor or mortgagor (as applicable) party thereto in the
Collateral described therein (excluding Commercial Tort Claims, as defined in
the Guarantee and Collateral Agreement, other than such Commercial Tort Claims
set forth on Schedule 7 thereto (if any)) with respect to such pledgor or
mortgagor (as applicable).  Notwithstanding any other provision of this
Agreement, capitalized terms which are used in this subsection 5.14 and
not defined in this Agreement are so used as defined in the applicable Security
Document.


 


5.15.       
Investment Company Act; Other Regulations.  None of the Borrowers is an
“investment company”, or a company “controlled” by an “investment company”,
within the meaning of the Investment Company Act.  None of the Borrowers
is subject to regulation under any Federal or State statute or regulation
(other than Regulation X of the Board) which limits its ability to incur
Indebtedness as contemplated hereby.


 


5.16.       
Subsidiaries.  Schedule 5.16 sets forth all the Subsidiaries of Holding
at the Closing Date (after giving effect to the Transactions), the jurisdiction
of their incorporation and the direct or indirect ownership interest of Holding
therein.


 


5.17.       
Purpose of Loans.  The proceeds of the Term Loans,
shall be used by the Parent Borrower (a) to finance the Transactions and (b) to
pay certain transaction fees and expenses related to the Transactions. 
The proceeds of Revolving Credit Loans and Swing Line Loans shall be used by
the Borrowers to finance the working capital and business requirements of, and
for general corporate purposes of, the Parent Borrower and its Subsidiaries; provided
that no more than the sum of (a) $15,000,000 and (b) the consolidated cash on
hand of the Parent Borrower on the Closing Date may be used on the Closing Date
to (x) finance the Transactions or (y) pay transaction fees and expenses
related to the Transactions.


 


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5.18.       
Environmental Matters.  Other than exceptions to any of the following
that would not, individually or in the aggregate, reasonably be expected to
give rise to a Material Adverse Effect:


 


(a)          
The
Parent Borrower and its Subsidiaries:  (i) are, and within the period of
all applicable statutes of limitation have been, in compliance with all
applicable Environmental Laws; (ii) hold all Environmental Permits (each of
which is in full force and effect) required for any of their current operations
or for any property owned, leased, or otherwise operated by any of them and
reasonably expect to timely obtain without material expense all such
Environmental Permits required for planned operations; (iii) are, and within
the period of all applicable statutes of limitation have been, in compliance
with all of their Environmental Permits; and (iv) have no reason to believe
that:  any of their Environmental Permits will not be, or will entail
material expense to be, timely renewed or complied with; any additional
Environmental Permits that may be required of any of them will not be, or will
entail material expense to be, timely granted or complied with; or that
compliance with any Environmental Law that is applicable to any of them will
not be, or will entail material expense to be, timely attained and maintained.


 


(b)          
Materials
of Environmental Concern have not been transported, disposed of, emitted,
discharged, or otherwise released or threatened to be released, to or at any
real property presently or formerly owned, leased or operated by the Parent
Borrower or any of its Subsidiaries or at any other location, which could
reasonably be expected to (i) give rise to liability of the Parent Borrower or
any of its Subsidiaries under any applicable Environmental Law, or (ii)
interfere with the Parent Borrower’s planned or continued operations, or (iii)
impair the fair saleable value of any real property owned or leased by the
Parent Borrower or any of its Subsidiaries.


 


(c)          
There
is no judicial, administrative, or arbitral proceeding (including any notice of
violation or alleged violation) under any Environmental Law to which the Parent
Borrower or any of its Subsidiaries is, or to the knowledge of the Parent
Borrower or any of its Subsidiaries will be, named as a party that is pending
or, to the knowledge of the Parent Borrower or any of its Subsidiaries,
threatened.


 


(d)          
Neither
the Parent Borrower nor any of its Subsidiaries has received any written
request for information, or been notified that it is a potentially responsible
party, under the federal Comprehensive Environmental Response, Compensation,
and Liability Act or any similar Environmental Law, or received any other
written request for information with respect to any Materials of Environmental
Concern.


 


(e)          
Neither
the Parent Borrower nor any of its Subsidiaries has entered into or agreed to
any consent decree, order, or settlement or other agreement, nor is subject to
any judgment, decree, or order or other agreement, in any judicial,
administrative, arbitral, or other forum, relating to compliance with or
liability under any Environmental Law.


 


5.19.       
No Material Misstatements.  The written information (including, without
limitation, the Confidential Information Memorandum), reports, financial
statements, exhibits


 


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and schedules furnished by or on behalf of the Parent
Borrower to the Administrative Agent, the Other Representatives and the Lenders
in connection with the negotiation of any Loan Document or included therein or
delivered pursuant thereto, taken as a whole, did not contain as of the Closing
Date any material misstatement of fact and did not omit to state as of the
Closing Date any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not materially
misleading in their presentation of the Parent Borrower and its Subsidiaries
taken as a whole.  It is understood that (a) no representation or warranty
is made concerning the forecasts, estimates, pro forma information, projections
and statements as to anticipated future performance or conditions, and the
assumptions on which they were based, contained in any such information,
reports, financial statements, exhibits or schedules, except that as of the
date such forecasts, estimates, pro forma information, projections and
statements were generated, (i) such forecasts, estimates, pro forma
information, projections and statements were based on the good faith assumptions
of the management of the Parent Borrower and (ii) such assumptions were
believed by such management to be reasonable and (b) such forecasts, estimates,
pro forma information and statements, and the assumptions on which they were
based, may or may not prove to be correct.


 


5.20.       
Delivery of the Acquisition Agreement.  The Parent Borrower has delivered to the
Administrative Agent a complete photocopy of the Acquisition Agreement
(including all exhibits, schedules and disclosure letters referred to therein
or delivered pursuant thereto, if any) and all amendments thereto, waivers
relating thereto and other side letters or agreements affecting the terms
thereof in any material respect.


 


5.21.       
Representations and Warranties Contained in the Acquisition Agreement.  Each of the Transaction Documents
will have been duly executed and delivered by each of the Loan Parties which is
a party thereto prior to the Closing Date and, to the knowledge of the Parent
Borrower, all other parties thereto, and is in full force and effect on the
Closing Date.  As of the Closing Date, the representations and warranties
of Acquisition Corp. and, to the knowledge of the Parent Borrower, any of the
other parties thereto contained in the Acquisition Agreement (after giving
effect to any amendments, supplements, waivers or other modifications of the
Acquisition Agreement prior to the Closing Date in accordance with this
Agreement) are true and correct in all material respects except as otherwise
disclosed to the Administrative Agent in writing prior to the Closing Date.


 


5.22.       
Senior Indebtedness.  The Loans, L/C Obligations and all other
obligations hereunder and under the other Loan Documents constitute “Senior
Indebtedness” and “Designated Senior Indebtedness” under and as defined in the
2004 Senior Subordinated Note Indenture.  The obligations of each
Guarantor under the Guarantee and Collateral Agreement constitute “Guarantor
Senior Indebtedness” of such Guarantor under and as defined in the 2004 Senior
Subordinated Note Indenture.


 


5.23.       
Labor Matters.  There are no strikes pending or,
to the knowledge of the Parent Borrower, reasonably expected to be commenced
against the Parent Borrower or any of its Subsidiaries which, individually or
in the aggregate, would reasonably be expected to have a Material Adverse
Effect.  The hours worked and payments made to employees of the Parent
Borrower and each of its Subsidiaries have not been in violation of any
applicable laws, rules or


 


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regulations, except where such violations would not
reasonably be expected to have a Material Adverse Effect.


 


5.24.       
Special Purpose Corporation.  Each of Holding, Acquisition Corp., Small
FSHCo, Large FSHCo and DelawareCo was formed to effect the Transactions. 
Prior to the consummation of the Transactions, none of Holding nor any of its
Subsidiaries listed in the preceding sentence had any significant assets or
liabilities (except pursuant to the Transaction Documents).


 


SECTION 6.          
CONDITIONS
PRECEDENT.


 


6.1.         
Conditions to Initial Extension of Credit.  This Agreement, including, without limitation,
the agreement of each Lender to make the initial Extension of Credit requested
to be made by it, shall become effective on the date on which the following
conditions precedent shall have been satisfied or waived:


 


(a)          
Loan Documents. 
The Administrative Agent shall have received the following Loan Documents,
executed and delivered as required below, with, in the case of clause (i), a
copy for each Lender:


 


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


 


(ii)          
the
Assumption Agreement, executed and delivered by a duly authorized officer of
each of Acquisition Corp. and VWR International, Inc.;


 


(iii)         
the
Guarantee and Collateral Agreement, executed and delivered by a duly authorized
officer of Holding, the Parent Borrower and each other Loan Party signatory
thereto and an Acknowledgement and Consent in the form attached to the
Guarantee and Collateral Agreement, executed and delivered by each Issuer (as
defined therein), if any, that is not a Loan Party; and


 


(iv)         
each
of the Mortgages, executed and delivered by a duly authorized officer of the
Loan Party signatory thereto.


 


(b)          
Filing of Merger
Documents; Name Change.


 


(i)            The Administrative Agent shall receive,
substantially concurrently with the satisfaction of the other conditions precedent
set forth in this subsection 6.1, evidence reasonably satisfactory to it
that the certificates of merger with respect to each of the Mergers shall have
been filed with the applicable filing offices, and that each of the Mergers
shall have become effective in accordance with applicable laws; and


 


(ii)           the Administrative Agent shall receive,
substantially concurrently with the satisfaction of the other conditions
precedent set forth in this subsection 6.1, a photocopy of each of the
documents filed publicly with the applicable filing offices in connection with
the Mergers; and


 


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(iii)          the Administrative Agent shall receive,
substantially concurrently with the satisfaction of the other conditions
precedent set forth in this subsection 6.1, evidence reasonably
satisfactory to it that the Name Change shall have been made in accordance with
applicable law.


 


 


(c)          
Acquisition
Agreement. 
The Acquisition Agreement shall not have been amended, supplemented, waived or
otherwise modified in any material respect since the date thereof, except as
may have been consented to in writing by the Administrative Agent, and the
Administrative Agent shall have received a certificate of a duly authorized
officer of Acquisition Corp. dated the Closing Date, which certificate shall be
in form and substance reasonably satisfactory to the Administrative Agent, to
such effect.  None of the conditions to Acquisition Corp.’s obligations to
consummate the Acquisition and the other transactions contemplated by the
Acquisition Agreement shall have been waived by Acquisition Corp. in any
material respect without the prior consent of the Administrative Agent.


 


(d)          
Equity Financing;
Note Offering; Etc. 
(i)  The Administrative Agent shall receive, substantially
concurrently with the satisfaction of the other conditions precedent set forth
in this subsection 6.1, evidence in form and substance reasonably
satisfactory to it that the Equity Financing has been consummated.  All
material terms and conditions (and the documentation) in connection with the
Equity Financing (including the identity of any equity investors (excluding
Management Investors, CD&R Fund VI, SSB Capital Partners (Master Fund) I,
L.P., CGI Private Equity L.P., LLC and Banc of America Capital Investors,
L.P.)) in Holding, and the relative amounts of their equity investments in
Holding or Investors shall be reasonably satisfactory to the Administrative
Agent.


 


(ii)          
(A) The Administrative
Agent shall receive, substantially concurrently with the satisfaction of the
other conditions precedent set forth in this subsection 6.1, evidence, in
form and substance reasonably satisfactory to it, that the Parent Borrower or
its account shall have received gross cash proceeds from the issuance of its
2004 Senior Notes in an aggregate amount of $200,000,000 and from the issuance
of its 2004 Senior Subordinated Notes in an aggregate amount $320,000,000 and
(B) the Parent Borrower shall have delivered to the trustee pursuant to the
2004 Senior Subordinated Note Indenture a writing (a copy of which shall be
furnished to the Administrative Agent and be in form and substance reasonably
satisfactory to it) to the effect that the holders of Senior Indebtedness
pursuant to this Agreement are being designated in writing by the Parent
Borrower to such trustee as Senior Indebtedness the holders of which shall be
required to consent to any amendment to Article XIV and Article XV,
or the definitions related thereto, in the 2004 Senior Subordinated Note
Indenture that adversely affects the rights of the holders of Senior
Indebtedness then outstanding (which designation in writing shall meet the
applicable requirements contained in Section 902 of the 2004 Senior
Subordinated Note Indenture) and (C) the Administrative Agent, on behalf of the
Lenders, shall have received an Officer’s Certificate (as defined in the 2004
Senior Subordinated Note Indenture), in form and substance reasonably
satisfactory to the Administrative Agent, to the effect that the Incurrence of
Indebtedness (each as defined in the 2004 Senior Subordinated Note Indenture)
on the Closing Date pursuant to this Agreement does not (and that the
incurrence of the entire committed amount hereunder on the Closing Date would
not) violate the covenant contained in Section 407 of the 2004 Senior
Subordinated Note Indenture, and a copy of such certificate shall be delivered
to the trustee of the 2004 Senior Subordinated Note Indenture.


 


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(iii)         
The Administrative
Agent shall receive, substantially concurrently with the satisfaction of the
other conditions precedent set forth in this subsection 6.1, evidence in
form and substance reasonably satisfactory to it that the Parent Borrower has
caused its Subsidiaries to make the intercompany loans, repayments and
transfers specified on Schedule 6.1(d) (the “Intercompany
Transactions”).


 


(iv)         
On
the Closing Date, the Administrative Agent shall have received true and correct
copies of the 2004 Senior Note Indenture and the 2004 Senior Subordinated Note
Indenture and all Intercompany Transaction Documents, certified as such by an
appropriate officer of Holding, and such documentation shall be reasonably
satisfactory in form and substance to the Administrative Agent.


 


(e)          
Capitalization
and Structure of Holding and its Subsidiaries.  Since the date of the
Acquisition Agreement, except in connection with the Transactions, there shall
have been no material change in the corporate and capital structure of Holding,
the Parent Borrower and their respective Subsidiaries from that contemplated to
exist after giving effect to the Transactions.


 


(f)           
Outstanding Indebtedness and Preferred Equity;
No Defaults.  On the Closing Date and after
giving effect to the consummation of the Transactions, Holding and its
Subsidiaries shall have no outstanding preferred equity or Indebtedness, except
for: (i) Indebtedness pursuant to or in respect of the Loan Documents;
(ii) Indebtedness pursuant to the 2004 Senior Note Indenture and the 2004
Senior Subordinated Note Indenture; (iii) intercompany Indebtedness incurred
pursuant to the Intercompany Transactions; and (iv) such other existing
indebtedness of Holding and its Subsidiaries, if any, as shall be permitted by
the Administrative Agent.


 


(g)          
Financial
Information.  The Lenders shall have received copies of and shall
be reasonably satisfied, in form and substance, with (i) the financial statements
referred to in subsection 5.1(a) and (ii) the Pro Forma Financial
Statements.


 


(h)          
Governmental
Approvals and/or Consents.  The Administrative Agent shall have received
a certificate of a Responsible Officer of the Parent Borrower stating that all
consents, authorizations, notices and filings referred to in Schedule 5.4
are in full force and effect or have the status described therein, and the
Administrative Agent shall have received evidence thereof reasonably
satisfactory to it.


 


(i)           
Lien
Searches.  The Administrative Agent shall have received the
results of a recent search by a Person reasonably satisfactory to the
Administrative Agent, of the Uniform Commercial Code, judgment and tax lien
filings which have been filed with respect to personal property of Holding, the
Parent Borrower and their respective Subsidiaries in any of the jurisdictions
set forth in Schedule 6.1(i), and the results of such search shall not
reveal any liens other than liens permitted by subsection 8.3.


 


(j)           
Legal
Opinions. The Administrative Agent shall have received the
following executed legal opinions:


 


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(i)           
the
executed legal opinion of Debevoise & Plimpton, special New York counsel
to each of Holding, the Parent Borrower and the other Loan Parties,
substantially in the form of Exhibit D-1;


 


(ii)          
the
executed legal opinion of Richards, Layton & Finger, P.A., special Delaware
counsel to each of Holding, the Parent Borrower and certain other Loan Parties,
substantially in the form of Exhibit D-2;


 


(iii)         
the
executed legal opinion of Stephen J. Kunst, Esq., counsel to certain Loan
Parties, substantially in the form of Exhibit D-3; and


 


(iv)         
the
executed legal opinions of special local counsel in the jurisdictions set forth
in Schedule 6.1(j) with respect to collateral security matters in
connection with the Mortgages, each in form and substance reasonably
satisfactory to the Administrative Agent.


 


(k)          
Closing
Certificate.  The Administrative Agent shall have received a
certificate from each Loan Party, dated the Closing Date, substantially in the
form of Exhibit J, with appropriate insertions and attachments.


 


(l)           
Actions
to Perfect Liens.  The Administrative Agent shall have received
evidence in form and substance reasonably satisfactory to it that all filings,
recordings, registrations and other actions, including, without limitation, the
filing of duly executed financing statements on Form UCC-1 in each jurisdiction
set forth on Schedule 6.1(l), necessary or, in the reasonable opinion of
the Administrative Agent, advisable to perfect the Liens created by the
Security Documents, shall have been completed or shall be ready to be completed
promptly following the Closing Date, and all agreements, statements and other
documents relating thereto shall be in form and substance reasonably
satisfactory to the Administrative Agent.


 


(m)         
Pledged
Stock; Stock Powers; Pledged Notes; Endorsements; Initial Transaction
Statements.  The Administrative Agent shall have received:


 


(i)           
the
certificates, if any, representing the Pledged Stock under (and as defined in)
the Guarantee and Collateral Agreement, together with an undated stock power
for each such certificate executed in blank by a duly authorized officer of the
pledgor thereof; and


 


(ii)          
the
promissory notes representing each of the Pledged Notes under (and as defined
in) the Guarantee and Collateral Agreement, duly endorsed as required by the
Guarantee and Collateral Agreement.


 


(n)          
Title
Insurance Policy.  The Administrative Agent shall have received in
respect of each of the Insured Fee Properties and Mortgaged Leased Properties
an irrevocable written commitment to issue a mortgagee’s title policy (or
policies) or marked up unconditional binder for such insurance dated the
Closing Date.  Each such policy shall (i) be in the amount set forth with
respect to such policy in Part I of Schedule 6.1(n); (ii) insure that the
Mortgage insured thereby creates a valid first Lien on the Mortgaged Property
encumbered thereby free


 


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and clear of all defects and
encumbrances, except those permitted by subsections 7.11 and 8.3 and such as
may be approved by the Administrative Agent; (iii) name the Administrative
Agent for the benefit of the Lenders as the insured thereunder; (iv) be in the
form of an ALTA Loan Policy; (v) contain such endorsements and affirmative coverage
as were contained in the ALTA Loan Policy listed with respect to such policy in
Part II of Schedule 6.1(n); and (vi) be issued by title companies
reasonably satisfactory to the Administrative Agent (including any such title
companies acting as co-insurers or reinsurers, at the option of the
Administrative Agent).  The Administrative Agent shall have received
evidence reasonably satisfactory to it that all premiums in respect of each
such policy, and all charges for mortgage recording tax, if any, have been
paid.  The Administrative Agent shall have also received a copy of all
recorded documents referred to, or listed as exceptions to title in, the title
policy or policies referred to in this subsection and a copy, certified by
such parties as the Administrative Agent may deem reasonably appropriate, of
all other documents affecting the property covered by each Mortgage as shall
have been reasonably requested by the Administrative Agent.


 


(o)          
Fees.  The Agents and
the Lenders shall have received all fees and expenses required to be paid or
delivered by the Parent Borrower to them on or prior to the Closing Date,
including, without limitation, the fees referred to in subsection 4.5.


 


(p)          
Borrowing
Certificate.  The Administrative Agent shall have received a
certificate from Parent Borrower, dated the Closing Date, substantially in the
form of Exhibit H, with appropriate insertions and attachments, reasonably
satisfactory in form and substance to the Administrative Agent, executed by a Responsible
Officer and the Secretary or any Assistant Secretary of Parent Borrower.


 


(q)          
Corporate
Proceedings of the Loan Parties.  The Administrative Agent
shall have received a copy of the resolutions, in form and substance reasonably
satisfactory to the Administrative Agent, of the board of directors of each
Loan Party authorizing, as applicable, (i) the execution, delivery and
performance of this Agreement, any Notes and the other Loan Documents to which
it is or will be a party as of the Closing Date, (ii) the Extensions of Credit
to such Loan Party (if any) contemplated hereunder and (iii) the granting by it
of the Liens to be created pursuant to the Security Documents to which it will
be a party as of the Closing Date, certified by the Secretary or an Assistant
Secretary of such Loan Party as of the Closing Date, which certificate shall be
in form and substance reasonably satisfactory to the Administrative Agent and
shall state that the resolutions thereby certified have not been amended, modified
(except as any later such resolution may modify any earlier such resolution),
revoked or rescinded and are in full force and effect.


 


(r)           
Incumbency
Certificates of the Loan Parties.  The Administrative Agent
shall have received a certificate of each Loan Party, dated the Closing Date,
as to the incumbency and signature of the officers of such Loan Party executing
any Loan Document, reasonably satisfactory in form and substance to the
Administrative Agent executed by a Responsible Officer and the Secretary or any
Assistant Secretary of such Loan Party.


 


(s)          
Governing
Documents.  The Administrative Agent shall have received copies
of the certificate or articles of incorporation and by-laws (or other similar
governing documents serving the same purpose) of each Loan Party, certified as
of the Closing Date as


 


84

















 


complete and correct copies thereof
by the Secretary or an Assistant Secretary of such Loan Party.


 


(t)           
Insurance.  The
Administrative Agent shall have received evidence in form and substance
reasonably satisfactory to it that all of the requirements of
subsection 7.5 of this Agreement and subsection 5.2.2 of the
Guarantee and Collateral Agreement shall have been satisfied.


