EX-10.1






Execution Version




      




Published CUSIP Number:                     



CREDIT AGREEMENT


Dated as of October 1, 2008


among


WILLIS NORTH AMERICA INC.,


as Borrower,


WILLIS GROUP HOLDINGS LIMITED,


as Parent,


BANK OF AMERICA, N.A.,

as Administrative Agent and Swing Line Lender


and


The Other Lenders Party Hereto


JPMORGAN CHASE BANK, N.A.,

SUNTRUST BANK,

and

THE ROYAL BANK OF SCOTLAND PLC,

as

Syndication Agents


BANC OF AMERICA SECURITIES LLC,

J.P. MORGAN SECURITIES INC.,

SUNTRUST ROBINSON HUMPHREY, INC.,

and

THE ROYAL BANK OF SCOTLAND PLC,

as

Book Managers


BANC OF AMERICA SECURITIES LLC,

as

Sole Lead Arranger



      





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	28	 
	1.03 Accounting Terms
	 	 	28	 
	1.04 Rounding
	 	 	29	 
	1.05 Exchange Rates; Currency Equivalents
	 	 	29	 
	1.06 Additional Alternative Currencies
	 	 	29	 
	1.07 Change of Currency
	 	 	30	 
	1.08 Times of Day
	 	 	31	 
	1.09 Annualization
	 	 	31	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND BORROWINGS
	 	 	31	 
	2.01 The Loans
	 	 	31	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	33	 
	2.03 Swing Line Loans
	 	 	36	 
	2.04 Prepayments
	 	 	39	 
	2.05 Termination or Reduction of Commitments
	 	 	41	 
	2.06 Repayment of Loans
	 	 	42	 
	2.07 Interest
	 	 	43	 
	2.08 Fees
	 	 	43	 
	2.09 Computation of Interest and Fees
	 	 	44	 
	2.10 Evidence of Debt
	 	 	45	 
	2.11 Payments Generally; Administrative Agent’s Clawback
	 	 	45	 
	2.12 Sharing of Payments by Lenders
	 	 	47	 
	2.13 Determination of Eurocurrency Rate
	 	 	48	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	48	 
	3.01 Taxes
	 	 	48	 
	3.02 Illegality
	 	 	52	 
	3.03 Inability to Determine Rates
	 	 	53	 
	3.04 Increased Costs; Reserves on Eurocurrency Rate Loans
	 	 	54	 
	3.05 Compensation for Losses
	 	 	56	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	56	 
	3.07 Survival
	 	 	57	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO BORROWINGS
	 	 	57	 
	4.01 Conditions of Initial Borrowing
	 	 	57	 
	4.02 Conditions to all Borrowings
	 	 	60	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	60	 
	5.01 Organization; Powers
	 	 	60	 
	5.02 Authorization; Enforceability
	 	 	61	 
	5.03 Governmental Approvals; No Conflicts
	 	 	61	 
	5.04 Financial Condition; No Material Adverse Change
	 	 	61	 
	5.05 Properties
	 	 	61	 






i









 