 


(u)          
No
Material Adverse Effect.  Nothing shall have occurred since
February 15, 2004, after giving effect to the Transactions, that has had,
or would reasonably be expected to have, a Material Adverse Effect.


 


(v)          
No
Material Litigation.  No litigation by any entity (private or
governmental) shall be pending or threatened with respect to this Agreement or
any documentation executed in connection herewith, or with respect to the
Transactions, which has had, or would reasonably be expected to have, a
Material Adverse Effect.


 


(w)         
Flood
Insurance.  With respect to any of the Mortgaged Properties
which is located in an area identified by the Secretary of Housing and Urban
Development as having special flood hazards, if the Administrative Agent shall
have delivered notice(s) to the relevant Loan Party as required pursuant to
Section 208.8(e)(3) of Regulation H of the Board, such Loan Party shall
have delivered an acknowledgment to the Administrative Agent.


 


(x)           
Tax
Sharing Agreement.  Investors, Holding and the Parent Borrower shall
have entered into the Tax Sharing Agreement.  The Administrative Agent
shall have received a complete and correct copy of the Tax Sharing Agreement,
certified as to authenticity by the Parent Borrower.


 


The making of the initial
Extensions of Credit by the Lenders hereunder shall conclusively be deemed to
constitute an acknowledgement by the Administrative Agent and each Lender that
each of the conditions precedent set forth in this subsection 6.1 shall
have been satisfied in accordance with its respective terms or shall have been
irrevocably waived by such Person (other than as otherwise required by
subsection 7.13 of this Agreement).


 


6.2.         
Conditions to Each Other Extension of Credit.  The agreement of each Lender to make any
Extension of Credit requested to be made by it on any date (including, without
limitation, the initial Extension of Credit and each Swing Line Loan) is
subject to the satisfaction or waiver of the following conditions precedent:


 


(a)          
Representations
and Warranties. 
Each of the representations and warranties made by any Loan Party pursuant to
this Agreement or any other Loan Document (or in any amendment, modification or
supplement hereto or thereto) to which it is a party, and each of the
representations and warranties contained in any certificate furnished at any
time by or on behalf of any Loan Party pursuant to this Agreement or any other
Loan Document, shall, except to the extent that they relate to a particular
date, be true and correct in all material respects on and as of such date as if
made on and as of such date.


 


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(b)          
No Default.  No Default or Event of Default
shall have occurred and be continuing on such date or after giving effect to
the Extensions of Credit requested to be made on such date.


 


(c)          
Letter of Credit
Request. 
With respect to the issuance of any Letter of Credit, the Issuing Lender shall
have received a Letter of Credit Request, completed to its satisfaction, and
such other certificates, documents and other papers and information as the
Issuing Lender may reasonably request.


 


Each borrowing of Loans
by and Letter of Credit issued on behalf of any of the Borrowers hereunder
shall constitute a representation and warranty by the Parent Borrower as of the
date of such borrowing or such issuance that the conditions contained in this
subsection 6.2 have been satisfied.


 


6.3.         
Additional Conditions Applicable to Foreign Subsidiary Borrowers.  The agreement of each Lender to
make any Extension of Credit requested to be made by it to any Foreign
Subsidiary Borrower on any date (including, without limitation, the initial
Extension of Credit) is subject to satisfaction or waiver of, in addition to
the conditions precedent set forth in subsections 6.1 (in the case of the
initial Extension of Credit) and 6.2, the following conditions precedent: 
(a) in the case of the making of any Extension of Credit to any Foreign
Subsidiary Borrower for the first time, the delivery to the Administrative
Agent, with a copy for each Lender, of (i) the executed legal opinion of
counsel to such Foreign Subsidiary Borrower, as to the matters set forth in
Exhibit D-4 and otherwise in form and substance reasonably satisfactory to the
Administrative Agent and (ii) in the case of any Foreign Subsidiary Borrower,
guarantee, collateral and security documents, in form and substance reasonably
satisfactory to the Administrative Agent, executed and delivered by a duly
authorized officer of such Foreign Subsidiary Borrower and each of its
Subsidiaries, and such other documents, instruments and agreements as may be
reasonably requested by the Administrative Agent and (b) the truthfulness and
correctness in all material respects on and as of such date of the following
additional representations and warranties:


 


(i)           
Pari
Passu.  The obligations of such Foreign Subsidiary Borrower under this
Agreement and any Note, when executed and delivered by such Foreign Subsidiary
Borrower, will rank at least pari  passu with all other secured
Indebtedness of such Foreign Subsidiary Borrower.


 


(ii)          
No
Immunities, etc.  Such Foreign Subsidiary Borrower is subject to civil
and commercial law with respect to its obligations under this Agreement and any
Note, and the execution, delivery and performance by such Foreign Subsidiary
Borrower of this Agreement constitute and will constitute private and
commercial acts and not public or governmental acts.  Neither such Foreign
Subsidiary Borrower nor any of its property, whether or not held for its own
account, has any immunity (sovereign or other similar immunity) from any suit
or proceeding, from jurisdiction of any court or from set-off or any legal
process (whether service or notice, attachment prior to judgment, attachment in
aid of execution of judgment, execution of judgment or other similar immunity)
under the laws of the jurisdiction in which such Foreign Subsidiary Borrower is


 


86

















 


organized and existing in respect of its obligations under
this Agreement or any Note.  Such Foreign Subsidiary Borrower has,
pursuant to subsection 11.14, waived every immunity (sovereign or
otherwise) to which it or any of its properties would otherwise be entitled
from any legal action, suit or proceeding, from jurisdiction of any court or
from set-off or any legal process (whether service or notice, attachment prior
to judgment, attachment in aid of execution of judgment, execution of judgment
or otherwise) under the laws of the jurisdiction in which such Foreign
Subsidiary Borrower is organized and existing in respect of its obligations
under this Agreement and any Note.  The waiver by such Foreign Subsidiary
Borrower described in the immediately preceding sentence is the legal, valid
and binding obligation of such Foreign Subsidiary Borrower.


 


(iii)         
No
Recordation Necessary.  This Agreement and each Note, if any, is in
proper legal form under the laws of the jurisdiction in which such Foreign
Subsidiary Borrower is organized and existing for the enforcement hereof or
thereof against such Foreign Subsidiary Borrower under the laws of such
jurisdiction, and to ensure the legality, validity, enforceability, priority or
admissibility in evidence of this Agreement and any such Note.  It is not
necessary to ensure the legality, validity, enforceability, priority or
admissibility in evidence of this Agreement and any such Note that this
Agreement, any Note or any other document be filed, registered or recorded
with, or executed or notarized before, any court or other authority in the
jurisdiction in which such Foreign Subsidiary Borrower is organized and
existing or that any registration charge or stamp or similar tax be paid on or
in respect of this Agreement, any Note or any other document, except for any
such filing, registration or recording, or execution or notarization, as has
been made or is not required to be made until this Agreement, any Note or any
other document is sought to be enforced and for any charge or tax as has been
timely paid.


 


(iv)         
Exchange
Controls.  The execution, delivery and performance by such
Foreign Subsidiary Borrower of this Agreement, any Note or the other Loan Documents
is, under applicable foreign exchange control regulations of the jurisdiction
in which such Foreign Subsidiary Borrower is organized and existing, not
subject to any notification or authorization except such as have been made or
obtained or cannot be made or obtained until a later date.


 


Each borrowing by any
Foreign Subsidiary Borrower hereunder shall constitute a representation and
warranty by each of the Parent Borrower and such Foreign Subsidiary Borrower as
of the date of such borrowings that the conditions contained in this
subsection 6.3 have been satisfied.


 


SECTION 7.          
AFFIRMATIVE
COVENANTS. 


 


The Parent Borrower
hereby agrees that, from and after the Closing Date and so long as the
Revolving Credit Commitments remain in effect, and thereafter until payment in
full of the Loans, all Reimbursement Obligations and any other amount then due
and owing to any Lender or the Administrative Agent hereunder and under any
Note and termination or expiration


 


87

















 


of all Letters of Credit, the Parent Borrower shall
and (except in the case of delivery of financial information, reports and
notices) shall cause each of its Subsidiaries to:


 


7.1.         
Financial Statements.  Furnish to the Administrative Agent for
delivery to each Lender (and the Administrative Agent agrees to make and so
deliver such copies):


 


(a)          
as
soon as available, but in any event not later than the fifth Business Day after
the 90th day following the end of each fiscal year of the Parent Borrower
ending on or after December 31, 2004, a copy of the consolidated balance
sheet of the Parent Borrower and its consolidated Subsidiaries as at the end of
such year and the related consolidated statements of operations, changes in
common stockholders’ equity and cash flows for such year, setting forth in each
case, in comparative form the figures for and as of the end of the previous
year, reported on without a “going concern” or like qualification or exception,
or qualification arising out of the scope of the audit, by KPMG or other
independent certified public accountants of nationally recognized standing not
unacceptable to the Administrative Agent in its reasonable judgment (it being
agreed that the furnishing of the Parent Borrower’s annual report on Form 10-K
for such year, as filed with the Securities and Exchange Commission, will
satisfy the Parent Borrower’s obligation under this subsection 7.1(a) with
respect to such year except with respect to the requirement that such financial
statements be reported on without a “going concern” or like qualification or
exception, or qualification arising out of the scope of the audit); and


 


(b)          
as
soon as available, but in any event not later than the fifth Business Day after
the 45th day (or (x) in the case of the quarterly period ended March 31,
2004, the 75th day or (y) in the case of the quarterly periods
ended, respectively, June 30, 2004 and September 30, 2004, the 60th
day) following the end of each of the first three quarterly periods of
each fiscal year of the Parent Borrower, the unaudited consolidated balance
sheet of the Parent Borrower and its consolidated Subsidiaries as at the end of
such quarter and the related unaudited consolidated statements of operations and
cash flows of the Parent Borrower and its consolidated Subsidiaries for such
quarter and the portion of the fiscal year through the end of such quarter,
certified by a Responsible Officer of Holding as being fairly stated in all
material respects (subject to normal year-end audit and other adjustments) (it
being agreed that the furnishing of the Parent Borrower’s quarterly report on
Form 10-Q for such quarter, as filed with the Securities and Exchange
Commission, will satisfy the Parent Borrower’s obligations under this
subsection 7.1(b) with respect to such quarter);


 


(c)          
all
such financial statements delivered pursuant to subsection 7.1(a) or (b)
to be (and, in the case of any financial statements delivered pursuant to
subsection 7.1(b) shall be certified by a Responsible Officer of the
Parent Borrower as being) complete and correct in all material respects in
conformity with GAAP and to be (and, in the case of any financial statements
delivered pursuant to subsection 7.1(b) shall be certified by a
Responsible Officer of the Parent Borrower as being) prepared in reasonable
detail in accordance with GAAP applied consistently throughout the periods
reflected therein and with prior periods that began on or after the Closing
Date (except as approved by such accountants or officer, as the case may be,
and disclosed therein, and except, in the case of any financial statements
delivered pursuant to subsection 7.1(b), for the absence of certain
notes).


 


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7.2.         
Certificates; Other Information.  Furnish to the Administrative Agent for
delivery to each Lender (and the Administrative Agent agrees to make and so
deliver such copies):


 


(a)          
concurrently
with the delivery of the financial statements referred to in
subsection 7.1(a), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
audit necessary therefor no knowledge was obtained of any Default or Event of
Default insofar as the same relates to any financial accounting matters covered
by their audit, except as specified in such certificate;


 


(b)          
concurrently
with the delivery of the financial statements and reports referred to in
subsections 7.1(a) and (b), a certificate signed by a Responsible Officer of
each of Holding and the Parent Borrower (i) stating that, to the best of such
Responsible Officer’s knowledge, each of Holding, the Parent Borrower and their
respective Subsidiaries during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition, contained in
this Agreement or the other Loan Documents to which it is a party to be
observed, performed or satisfied by it, and that such Responsible Officer has
obtained no knowledge of any Default or Event of Default, except, in each case,
as specified in such certificate, and (ii) setting forth the calculations
required to determine (A) compliance with all covenants set forth in
subsection 8.1 (in the case of a certificate furnished with the financial
statements referred to in subsections 7.1(a) and (b)), and (B) compliance with
the covenant set forth in subsection 8.8 and calculations necessary to
determine the amount of required prepayment with respect to such fiscal year
pursuant to subsection 4.4(c) (in the case of a certificate furnished with
the financial statements referred to in subsection 7.1(a));


 


(c)          
as
soon as available, but in any event not later than the fifth Business Day
following the 90th day after the beginning of each fiscal year of the Parent
Borrower, a copy of the projections by the Parent Borrower of the operating
budget and cash flow budget of the Parent Borrower and its Subsidiaries for
such fiscal year, such projections to be accompanied by a certificate of a
Responsible Officer of the Parent Borrower to the effect that such Responsible
Officer believes such projections to have been prepared on the basis of
reasonable assumptions;


 


(d)          
within
five Business Days after the same are sent, copies of all financial statements
and reports which Holding or the Parent Borrower sends to its public security
holders, and within five Business Days after the same are filed, copies of all
financial statements and periodic reports which Holding or the Parent Borrower
may file with the Securities and Exchange Commission or any successor or
analogous Governmental Authority;


 


(e)          
within
five Business Days after the same are filed, copies of all registration
statements and any amendments and exhibits thereto, which Holding or the Parent
Borrower may file with the Securities and Exchange Commission or any successor
or analogous Governmental Authority, and such other documents or instruments as
may be reasonably requested by the Administrative Agent in connection
therewith; and


 


(f)           
promptly,
such additional financial and other information as any Lender may from time to
time reasonably request.


 


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7.3.         
Payment of Obligations.  Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
diligently conducted and reserves in conformity with GAAP with respect thereto
have been provided on the books of Holding or any of its Subsidiaries, as the
case may be.


 


7.4.         
Conduct of Business and Maintenance of Existence.  Continue to engage in business of
the same general type as conducted by the Parent Borrower and its Subsidiaries
on the Closing Date, taken as a whole, and preserve, renew and keep in full
force and effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of the business of the Parent Borrower and its Subsidiaries,
taken as a whole, except as otherwise expressly permitted pursuant to subsection 8.5,
provided that the Parent Borrower and its Subsidiaries shall not be
required to maintain any such rights, privileges or franchises, if the failure
to do so would not reasonably be expected to have a Material Adverse Effect;
and comply with all Contractual Obligations and Requirements of Law except to
the extent that failure to comply therewith, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.


 


7.5.         
Maintenance of Property; Insurance.  Keep all property useful and necessary in the
business of the Parent Borrower and its Subsidiaries, taken as a whole, in good
working order and condition; maintain with financially sound and reputable
insurance companies insurance on all property material to the business of the
Parent Borrower and its Subsidiaries, taken as a whole, in at least such
amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually insured
against in the same general area by companies engaged in the same or a similar
business; and furnish to the Administrative Agent, upon written request,
information in reasonable detail as to the insurance carried.


 


7.6.         
Inspection of Property; Books and Records; Discussions.  Keep proper books of records and
account in which full, complete and correct entries in conformity with GAAP and
all material Requirements of Law shall be made of all dealings and transactions
in relation to its business and activities; and permit representatives of any
Lender to visit and inspect any of its properties and examine and, to the
extent reasonable, make abstracts from any of its books and records and to
discuss the business, operations, properties and financial and other condition
of the Parent Borrower and its Subsidiaries with officers and employees of the
Parent Borrower and its Subsidiaries and with its independent certified public
accountants, in each case at any reasonable time, upon reasonable notice, and
as often as may reasonably be desired.


 


7.7.         
Notices. 
Promptly give notice to the Administrative Agent and each Lender of:


 


(a)          
as
soon as possible after a Responsible Officer of the Parent Borrower knows or
reasonably should know thereof, the occurrence of any Default or Event of
Default;


 


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(b)          
as
soon as possible after a Responsible Officer of the Parent Borrower knows or
reasonably should know thereof, any (i) default or event of default under any Contractual
Obligation of the Parent Borrower or any of its Subsidiaries, other than as
previously disclosed in writing to the Lenders, or (ii) litigation,
investigation or proceeding which may exist at any time between the Parent
Borrower or any of its Subsidiaries and any Governmental Authority, which in
either case, if not cured or if adversely determined, as the case may be, would
reasonably be expected to have a Material Adverse Effect;


 


(c)          
as
soon as possible after a Responsible Officer of the Parent Borrower knows or
reasonably should know thereof, the occurrence of any default or event of
default under any of the 2004 Senior Note Documents or 2004 Senior Subordinated
Note Documents;


 


(d)          
as
soon as possible after a Responsible Officer of the Parent Borrower knows or
reasonably should know thereof, any litigation or proceeding affecting Holding
or any of its Subsidiaries in which the amount involved (not covered by
insurance) is $7,500,000 or more or in which injunctive or similar relief is
sought that would reasonably be expected to have a Material Adverse Effect;


 


(e)          
the
following events, as soon as possible and in any event within 30 days after a
Responsible Officer of the Parent Borrower or any of its Subsidiaries knows or
reasonably should know thereof:  (i) the occurrence or expected occurrence
of any Reportable Event with respect to any Single Employer Plan, a failure to
make any required contribution to a Single Employer Plan or Multiemployer Plan,
the creation of any Lien on the property of the Parent Borrower or its
Subsidiaries in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan; (ii) the
institution of proceedings or the taking of any other formal action by the PBGC
or the Parent Borrower or any of its Subsidiaries or any Commonly Controlled
Entity or any Multiemployer Plan which could reasonably be expected to result
in the withdrawal from, or the termination, Reorganization or Insolvency of,
any Single Employer Plan or Multiemployer Plan; provided, however, that
no such notice will be required under clause (i) or (ii) above unless the event
giving rise to such notice, when aggregated with all other such events under
clause (i) or (ii) above, could be reasonably expected to result in liability
to the Parent Borrower or its Subsidiaries in an amount that would exceed
$7,500,000; or (iii) the first occurrence of an Underfunding under a Single
Employer Plan that exceeds 10% of the value of the assets of such Single
Employer Plan, in each case, determined as of the most recent annual valuation
date of such Single Employer Plan on the basis of the actuarial assumptions
used to determine the funding requirements of such Single Employer Plan as of
such date;


 


(f)           
as
soon as possible after a Responsible Officer of the Parent Borrower knows or
reasonably should know thereof, any material adverse change in the business,
operations, property, condition (financial or otherwise) or prospects of the
Parent Borrower and its Subsidiaries taken as a whole; and


 


(g)          
as
soon as possible after a Responsible Officer of the Parent Borrower knows or
reasonably should know thereof, (i) any release or discharge by the Parent
Borrower or any of its Subsidiaries of any Materials of Environmental Concern
required to be reported under applicable Environmental Laws to any Governmental
Authority, unless the Parent Borrower


 


91

















 


reasonably determines that the
total Environmental Costs arising out of such release or discharge are unlikely
to exceed $7,500,000 or to have a Material Adverse Effect; (ii) any condition,
circumstance, occurrence or event not previously disclosed in writing to the
Administrative Agent that could result in liability under applicable
Environmental Laws, unless the Parent Borrower reasonably determines that the
total Environmental Costs arising out of such condition, circumstance,
occurrence or event are unlikely to exceed $7,500,000 or to have a Material
Adverse Effect, or could reasonably be expected to result in the imposition of
any lien or other material restriction on the title, ownership or
transferability of any facilities and properties owned, leased or operated by
the Parent Borrower or any of its Subsidiaries; and (iii) any proposed action
to be taken by the Parent Borrower or any of its Subsidiaries that would
reasonably be expected to subject the Parent Borrower or any of its
Subsidiaries to any material additional or different requirements or
liabilities under Environmental Laws, unless the Parent Borrower reasonably
determines that the total Environmental Costs arising out of such proposed
action are unlikely to exceed $7,500,000 or to have a Material Adverse Effect.


 


Each notice pursuant to
this subsection shall be accompanied by a statement of a Responsible
Officer of the Parent Borrower (and, if applicable, the relevant Commonly
Controlled Entity or Subsidiary) setting forth details of the occurrence
referred to therein and stating what action the Parent Borrower (or, if
applicable, the relevant Commonly Controlled Entity or Subsidiary) proposes to
take with respect thereto.


 


7.8.         
Environmental Laws. 
(a)  (i) Comply substantially with, and require substantial compliance by
all tenants, subtenants, contractors, and invitees with, all applicable
Environmental Laws; (ii) obtain, comply substantially with and maintain
any and all Environmental Permits necessary for its operations as conducted and
as planned; and (iii) require that all tenants, subtenants, contractors, and
invitees obtain, comply substantially with and maintain any and all
Environmental Permits necessary for their operations as conducted and as
planned, with respect to any property leased or subleased from, or operated by
the Parent Borrower or its Subsidiaries.  For purposes of this
subsection 7.8(a), noncompliance shall be deemed not to constitute a
breach of this covenant, provided that, upon learning of any actual or
suspected noncompliance, the Parent Borrower and any such affected Subsidiary
shall promptly undertake reasonable efforts, if any, to achieve compliance, and
provided, further, that in any case such noncompliance would not
reasonably be expected to have a Material Adverse Effect.


 


(b)          
Promptly comply, in
all material respects, with all orders and directives of all Governmental
Authorities regarding Environmental Laws, other than such orders or directives
as to which an appeal or other appropriate contest is or has been timely and
properly taken, is being diligently pursued in good faith, and as to which
appropriate reserves have been established in accordance with GAAP, and, if the
effectiveness of such order or directive has not been stayed, the pendency of
such appeal or other appropriate contest does not give rise to a Material
Adverse Effect.


 


(c)          
Maintain, update as
appropriate, and implement in all material respects an ongoing program
reasonably designed to ensure that all the properties and operations of the
Parent Borrower and its Subsidiaries are regularly and reasonably reviewed by
competent professionals to identify and promote compliance with and to
reasonably and prudently manage any liabilities or potential liabilities under
any Environmental Law that may affect the Parent


 


92

















 


Borrower or any of its Subsidiaries, including,
without limitation, compliance and liabilities relating to:  discharges to
air and water; acquisition, transportation, storage and use of hazardous
materials; waste disposal; repair, maintenance and improvement of properties;
employee health and safety; species protection; and recordkeeping.


 


7.9.         
After-Acquired Real Property and Fixtures.  (a)  With respect to any owned real
property or fixtures, in each case with a purchase price or a fair market value
of at least $2,000,000, in which the Parent Borrower or any of its Subsidiaries
or any Foreign Subsidiary Borrower (other than a Foreign Subsidiary, a
Subsidiary of a Foreign Subsidiary, or a Receivables Subsidiary, in each case
which is not a Foreign Subsidiary Borrower) acquires ownership rights at any
time after the Closing Date, promptly grant to the Administrative Agent, for
the benefit of the Lenders, a Lien of record on all such owned real property
and fixtures, upon terms reasonably satisfactory in form and substance to the
Administrative Agent and in accordance with any applicable requirements of any
Governmental Authority (including, without limitation, any required appraisals
of such property under FIRREA); provided that (i) nothing in this
subsection 7.9 shall defer or impair the attachment or perfection of any
security interest in any Collateral covered by any of the Security Documents
which would attach or be perfected pursuant to the terms thereof without action
by the Parent Borrower, any of its Subsidiaries or any other Person, (ii) no
such Lien shall be required to be granted as contemplated by this
subsection 7.9 on any owned real property or fixtures the acquisition of
which is financed, or is to be financed within any time period permitted by
subsection 8.2(e) or (f), in whole or in part through the incurrence of
Indebtedness permitted by subsection 8.2(e) or (f), until such
Indebtedness is repaid in full (and not refinanced as permitted by
subsection 8.2(e) or (f)) or, as the case may be, the Parent Borrower
determines not to proceed with such financing or refinancing and (iii) any such
mortgage by a Foreign Subsidiary Borrower shall not secure any other Borrower’s
obligations.  In connection with any such grant to the Administrative
Agent, for the benefit of the Lenders, of a Lien of record on any such real
property in accordance with this subsection, the Parent Borrower or such
Subsidiary shall deliver or cause to be delivered to the Administrative Agent
any surveys, title insurance policies, environmental reports and other
documents in connection with such grant of such Lien obtained by it in
connection with the acquisition of such ownership rights in such real property
or as the Administrative Agent shall reasonably request (in light of the value
of such real property and the cost and availability of such surveys, title
insurance policies, environmental reports and other documents and whether the
delivery of such surveys, title insurance policies, environmental reports and
other documents would be customary in connection with such grant of such Lien
in similar circumstances).


 


(b)          
With respect to any
Domestic Subsidiary created or acquired (including by reason of any Foreign
Subsidiary Holdco ceasing to constitute same) subsequent to the Closing Date by
the Parent Borrower or any of its Domestic Subsidiaries (other than a
Subsidiary of a Foreign Subsidiary), promptly notify the Administrative Agent
of such occurrence and, if the Administrative Agent or the Required Lenders so
request, promptly (i) execute and deliver to the Administrative Agent for the
benefit of the Lenders such amendments to the Guarantee and Collateral
Agreement as the Administrative Agent shall reasonably deem necessary or
reasonably advisable to grant to the Administrative Agent, for the benefit of
the Lenders, a perfected first priority security interest (as and to the extent
provided in the Guarantee and Collateral Agreement) in the Capital Stock of
such new Domestic Subsidiary, (ii) deliver (or, in the case of a Receivables
Subsidiary, cause to be delivered) to the Administrative Agent the


 


93

















 


certificates (if any) representing such Capital Stock,
together with undated stock powers, executed and delivered in blank by a duly
authorized officer of the parent corporation of such new Domestic Subsidiary
and (iii) unless such Subsidiary is a Receivables Subsidiary, cause such new Domestic
Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and
(B) to take all actions reasonably deemed by the Administrative Agent to be
necessary or advisable to cause the Lien created by the Guarantee and
Collateral Agreement in such new Domestic Subsidiary’s Collateral to be duly
perfected in accordance with all applicable Requirements of Law, including,
without limitation, the filing of financing statements in such jurisdictions as
may be reasonably requested by the Administrative Agent.


 


(c)          
With respect to any
Foreign Subsidiary created or acquired subsequent to the Closing Date by the
Parent Borrower or any of its Domestic Subsidiaries, the Capital Stock of which
is owned directly by the Parent Borrower or a Domestic Subsidiary (other than a
Receivables Subsidiary or a Subsidiary of a Foreign Subsidiary), promptly
notify the Administrative Agent of such occurrence and if the Administrative
Agent or the Required Lenders so request (it being understood that if the Administrative
Agent does not so request with respect to any such Foreign Subsidiary that it
believes is or is likely to become material to the Parent Borrower and its
Subsidiaries taken as a whole, it will provide notice to the Lenders thereof),
promptly (i) execute and deliver to the Administrative Agent a new pledge
agreement or such amendments to the Guarantee and Collateral Agreement as the
Administrative Agent shall reasonably deem necessary or reasonably advisable to
grant to the Administrative Agent, for the benefit of the Lenders, a perfected
first priority security interest (as and to the extent provided in the
Guarantee and Collateral Agreement) in the Capital Stock of such new Foreign
Subsidiary that is owned by the Parent Borrower or any of its Domestic
Subsidiaries (other than a Receivables Subsidiary or a Subsidiary of a Foreign
Subsidiary) (provided that in no event shall more than 65% of the Capital Stock
of any such new Foreign Subsidiary be required to be so pledged and, provided,
further, that no such pledge or security shall be required with respect to any
non-wholly owned Foreign Subsidiary to the extent that the grant of such pledge
or security interest would violate the terms of any agreements under which the
Investment by the Parent Borrower or any of its Subsidiaries was made therein)
and (ii) to the extent reasonably deemed advisable by the Administrative Agent,
deliver to the Administrative Agent the certificates, if any, representing such
Capital Stock, together with undated stock powers, executed and delivered in
blank by a duly authorized officer of the relevant parent corporation of such
new Foreign Subsidiary and take such other action as may be reasonably deemed
by the Administrative Agent to be necessary or desirable to perfect the Administrative
Agent’s security interest therein.


 


(d)          
At its own expense,
execute, acknowledge and deliver, or cause the execution, acknowledgement and
delivery of, and thereafter register, file or record in an appropriate
governmental office, any document or instrument reasonably deemed by the
Administrative Agent to be necessary or desirable for the creation, perfection
and priority and the continuation of the validity, perfection and priority of
the foregoing Liens or any other Liens created pursuant to the Security
Documents.


 


(e)          
At its own expense,
request, and use commercially reasonable efforts to obtain, (i) a consent,
substantially in the form of Exhibit I or such other form as may be reasonably
satisfactory to the Administrative Agent, from the landlord of each of the
existing


 


94

















 


facilities located in the United States and listed in
Schedule 7.9(e) in which Inventory with a value in excess of $3,000,000 of
any Loan Party is located, as of the Closing Date, in which such landlord
acknowledges the Administrative Agent’s first priority security interest in the
Inventory pledged by each Loan Party to the Administrative Agent for the
benefit of the Lenders and (ii) prior to entering into a lease of a
facility located in the United States in which Inventory will be located on or
after the Closing Date (other than any such facility for which there is not a
lease of more than one year and which the Parent Borrower and its Subsidiaries intend
to use as a seasonal storage facility), a consent, substantially in the form of
Exhibit I or such other form as may be reasonably satisfactory to the
Administrative Agent, from each landlord of any such facility, in which such
landlord acknowledges the Administrative Agent’s first priority security
interest in the Inventory pledged by each Loan Party to the Administrative
Agent for the benefit of the Lenders.


 


(f)           
Notwithstanding
anything to contrary in this Agreement, nothing in this subsection 7.9
shall require that any Foreign Subsidiary Borrower grant a Lien with respect to
any owned real property or fixtures in which such Subsidiary acquires ownership
rights to the extent that the Administrative Agent, in its reasonable judgment,
determines that the granting of such a Lien is impracticable.


 


7.10.       
Interest Rate Protection.  No later than 90 days following the Closing
Date, enter into Interest Rate Protection Agreements, which, together with the
fixed interest rates then applicable to the Consolidated Funded Indebtedness of
Holding and its Subsidiaries, shall provide interest rate protection in respect
of at least 50% of the Consolidated Funded Indebtedness of Holding and its
Subsidiaries.  Such Interest Rate Protection Agreements shall be in form
and substance, and for a term (not to exceed two years), reasonably
satisfactory to the Administrative Agent.


 


7.11.       
Surveys. 
Within a reasonable period following the Closing Date, with respect to those
Insured Fee Properties and Mortgaged Leased Properties for which the title
policies delivered pursuant to subsection 6.1(n) contain the standard
“survey exception”, obtain surveys in such form as is sufficient to obtain from
the respective title companies endorsements which have the effect of deleting
such exceptions.


 


7.12.       
Maintenance of New York Process Agent.  In the case of any Foreign Subsidiary
Borrower, maintain in New York, New York or at such other location in
the United States of America as may be reasonably satisfactory to the
Administrative Agent a Person acting as agent to receive on its behalf and on
behalf of its property service of process and capable of discharging the
functions of the New York Process Agent set forth in
subsection 11.13(b).


 


7.13.       
Consummation of Transactions.  The Borrower hereby agrees to cause the
consummation of each of the Acquisition, the Mergers, the Assumption (in
accordance with the Assumption Agreement) and the Name Change to occur on the
Closing Date or on the next calendar day, substantially concurrently with the
satisfaction of the conditions precedent set forth in subsection 6.1.


 


SECTION 8.          
NEGATIVE COVENANTS.  The Parent Borrower hereby agrees
that, from and after the Closing Date and so long as the Revolving Credit
Commitments remain


 


95

















 


in effect, and thereafter until payment in full of the
Loans, all Reimbursement Obligations and any other amount then due and owing to
any Lender or the Administrative Agent hereunder and under any Note and
termination or expiration of all Letters of Credit, the Parent Borrower shall
not and shall not, permit any of its Subsidiaries to, directly or indirectly:


 


8.1.         
Financial Condition Covenants.


 


(a)          
Consolidated
Leverage Ratio.  Permit the Consolidated Leverage Ratio as at the
last day of any period of four consecutive fiscal quarters of the Parent
Borrower ending during any period set forth below to exceed the ratio set forth
below opposite such period below:


 


	
  Period

  	
   

  	
  Consolidated

  Leverage Ratio

  	
   

  
	
  July 1, 2004 – December 30, 2005

  	
   

  	
  7.25 to 1.00

  	
   

  
	
  December 31, 2005 – December 30, 2006

  	
   

  	
  7.00 to 1.00

  	
   

  
	
  December 31, 2006 – December 30, 2007

  	
   

  	
  6.50 to 1.00

  	
   

  
	
  December 31, 2007 – December 30, 2008

  	
   

  	
  6.00 to 1.00

  	
   

  
	
  December 31, 2008 – December 30, 2009

  	
   

  	
  5.50 to 1.00

  	
   

  
	
  December 31, 2009 and thereafter

  	
   

  	
  5.00 to 1.00

  	
   

  



 


(b)          
Maintenance
of Consolidated Interest Expense Ratio.  Permit, for any period of
four consecutive fiscal quarters of the Parent Borrower ending during any
period set forth below, the Consolidated Interest Expense Ratio as at the last
day of such period of four consecutive fiscal quarters to be less than the
ratio set forth opposite such period below:


 


	
  Period

  	
   

  	
  Consolidated

  Interest Expense Ratio

  	
   

  
	
  July 1, 2004 – December 30, 2005

  	
   

  	
  1.80 to 1.00

  	
   

  
	
  December 31, 2005 – December 30, 2006

  	
   

  	
  1.90 to 1.00

  	
   

  
	
  December 31, 2006 – December 30, 2007

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  December 31, 2007 – December 30, 2008

  	
   

  	
  2.10 to 1.00

  	
   

  
	
  December 31, 2008 – December 30, 2009

  	
   

  	
  2.20 to 1.00

  	
   

  
	
  December 31, 2009 – December30, 2010

  	
   

  	
  2.30 to 1.00

  	
   

  
	
  December 31, 2010 and thereafter

  	
   

  	
  2.40 to 1.00

  	
   

  



 


8.2.         
Limitation on Indebtedness.  Create, incur, assume or suffer to exist any
Indebtedness (including any Indebtedness of any of its Subsidiaries), except:


 


(a)          
Indebtedness
of each of the Borrowers incurred pursuant to this Agreement and the other Loan
Documents;


 


(b)          
unsecured
senior subordinated or subordinated notes or debentures of the Parent Borrower
in a principal amount not to exceed $100,000,000, which either (i) have terms,
representations, covenants, defaults and subordination provisions that are no
less favorable to the Lenders than those applicable to offerings of “high-yield”
subordinated debt by similar issuers of similar debt at or about the same time,
as may be reasonably determined by the Administrative


 


96

















 


Agent, or (ii) have No More
Favorable Terms and Conditions than those in respect of the 2004 Senior
Subordinated Notes; provided, however, that all such Indebtedness
(together with any refinancings thereof, which shall not exceed the principal
amount being refinanced) shall, at the time such Indebtedness is incurred or
refinanced, (i) have a final, stated maturity (and an Average Life) at least
one year after the Final Maturity Date (as of the time of such incurrence or
refinancing), and (ii) in the case of Indebtedness incurred to refinance other
Indebtedness, have terms and provisions (including subordination provisions) no
less favorable to the Lenders than the Indebtedness being refinanced; provided
further that an amount equal to 100% of the Net Cash Proceeds of such
Indebtedness (other than any refinancing Indebtedness referred to in clause
(ii) above) less any Permitted Acquisition Amount is applied in accordance with
subsection 4.4(b)(i);


 


(c)          
Indebtedness
evidenced by the Existing Notes; provided that (x) the aggregate principal
amount of Indebtedness at any time outstanding pursuant to this clause (c)
shall not exceed $520,000,000 (except as a result of any capitalization of
accrued and unpaid interest thereon, including through the issuance of
pay-in-kind notes) less any
repayments of principal of Indebtedness theretofore outstanding pursuant to
this clause (c) (other than repayments to the extent made with proceeds
received by the Parent Borrower from any cash equity contribution by Holding to
the Parent Borrower occurring after the Closing Date or from the issuance or
incurrence of Refinancing Senior Notes and/or Refinancing Subordinated Notes)
and (y) the aggregate amount of senior (as opposed to senior subordinated)
Indebtedness outstanding at any time pursuant to this clause (c) shall not exceed
$200,000,000 (except as a result of any capitalization of accrued
and unpaid interest thereon, including through the issuance of pay-in-kind
notes) less the amount of any
reductions pursuant to clause (x) of this proviso as a result of repayments of
theretofore outstanding senior Indebtedness as described in preceding clause
(x) of this proviso, provided that the Existing Notes shall not be
extended, renewed, replaced, refinanced or otherwise amended, except as
permitted by subsection 8.14;


 


(d)          
Indebtedness
of the Parent Borrower to any Guarantor or any Subsidiary of the Parent
Borrower and of any Subsidiary of the Parent Borrower to the Parent Borrower,
any Guarantor or any other Subsidiary of the Parent Borrower;


 


(e)          
Indebtedness
of the Parent Borrower and any of its Subsidiaries incurred to finance or
refinance the acquisition of fixed or capital assets (whether pursuant to a
loan, a Financing Lease or otherwise) otherwise permitted pursuant to this
Agreement, and any other Financing Leases, in an aggregate principal amount not
exceeding in the aggregate as to the Parent Borrower and its Subsidiaries
$35,000,000 at any one time outstanding, provided that such amount shall
be increased by an amount equal to $5,000,000 on each anniversary of the
Closing Date, so long as no Default or Event of Default shall have occurred and
be continuing on any date on which such amount is to be increased and, provided
further such Indebtedness is incurred substantially simultaneously with
such acquisition or within six months after such acquisition or in connection
with a refinancing thereof;


 


(f)           
Indebtedness
of the Parent Borrower and any of its Subsidiaries incurred to finance or
refinance the purchase price of, or Indebtedness of the Parent Borrower and any
of its Subsidiaries assumed in connection with, any acquisition permitted by
subsection 8.10 (other than permitted pursuant to
subsection 8.10(c)), provided that (i) such Indebtedness is
incurred


 


97

















 


prior to, substantially
simultaneously with or within six months after such acquisition or in
connection with a refinancing thereof, (ii) if such Indebtedness is owed to a
Person, other than the Person from whom such acquisition is made or any
Affiliate thereof, such Indebtedness shall have terms and conditions reasonably
satisfactory to the Administrative Agent and shall not exceed 70% of the
purchase price of such acquisition (including any Indebtedness assumed in
connection with such acquisition) (or such greater percentage as shall be
reasonably satisfactory to the Administrative Agent or, if any such purchase
price shall be greater than $30,000,000, such greater percentage as shall be
reasonably satisfactory to the Required Lenders) and (iii) immediately after
giving effect to such acquisition no Default or Event of Default shall have
occurred and be continuing;


 


(g)          
to
the extent that any Indebtedness may be incurred or arise thereunder,
Indebtedness of the Parent Borrower and its Subsidiaries under Interest Rate
Protection Agreements and under Permitted Hedging Arrangements;


 


(h)          
other
Indebtedness outstanding or incurred under facilities in existence on the
Closing Date and listed on Schedule 8.2(h), and any refinancings,
replacements, refundings, renewals or extensions thereof on financial and other
terms, in the reasonable judgment of the Parent Borrower, no more onerous to
the Parent Borrower or any of its Subsidiaries in the aggregate than the
financial and other terms of such Indebtedness, provided that the amount
of such Indebtedness is not increased at the time of such refinancing,
replacements, refunding, renewal or extension except by an amount equal to the
premium or other amounts paid, and fees and expenses incurred, in connection
with such refinancing, refunding, renewal or extension;


 


(i)           
to
the extent that any Guarantee Obligation permitted under subsection 8.4
constitutes Indebtedness, such Indebtedness;


 


(j)           
Indebtedness
of the Parent Borrower or any of its Subsidiaries pursuant to any Permitted
Receivables Transaction; provided that upon the effectiveness of any
such Permitted Receivables Transaction, the Loans shall be automatically
prepaid, the L/C Obligations shall be automatically cash collateralized and the
Revolving Credit Commitments shall be automatically and permanently reduced to
the extent required by subsections 4.4(e), 4.4(f) and 4.4(h);


 


(k)          
Indebtedness
of Foreign Subsidiaries of the Parent Borrower (in addition to Indebtedness of
Foreign Subsidiaries of the Parent Borrower permitted by subsections 8.2(h) and
(l)) for working capital purposes (including in respect of overdrafts) not
exceeding, as to all such Foreign Subsidiaries, €40,000,000 in aggregate
principal amount at any one time outstanding;


 


(l)           
Indebtedness
of Foreign Subsidiaries of the Parent Borrower (in addition to Indebtedness of
Foreign Subsidiaries of the Parent Borrower permitted by subsections 8.2(h) and
(k)) in respect of performance bonds, bid bonds, appeal bonds, surety bonds and
similar obligations and trade-related letters of credit, in each case provided in
the ordinary course of business, not exceeding, as to all such Foreign
Subsidiaries, €20,000,000 in aggregate principal amount at any one time
outstanding;


 


98

















 


(m)         
Indebtedness
of the Parent Borrower or any of its Subsidiaries in respect of Sale and
Leaseback Transactions permitted under subsection 8.12;


 


(n)          
Indebtedness
of the Parent Borrower or any of its Subsidiaries incurred to finance insurance
premiums in the ordinary course of business;


 


(o)          
Indebtedness
of any Foreign Subsidiary of the Parent Borrower fully supported on the date of
the incurrence thereof by a Foreign Backstop Letter of Credit;


 


(p)          
Indebtedness
arising from the honoring of a check, draft or similar instrument against
insufficient funds; provided that such Indebtedness is extinguished
within two Business Days of its incurrence;


 


(q)          
Indebtedness
in respect of Financing Leases which have been funded solely by Investments of
the Parent Borrower and its Subsidiaries permitted by subsection 8.9(m);
and


 


(r)           
Indebtedness
not otherwise permitted by the preceding clauses of this subsection 8.2
not exceeding $25,000,000 in aggregate principal amount at any one time
outstanding.


 


For purposes of determining compliance with this
subsection 8.2, the amount of any Indebtedness denominated in any currency
other than Dollars (or in the case of clauses (i) and (l) above, other than
Euros) shall be calculated based on customary currency exchange rates in
effect, in the case of such Indebtedness incurred (in respect of term
Indebtedness) or committed (in respect of revolving Indebtedness) on or prior
to the Closing Date, on the Closing Date and, in the case of such Indebtedness
incurred (in respect of term Indebtedness) or committed (in respect of
revolving Indebtedness) after the Closing Date, on the date that such
Indebtedness was incurred (in respect of term Indebtedness) or committed (in
respect of revolving Indebtedness).