	 	 	 	 	 
	 	 	Page	 
	5.06 Litigation and Environmental Matters
	 	 	62	 
	5.07 Compliance with Laws; Absence of Default
	 	 	62	 
	5.08 Investment Company Status
	 	 	62	 
	5.09 Taxes
	 	 	62	 
	5.10 ERISA
	 	 	62	 
	5.11 Disclosure
	 	 	63	 
	5.12 Subsidiaries
	 	 	63	 
	5.13 Solvency
	 	 	63	 
	5.14 Use of Proceeds
	 	 	63	 
	5.15 Pari Passu
	 	 	63	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	64	 
	6.01 Financial Statements; Ratings Change and Other Information
	 	 	64	 
	6.02 Notices of Material Events
	 	 	66	 
	6.03 Existence; Conduct of Business
	 	 	67	 
	6.04 Payment of Taxes
	 	 	67	 
	6.05 Maintenance of Properties; Insurance
	 	 	67	 
	6.06 Books and Records; Inspection Rights
	 	 	67	 
	6.07 Compliance with Laws
	 	 	68	 
	6.08 Use of Proceeds
	 	 	68	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	68	 
	7.01 Subsidiary Indebtedness
	 	 	68	 
	7.02 Liens
	 	 	69	 
	7.03 Investments
	 	 	70	 
	7.04 Fundamental Changes
	 	 	71	 
	7.05 Asset Sales
	 	 	72	 
	7.06 Sale and Leaseback Transactions
	 	 	72	 
	7.07 Restricted Payments
	 	 	73	 
	7.08 Financial Covenants
	 	 	74	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	75	 
	8.01 Events of Default
	 	 	75	 
	8.02 Remedies Upon Event of Default
	 	 	77	 
	8.03 Application of Funds
	 	 	77	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	78	 
	9.01 Appointment and Authority
	 	 	78	 
	9.02 Rights as a Lender
	 	 	78	 
	9.03 Exculpatory Provisions
	 	 	78	 
	9.04 Reliance by Administrative Agent
	 	 	79	 
	9.05 Delegation of Duties
	 	 	79	 
	9.06 Resignation of Administrative Agent
	 	 	79	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	80	 
	9.08 No Other Duties, Etc
	 	 	80	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	81	 
	9.10 Guaranty Matters
	 	 	81	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	81	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	10.01 Amendments, Etc
	 	 	81	 
	10.02 Notices; Effectiveness; Electronic Communications
	 	 	83	 
	10.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	85	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	86	 
	10.05 Payments Set Aside
	 	 	88	 
	10.06 Successors and Assigns
	 	 	88	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	93	 
	10.08 Right of Setoff
	 	 	93	 
	10.09 Interest Rate Limitation
	 	 	94	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	94	 
	10.11 Survival of Representations and Warranties
	 	 	94	 
	10.12 Severability
	 	 	94	 
	10.13 Replacement of Lenders
	 	 	95	 
	10.14 Governing Law; Jurisdiction; Etc
	 	 	95	 
	10.15 Waiver of Jury Trial
	 	 	96	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	97	 
	10.17 Electronic Execution of Assignments and Certain Other Documents
	 	 	97	 
	10.18 USA PATRIOT Act
	 	 	97	 
	10.19 Judgment Currency
	 	 	98	 
	 
	 	 	 	 
	SIGNATURES
	 	 	S-1	 







iii









 








	 	 	 
	SCHEDULES

	 
	 	 
	1.01(a)
	 	Mandatory Cost Formulae                                                                                                                   
	1.01(b)
	 	Guarantors
	1.01(c)
	 	Consolidated EBITDA
	2.01
	 	Commitments and Applicable Percentages
	5.06
	 	Disclosed Matters
	5.12
	 	Subsidiaries
	7.02
	 	Existing Liens
	7.03
	 	Existing Investments
	7.06
	 	Specified Properties
	10.02
	 	Administrative Agent’s Office; Certain Addresses for Notices
	 
	 	 
	EXHIBITS

	 
	 	 
	 
	 	Form of
	 
	 	 
	A-1
	 	Committed Loan Notice
	A-2
	 	Swing Line Loan Notice
	B-1
	 	Dollar Revolving Credit Note
	B-2
	 	Multicurrency Revolving Credit Note
	B-3
	 	Term Note
	C
	 	Compliance Certificate
	D-1
	 	Assignment and Assumption
	D-2
	 	Administrative Questionnaire
	E
	 	Guaranty Agreement
	F-1
	 	Opinion of Adam G. Ciongoli
	F-2
	 	Opinion of Appleby
	F-3
	 	Opinion of Oliver Goodinge







iv









 








CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of October 1, 2008, among
WILLIS NORTH AMERICA INC., a Delaware corporation (the “Borrower”), WILLIS GROUP HOLDINGS
LIMITED, an exempted company under the Companies Act 1981 of Bermuda (the “Parent”), each
lender from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), and BANK OF AMERICA, N.A., as Administrative Agent and Swing Line Lender.