 


8.3.         
Limitation on
Liens.  Create, incur, assume or suffer
to exist any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired, except for (Liens described below are herein
referred to as “Permitted Liens”):


 


(a)          
Liens
for taxes, assessments and similar charges not yet delinquent or the nonpayment
of which in the aggregate would not reasonably be expected to have a Material
Adverse Effect, or which are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves with respect thereto are
maintained on the books of the Parent Borrower or its Subsidiaries, as the case
may be, in conformity with GAAP;


 


(b)          
carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business and relating to obligations which
are not overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings diligently conducted;


 


(c)          
Liens
of landlords or of mortgagees of landlords arising by operation of law or
pursuant to the terms of real property leases, provided that the rental
payments secured thereby are not yet due and payable;


 


99

















 


(d)          
pledges,
deposits or other Liens in connection with workers’ compensation, unemployment
insurance, other social security benefits or other insurance related
obligations (including, without limitation, pledges or deposits securing
liability to insurance carriers under insurance or self-insurance
arrangements);


 


(e)          
Liens
arising by reason of any judgment, decree or order of any court or other
Governmental Authority, if appropriate legal proceedings which may have been
duly initiated for the review of such judgment, decree or order, are being
diligently prosecuted and shall not have been finally terminated or the period
within which such proceedings may be initiated shall not have expired;


 


(f)           
Liens
to secure the performance of bids, trade contracts (other than for borrowed
money), obligations for utilities, leases, statutory obligations, surety and
appeal bonds, performance bonds, judgment and like bonds, replevin and similar
bonds and other obligations of a like nature incurred in the ordinary course of
business;


 


(g)          
zoning
restrictions, easements, rights-of-way, restrictions on the use of property,
other similar encumbrances incurred in the ordinary course of business and
minor irregularities of title, which do not materially interfere with the
ordinary conduct of the business of the Parent Borrower and its Subsidiaries
taken as a whole;


 


(h)          
Liens
securing or consisting of Indebtedness of the Parent Borrower and its
Subsidiaries permitted by subsection 8.2(e) incurred to finance the
acquisition of fixed or capital assets or Indebtedness of the Parent Borrower
and its Subsidiaries permitted by subsection 8.2(f) incurred to finance the
purchase price of, or assumed in connection with, any acquisition permitted by
subsection 8.10, provided that (i) such Liens shall be created no
later than the later of the date of such acquisition or the date of the
incurrence or assumption of such Indebtedness, and (ii) such Liens do not at
any time encumber any property other than the property financed by such
Indebtedness and, in the case of Indebtedness assumed in connection with any
such acquisition, the property subject thereto immediately prior to such
acquisition;


 


(i)           
Liens
existing on assets or properties at the time of the acquisition thereof by the
Parent Borrower or any of its Subsidiaries which do not materially interfere
with the use, occupancy, operation and maintenance of structures existing on
the property subject thereto or extend to or cover any assets or properties of
the Parent Borrower or such Subsidiary other than the assets or property being
acquired;


 


(j)           
Liens
(i) in existence on the Closing Date and listed in Schedule 8.3(j) and
other Liens securing Indebtedness of the Parent Borrower and its Subsidiaries
permitted by subsection 8.2(h), provided that no such Lien is
spread to cover any additional property after the Closing Date and that the
amount of Indebtedness secured thereby is not increased except as permitted by
subsection 8.2(h), or (ii) not otherwise permitted hereunder, all of which
Liens permitted pursuant to this subsection 8.3(j)(ii) secure obligations
not exceeding (as to the Parent Borrower and all of its Subsidiaries)
$15,000,000 in aggregate amount at any time outstanding;


 


100

















 


(k)          
Liens
securing Guarantee Obligations permitted under subsection 8.4(f) not
exceeding (as to the Parent Borrower and all of its Subsidiaries) $7,500,000 in
aggregate amount at any time outstanding;


 


(l)           
Liens
created pursuant to the Security Documents;


 


(m)         
Liens
created pursuant to and in accordance with any Permitted Receivables Transaction;


 


(n)          
any
encumbrance or restriction (including, without limitation, put and call
agreements) with respect to the Capital Stock 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 Parent
Borrower or any of its Subsidiaries to comply with subsection 7.9(b) or
(c);


 


(o)          
Liens
on property subject to Sale and Leaseback Transactions permitted under
subsection 8.12 and general intangibles related thereto;


 


(p)          
Liens
on property of any Foreign Subsidiary of the Parent Borrower securing
Indebtedness of such Foreign Subsidiary permitted by subsection 8.2(k) or
(l), provided that in no event may property of any Foreign Subsidiary
Borrower (or its Subsidiaries) secure Indebtedness (other than Indebtedness
under this Agreement and the other Loan Documents) having an aggregate
principal amount (as to such Foreign Subsidiary Borrower and all of its
Subsidiaries) in excess of $5,000,000; and


 


(q)          
Liens
on Intellectual Property or on foreign patents, trademarks, trade names,
copyrights, technology, know-how or processes; provided that such Liens
result from the granting of licenses in the ordinary course of business to any
Person to use such Intellectual Property or such foreign patents, trademarks,
trade names, copyrights, technology, know-how or processes, as the case may be.


 


8.4.         
Limitation on Guarantee Obligations.  Create, incur, assume or suffer to exist any
Guarantee Obligation except:


 


(a)          
Guarantee
Obligations in existence on the Closing Date and listed in
Schedule 8.4(a), and any refinancings, refundings, extensions or renewals
thereof, provided that the amount of such Guarantee Obligation shall not
be increased at the time of such refinancing, refunding, extension or renewal
except to the extent that the amount of Indebtedness in respect of such
Guarantee Obligations is permitted to be increased by subsection 8.2(h);


 


(b)          
Guarantee
Obligations in connection with up to an aggregate principal amount of
$15,000,000 of Indebtedness outstanding at any time incurred by any Management
Investors in connection with any Management Subscription Agreements or other
purchases by them of Capital Stock of Investors (so long as Investors applies
the net cash proceeds of such purchases to make capital contributions to, or
purchase Capital Stock of, Holding or applies such proceeds to pay Investors
Expenses) or Holding, and any refinancings, refundings, extensions or renewals
thereof; provided that such amount shall be reduced by the aggregate
then outstanding principal amount of loans and advances permitted by subsection 8.9(o);


 


101

















 


(c)          
Guarantee
Obligations for performance, appeal, judgment, replevin and similar bonds and
suretyship arrangements, all in the ordinary course of business;


 


(d)          
Guarantee
Obligations in respect of indemnification and contribution agreements expressly
permitted by subsection 8.11(iv) or similar agreements by the Parent
Borrower;


 


(e)          
Reimbursement
Obligations in respect of the Letters of Credit;


 


(f)           
Guarantee
Obligations in respect of third-party loans and advances to officers or
employees of the Parent Borrower or any of its Subsidiaries (i) for travel and
entertainment expenses incurred in the ordinary course of business, (ii) for
relocation expenses incurred in the ordinary course of business, or (iii) for
other purposes in an aggregate amount (as to Holding and all of its
Subsidiaries), together with the aggregate amount of all Investments permitted
under subsection 8.9(e)(iv), of up to $7,500,000 outstanding at any time;


 


(g)          
obligations
to insurers required in connection with worker’s compensation and other
insurance coverage incurred in the ordinary course of business;


 


(h)          
obligations
of the Parent Borrower and its Subsidiaries under any Interest Rate Protection
Agreements or under Permitted Hedging Arrangements;


 


(i)           
Guarantee
Obligations incurred in connection with acquisitions permitted under
subsection 8.10, provided that if any such Guarantee Obligation
inures to the benefit of any Person other than the Person from whom such
acquisition is made or any Affiliate thereof, such Guarantee Obligation shall
not exceed, with respect to any such acquisition, 70% of the purchase price of
such acquisition (including any Indebtedness assumed in connection with any
such acquisition) (or such greater percentage as shall be reasonably
satisfactory to the Administrative Agent or, if any such purchase price shall
be greater than $30,000,000, such greater percentage shall be reasonably
satisfactory to the Required Lenders);


 


(j)           
guarantees
made by the Parent Borrower or any of its Subsidiaries of obligations of the
Parent Borrower or any of its Subsidiaries (other than any Indebtedness
outstanding pursuant to subsections 8.2(b), (c), (k) and (l)) which obligations
are otherwise permitted under this Agreement;


 


(k)          
Guarantee
Obligations in connection with sales or other dispositions permitted under
subsection 8.6, including indemnification obligations with respect to
leases, and guarantees of collectability in respect of accounts receivable or
notes receivable for up to face value;


 


(l)           
Guarantee
Obligations incurred pursuant to the Guarantee and Collateral Agreement or
otherwise in respect of Indebtedness permitted by subsection 8.2(a);


 


(m)         
Guarantees
by one or more Guarantors (so long as such Persons remain Guarantors) of
Indebtedness permitted pursuant to subsections 8.2(b) and (c), provided that
(except in respect of any then outstanding 2004 Senior Notes) (x) in the case
of such Guarantees set forth in the 2004 Senior Subordinated Note Documents,
such Guarantees are subordinated to


 


102

















 


Indebtedness outstanding pursuant
to this Agreement and other Loan Documents as set forth therein and (y) in the
case of such Guarantees of Indebtedness permitted pursuant to
subsection 8.2(b), such Guarantees are subordinated to Indebtedness
outstanding pursuant to this Agreement and other Loan Documents in the manner
required by either sub-clauses (i) or (ii) of subsection 8.2(b);


 


(n)          
accommodation
guarantees for the benefit of trade creditors of the Parent Borrower or any of
its Subsidiaries in the ordinary course of business;


 


(o)          
Guarantee
Obligations of the Parent Borrower and its Subsidiaries in respect of recourse
events in connection with any Permitted Receivables Transaction; and


 


(p)          
Guarantee
Obligations in respect of Indebtedness of a Person in connection with a joint
venture or similar arrangement in respect of which no other co-investor or
other Person has a greater legal or beneficial ownership interest than the
Parent Borrower or any of its Subsidiaries, and as to all of such Persons does
not at any time exceed $20,000,000 in aggregate principal amount; provided
that (i) such amount shall be increased by an amount equal to $5,000,000 on
each anniversary of the Closing Date, so long as no Default or Event of Default
shall have occurred and be continuing on any date on which such amount is to be
increased and (ii) such amount and any increase in such amount permitted by
clause (i) shall be reduced by the aggregate amount of Investments permitted by
subsection 8.9(l).


 


8.5.         
Limitation on Fundamental Changes.  Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all of its property, business or
assets, except:


 


(a)          
any
Subsidiary of the Parent Borrower may be merged or consolidated with or into
the Parent Borrower (provided that the Parent Borrower shall be the
continuing or surviving corporation) or with or into any one or more Wholly
Owned Subsidiaries of the Parent Borrower (provided that the Wholly
Owned Subsidiary or Subsidiaries of the Parent Borrower shall be the continuing
or surviving entity);


 


(b)          
any
Subsidiary of the Parent Borrower may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or otherwise)
to the Parent Borrower or any Wholly Owned Subsidiary of the Parent Borrower, provided
that if the Subsidiary that so disposes of its assets is a Foreign Subsidiary
Borrower, either (i) such Foreign Subsidiary Borrower shall, simultaneously
with such disposition, repay in full all outstanding Loans made to it and
terminate its right to borrow hereunder or (ii) the transferee of such assets
shall be a Foreign Subsidiary Borrower;


 


(c)          
pursuant
to the Mergers; and


 


(d)          
as
expressly permitted by subsection 8.6.


 


8.6.         
Limitation on Sale of Assets.  Convey, sell, lease, assign, transfer or
otherwise dispose of any of its property, business or assets (including,
without limitation, receivables and leasehold interests), whether now owned or
hereafter acquired, or, in the case of


 


103

















 


any Subsidiary of the Parent Borrower, issue or sell
any shares of such Subsidiary’s Capital Stock, to any Person other than the
Parent Borrower or any Wholly Owned Subsidiary of the Parent Borrower, except:


 


(a)          
the
sale or other Disposition of obsolete, worn out or surplus property, whether
now owned or hereafter acquired, in the ordinary course of business;


 


(b)          
the
sale or other Disposition of any property (including Inventory) in the ordinary
course of business;


 


(c)          
the
sale or discount without recourse of accounts receivable or notes receivable
arising in the ordinary course of business, or the conversion or exchange of
accounts receivable into or for notes receivable, in connection with the
compromise or collection thereof; provided that, in the case of any Foreign
Subsidiary of the Parent Borrower, any such sale or discount may be with
recourse if such sale or discount is consistent with customary practice in such
Foreign Subsidiary’s country of business;


 


(d)          
as
permitted by subsection 8.5(b) and pursuant to Sale and Leaseback
Transactions permitted by subsection 8.12;


 


(e)          
the
sale, transfer or discount of Receivables pursuant to any Permitted Receivables
Transaction; provided that upon the effectiveness of any such Permitted
Receivables Transaction, the Loans shall be prepaid, the L/C Obligations shall
be cash collateralized and the Revolving Credit Commitments shall be
permanently reduced to the extent required by subsections 4.4(e), 4.4(f) and
4.4(h);


 


(f)           
Dispositions
of any assets or property by the Parent Borrower or any of its Subsidiaries to
the Parent Borrower or any Wholly Owned Subsidiary of the Parent Borrower;


 


(g)          
the
abandonment or other Disposition of patents, trademarks or other intellectual
property that are, in the reasonable judgment of the Parent Borrower, no longer
economically practicable to maintain or useful in the conduct of the business
of the Parent Borrower and its Subsidiaries taken as a whole;


 


(h)          
any
Asset Sale by the Parent Borrower or any of its Subsidiaries, provided that the
Net Cash Proceeds of each such Asset Sale do not exceed $5,000,000 and the
aggregate Net Cash Proceeds of all Asset Sales in any fiscal year made pursuant
to this paragraph (h) do not exceed $10,000,000; and


 


(i)           
any
Asset Sale contemplated on Schedule 8.6(i), or any other Asset Sales by
the Parent Borrower or any of its Subsidiaries the Net Cash Proceeds of which
other Asset Sales do not exceed $35,000,000 in the aggregate after the Closing
Date, provided that in the case of any such Asset Sale, an amount equal to 100%
of the Net Cash Proceeds of such Asset Sale less the Reinvested Amount is
applied in accordance with subsection 4.4(b)(ii).


 


8.7.         
Limitation on Dividends.  Declare or pay any dividend (other than
dividends payable solely in common stock of the Parent Borrower or options,
warrants or other rights to purchase common stock of the Parent Borrower) on,
or make any payment on account


 


104

















 


of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Parent Borrower
or any warrants or options to purchase any such Capital Stock, whether now or
hereafter outstanding, or make any other distribution (other than distributions
payable solely in common stock of the Parent Borrower or options, warrants or
other rights to purchase common stock of the Parent Borrower) in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of the Parent Borrower, except that:


 


(a)          
the
Parent Borrower may pay cash dividends in an amount sufficient to allow
Investors, Holding or Small FSHCo to pay expenses (other than taxes) incurred
in the ordinary course of business; provided that, if Investors shall
own any material assets other than the Capital Stock of Holding or other
assets, relating to the ownership interest of Investors in Holding or Subsidiaries
of Holding, such cash dividends with respect to Investors shall be limited to
the reasonable and proportional share, as determined by the Parent Borrower in
its reasonable discretion, of such expenses incurred by Investors relating or
allocable to its ownership interest in Holding and such other related assets; provided,
further, that, if Holding shall own any material assets other than the
Capital Stock of the Parent Borrower and Small FSHCo or other assets relating
to the ownership interest of Holding in the Parent Borrower, Small FSHCo or
Subsidiaries of the Parent Borrower, such cash dividends with respect to
Holding shall be limited to the reasonable and proportional share, as
determined by the Parent Borrower in its reasonable discretion, of such
expenses incurred by Holding relating or allocable to its ownership interest in
the Parent Borrower, Small FSHCo and such other related assets;


 


(b)          
the
Parent Borrower may pay cash dividends in an amount sufficient to cover
reasonable and necessary expenses (including professional fees and expenses)
(other than taxes) incurred by Investors, Holding or Small FSHCo in connection
with (a) registration, public offerings and exchange listing of equity or debt
securities and maintenance of the same, (b) compliance with reporting
obligations under, or in connection with compliance with, federal or state laws
or under this Agreement or any of the other Loan Documents and (c)
indemnification and reimbursement of directors, officers and employees in respect
of liabilities relating to their serving in any such capacity, or obligations
in respect of director and officer insurance (including premiums therefor); provided
that, in the case of sub-clause (a) above, if Investors shall own any material
assets other than the Capital Stock of Holding or other assets relating to the
ownership interest of Investors in Holding or its Subsidiaries, with respect to
Investors such cash dividends shall be limited to the reasonable and
proportional share, as determined by the Parent Borrower in its reasonable
discretion, of such expenses incurred by Investors relating or allocable to its
ownership interest in Holding and such other assets; provided, further,
that, in the case of sub-clause (a) above, if Holding shall own any material
assets other than the Capital Stock of the Parent Borrower and Small FSHCo or
other assets relating to the ownership interest of Holding in the Parent
Borrower or Subsidiaries of the Parent Borrower and Small FSHCo, such cash
dividends with respect to Holding shall be limited to the reasonable and
proportional share, as determined by the Parent Borrower in its reasonable
discretion, of such expenses incurred by Holding relating or allocable to its
ownership interest in the Parent Borrower, Small FSHCo and such other related
assets;


 


(c)          
the
Parent Borrower may pay, without duplication, (i) cash dividends to Holding in
an amount equal to (x)(A) the taxes Holding is required to pay to any taxing
authority


 


105

















 


and (B) the amounts due from Holding in accordance
with the Tax Sharing Agreement, (y) the taxes Small FSHCo is required to pay to
any taxing authority and (z) (A) the amount of taxes Investors is required to
pay to any taxing authority and (B) the amounts due from Investors in
accordance with the Tax Sharing Agreement (provided that, if Investors
shall own any material asset other than the Capital Stock of Holding (or other
assets relating to the ownership interest of Investors in Holding or
Subsidiaries of Holding), taxes calculated under clause (z)(A) above, other
than taxes relating to its being incorporated or having Capital Stock
outstanding, shall be limited to the reasonable and proportional share, as
determined by the Parent Borrower in its reasonable discretion, of such taxes
(for this purpose, giving effect to payments in respect of taxes received by
Investors under preceding clause (z)(B) and/or following clause (ii)) and provided,
further, that, if Holding shall own any material asset other than the
Capital Stock of the Parent Borrower and Small FSHCo (or other assets relating
to the ownership interest of Holding in Parent Borrower or Subsidiaries of the
Parent Borrower), taxes calculated under clause (x)(A) above, other than taxes
relating to its being incorporated or having Capital Stock outstanding, shall
be limited to the reasonable and proportional share, as determined by the
Parent Borrower in its reasonable discretion, of such taxes (for this purpose,
giving effect to payments in respect of taxes received by Holding under
preceding clause (x)(B) and/or following clause (ii)) payable by or on behalf
of Holding relating or allocable to its ownership interest in the Parent
Borrower, Small FSHCo and such other assets) and (ii) to Holding and Investors
all amounts due from the Parent Borrower to Holding and Investors,
respectively, in accordance with the terms of the Tax Sharing Agreement (for
the purposes of this subsection 8.7(c), the term “taxes” shall include
additions to taxes and interest on and penalties with respect to taxes);


 


(d)          
the
Parent Borrower may pay cash dividends in an amount sufficient to allow
Investors or Holding to repurchase shares of its Capital Stock or rights,
options or units in respect thereof from any Management Investors or former
Management Investors (or any of their respective heirs, successors, assigns,
legal representatives or estates), or as otherwise contemplated by any
Management Subscription Agreements, for an aggregate purchase price not to
exceed $10,000,000 from and after the Closing Date; provided that such
amount shall be increased by (i) an amount equal to $3,000,000 on each
anniversary of the Closing Date, commencing on the first anniversary of the
Closing Date, and (ii) an amount equal to the proceeds to Holding (whether
received by it directly or from Investors or applied to pay Investors Expenses)
of any resales or new issuances of shares and options to any Management
Investors, at any time after the initial issuances to any Management Investors,
together with the aggregate amount of deferred compensation owed by Holding or
any of its Subsidiaries to any Management Investor that shall thereafter have
been cancelled, waived or exchanged at any time after the initial issuances to
any thereof in connection with the grant to such Management Investor of the
right to receive or acquire shares of Investors’, or Holding’s Capital Stock;
and


 


(e)          
the
Parent Borrower may pay cash dividends in an amount sufficient to allow Holding
and Small FSHCo to pay all fees and expenses incurred in connection with the
Transactions and the other transactions expressly contemplated by this
Agreement and the other Loan Documents, and to allow Holding to perform its
obligations under or in connection with the Loan Documents to which it is a
party.


 


8.8.         
Limitation on Capital Expenditures.  Make or commit to make any Capital
Expenditures (excluding any expenses incurred in connection with normal
replacement and


 


106

















 


maintenance programs properly charged to current
operations and Reinvested Amounts with respect to any Recovery Event, both of
which shall be permitted without regard to the limits of this
subsection 8.8); provided that the Parent Borrower and its
Subsidiaries may make Capital Expenditures in an amount not to exceed, for any
period set forth below, the amount set forth opposite such period below:


 


	
  Period

  	
   

  	
  Amount

  	
   

  
	
  January 1, 2004 to and including
  December 31, 2004

  	
   

  	
  $

  	
  45,000,000

  	
   

  
	
  January 1, 2005 to and including
  December 31, 2005

  	
   

  	
  $

  	
  45,000,000

  	
   

  
	
  January 1, 2006 to and including
  December 31, 2006

  	
   

  	
  $

  	
  45,000,000

  	
   

  
	
  January 1, 2007 to and including
  December 31, 2007

  	
   

  	
  $

  	
  45,000,000

  	
   

  
	
  January 1, 2008 to and including December 31,
  2008

  	
   

  	
  $

  	
  45,000,000

  	
   

  
	
  January 1, 2009 to and including
  December 31, 2009

  	
   

  	
  $

  	
  45,000,000

  	
   

  
	
  January 1, 2010 to and including
  December 31, 2010

  	
   

  	
  $

  	
  45,000,000

  	
   

  
	
  January 1, 2011 to and including
  December 31, 2011

  	
   

  	
  $

  	
  45,000,000

  	
   

  



 


provided further that up to $15,000,000 of
any Capital Expenditures permitted above to be made during any period and not
made during such period may be carried over and expended during the next
succeeding period.  In making determinations pursuant to the preceding sentence,
amounts carried over from any period into a subsequent period shall be deemed
utilized prior to the amount permitted by the table set forth above has been
utilized on Capital Expenditures during the respective period.


 


8.9.         
Limitation
on Investments,
Loans and Advances. 
Make any advance, loan, extension of credit or capital contribution to, or
purchase any stock, bonds, notes, debentures or other securities of or any
assets constituting a business unit of, or make any other investment, in cash
or by transfer of assets or property, in (each an “Investment”), any
Person, except:


 


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


 


(b)          
Investments
in cash and Cash Equivalents;


 


(c)          
Investments
existing on the Closing Date and described in Schedule 8.9(c), setting
forth the respective amounts of such Investments as of a recent date;


 


(d)          
Investments
in notes receivable and other instruments and securities obtained in connection
with transactions permitted by subsection 8.6(c);


 


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(e)          
loans
and advances to officers, directors or employees of Holding or any of its
Subsidiaries (i) in the ordinary course of business for travel and entertainment
expenses, (ii) existing on the Closing Date and described in
Schedule 8.9(c), (iii) made after the Closing Date for relocation expenses
in the ordinary course of business, (iv) made for other purposes in an
aggregate amount (as to Holding and all of its Subsidiaries), together with the
aggregate amount of all Guarantee Obligations permitted pursuant to
subsection 8.4(f)(iii), of up to $7,500,000 outstanding at any time and
(v) 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 subsection 8.11;


 


(f)           
(i) Investments by
the Parent Borrower in its Wholly Owned Subsidiaries (other than any
Receivables Subsidiary) and by such Wholly Owned Subsidiaries of the Parent
Borrower and in Wholly Owned Subsidiaries of the Parent Borrower (other than
any Receivables Subsidiary) and (ii) Investments in Holding in amounts and for
purposes for which dividends are permitted under subsection 8.7;


 


(g)          
acquisitions
expressly permitted by subsection 8.10;


 


(h)          
Investments
of the Parent Borrower and its Subsidiaries under Interest Rate Protection
Agreements or under Permitted Hedging Arrangements;


 


(i)           
Investments
in the nature of pledges or deposits with respect to leases or utilities
provided to third parties in the ordinary course of business or otherwise
described in subsection 8.3(c), (d) or (f);


 


(j)           
Investments
representing non-cash consideration received by the Parent Borrower or any of
its Subsidiaries in connection with any Asset Sale, provided that in the
case of any Asset Sale permitted under subsection 8.6(h) or (i), such
non-cash consideration constitutes not more than 25% of the aggregate
consideration received in connection with such Asset Sale and any such non-cash
consideration received by the Parent Borrower or any of its Domestic
Subsidiaries is pledged to the Administrative Agent for the benefit of the
Lenders pursuant to the Security Documents;


 


(k)          
any
Investment by the Parent Borrower and its Subsidiaries in a Receivables
Subsidiary which, in the judgment of the Parent Borrower, is prudent and
reasonably necessary in connection with, or otherwise required by the terms of,
any Permitted Receivables Transaction;


 


(l)           
Investments
by the Parent Borrower or any of its Subsidiaries in a Person in connection
with a joint venture or similar arrangement in respect of which no other
co-investor or other Person has a greater legal or beneficial ownership
interest than the Parent Borrower or such Subsidiary in an aggregate amount not
to exceed at any time an amount equal to $20,000,000; provided that (i)
such amount shall be increased by an amount equal to $5,000,000 on each
anniversary of the Closing Date, so long as no Default or Event of Default
shall have occurred and be continuing on any date on which such amount is to be
increased, (ii) such amount and any increase in such amount permitted by clause
(i) shall be reduced by the aggregate principal amount of Indebtedness in
respect of Guarantee Obligations permitted by


 


108

















 


subsection 8.4(p), and (iii)
the Parent Borrower or such Subsidiary complies with the provisions of
subsection 7.9(b) and (c) hereof, if applicable, with respect to such
ownership interest;


 


(m)         
Investments
in industrial development or revenue bonds or similar obligations secured by
assets leased to and operated by the Parent Borrower or any of its Subsidiaries
that were issued in connection with the financing of such assets, so long as
the Parent Borrower or any such Subsidiary may obtain title to such assets at
any time by optionally canceling such bonds or obligations, paying a nominal
fee and terminating such financing transaction;


 


(n)          
Investments
representing evidences of Indebtedness, securities or other property received
from another Person by the Parent Borrower or any of its Subsidiaries in
connection with any bankruptcy proceeding or other reorganization of such other
Person or as a result of foreclosure, perfection or enforcement of any Lien or
exchange for evidences of Indebtedness, securities or other property of such
other Person held by the Parent Borrower or any of its Subsidiaries; provided
that any such securities or other property received by the Parent Borrower or
any of its Domestic Subsidiaries (other than a Receivables Subsidiary or a
Subsidiary of a Foreign Subsidiary) is pledged to the Administrative Agent for
the benefit of the Lenders pursuant to the Security Documents;


 


(o)          
loans
and advances to Management Investors in connection with the purchase by such
Management Investors of Capital Stock of Investors (so long as Investors applies
the net cash proceeds of such purchases to make capital contributions to, or
purchase Capital Stock of, Holding or applies such proceeds to pay Investors
Expenses) or Holding of up to $15,000,000 outstanding at any one time; provided
that such amount shall be reduced by the aggregate principal amount of
Indebtedness in respect of Guarantee Obligations permitted by
subsection 8.4(b); and


 


(p)          
Investments
not otherwise permitted by the preceding clauses of this subsection 8.9
not to exceed in the aggregate $15,000,000.


 


8.10.       
Limitations on Certain Acquisitions.  Acquire by purchase or otherwise
all the business or assets of, or stock or other evidences of beneficial
ownership of, any Person, except that the Parent Borrower and its Subsidiaries
shall be allowed to make any such acquisitions so long as:


 


(a)          
such
acquisition is expressly permitted by subsection 8.5, or


 


(b)          
the
aggregate consideration paid by the Parent Borrower and its Subsidiaries for
such acquisition (including cash and indebtedness incurred or assumed in
connection with such acquisition) consists solely of any combination of:


 


(i)            Capital Stock of Investors or Holding;


 


(ii)           cash in an amount equal to the Net Cash
Proceeds of the sale or issuance of Capital Stock of Investors or Holding which
amount is contributed to the Parent Borrower within 90 days prior to the date
of the relevant acquisition;


 


109

















 


(iii)          cash and other property (excluding cash
and other property covered under clauses (i), (ii) and (iv) of this
subsection 8.10(b)) and Indebtedness (whether incurred or assumed) in an
aggregate amount which, when aggregated with all other amounts of cash and such
other property paid for acquisitions, and Indebtedness incurred or assumed, in
each case in reliance on this clause (iii), does not exceed $50,000,000; provided
that such amount shall be increased by an amount equal to $5,000,000 on each
anniversary of the Closing Date, so long as no Default or Event of Default
shall have occurred and be continuing on any date on which such amount is to be
increased; and/or


 


(iv)          additional cash and other property
(excluding cash and other property covered under clauses (i), (ii) and (iii) of
this subsection 8.10(b)) and Indebtedness (whether incurred or assumed) in
an aggregate amount which, when aggregated with all other amounts of cash and
such other property paid for acquisitions, and Indebtedness incurred or assumed,
in each case in reliance on this clause (iv), does not exceed $75,000,000, provided
that such acquisition is made at a time when the Consolidated Leverage Ratio,
calculated on a pro forma basis after giving effect to such acquisition (such
calculation to be made in a manner reasonably satisfactory to the
Administrative Agent and to be evidenced by a certificate in form and substance
reasonably satisfactory to the Administrative Agent signed by a Responsible
Officer of the Parent Borrower and delivered to the Administrative Agent (which
shall promptly deliver copies to each Lender) at least three Business Days
prior to the consummation of such acquisition), is equal to or less than
4.00:1.00;


 


(c)          
such
acquisition is the KMF Acquisition and the aggregate consideration paid by the
Parent Borrower and its Subsidiaries for such acquisition (including cash and
indebtedness incurred or assumed in connection with such acquisition) does not
exceed €20,000,000;


 


provided, further that in the case of each
such acquisition pursuant to clauses (a), (b) and (c) after giving effect
thereto, no Default or Event of Default shall occur as a result of such
acquisition.


 


8.11.       
Limitation on Transactions with Affiliates.  Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of
property or the rendering of any service, with any Affiliate unless such
transaction is (a) otherwise permitted under this Agreement, and (b) upon terms
no less favorable to the Parent Borrower or such Subsidiary, as the case may
be, than it would obtain in a comparable arm’s length transaction with a Person
which is not an Affiliate; provided that nothing contained in this
subsection 8.11 shall be deemed to prohibit:


 


(i)           
the Parent Borrower
or any of its Subsidiaries from entering into or performing any consulting,
management or employment agreements or other compensation arrangements with a
director, officer or employee of the Parent Borrower or any of its Subsidiaries
that provides for annual aggregate base compensation not in excess of
$1,000,000 for each such director, officer or employee;


 


(ii)          
the Parent Borrower
or any of its Subsidiaries from entering into or performing an agreement with
CD&R for the rendering of management consulting or financial


 


110

















 


advisory services for compensation not to exceed in
the aggregate $2,000,000 per year plus reasonable out-of-pocket expenses;


 


(iii)         
the payment of
transaction expenses in connection with this Agreement;


 


(iv)         
the Parent Borrower
or any of its Subsidiaries from entering into, making payments pursuant to and
otherwise performing an indemnification and contribution agreement in favor of
any Permitted Holder and each person who is or becomes a director, officer,
agent or employee of the Parent Borrower or any of its Subsidiaries, in respect
of liabilities (A) arising under the Securities Act, the Exchange Act and any
other applicable securities laws or otherwise, in connection with any offering
of securities by Investors (provided that, if Investors shall own any
material assets other than the Capital Stock of Holding, or other assets
relating to the ownership interest of Investors in Holding, such liabilities
shall be limited to the reasonable and proportional share, as determined by the
Parent Borrower in its reasonable discretion, of such liabilities relating or
allocable to the ownership interest of Investors in Holding and such other
related assets) or Holding or any of its Subsidiaries, (B) incurred to third
parties for any action or failure to act of the Parent Borrower or any of its
Subsidiaries, predecessors or successors, (C) arising out of the
performance by CD&R of management consulting or financial advisory services
provided to the Parent Borrower or any of its Subsidiaries, (D) arising out of
the fact that any indemnitee was or is a director, officer, agent or employee
of the Parent Borrower or any of its Subsidiaries, or is or was serving at the
request of any such corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or enterprise or (E) to
the fullest extent permitted by Delaware or other applicable state law, arising
out of any breach or alleged breach by such indemnitee of his or her fiduciary
duty as a director or officer of the Parent Borrower or any of its
Subsidiaries;


 


(v)          
the Parent Borrower
or any of its Subsidiaries from performing any agreements or commitments with
or to any Affiliate existing on the Closing Date and described on
Schedule 8.11(v);


 


(vi)         
any transaction
permitted under subsection 8.3(k), 8.4(b), 8.4(d), 8.4(f), 8.5, 8.7,
8.9(e), 8.9(f) or 8.9(o), or any transaction with a Wholly Owned Subsidiary of
the Parent Borrower; or


 


(vii)        
the Parent Borrower
or any of its Subsidiaries from performing its obligations under the Tax
Sharing Agreement.


 


For purposes of this subsection 8.11, (A) any
transaction with any Affiliate shall be deemed to have satisfied the standard
set forth in clause (b) of the first sentence hereof if (i) such transaction is
approved by a majority of the Disinterested Directors of the board of directors
of Holding, the Parent Borrower or such Subsidiary, or (ii) in the event that
at the time of any such transaction, there are no Disinterested Directors
serving on the board of directors of Holding, the Parent Borrower or such
Subsidiary, such transaction shall be approved by a nationally recognized
expert with expertise in appraising the terms and conditions of the type of
transaction for which approval is required, and (B) “Disinterested Director”
shall mean, with respect to any Person and transaction, a member of the board
of directors of such Person who does not have any material direct or indirect
financial interest in or with respect to such transaction.


 


111

















 


8.12.       
Limitation on Sale and Leaseback Transactions.  Enter into any arrangement with
any Person providing for the leasing by the Parent Borrower or any of its
Subsidiaries of real or personal property which has been or is to be sold or
transferred by the Parent Borrower or any such Subsidiary to such Person or to
any other Person to whom funds have been or are to be advanced by such Person
on the security of such property or rental obligations of the Parent Borrower
or such Subsidiary (any of such arrangements, a “Sale and Leaseback
Transaction”), unless (a) the Parent Borrower shall be in compliance, on a pro
 forma basis after giving effect to the consummation of the
Sale and Leaseback Transaction and the application of the proceeds thereof,
with the Consolidated Leverage Ratio set forth in subsection 8.1(a),
recomputed as at the last day of the most recently ended fiscal quarter of the
Parent Borrower for which the relevant information is available as if such Sale
and Leaseback Transaction had been consummated on the first day of the relevant
period for testing such compliance (such calculation to be made in a manner
reasonably satisfactory to the Administrative Agent and to be evidenced by a
certificate in form and substance reasonably satisfactory to the Administrative
Agent signed by a Responsible Officer of the Parent Borrower and delivered to
the Administrative Agent (which shall promptly deliver copies to each Lender)
at least three Business Days prior to the consummation of such Sale and
Leaseback Transaction), (b) the lease entered into by the Parent Borrower or
any of its Subsidiaries in connection with such Sale and Leaseback Transaction
is either (i) a Financing Lease or (ii) a lease the payments under which will
be treated as an operating expense for purposes of determining EBITDA, and (c)
an amount equal to 100% of the Net Cash Proceeds of such Sale and Leaseback
Transaction is applied in accordance with subsection 4.4(b)(iv).


 


8.13.       
Limitations on Dispositions of Collateral.  Convey, sell, transfer, lease, or
otherwise dispose of any of the Collateral, or attempt, offer or contract to do
so, except for (a) mergers, consolidations, sales, leases, transfers or other
Dispositions expressly permitted under subsection 8.5 and (b) sales or
other Dispositions expressly permitted under subsection 8.6, including,
without limitation, sales of Inventory in the ordinary course of business; and
the Administrative Agent shall, and the Lenders hereby authorize the
Administrative Agent to, execute such releases of Liens and take such other
actions as the Parent Borrower may reasonably request in connection with the
foregoing.


 


8.14.       
Limitation on Optional Payments and Modifications of Debt Instruments and
Other Documents. 
(a)  Make any optional payment or prepayment on or repurchase or
redemption of any 2004 Senior Notes or any 2004 Senior Subordinated Notes (in
each case, other than as provided in the respective definition thereof),
including, without limitation, any payments on account of, or for a sinking or
other analogous fund for, the repurchase, redemption, defeasance or other
acquisition thereof, except mandatory payments of principal, interest, fees and
expenses required by the terms of the documentation governing the respective
such issue of Indebtedness.


 


(b)          
In
the event of the occurrence of a Change of Control, repurchase or repay any
Indebtedness then outstanding pursuant to any of the Existing Notes or any
portion thereof, unless the Parent Borrower shall have (i) made payment in full
of the Loans, all Reimbursement Obligations and any other amounts then due and
owing to any Lender or the Administrative Agent hereunder and under any Note
and cash collateralized the L/C Obligations on terms reasonably satisfactory to
the Administrative Agent or (ii) made an offer to pay the Loans, all


 


112

















 


Reimbursement Obligations and any
amounts then due and owing to each Lender and the Administrative Agent
hereunder and under any Note and to cash collateralize the L/C Obligations in
respect of each Lender and shall have made payment in full thereof to each such
Lender or the Administrative Agent which has accepted such offer and cash
collateralized the L/C Obligations in respect of each such Lender which has
accepted such offer.


 


(c)          
Amend,
supplement, waive or otherwise modify any of the provisions of any 2004 Senior
Subordinated Note Document or any 2004 Senior Note Document (in each case,
except as otherwise expressly contemplated in the Interim Funding Side Letter):


 


(i)            which, in the case of any of the 2004
Senior Subordinated Note Documents, amends, supplements, waives, or otherwise
modifies the subordination provisions contained therein;


 


(ii)           except as permitted pursuant to
subsection 8.14(a), which shortens the fixed maturity or increases the
principal amount of, or increases the rate or shortens the time of payment of
interest on, or increases the amount or shortens the time of payment of any
principal or premium payable whether at maturity, at a date fixed for
prepayment or by acceleration or otherwise of the Indebtedness evidenced by any
Existing Notes, or increases the amount of, or accelerates the time of payment
of, any fees or other amounts payable in connection therewith;


 


(iii)          which relates to any material affirmative
or negative covenants or any events of default or remedies thereunder and the
effect of which is to subject the Parent Borrower or any of its Subsidiaries to
any more onerous or more restrictive provisions; or


 


(iv)          which otherwise adversely affects the
interests of the Lenders as senior secured creditors with respect to the
Existing Notes or the interests of the Lenders under this Agreement or any
other Loan Document in any material respect.


 


(d)          
Enter
into any Synthetic Purchase Agreement if under such Synthetic Purchase
Agreement it may be required to make (i) any payment relating to the Capital
Stock of Investors or Holding that has the same economic effect on the Parent
Borrower and its Subsidiaries as any Investment by the Parent Borrower in Capital
Stock of Investors or Holding prohibited by subsection 8.9 above or (ii)
any payment relating to Existing Notes that has the same economic effect on the
Parent Borrower as any optional payment or prepayment or repurchase or
redemption of such Existing Notes prohibited by subsection 8.14(a) above,
unless, in each case, such requirement is conditioned upon obtaining any
requisite consent of the Lenders hereunder.


 


(v)
(i) Amend, supplement or otherwise modify (pursuant to a waiver or otherwise)
the terms and conditions of the Tax Sharing Agreement in any manner that would
increase the amounts payable by the Parent Borrower or any of its Subsidiaries
thereunder in any manner that could reasonably be expected to be materially
adverse to the Lenders, other than amendments reasonably reflecting changes in
law or regulations after the date hereof, or (ii) otherwise amend, supplement
or otherwise modify the terms and conditions of the Tax Sharing Agreement
except to the extent that any such amendment, supplement or modification could
not


 


113

















 


reasonably be expected to have a Material Adverse
Effect; provided that no such amendment, supplement or modification
referred to in either of clauses (i) or (ii) above shall materially increase
any payments to Investors or any other Person (other than Holding and its
Subsidiaries or any Governmental Authority relating to taxes payable by or on
behalf of any of the Parent Borrower and its Subsidiaries) by Holding or any of
its Subsidiaries, other than amendments reasonably reflecting changes in law or
regulations after the date hereof relating to taxes payable by or on behalf of
any of the Parent Borrower and its Subsidiaries.


 


8.15.       
Limitation on Changes in Fiscal Year.  Permit the fiscal year of Holding or the
Parent Borrower to end on a day other than December 31.


 


8.16.       
Limitation on Negative Pledge Clauses.  Enter into with any Person any
agreement which prohibits or limits the ability of the Parent Borrower or any
of its Subsidiaries (other than any Receivables Subsidiaries and any Foreign
Subsidiaries or Subsidiaries of either thereof) to create, incur, assume or
suffer to exist any Lien in favor of the Lenders in respect of obligations and
liabilities under this Agreement or any other Loan Documents upon any of its
property, assets or revenues, whether now owned or hereafter acquired, other
than (a) this Agreement, the other Loan Documents and any related documents,
and (b) any industrial revenue or development bonds, purchase money mortgages,
acquisition agreements or Financing Leases or agreements in connection with any
Permitted Receivables Transaction permitted by this Agreement (in which cases,
any prohibition or limitation shall only be effective against the assets
financed or acquired thereby) or operating leases of real property entered into
in the ordinary course of business.


 


8.17.       
Limitation on Lines of Business.  (a)  Enter into any business, either
directly or through any Subsidiary or joint venture or similar arrangement
described in subsection 8.9(l), except for those businesses of the same
general type as those in which the Parent Borrower and its Subsidiaries are
engaged on the Closing Date or which are reasonably related thereto.


 


(b)          
In the case of any
Foreign Subsidiary Holdco, (x) own any material assets other than securities of
one or more Foreign Subsidiaries and other assets relating to an ownership
interest in any such securities or Subsidiaries or (y) incur or become liable
for any Indebtedness for borrowed money to any Person other than the Parent
Borrower or a Subsidiary of the Parent Borrower, any other material
Indebtedness to any Person other than the Parent Borrower on a Subsidiary of
the Parent Borrower or any Guarantee Obligations of any Indebtedness (other
than of any Foreign Subsidiary), in each case except pursuant to subsections
8.2(a) and 8.4(l).


 


8.18.       
Limitations on Currency and Commodity Hedging Transactions.  Enter into, purchase or otherwise
acquire agreements or arrangements relating to currency, commodity or other
hedging except, to the extent and only to the extent that, such agreements or
arrangements are entered into, purchased or otherwise acquired in the ordinary
course of business of the Parent Borrower or any of its Subsidiaries with
reputable financial institutions or vendors and not for purposes of speculation
(any such agreement or arrangement permitted by this subsection, a “Permitted
Hedging Arrangement”).


 


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SECTION 9.          
EVENTS OF DEFAULT.  If any of the following events
shall occur and be continuing:


 


(a)          
Any
of the Borrowers shall fail to pay any principal of any Loan or any
Reimbursement Obligation when due in accordance with the terms hereof (whether
at stated maturity, by mandatory prepayment or otherwise); or any of the
Borrowers shall fail to pay any interest on any Loan, or any other amount
payable hereunder, within five days after any such interest or other amount
becomes due in accordance with the terms hereof; or


 


(b)          
Any
representation or warranty made or deemed made by any Loan Party herein or in
any other Loan Document (or in any amendment, modification or supplement hereto
or thereto) or which is contained in any certificate furnished at any time by
or on behalf of any Loan Party pursuant to this Agreement or any such other
Loan Document shall prove to have been incorrect in any material respect on or
as of the date made or deemed made; or


 


(c)          
Any
Loan Party shall default in the observance or performance of any agreement
contained in subsection 7.7(a) or Section 8 of this Agreement; provided
that, in the case of a default in the observance or performance of its
obligations under subsection 7.7(a) hereof, such default shall have
continued unremedied for a period of two days after a Responsible Officer of
the Parent Borrower shall have discovered or should have discovered such default;
or


 


(d)          
Any
Loan Party shall default in the observance or performance of any other
agreement contained in this Agreement or any other Loan Document (other than as
provided in paragraphs (a) through (c) of this Section 9), and such
default shall continue unremedied for a period ending on the earlier of (i) the
date 32 days after a Responsible Officer of Holding shall have discovered or
should have discovered such default and (ii) the date 15 days after written
notice has been given to Holding by the Administrative Agent or the Required
Lenders; or


 


(e)          
Holding
or any of its Subsidiaries shall (i) default in (x) any payment of principal of
or interest on any Indebtedness (other than the Loans and the Reimbursement
Obligations) in excess of $10,000,000 or (y) in the payment of any Guarantee
Obligation in excess of $10,000,000, beyond the period of grace (not to exceed
30 days), if any, provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created; or (ii) default in the
observance or performance of any other agreement or condition relating to any
Indebtedness or Guarantee Obligation referred to in clause (i) above or
contained in any instrument or agreement evidencing, securing or relating thereto,
or any other event shall occur or condition exist, the effect of which default
or other event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation
(or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice or lapse of time if
required, such Indebtedness to become due prior to its stated maturity or such
Guarantee Obligation to become payable (an “Acceleration”), and such
time shall have lapsed and, if any notice (a “Default Notice”) shall be
required to commence a grace period or declare the occurrence of an event of
default before notice of Acceleration may be delivered, such Default Notice
shall have been given; or


 


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(f)           
Any Loan Party or any
Material Subsidiaries of the Parent Borrower shall commence any case,
proceeding or other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its assets, or any Loan
Party or any Material Subsidiaries of the Parent Borrower shall make a general
assignment for the benefit of its creditors; or (ii) there shall be commenced
against any Loan Party or any Material Subsidiaries of the Parent Borrower any
case, proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such adjudication
or appointment or (B) remains undismissed, undischarged, unstayed or unbonded
for a period of 60 days; or (iii) there shall be commenced against any Loan
Party or any Material Subsidiaries of the Parent Borrower any case, proceeding
or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its assets
which results in the entry of an order for any such relief which shall not have
been vacated, discharged, stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) any Loan Party or any Material Subsidiaries of the
Parent Borrower shall take any corporate action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set
forth in clause (i), (ii), or (iii) above; or (v) any Loan Party or any
Material Subsidiaries of the Parent Borrower shall be generally unable to, or
shall admit in writing its general inability to, pay its debts as they become
due; or


 


(g)          
Any Person shall
engage in any “prohibited transaction” (as defined in Section 406 of ERISA
or Section 4975 of the Code) involving any Plan, (ii) any “accumulated
funding deficiency” (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan or any Lien in favor of the PBGC
or a Plan shall arise on the assets of either of the Parent Borrower or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is in the reasonable opinion of the Administrative Agent likely to
result in the termination of such Plan for purposes of Title IV of ERISA, (iv)
any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v)
either of the Parent Borrower or any Commonly Controlled Entity shall, or in
the reasonable opinion of the Administrative Agent is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan, or (vi) any other event or condition
shall occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such
events or conditions, if any, could be reasonably expected to result in a
Material Adverse Effect; or


 


(h)          
One
or more judgments or decrees shall be entered against the Parent Borrower or
any of its Subsidiaries involving in the aggregate at any time a liability (net
of any insurance or indemnity payments actually received in respect thereof
prior to or within 60 days from the entry thereof, or to be received in respect
thereof in the event any appeal thereof shall be unsuccessful) of $10,000,000
or more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry
thereof; or


 


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(i)           
Any
outstanding 2004 Senior Subordinated Notes, for any reason, shall not be or
shall cease to be validly subordinated as provided therein and in the 2004
Senior Subordinated Note Documents, as applicable, to the obligations of the
Parent Borrower under this Agreement and the other Loan Documents, or the
obligations of any other Loan Party under a guarantee of the 2004 Senior
Subordinated Notes, for any reason, shall not be or shall cease to be validly
subordinated as provided therein and in the 2004 Senior Subordinated Note Documents,
to the Guarantee Obligations of such Loan Party under the Guarantee and
Collateral Agreement; or


 


(j)           
Any
of the Security Documents shall cease for any reason to be in full force and
effect (other than pursuant to the terms hereof or thereof), or any Loan Party
which is a party to any of the Security Documents shall so assert in writing,
or (ii) the Lien created by any of the Security Documents shall cease to be
perfected and enforceable in accordance with its terms or of the same effect as
to perfection and priority purported to be created thereby with respect to any
significant portion of the Collateral (other than in connection with any
termination of such Lien in respect of any Collateral as permitted hereby or by
any Security Document), and such failure of such Lien to be perfected and
enforceable with such priority shall have continued unremedied for a period of
20 days; or


 


(k)          
Any
Loan Document (other than this Agreement or any of the Security Documents)
shall cease for any reason to be in full force and effect (other than pursuant
to the terms hereof or thereof) or any Loan Party shall so assert in writing;
or


 


(l)           
A
Change of Control shall have occurred; or


 


(m)         
Any
event or circumstance entitling the Persons purchasing, or financing the
purchase of, Receivables under any Permitted Receivables Transaction to stop so
purchasing or financing, other than by reason of the occurrence of the stated
expiry date of such Permitted Receivables Transaction, a refinancing of such
Permitted Receivables Transaction through another Permitted Receivables
Transaction, a reduction in any applicable borrowing base,  or the
occurrence of any other event or circumstance which is not, or is not related
primarily to, an action or statement taken or made, or omitted to be taken or
made, by or on behalf of, or a condition of or relating to, Holding or any of
its Subsidiaries; provided that any notices or cure periods that are
conditions to the rights of such Persons to stop purchasing, or financing the
purchase of, such Receivables have been given or have expired, as the case may
be;


 


then, and in any such event, (A) if such
event is an Event of Default specified in clause (i) or (ii) of paragraph (f)
above with respect to any Borrower, automatically the Revolving Credit
Commitments and the Term Loan Commitments, if any, shall immediately terminate
and the Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) shall
immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken:  (i) with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders the Administrative Agent shall, by notice to
the Parent Borrower, declare the Revolving Credit Commitments and the Term Loan
Commitments to be terminated forthwith, whereupon


 


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the Revolving Credit Commitments and the Term Loan
Commitments, if any,` shall immediately terminate; and (ii) with the consent of
the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Parent
Borrower, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable.


 


With respect to any
Letter of Credit with respect to which presentment for honor shall not have
occurred at the time of an acceleration pursuant to the preceding paragraph, the
Parent Borrower shall at such time deposit in a cash collateral account opened
by the Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letter of Credit.  The Parent Borrower hereby
grants to the Administrative Agent, for the benefit of the Issuing Lender and
the L/C Participants, a security interest in such cash collateral to secure all
obligations of such Borrower in respect of such Letter of Credit under this
Agreement and the other Loan Documents.  The Parent Borrower shall execute
and deliver to the Administrative Agent, for the account of the Issuing Lender
and the L/C Participants, such further documents and instruments as the
Administrative Agent may request to evidence the creation and perfection of such
security interest in such cash collateral account.  Amounts held in such
cash collateral account shall be applied by the Administrative Agent to the
payment of drafts drawn under such Letter of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or been fully drawn
upon, if any, shall be applied to repay other obligations of the Borrowers
hereunder.  After all Letters of Credit shall have expired or been fully
drawn upon, all Reimbursement Obligations shall have been satisfied and all
other obligations of the Borrowers hereunder shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
Borrowers.


 


Except as expressly
provided above in this Section 9, presentment, demand, protest and all
other notices of any kind are hereby expressly waived.


 


SECTION 10.        
THE ADMINISTRATIVE
AGENT AND THE OTHER REPRESENTATIVES.


 


10.1.       
Appointment.  Each Lender hereby irrevocably designates and appoints DBAG as
the Administrative Agent of such Lender under this Agreement and the other Loan
Documents, and each such Lender irrevocably authorizes DBAG, as the
Administrative Agent for such Lender, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to or required
of the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental
thereto.  Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent and the Other Representatives shall not
have any duties or responsibilities, except, in the case of the Administrative
Agent and the Issuing Lender, those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent or the Other Representatives.  Each of the


 


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Agents may perform any of their respective duties
under this Agreement, the other Loan Documents and any other instruments and
agreements referred to herein or therein by or through its respective officers,
directors, agents, employees or affiliates (it being understood and agreed, for
avoidance of doubt and without limiting the generality of the foregoing, that
the Administrative Agent may perform any of its duties under the Security
Documents by or through one or more of its affiliates).


 


10.2.       
Delegation of Duties.  In performing its functions and duties under
this Agreement, the Administrative Agent shall act solely as agent for the
Lenders, and the Administrative Agent assumes no (and shall not be deemed to
have assumed any) obligation or relationship of agency or trust with or for
Holding or any of its Subsidiaries.  The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact, and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.  The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents
or attorneys-in-fact or counsel selected by it with reasonable care.


 


10.3.       
Exculpatory Provisions.  None of the Administrative Agent or any Other
Representative nor any of their officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (a) liable for any action taken or
omitted to be taken by such Person under or in connection with this Agreement
or any other Loan Document (except for the gross negligence or willful
misconduct of such Person or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates) or (b) responsible in any manner to any of the
Lenders for (i) any recitals, statements, representations or warranties made by
Holding, any Borrower or any other Loan Party or any officer thereof contained
in this Agreement or any other Loan Document or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent or any Other Representative under or in connection with,
this Agreement or any other Loan Document, (ii) for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any Notes or any other Loan Document, (iii) for any failure of Holding, any
Borrower or any other Loan Party to perform its obligations hereunder or under
any other Loan Document, (iv) the performance or observance of any of the
terms, provisions or conditions of this Agreement or any other Loan Document,
(v) the satisfaction of any of the conditions precedent set forth in
Section 6, or (vi) the existence or possible existence of any Default or
Event of Default.  Neither the Administrative Agent nor any Other
Representative shall be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of Holding, any Borrower or any other Loan
Party.  Each Lender agrees that, except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder or given to the Administrative Agent for the
account of or with copies for the Lenders, the Administrative Agent and the
Other Representatives shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of Holding, any Borrower or any other Loan Party which may
come into the possession of the Administrative Agent and the Other
Representatives or any of their officers, directors, employees, agents,
attorneys-in-fact or Affiliates.


 


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10.4.       
Reliance by Administrative Agent.  The Administrative Agent shall be entitled to
rely, and shall be fully protected (and shall have no liability to any Person)
in relying, upon any writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to any
Borrower or Holding), independent accountants and other experts selected by the
Administrative Agent.  The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes unless and until a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent.  Any request, authority or consent of
any Person or entity who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee, assignee or endorsee, as the case may be,
of such Note or of any Note or Notes issued in exchange therefor.  The
Administrative Agent shall be fully justified as between itself and the Lenders
in failing or refusing to take any action under this Agreement or any other
Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders and/or such other requisite percentage of the Lenders as is
required pursuant to subsection 11.1(a) as it deems appropriate or it
shall first be indemnified to its satisfaction by the 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.  The Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement and any Notes and the other Loan Documents in accordance with a
request of the Required Lenders and/or such other requisite percentage of the
Lenders as is required pursuant to subsection 11.1(a), and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Loans.


 


10.5.       
Notice of Default.  The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless the Administrative Agent has received notice
from a Lender or either of the Parent Borrower or Holding referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a “notice of default”.  In the event that the Administrative
Agent receives such a notice, the Administrative Agent shall give notice
thereof to the Lenders.  The Administrative Agent shall take such action
reasonably promptly with respect to such Default or Event of Default as shall
be directed by the Required Lenders and/or such other requisite percentage of
the Lenders as is required pursuant to subsection 11.1(a); provided
that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default
or Event of Default as it shall deem advisable in the best interests of the
Lenders.


 


10.6.       
Acknowledgements and Representations by Lenders.  Each Lender expressly acknowledges that none
of the Administrative Agent or the Other Representatives nor any of their
officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent or any Other Representative hereafter taken, including any
review of the affairs of any Borrower or any other Loan Party, shall be deemed
to constitute any representation or warranty by the Administrative Agent or
such Other Representative to any Lender.  Each Lender represents to the
Administrative Agent, the Other Representatives and each of the Loan Parties
that,


 


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independently and without reliance upon the
Administrative Agent, the Other Representatives or any other Lender, and based
on such documents and information as it has deemed appropriate, it has made and
will make, its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of
Holding and the Borrowers and the other Loan Parties, it has made its own
decision to make its Loans hereunder and enter into this Agreement and it will
make its own decisions in taking or not taking any action under this Agreement
and the other Loan Documents and, except as expressly provided in this Agreement,
neither the Administrative Agent nor any Other Representative shall have any
duty or responsibility, either initially or on a continuing basis, to provide
any Lender or the holder of any Note with any credit or other information with
respect thereto, whether coming into its possession before the making of the
Loans or at any time or times thereafter.  Each Lender represents to each
other party hereto that it is a bank, savings and loan association or other
similar savings institution, insurance company, investment fund or company or
other financial institution which makes or acquires commercial loans in the
ordinary course of its business, that it is participating hereunder as a Lender
for such commercial purposes, and that it has the knowledge and experience to
be and is capable of evaluating the merits and risks of being a Lender
hereunder.  Each Lender acknowledges and agrees to comply with the
provisions of subsection 11.6 applicable to the Lenders hereunder.


 


10.7.       
Indemnification.  (a)  The Lenders agree
to indemnify the Administrative Agent (or any Affiliate thereof) and the Other
Representatives (or any Affiliate thereof) (to the extent not reimbursed by the
Parent Borrower and without limiting the obligation of the Parent Borrower to do
so), ratably according to their respective Total Credit Percentages in effect
on the date on which indemnification is sought under this subsection (or,
if indemnification is sought after the date upon which the Revolving Credit
Commitments shall have terminated and the Loans shall have been paid in full,
ratably in accordance with their Total Credit Percentages immediately prior to
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Loans) be imposed on, incurred by or
asserted against the Administrative Agent (or any Affiliate thereof) or any
Other Representative (or any Affiliate thereof) in any way relating to or
arising out of this Agreement, any of the other Loan Documents or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Administrative Agent (or any Affiliate thereof) or any Other Representative
(or any Affiliate thereof) under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements to the extent arising from (a) the
Administrative Agent’s or any Other Representative’s gross negligence or
willful misconduct or (b) claims made or legal proceedings commenced against
the Administrative Agent or any Other Representative by any security holder or
creditor thereof arising out of and based upon rights afforded any such
security holder or creditor solely in its capacity as such.  The
obligations to indemnify the Issuing Lender and Swing Line Lender shall be
ratable among the Revolving Credit Lenders in accordance with their respective
Revolving Credit Commitments (or, if the Revolving Credit Commitments have been
terminated, the outstanding principal amount of their respective Revolving
Credit Loans and L/C Obligations and their respective participating interests
in the outstanding Letters of Credit and shall be payable only by the Revolving
Credit Lenders).  The agreements in this subsection shall survive the
payment of the Loans and all other amounts payable hereunder.


 


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(b)          
Any
Agent shall be fully justified in failing or refusing to take any action
hereunder and under any other Loan Document (except actions expressly required
to be taken by it hereunder or under the Loan Documents) unless it shall first
be indemnified to its satisfaction by the Lenders pro  rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.


 


(c)          
The
agreements in this subsection 10.7 shall survive the payment of all
Borrower Obligations and Guaranteed Obligations (each as defined in the
Guarantee and Collateral Agreement).


 


10.8.       
Administrative Agent and Other Representatives in
Their Individual Capacity. 
The Administrative Agent, the Other Representatives and their Affiliates may
make loans to, accept deposits from and generally engage in any kind of
business with any Borrower or any other Loan Party as though the Administrative
Agent and the Other Representatives were not the Administrative Agent and the
Other Representatives hereunder and under the other Loan Documents.  With
respect to Loans made or renewed by them and any Note issued to them and with
respect to any Letter of Credit issued or participated in by them, the
Administrative Agent and the Other Representatives shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though they were not the Administrative Agent or an
Other Representative, and the terms “Lender” and “Lenders” shall include the
Administrative Agent in its individual capacity.


 


10.9.       
Collateral Matters.  (a)  Each Lender authorizes and
directs the Administrative Agent to enter into the Security Documents for the
benefit of the Lenders and the other Secured Parties.  Each Lender hereby
agrees, and each holder of any Note or participant in Letters of Credit by the
acceptance thereof will be deemed to agree, that, except as otherwise set forth
herein, any action taken by the Administrative Agent or the Required Lenders in
accordance with the provisions of this Agreement or the Security Documents, and
the exercise by the Administrative Agent or the Required Lenders of the powers
set forth herein or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all of the
Lenders.  The Administrative Agent is hereby authorized on behalf of all
of the Lenders, without the necessity of any notice to or further consent from
any Lender, from time to time, to take any action with respect to any
Collateral or Security Documents which may be necessary to perfect and maintain
perfected the security interest in and liens upon the Collateral granted
pursuant to the Security Documents.


 


(b)          
The
Lenders hereby authorize the Administrative Agent, at its option and in its
discretion, to release any Lien granted to or held by the Administrative Agent
upon any Collateral (i) upon termination of the Commitments and payment and
satisfaction of all of the Obligations at any time arising under or in respect
of this Agreement or the Loan Documents or the transactions contemplated hereby
or thereby, (ii) constituting property being sold or otherwise disposed of (to
Persons other than a Loan Party) upon the sale or other disposition thereof in
compliance with subsection 8.6, (iii) if approved, authorized or ratified
in writing by the Required Lenders (or the Required Collateral Release Lenders,
to the extent required by Section 11.1) or (iv) as otherwise may be
expressly provided in the relevant Security Documents.  Upon request by
the Administrative Agent at any time, the Lenders will confirm in writing the


 


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Administrative Agent’s authority to
release particular types or items of Collateral pursuant to this
subsection 10.9.


 


(c)             
The
Administrative Agent shall have no obligation whatsoever to the Lenders to assure
that the Collateral exists or is owned by Holding or any of its Subsidiaries or
is cared for, protected or insured or that the Liens granted to the
Administrative Agent herein or pursuant hereto have been properly or
sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority, or to exercise or to continue exercising
at all or in any manner or under any duty of care, disclosure or fidelity any
of the rights, authorities and powers granted or available to the
Administrative Agent in this subsection 10.9 or in any of the Security
Documents, it being understood and agreed that in respect of the Collateral, or
any act, omission or event related thereto, the Administrative Agent may act in
any manner it may deem appropriate, in its sole discretion, given the
Administrative Agent’s own interest in the Collateral as one of the Lenders and
that the Administrative Agent shall have no duty or liability whatsoever to the
Lenders, except for its gross negligence or willful misconduct.


 


10.10.      Successor Administrative Agent.  The Administrative Agent may resign as
Administrative Agent upon 10 days’ notice to the Lenders.  If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from
among the Lenders a successor agent (which shall be a bank) for the Lenders,
which successor agent shall be approved by the Parent Borrower (such approval
not to be unreasonably withheld), whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term
“Administrative Agent” shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent’s rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans.  After any retiring
Administrative Agent’s resignation as Administrative Agent, the provisions of
this subsection shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Loan Documents.  After the resignation of any
Administrative Agent pursuant to the preceding provisions of this
subsection 10.10, such resigning Administrative Agent (x) shall not be
required to act as Issuing Lender for any Letters of Credit to be issued after
the date of such resignation and (y) shall not be required to act as Swing Line
Lender with respect to Swing Line Loans to be made after the date of such
resignation (and all outstanding Swing Line Loans of such resigning
Administrative Agent shall be required to be repaid in full upon its
resignation), although the resigning Administrative Agent shall retain all
rights hereunder as Issuing Lender and Swing Line Lender with respect to all
Letters of Credit issued by it, and all Swing Line Loans made by it, prior to the
effectiveness of its resignation as Administrative Agent hereunder.


 


10.11.      Other
Representatives.  None of the Syndication Agent,
the Documentation Agents nor any of the entities identified as joint
bookrunners and joint lead arrangers pursuant to the definition of Other
Representative contained herein, shall have any duties or responsibilities
hereunder or under any other Loan Document in its capacity as such.


 


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10.12.      Swing Line
Lender.  The provisions of this
Section 10 shall apply to the Swing Line Lender in its capacity as such to
the same extent that such provisions apply to the Administrative Agent.


 


SECTION 11.         MISCELLANEOUS.


 


11.1.       
Amendments and Waivers. 
(a)  Neither this Agreement nor any other Loan Document, nor any terms
hereof or thereof, may be amended, supplemented, modified or waived except in
accordance with the provisions of this subsection 11.1.  The Required
Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (x) enter into with the respective
Loan Parties hereto or thereto, as the case may be, written amendments,
supplements or modifications hereto and to the other Loan Documents for the purpose
of adding any provisions to this Agreement or to the other Loan Documents or
changing, in any manner the rights or obligations of the Lenders or the Loan
Parties hereunder or thereunder or (y) waive at any Loan Party’s request, on
such terms and conditions as the Required Lenders or the Administrative Agent,
as the case may be, may specify in such instrument, any of the requirements of
this Agreement or the other Loan Documents or any Default or Event of Default
and its consequences; provided, however, that no such waiver and
no such amendment, supplement or modification shall:


 


(i)           
reduce
the amount or extend the scheduled date of maturity of any Loan or any
Reimbursement Obligation or of any scheduled installment thereof or reduce the
stated rate of any interest, commission or fee payable hereunder (other than as
a result of any waiver of the applicability of any post-default increase in
interest rates) or extend the scheduled date of any payment thereof or increase
the amount or extend the expiration date of any Lender’s Revolving Credit
Commitment or Tranche B Term Loan Commitment or change the currency in which
any Loan or Reimbursement Obligation is payable, in each case without the
consent of each Lender directly affected thereby (it being understood that
waivers or modifications of conditions precedent, covenants, Defaults or Events
of Default or of a mandatory reduction in the aggregate Commitment of all
Lenders shall not constitute an increase of the Commitment of any Lender, and
that an increase in the available portion of any Commitment of any Lender shall
not constitute an increase in the Commitment of such Lender);


 


(ii)          
amend,
modify or waive any provision of this subsection 11.1(a) or reduce the
percentage specified in the definition of Required Lenders or Required
Collateral Release Lenders, or consent to the assignment or transfer by Holding
or the Parent Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents (other than pursuant to
subsection 8.5 or 11.6(a)), in each case without the written consent of
all the Lenders;


 


(iii)         
release
any Guarantor under the Guarantee and Collateral Agreement or, in the aggregate
(in a single transaction or a series of related transactions), substantially
all of the Collateral without the consent of the Required Collateral Release
Lenders, except as expressly permitted hereby or by any Security Document (as
such documents are in effect on the date hereof or, if later, the date of execution
and delivery thereof in accordance with the terms hereof);


 


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(iv)         
subject
to paragraph (i) of this subsection 11.1(a), (A) amend, modify or waive
any provision of subsection 2.5 or subsection 2.6 relating to the
Tranche B Dollar Term Loans without the written consent of the Tranche B Dollar
Term Loan Lenders the Tranche B Dollar Term Loan Percentages of which aggregate
greater than 50% or (B) amend, modify or waive any provision of
subsection 2.5 or subsection 2.6 relating to the Tranche B Euro Term
Loans without the written consent of the Tranche B Euro Term Loan Lenders the
Tranche B Euro Term Loan Percentages of which aggregate greater than 50%;


 


(v)          
amend,
modify or waive any provision of subsection 2.1, 2.2, 2.3 or 2.4 or,
subject to paragraph (i) of this subsection 11.1(a), Section 3
without the written consent of the Revolving Credit Lenders the Revolving
Credit Commitment Percentages of which aggregate greater than 50%;


 


(vi)         
(A)
amend, modify or waive the order of application of prepayment specified in
subsection 4.4(f) or the first three sentences of subsection 4.8(a)
without the consent of (x) Revolving Credit Lenders, the Revolving Credit
Commitment Percentages of which aggregate greater than 50% and (y) Tranche B
Term Loan Lenders, the Tranche B Term Loan Percentages of which aggregate
greater than 50%, or (B) amend, modify or waive any requirement or provision of
subsections 4.4 and 4.8 providing that any Tranche of Tranche B Term Loans
receive at least its pro rata share of any mandatory or optional prepayment of
Term Loans without the consent of (A) with respect to any amendment,
modification or waiver as a result of which the Tranche B Dollar Term Loan
Lenders would not receive their pro rata share of such payments, the written
consent of the Tranche B Dollar Term Loan Lenders the Tranche B Dollar Term
Loan Percentages of which aggregate greater than 50% and (B) with respect to
any amendment, modification or waiver as a result of which the Tranche B Euro
Term Loan Lenders would not receive their pro rata share of such payments, the
written consent of the Tranche B Euro Term Loan Lenders the Tranche B Euro Term
Loan Percentages of which aggregate greater than 50%;


 


(vii)        
require
any Lender to make Loans having an Interest Period of longer than six months
without the consent of such Lender;


 


(viii)       
amend,
modify or waive any provision of Section 10 without the written consent of
the then Administrative Agent and of any Other Representative affected thereby;


 


(ix)          
amend,
modify or waive any provision of the Swing Line Note (if any) or
subsection 2.4 without the written consent of the Swing Line Lender and
each other Lender, if any, which holds, or is required to purchase, a
participation in any Swing Line Loan pursuant to subsection 2.4(d); or


 


(x)           
amend,
modify or waive the provisions of any Letter of Credit or any L/C Obligation
without the written consent of the Issuing Lender and each affected L/C
Participant.


 


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Any waiver and any
amendment, supplement or modification pursuant to this subsection 11.1
shall apply to each of the Lenders and shall be binding upon the Loan Parties,
the Lenders, the Administrative Agent and all future holders of the
Loans.  In the case of any waiver, each of the Loan Parties, the Lenders
and the Administrative Agent shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event
of Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.


 


(b)          
Schedule D and
Schedule E may be amended (and the Credit Agreement may be amended as
provided for in clause (i)(A) below), so long as no Default or Event of Default
shall have occurred and be continuing, as follows:


 


(i)           
Schedule E
will be amended to add Subsidiaries as additional Foreign Subsidiary Borrowers
(provided that any such Foreign Subsidiary Borrower and its jurisdiction of
organization (other than in respect to any of the following jurisdictions:
United Kingdom, Canada, France, Belgium and Germany) is reasonably satisfactory
to the Administrative Agent):


 


(A)         
if
the Parent Borrower shall have provided at least ten Business Days written
notice to the Administrative Agent of its intention to amend Schedule E to
add a Foreign Subsidiary Borrower (which notice shall specify the name of such
Foreign Subsidiary Borrower and its jurisdiction of organization) (with the
Administrative Agent hereby agreeing to promptly furnish any such notice
received from the Parent Borrower to each Potentially Restricted Revolving
Credit Lender) and either:


 


(x)           
the
Administrative Agent shall not have received from any Potentially Restricted
Revolving Credit Lender, prior to the date occurring ten (10) Business Days
after the Administrative Agent received the respective written notice from the
Parent Borrower, written notice to the effect that, in accordance with then
applicable credit policies of such Revolving Credit Lender, as applied
consistently, such Revolving Credit Lender does not generally provide
Extensions of Credit in the jurisdiction of organization of the proposed
Foreign Subsidiary Borrower (with each Potentially Restricted Revolving Credit
Lender, if any, which provides such notice with respect to any jurisdiction
being herein called a “Restricted Revolving Credit Lender” with respect
to such jurisdiction); or


 


(y)          
there
is one or more Restricted Revolving Credit Lenders with respect to the relevant
jurisdiction, and:


 


 (I)          
the
Administrative Agent (or one or more of its Affiliates acting as the “fronting”
Revolving Credit Lender to the respective Foreign Subsidiary Borrower) provides
to such Restricted Revolving Credit Lenders “fronting” arrangements on terms
and conditions customary for DBAG (including with respect


 


126

















 


to voting, payment of fees and interest and indemnities by
any applicable Restricted Revolving Credit Lender; it being understood that no
Borrower shall have any greater liability or obligation by reason of such
“fronting” arrangement than in would in the absence of such arrangement),
pursuant to which (a) DBAG or its relevant Affiliate (in its individual
capacity) shall act as the “fronting” Revolving Credit Lender for such
Restricted Revolving Credit Lender(s) in respect of Extensions of Credit
otherwise required to be made to the respective Foreign Subsidiary Borrower
pursuant to the Revolving Loan Commitments of the respective Restricted
Revolving Credit Lender(s), and (b) such Restricted Revolving Credit Lender(s)
shall act as “indemnifying lenders” in respect of Extensions of Credit made by
DBAG (in its capacity as “fronting” Revolving Credit Lender) to such Foreign
Subsidiary Borrower, and


 


(II) in order to implement the
“fronting” and “indemnity” arrangements described in immediately preceding
clause (I), each of the Borrowers and the Administrative Agent, shall have
entered into either (a) amendments to this Agreement, the Exhibits hereto and
any other Loan Documents in form and substance reasonably satisfactory to the
Administrative Agent and the Borrowers or (b) at the option of the
Administrative Agent (in its reasonable discretion), ancillary documents in
form and substance reasonably satisfactory to the Administrative Agent and the
Borrowers (which documents shall be thereafter deemed, for all purposes, to be
“Loan Documents” hereunder) (it being hereby acknowledged and agreed by each
Lender that such Lender shall have no right to consent to any amendment to the
Credit Agreement effected in accordance with this clause (A) effected by the
Administrative Agent and the Borrowers); provided   that (i) the
Administrative Agent hereby agrees to provide to the applicable Restricted
Revolving Credit Lender the “fronting” arrangements described in the preceding
clause (y) and (ii) notwithstanding any provision herein to the contrary, in
the event preceding clause (y) of this subsection 11(b)(i)(A) is
applicable, and any Restricted Revolving Credit Lender decides for any reason
not to agree to (or avail itself of) the “fronting” and “indemnity”
arrangements provided pursuant thereto, (1) such Restricted Revolving Credit
Lender shall remain obligated to directly fund all Extensions of Credit
pursuant to its Revolving Credit Commitment (including, without limitation, to
Foreign Subsidiary Borrowers) unless and until (and then to the extent) it
assigns such Revolving Credit Commitment to another Person in accordance with
the relevant requirements of subsection 11.6, (2) the provisions of this
subsection 11.1(b)(i)(A) shall not be applicable and (3) Schedule E
shall be amended in accordance with the remaining provisions of
subsection 11.1(b)(i)(B) below; and


 


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(B)          
upon
(I) execution and delivery by the Parent Borrower, such additional Foreign
Subsidiary Borrowers and the Administrative Agent, of a Joinder Agreement,
substantially in the form of Exhibit M (a “Joinder Agreement”),
providing for such Subsidiaries to become Foreign Subsidiary Borrowers
hereunder and Granting Parties, Grantors and Pledgors under and as defined in
the Guarantee and Collateral Agreement (or shall otherwise enter into
collateral and security documents reasonably satisfactory to the Administrative
Agent and providing, to the extent reasonably practicable under relevant law,
substantially the equivalent of the lien and security interests contemplated to
be provided by Granting Parties, Grantors and Pledgors under the Guarantee and
Collateral Agreement), (II) delivery to the Administrative Agent of (x) in the
case of any Foreign Subsidiary Borrower the Capital Stock of which is held by a
Domestic Subsidiary, a stock pledge agreement (or, if the parent corporation of
such Foreign Subsidiary Borrower is a party to the Guarantee and Collateral
Agreement, a pledge pursuant to such agreement) covering the Capital Stock of
such Foreign Subsidiary Borrower, together with any documents and instruments
necessary to perfect the security interest to be created thereby (which pledge
shall not apply to more than 65% of such parent corporation’s ownership
interest in any such Foreign Subsidiary Borrower), (y) corporate resolutions,
other corporate documents, certificates and legal opinions in respect of such
additional Foreign Subsidiary Borrowers substantially equivalent to comparable
documents delivered on the Closing Date in respect of the Foreign Subsidiary
Borrowers party to this Agreement on the Closing Date or, if there are no
Foreign Subsidiary Borrowers party to this Agreement on the Closing Date, in
respect of the Loan Parties on the Closing Date and (z) such other documents
with respect thereto as the Administrative Agent shall reasonably request, and
(III) execution and delivery by the Parent Borrower, such Foreign Subsidiary
Borrower, all of the Revolving Credit Lenders and the Administrative Agent of a
written instrument providing for such amendment to Schedule E; provided
that the Parent Borrower and its Subsidiaries shall not be required to comply
with the requirements of the foregoing clauses (II)(x), (y) or (z) if the
Administrative Agent, in its sole discretion, determines that the cost of such
compliance is excessive in relation to the value of the collateral security to
be afforded thereby; provided, further, that no document described
in the foregoing clauses (II)(x), (y) or (z) shall be required, or the form of
such document shall be modified, to the extent required to avoid (A) any
violation of applicable law or (B) any violation of the provisions of any joint
venture or other material agreement governing or binding such Domestic
Subsidiary or other Subsidiary of the Parent Borrower.  Any Domestic
Subsidiary or other Subsidiary of the Parent Borrower that cannot execute such
a document or whose document must be amended for the foregoing reasons shall
promptly upon any change of law or waiver or lapse of the applicable
contractual restriction enter into such document or amend the existing document
to comply with this subsection 11.1(b)(i) in a manner reasonably satisfactory
to the Administrative Agent.


 


(ii)          
Schedule E
will be amended to remove any Subsidiary as a Foreign Subsidiary Borrower upon
execution and delivery by the Parent Borrower to the


 


128

















 


Administrative Agent of a written notification to such
effect and repayment in full of all Loans made to such Foreign Subsidiary
Borrower and repayment in full of all other amounts owing by such Foreign
Subsidiary Borrower under this Agreement and the other Loan Documents.


 


(c)          
Notwithstanding
any provision herein to the contrary, (i) this Agreement may be amended (or
amended and restated) with the written consent of the Required Lenders, the
Administrative Agent and the Parent Borrower (x) 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 existing Facilities and the accrued interest and
fees in respect thereof, (y) to include, as appropriate, the Lenders holding
such credit facilities in any required vote or action of the Required Lenders
or of the Lenders of each Facility hereunder and (z) to provide class
protection for any additional credit facilities in a manner consistent with
those provided the original Facilities pursuant to the provisions of
subsection 11.1(a) as originally in effect and (ii) Schedule D may be
amended, so long as no Default or Event of Default shall have occurred and be
continuing, to add additional Designated Foreign Currencies upon execution and
delivery by the Parent Borrower, all of the Revolving Credit Lenders and the
Administrative Agent of a written instrument providing for such amendment.


 


(d)          
In
addition, notwithstanding the foregoing, this Agreement may be amended with the
written consent of the Administrative Agent, the Parent Borrower and the
Lenders providing the relevant Replacement Term Loans (as defined below) to
permit the refinancing of all outstanding Tranche B Term Loans or any then
outstanding 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 Margin for such Replacement Term Loans shall not be higher
than the Applicable Margin 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 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.


 


11.2.       
Notices.  (a)          
All notices,
requests, and demands to or upon the respective parties hereto to be effective
shall be in writing (including telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand, or three days after being deposited in the mail, postage prepaid, or,
in the case of telecopy notice, when received, or, in the case of delivery by a
nationally recognized overnight courier, when received, addressed as follows in
the case of the Borrowers and the Administrative Agent, and as set forth in
Schedule A in the case of the other parties hereto, or to such other
address as may be hereafter notified by the respective parties hereto and any
future holders of the Loans:


 


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  Holding:

  	
  c/o VWR International,
  Inc.

  
	
   

  	
  1310 Goshen Parkway

  
	
   

  	
  West Chester, PA 19380

  
	
   

  	
   

  
	
   

  	
  Attention: Chief
  Financial Officer

  
	
   

  	
  Facsimile: (610)
  701-9896

  
	
   

  	
  Telephone: (610)
  719-7072

  
	
   

  	
   

  
	
  with a copy to:

  	
  Debevoise &
  Plimpton LLP

  
	
   

  	
  919 Third Avenue

  
	
   

  	
  New York, New
  York  10022

  
	
   

  	
  Attention:  David
  A. Brittenham, Esq.

  
	
   

  	
  Facsimile:  
  (212) 909-6836

  
	
   

  	
  Telephone:  (212)
  909-6000

  
	
   

  	
   

  
	
  The Borrowers:

  	
  c/o VWR International,
  Inc.

  
	
   

  	
  1310 Goshen Parkway

  
	
   

  	
  West Chester, PA 19380

  
	
   

  	
   

  
	
   

  	
  Attention: Chief
  Financial Officer

  
	
   

  	
  Facsimile: (610)
  701-9896

  
	
   

  	
  Telephone: (610)
  719-7072

  
	
   

  	
   

  
	
  with a copy to:

  	
  Debevoise &
  Plimpton LLP

  
	
   

  	
  919 Third Avenue

  
	
   

  	
  New York, New
  York  10022

  
	
   

  	
  Attention:  David
  A. Brittenham, Esq.

  
	
   

  	
  Facsimile:  
  (212) 909-6836

  
	
   

  	
  Telephone:  (212)
  909-6000

  
	
   

  	
   

  
	
  The Administrative
  Agent:

  	
  Deutsche Bank AG, New
  York Branch

  
	
   

  	
  Attention: 
  John-L. Quinn

  
	
   

  	
  Group Technology &
  Operations (GTO)

  
	
   

  	
  Floor 01

  
	
   

  	
  90 Hudson Street

  
	
   

  	
  Jersey City, NJ

  
	
   

  	
  Facsimile:  
  (201) 593-2310

  
	
   

  	
  Telephone:  (201)
  5932177

  



 


provided that any notice, request or demand to or
upon the Administrative Agent or the Lenders pursuant to subsection 2.2,
2.4, 2.7, 3.2, 4.2, 4.4 or 4.8 shall not be effective until received.


 


(b)          
Without
in any way limiting the obligation of the Parent Borrower and its Subsidiaries
to confirm in writing any telephonic notice permitted to be given hereunder,
the Administrative Agent, the Swing Line Lender (in the case of a Borrowing of
Swing Line Loans) or any Issuing Lender (in the case of the issuance of a
Letter of Credit), as the case may be, may prior to receipt of written
confirmation act without liability upon the basis of such telephonic


 


130

















 


notice, believed by the
Administrative Agent, the Swing Line Lender or such Issuing Lender in good
faith to be from a Responsible Officer.


 


11.3.       
No Waiver; Cumulative Remedies.  No failure to exercise and no delay in
exercising, on the part of the Administrative Agent, any Lender or any Loan
Party, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege.  The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.


 


11.4.       
Survival of Representations and Warranties.  All representations and
warranties made hereunder and in the other Loan Documents (or in any amendment,
modification or supplement hereto or thereto) and in any certificate delivered
pursuant hereto or such other Loan Documents shall survive the execution and
delivery of this Agreement and the making of the Loans hereunder.


 


11.5.       
Payment of Expenses and Taxes.  The Parent Borrower agrees (a) to pay or
reimburse the Administrative Agent and the Other Representatives for all their
reasonable out-of-pocket costs and expenses incurred in connection with the
preparation, execution and delivery of, and any amendment, supplement, waiver
or modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation
and administration of the transactions (including the syndication of the
Revolving Credit Commitments, Tranche B Term Loan Commitments and Tranche B
Term Loans (including the reasonable expenses of the Administrative Agent’s due
diligence investigation) and the monitoring of the Collateral) contemplated
hereby and thereby, including, without limitation, the reasonable fees,
expenses and disbursements of Cahill Gordon & Reindel LLP, with respect to
fees and expenses incurred on or prior to February 15, 2004, and
thereafter White & Case LLP, and consultants and local and foreign counsel
whose retention is approved by the Parent Borrower, (b) to pay or reimburse
each Lender, each Other Representative and the Administrative Agent for all its
reasonable costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including, without limitation, the reasonable fees
and disbursements of counsel to the Administrative Agent, the Other
Representatives and the several Lenders, and any reasonable Environmental Costs
incurred by any of them arising out of or in any way relating to any Loan Party
or any property in which any Loan Party has had any interest at any time, (c)
to pay, and indemnify and hold harmless each Lender, the Administrative Agent
and the Other Representatives from and against, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and
any such other documents, and (d) to pay, and indemnify and hold harmless each
Lender, the Administrative Agent and the Other Representatives (and their
respective directors, trustees, officers, employees, affiliates, controlling
persons, agents, successors and assigns) from and against, any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or


 


131

















 


disbursements of any kind or nature whatsoever
(whether or not caused by any such Person’s own negligence (other than gross
negligence) and including, without limitation, the reasonable fees and
disbursements of counsel) with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and
any such other documents (regardless of whether the Administrative Agent, any such
Other Representative or any Lender is a party to the litigation or other
proceeding giving rise thereto and regardless of whether any such litigation or
other proceeding is brought by the Parent Borrower or any other Person),
including, without limitation, any of the foregoing relating to the violation
of, noncompliance with, or liability under, any Environmental Laws or any
orders, requirements or demands of Governmental Authorities related thereto
applicable to the operations of the Parent Borrower, any of its Subsidiaries or
any of the facilities and properties owned, leased or operated by the Parent
Borrower or any of its Subsidiaries (all the foregoing in this clause (d),
collectively, the “indemnified liabilities”), provided that the
Parent Borrower shall not have any obligation hereunder to the Administrative
Agent, any such Other Representative or any Lender with respect to
Environmental Costs or indemnified liabilities arising from (i) the gross
negligence or willful misconduct of the Administrative Agent, any Other
Representative or any such Lender (or any of their respective directors,
trustees, officers, employees, agents, successors and assigns) or (ii) claims
made or legal proceedings commenced against the Administrative Agent, any Other
Representative or any such Lender by any security holder or creditor thereof
arising out of and based upon rights afforded any such security holder or
creditor solely in its capacity as such.  Notwithstanding the foregoing,
except as provided in clauses (b) and (c) above, the Parent Borrower shall have
no obligation under this subsection 11.5 to the Administrative Agent, any
Other Representative or any Lender with respect to any tax, levy, impost, duty,
charge, fee, deduction or withholding imposed, levied, collected, withheld or
assessed by any Governmental Authority.  The agreements in this
subsection shall survive repayment of the Loans and all other amounts
payable hereunder.


 


11.6.       
Successors and Assigns; Participations and Assignments.  (a)  The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
affiliate of the Issuing Lender that issues any Letter of Credit), except that
(i) other than in accordance with subsection 8.5 or the Assumption, none
of the Loan Parties may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by any Loan Party without such consent shall
be null and void) and (ii) no Lender may assign or otherwise transfer its
rights or obligations hereunder except in accordance with this Section.


 


(b)          
(i)  Subject
to the conditions set forth in paragraph (b)(ii) below, any Lender other than a
Conduit Lender may, in the ordinary course of business and in accordance with
applicable law, assign to one or more assignees (each, an “Assignee”)
all or a portion of its rights and obligations under this Agreement (including,
without limitation, its Revolving Credit Commitment, Tranche B Term Loan
Commitment and/or Loans, pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit F) with the prior written consent (such
consent not to be unreasonably withheld or delayed) of:


 


(A)                             
the Parent Borrower, provided
that no consent of the Parent Borrower shall be required for an assignment to a
Lender, an affiliate of a Lender, an


 


132

















 


Approved Fund (as defined below) or, if an Event of
Default under subsection 9(a) or (f) has occurred and is continuing, any
other Person; provided  further that if any Lender assigns all or a portion of its
rights and obligations under this Agreement to one of its affiliates in
connection with or in contemplation of the sale or other disposition of its
interest in such affiliate, the Parent Borrower’s prior written consent shall
be required for such assignment; and


 


(B)                               
the Administrative
Agent.


 


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


 


(A)                             
except in the case of
an assignment to a Lender, an affiliate of a Lender or an Approved Fund or an assignment
of the entire remaining amount of the assigning Lender’s Commitments or Loans
under any Facility, the amount of the Commitments or Loans of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 (or, (x) in the case of
the Tranche B Dollar Term Loan Commitments or the Tranche B Dollar Term Loans
made thereunder, $1,000,000 or (y) in the case of the Tranche B Euro Term Loan
Commitments or the Tranche B Euro Term Loans made thereunder, €1,000,000)
unless the Parent Borrower and the Administrative Agent otherwise consent, provided
that (1) no such consent of the Parent Borrower shall be required if an Event
of Default under subsection 9(a) or (f) has occurred and is continuing and
(2) such amounts shall be aggregated in respect of each Lender and its
affiliates or Approved Funds, if any;


 


(B)                               
the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500; and


 


(C)                               
the Assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
administrative questionnaire.


 


For the purposes of this subsection 11.6, the
term “Approved Fund” has the following meaning:  “Approved Fund”
means any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit
in the ordinary course of its business and that is administered or managed by
(a) a Lender, (b) an affiliate of a Lender or (c) an entity or an affiliate of
an entity that administers or manages a Lender.


 


(iii)          Subject to acceptance and recording
thereof pursuant to paragraph (b)(iv) below, from and after the effective date
specified in each Assignment and Assumption the Assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under


 


133

















 


this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of (and bound by
any related obligations under) subsections 4.10, 4.11, 4.12, 4.13 and
11.5).  Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this subsection 11.6 shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c)
of this subsection.


 


(iv)          The Borrowers hereby designate the
Administrative Agent, and the Administrative Agent agrees, to serve as the
Borrowers’ agent, solely for purposes of this subsection 11.6, to maintain
at one of its offices in New York, New York a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and interest and
principal amount of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). 
The entries in the Register shall be conclusive absent manifest error, and the
Borrowers, the Administrative Agent, the Issuing Lender and the Lenders shall
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary.  The Register shall be available
for inspection by the Borrowers, the Issuing Lender and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.


 


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


 


(vi)          On or prior to the effective date of any
assignment pursuant to this subsection 11.6(b), the assigning Lender shall
surrender any outstanding Notes held by it all or a portion of which are being
assigned.  Any Notes surrendered by the assigning Lender shall be returned
by the Administrative Agent to the Parent Borrower marked “cancelled”.


 


Notwithstanding the
foregoing, no Assignee, which as of the date of any assignment to it pursuant
to this subsection 11.6(b) would be entitled to receive any greater
payment under subsection 4.10 or 4.11 than the assigning Lender would have
been entitled to receive as of such date under such subsections with respect to
the rights assigned, shall be entitled to receive such greater payments unless
the Parent Borrower has expressly consented in writing to waive the benefit of
this provision at the time of such assignment.


 


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(c)          
(i)  Any
Lender other than a Conduit Lender may, in the ordinary course of its business
and in accordance with applicable law, without the consent of the Parent
Borrower or the Administrative Agent, sell participations to one or more banks
or other entities (a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it); provided that (A) such Lender’s
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (C) such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and (D) the
Parent Borrower, the Administrative Agent, the Issuing Lender and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this
Agreement.  Any agreement pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver that (1) requires the consent of
each Lender directly affected thereby pursuant to the proviso to the second
sentence of subsection 11.1(a) and (2) directly affects such
Participant.  Subject to paragraph (c)(ii) of this subsection, each
Borrower agrees that each Participant shall be entitled to the benefits of (and
shall have the related obligations under) subsections 4.10, 4.11, 4.12, 4.13
and 11.5 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this subsection.  To
the extent permitted by law, each Participant also shall be entitled to the
benefits of subsection 11.7(b) as though it were a Lender, provided such
Participant shall be subject to subsection 11.7(a) as though it were a
Lender.


 


(ii)          
No
Loan Party shall be obligated to make any greater payment under
subsection 4.10 or 4.11 than it would have been obligated to make in the
absence of any participation, unless the sale of such participation is made
with the prior written consent of the Parent Borrower and the Parent Borrower
expressly waives the benefit of this provision at the time of such
participation.  Any Participant that is not incorporated under the laws of
the United States of America or a state thereof shall not be entitled to the
benefits of subsection 4.11 unless such Participant complies with
subsection 4.11(b) and provides the forms and certificates referenced
therein to the Lender that granted such participation.


 


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


 


(e)          
No
assignment or participation made or purported to be made to any Assignee or
Participant shall be effective without the prior written consent of the Parent
Borrower if it would require the Parent Borrower to make any filing with any
Governmental Authority or qualify any Loan or Note under the laws of any
jurisdiction, and the Parent Borrower shall be entitled to request and receive
such information and assurances as it may


 


135

















 


reasonably request from any Lender
or any Assignee or Participant to determine whether any such filing or
qualification is required or whether any assignment or participation is
otherwise in accordance with applicable law.


 


(f)           
Notwithstanding
the foregoing, any Conduit Lender may assign any or all of the Loans it may
have funded hereunder to its designating Lender without the consent of the
Parent Borrower or the Administrative Agent and without regard to the
limitations set forth in subsection 11.6(b).  Each Borrower, each
Lender and the Administrative Agent hereby confirms that it will not institute
against a Conduit Lender or join any other Person in instituting against a
Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding under any state bankruptcy or similar law, for one year
and one day after the payment in full of the latest maturing commercial paper
note issued by such Conduit Lender; provided, however, that each Lender
designating any Conduit Lender hereby agrees to indemnify, save and hold
harmless each other party hereto for any loss, cost, damage or expense arising
out of its inability to institute such a proceeding against such Conduit Lender
during such period of forbearance.  Each such indemnifying Lender shall
pay in full any claim received from the Parent Borrower pursuant to this
subsection 11.6(f) within 30 Business Days of receipt of a certificate
from a Responsible Officer of the Parent Borrower specifying in reasonable
detail the cause and amount of the loss, cost, damage or expense in respect of
which the claim is being asserted, which certificate shall be conclusive absent
manifest error.  Without limiting the indemnification obligations of any
indemnifying Lender pursuant to this subsection 11.6(f), in the event that
the indemnifying Lender fails timely to compensate the Parent Borrower for such
claim, any Loans held by the relevant Conduit Lender shall, if requested by the
Parent Borrower, be assigned promptly to the Lender that administers the
Conduit Lender and the designation of such Conduit Lender shall be void.


 


(g)          
If
the Parent Borrower wishes to replace the Loans or Commitments under any
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 Facility, instead of prepaying
the Loans or reducing or terminating the Commitments to be replaced, to (i)
require the Lenders under such Facility to assign such Loans or Commitments to
the Administrative Agent or its designees and (ii) amend the terms thereof in
accordance with subsection 11.1 (with such replacement, if applicable,
being deemed to have been made pursuant to subsection 11.1(d)). 
Pursuant to any such assignment, all Loans and Commitments to be replaced shall
be purchased at par (allocated among the Lenders under such 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 Borrowers),
accompanied by payment of any accrued interest and fees thereon and any amounts
owing pursuant to subsection 4.12.  By receiving such purchase price,
the Lenders under such Facility shall automatically be deemed to have assigned
the Loans or Commitments under such Facility pursuant to the terms of the form
of Assignment and Acceptance attached hereto as Exhibit F, 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.


 


11.7.       
Adjustments; Set-off; Calculations; Computations.  (a)  If any Lender (a “benefited
Lender”) shall at any time receive any payment of all or part of its
Revolving Credit


 


136

















 


Loans, any Tranche of its Term Loans or the
Reimbursement Obligations owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in
subsection 9(f), or otherwise (except pursuant to subsection 4.4,
4.13(d) or 11.6)), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender’s
Revolving Credit Loans, any Tranche of its Term Loans or the Reimbursement
Obligations, as the case may be, owing to it, or interest thereon, such
benefited Lender shall purchase for cash from the other Lenders an interest (by
participation, assignment or otherwise) in such portion of each such other
Lender’s Revolving Credit Loans, any Tranche of its Term Loans or the
Reimbursement Obligations, as the case may be, owing to it, or shall provide
such other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefited Lender to share the
excess payment or benefits of such collateral or proceeds ratably with each of
the Lenders; provided, however, that if all or any portion of
such excess payment or benefits is thereafter recovered from such benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest.


 


(b)          
In
addition to any rights and remedies of the Lenders provided by law, each Lender
shall have the right, without prior notice to any Borrower, any such notice
being expressly waived by each Borrower to the extent permitted by applicable law,
upon the occurrence of an Event of Default under subsection 9(a) to
set-off and appropriate and apply against any amount then due and payable under
subsection 9(a) by such Borrower any and all deposits (general or special,
time or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or
the account of such Borrower.  Each Lender agrees promptly to notify the
Parent 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.


 


11.8.       
Judgment. 
(a)  If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in one currency into another currency,
the parties hereto agree, to the fullest extent that they may effectively do
so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures the Administrative Agent could purchase the first
currency with such other currency on the Business Day preceding the day on
which final judgment is given.


 


(b)          
The
obligations of each Borrower in respect of this Agreement and any Note due to
any party hereto or any holder of any bond shall, notwithstanding any judgment
in a currency (the “judgment currency”) other than the currency in which
the sum originally due to such party or such holder is denominated (the “original
currency”), be discharged only to the extent that on the Business Day
following receipt by such party or such holder (as the case may be) of any sum
adjudged to be so due in the judgment currency such party or such holder (as
the case may be) may in accordance with normal banking procedures purchase the
original currency with the judgment currency; if the amount of the original
currency so purchased is less than the sum originally due to such party or such
holder (as the case may be) in the original currency, such Borrower agrees as a
separate obligation and notwithstanding any such judgment, to


 


137

















 


indemnify such party or such holder
(as the case may be) against such loss, and if the amount of the original
currency so purchased exceeds the sum originally due to any party to this
Agreement or any holder of Notes (as the case may be), such party or such
holder (as the case may be), agrees to remit to such Borrower, such
excess.  This covenant shall survive the termination of this Agreement and
payment of the Loans and all other amounts payable hereunder.


 


11.9.       
Counterparts.  This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts (including by telecopy),
and all of such counterparts taken together shall be deemed to constitute one
and the same instrument.  A set of the copies of this Agreement signed by
all the parties shall be delivered to the Parent Borrower and the
Administrative Agent.


 


11.10.      Severability.  Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


11.11.      Integration.  This Agreement and the other Loan Documents represent the
entire agreement of each of the Loan Parties party hereto, the Administrative
Agent and the Lenders with respect to the subject matter hereof, and there are
no promises, undertakings, representations or warranties by any of the Loan
Parties party hereto, the Administrative Agent or any Lender relative to the
subject matter hereof not expressly set forth or referred to herein or in the
other Loan Documents.


 


11.12.      GOVERNING
LAW.  THIS AGREEMENT AND ANY NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.


 


11.13.      Submission
To Jurisdiction; Waivers.  (a)  Each party hereto hereby irrevocably
and unconditionally:


 


(i)           
submits
for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York,
the courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof;


 


(ii)          
consents
that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in
an inconvenient forum and agrees not to plead or claim the same;


 


(iii)         
agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any


 


138

















 


substantially similar form of mail), postage prepaid, to
the applicable Borrower (or, in the case of any Foreign Subsidiary Borrower, as
specified in paragraph (b)), the applicable Lender or the Administrative Agent,
as the case may be, at the address specified in subsection 11.2 or at such
other address of which the Administrative Agent, any such Lender and any such
Borrower shall have been notified pursuant thereto;


 


(iv)         
agrees
that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other
jurisdiction; and


 


(v)          
waives,
to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this
subsection any consequential or punitive damages.


 


(b)          
Upon
any Foreign Subsidiary becoming a Foreign Subsidiary Borrower in accordance
with subsection 11.1(b), such Foreign Subsidiary Borrower hereby agrees to
irrevocably and unconditionally appoint an agent for service of process located
in The City of New York (the “New York Process Agent”), reasonably
satisfactory to the Administrative Agent, as its agent to receive on behalf of
such Foreign Subsidiary Borrower and its property service of copies of the
summons and complaint and any other process which may be served in any action
or proceeding in any such New York State or Federal court described in paragraph
(a) of this subsection and agrees promptly to appoint a successor
New York Process Agent in The City of New York (which successor
New York Process Agent shall accept such appointment in a writing
reasonably satisfactory to the Administrative Agent) prior to the termination
for any reason of the appointment of the initial New York Process
Agent.  In any such action or proceeding in such New York State or
Federal court, such service may be made on such Foreign Subsidiary Borrower by
delivering a copy of such process to such Foreign Subsidiary Borrower in care
of the New York Process Agent at the New York Process Agent’s address
and by depositing a copy of such process in the mails by certified or
registered air mail, addressed to such Foreign Subsidiary Borrower at its
address specified in subsection 11.2 with (if applicable) a copy to the
Parent Borrower (such service to be effective upon such receipt by the
New York Process Agent and the depositing of such process in the mails as
aforesaid).  Each of the Foreign Subsidiary Borrowers hereby irrevocably
and unconditionally authorizes and directs the New York Process Agent to
accept such service on its behalf. As an alternate method of service, each of
the Foreign Subsidiary Borrowers irrevocably and unconditionally consents to
the service of any and all process in any such action or proceeding in such
New York State or Federal court by mailing of copies of such process to
such Foreign Subsidiary Borrower by certified or registered air mail at its
address specified in subsection 11.2.  Each of the Foreign Subsidiary
Borrowers agrees that, to the fullest extent permitted by applicable law, 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.


 


(c)          
To
the extent that any Foreign Subsidiary Borrower has or hereafter may acquire
any immunity (sovereign or otherwise) from any legal action, suit or
proceeding, from jurisdiction of any court or from set-off or any legal process
(whether service or notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of
judgment


 


139

















 


or otherwise) with respect to itself or any of its
property, such Foreign Subsidiary Borrower hereby irrevocably waives and agrees
not to plead or claim such immunity in respect of its obligations under this
Agreement and any Note.


 


11.14.      Acknowledgements.  Each Borrower hereby acknowledges that:


 


(a)          
it
has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;


 


(b)          
neither
the Administrative Agent nor any Other Representative or Lender has any fiduciary
relationship with or duty to any Borrower arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Administrative Agent and Lenders, on the one hand, and the Borrowers, on
the other hand, in connection herewith or therewith is solely that of creditor
and debtor; and


 


(c)          
no
joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby and thereby among the Lenders
or among any of the Borrowers and the Lenders.


 


11.15.      WAIVER OF JURY TRIAL.  EACH OF THE BORROWERS, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY NOTES
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


11.16.      Confidentiality.  The Administrative Agent and each Lender
agrees to keep confidential any information (a) provided to it by or on behalf
of Holding, the Parent Borrower or any of their respective Subsidiaries
pursuant to or in connection with the Loan Documents or (b) obtained by such
Lender based on a review of the books and records of Holding, the Parent
Borrower or any of their respective Subsidiaries; provided that nothing
herein shall prevent any Lender from disclosing any such information (i) to the
Administrative Agent, any Other Representative or any other Lender, (ii) to any
Transferee, or prospective Transferee or any creditor or any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to any Borrower and its obligations which agrees to comply
with the provisions of this subsection pursuant to a written instrument
(or electronically recorded agreement from any Person listed above in this
clause (ii), which Person has been approved by the Parent Borrower (such
approval not be unreasonably withheld), in respect to any electronic
information (whether posted or otherwise distributed on Intralinks or any other
electronic distribution system)) for the benefit of the Parent Borrower (it
being understood that each relevant Lender shall be solely responsible for
obtaining such instrument (or such electronically recorded agreement)), (iii)
to its affiliates and the employees, officers, directors, agents, attorneys,
accountants and other professional advisors of it and its affiliates, provided
that such Lender shall inform each such Person of the agreement under this
subsection 11.16 and take reasonable actions to cause compliance by any
such Person referred to in this clause (iii) with this agreement (including,
where appropriate, to cause any such Person to acknowledge its agreement to be
bound by the agreement under this subsection 11.16), (iv) upon the request
or


 


140

















 


demand of any Governmental Authority having
jurisdiction over such Lender or its affiliates or to the extent required in
response to any order of any court or other Governmental Authority or as shall
otherwise be required pursuant to any Requirement of Law, provided that
such Lender shall, unless prohibited by any Requirement of Law, notify the
Parent Borrower of any disclosure pursuant to this clause (iv) as far in
advance as is reasonably practicable under such circumstances, (v) which has
been publicly disclosed other than in breach of this Agreement, (vi) in
connection with the exercise of any remedy hereunder, under any Loan Document
or under any Interest Rate Protection Agreement, (vii) in connection with
periodic regulatory examinations and reviews conducted by the National
Association of Insurance Commissioners or any Governmental Authority having
jurisdiction over such Lender or its affiliates (to the extent applicable),
(viii) in connection with any litigation to which such Lender (or, with respect
to any Interest Rate Protection Agreement, any affiliate of any Lender party
thereto) may be a party, subject to the proviso in clause (iv), and (ix) if,
prior to such information having been so provided or obtained, such information
was already in the Administrative Agent’s or a Lender’s possession on a
non-confidential basis without a duty of confidentiality to any Borrower being
violated.


 


11.17.      USA
Patriot Act Notice.  Each Lender hereby notifies each
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of
Pub.: 107-56 (signed into law October 26, 2001)) (the “Patriot Act”),
it is required to obtain, verify, and record information that identifies each
Borrower, which information includes the name of each Borrower and other
information that will allow such Lender to identify each Borrower in accordance
with the Patriot Act, and each Borrower agrees to provide such information from
time to time to any Lender.


 


11.18.      Special Provisions Regarding Pledges of Capital Stock in, and Promissory
Notes Owed by, Persons Not Organized in the U.S.  To the extent any Security Document requires or
provides for the pledge of promissory notes issued by, or Capital Stock in, any
Person organized under the laws of a jurisdiction outside the United States, it
is acknowledged that, as of the Closing Date, no actions have been required to
be taken to perfect, under local law of the jurisdiction of the Person who
issued the respective promissory notes or whose Capital Stock is pledged, under
the Security Documents.  The Parent Borrower hereby agrees that, following
any request by the Administrative Agent or Required Lenders to do so, the
Parent Borrower shall, and shall cause its Subsidiaries to, take (to the extent
they may lawfully do so) such actions (including, without limitation, the
making of any filings and the delivery of appropriate legal opinions) under the
local law of any jurisdiction with respect to which such actions have not
already been taken as are reasonably determined by the Administrative Agent or
Required Lenders to be necessary or reasonably desirable in order to fully
perfect, preserve or protect the security interests granted pursuant to the
various Security Documents under the laws of such jurisdictions.


 


141

















 


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


 


	
   

  	
  CDRV ACQUISITION
  CORPORATION

  
	
   

  	
  (the rights and
  obligations of which hereunder are to be

  assumed by VWR INTERNATIONAL, INC.)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ RICHARD J.
  SCHNALL

  	
   

  
	
   

  	
   

  	
  Name: Richard Schnall

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK AG, NEW
  YORK BRANCH, as

  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ DIANE F. ROLFE

  	
   

  
	
   

  	
   

  	
  Name: Daniel F. Rolfe

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  CITICORP NORTH AMERICA,
  INC., as Syndication Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ PAUL SHARKEY

  	
   

  
	
   

  	
   

  	
  Name: Paul Sharkey

  
	
   

  	
   

  	
  Title: Voce President

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.,
  as a Documentation Agent

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ DOUGLAS M. INGRAM

  	
   

  
	
   

  	
   

  	
  Name: Douglas M. Ingram

  
	
   

  	
   

  	
  Title: Principal

  
	
   

  	
   

  
	
   

  	
  BNP PARIBAS, as a
  Documentation Agent

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ STEPHANIE ROGERS

  	
   

  
	
   

  	
   

  	
  Name: Stephanie Rogers

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ GREGG BONARDI

  	
   

  
	
   

  	
   

  	
  Name: Gregg Bonardi

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


142

















 


	
   

  	
  BARCLAYS BANK PLC, as a
  Documentation Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JOHN GIANNONE

  	
   

  
	
   

  	
   

  	
  Name: John Giannone

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
  PNC BANK, NATIONAL
  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ DENISE D. KILLEN

  	
   

  
	
   

  	
   

  	
  Name: Denise D. Killen

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  NATIONAL CITY BANK

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ TOM GURBACH

  	
   

  
	
   

  	
   

  	
  Name: Tom Gurbach

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  GENERAL ELETRIC CAPITAL
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ EARL F. SMITH III

  	
   

  
	
   

  	
   

  	
  Name: Earl F. Smith III

  
	
   

  	
   

  	
  Title: Duly Authorized
  Signatory

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


143

















 


	
   

  	
  COMMERZBANK, AG, NEW
  YORK AND GRAND

  CAYMAN BRANCHES

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ MARIANNE I. MEDORA

  	
   

  
	
   

  	
   

  	
  Name: Marianne I.
  Medora

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ CHARLES W. POLET

  	
   

  
	
   

  	
   

  	
  Name: Charles W. Polet

  
	
   

  	
   

  	
  Title: Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
  BANK HAPOALIM B.M.

  
	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ HELEN H. GATESON

  	
   

  
	
   

  	
   

  	
  Name: Helen H. Gateson

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  UPS CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ JOHN HOLLOWAY

  	
   

  
	
   

  	
   

  	
  Name: John Holloway

  
	
   

  	
   

  	
  Title: Portfolio
  Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


144