PRELIMINARY STATEMENTS:




     Pursuant to the Merger Agreement dated as of June 7, 2008 (the “Merger Agreement”)
among the Parent, Hermes Acquisition Corp., a Virginia corporation (the “Acquisition
Subsidiary”), and Hilb Rogal & Hobbs Company, a Virginia corporation (the “Acquired
Company”), the Parent, the Acquired Company, and the Acquisition Subsidiary have agreed to
consummate a merger (the “Merger”) in which the Acquired Company will be merged with and
into the Acquisition Subsidiary, with the Acquisition Subsidiary being the surviving corporation.



     The Parent and the Borrower have requested that the Lenders provide to the Borrower a term
loan facility and a revolving credit facility to be made available, among other things and in
addition to other sources, (i) to pay the holders of the Equity Interests (defined below) of the
Acquired Company a portion of the cash consideration for their shares in the Acquired Company, (ii)
to pay transaction fees and expenses, (iii) to refinance the Existing Material Indebtedness
(defined below), (iv) to finance, in part, the Permitted Parent Equity Repurchases (defined below)
and (v) in the case of the revolving credit facility only, for working capital, capital
expenditures, other permitted acquisitions and other lawful corporate purposes.



     In furtherance of the foregoing, the Lenders are willing to make available both the term loan
facility and the revolving credit facility, in each case, on the terms and subject to the
conditions set forth herein. In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:



     “Acquired Company” has the meaning specified in the Preliminary Statements.



     “Acquired EBITDA” means, with respect to any Acquired Entity or Business or any Sold
Entity or Business (any of the foregoing, a “Pro Forma Entity”) for any period, the portion
of Consolidated Net Income for such period attributable to such Pro Forma Entity plus (a)
without duplication and to the extent deducted in determining such portion of Consolidated Net
Income for such Pro Forma Entity, the sum of (i) consolidated interest expense for such period,
(ii) consolidated income tax expense for such period, (iii) all amounts attributable to
depreciation and amortization for such period, (iv) any extraordinary losses and non-recurring
charges for such period, (v) any non-cash charges (including the non-cash portion of pension
expense) for



1









 




such period, (vi) losses on asset sales outside the ordinary course of business for such
period, (vii) restructuring charges or provisions for such period, (viii) any expenses or charges
incurred in connection with any issuance of debt or equity securities for such period and (ix) any
deduction for minority interest expense for such period with respect to a Subsidiary that is not
wholly owned by the Parent (provided, that (A) the amount added to Consolidated Net Income
pursuant to this subclause (ix) for any period shall not exceed 5% of the amount of Consolidated
EBITDA computed in accordance with this definition for such period, and (B) the Indebtedness and
interest expense of such Subsidiary are included in the calculation of Indebtedness and
Consolidated Interest Charges to the same extent as would be required if such Subsidiary were
wholly owned by the Parent), and minus (b) without duplication and to the extent included
in determining such portion of Consolidated Net Income, (i) any extraordinary gains and
non-recurring gains for such period, (ii) any non-cash gains for such period and (iii) any gains on
asset sales outside the ordinary course of business for such period, all determined on a
consolidated basis for such Pro Forma Entity in accordance with GAAP.




     “Acquired Entity or Business” has the meaning assigned to such term in the definition
of “Consolidated EBITDA”.



     “Acquisition Subsidiary” has the meaning specified in the Preliminary Statements.



     “Administrative Agency Fee Letter” means the administrative agency fee letter
agreement, dated as of July 4, 2008, among the Parent, the Borrower, the Administrative Agent and
BAS.



     “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor thereof in such capacity.



     “Administrative Agent’s Office” means, with respect to any currency, the
Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02
with respect to such currency, or such other address or account with respect to such currency as
the Administrative Agent may from time to time notify to the Borrower and the Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in substantially
the form of Exhibit D-2 or any other form approved by the Administrative Agent.



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



     “Aggregate Commitments” means the Commitments of all the Lenders.



     “Aggregate Revolving Credit Commitments” means, at any time, the sum of the Dollar
Revolving Credit Commitments and the Multicurrency Revolving Credit Commitments.



     “Agreement” means this Credit Agreement.



     “Alternative Currency” means each of Euro, Sterling and each other currency (other
than Dollars) that is approved in accordance with Section 1.06.



2









 





     “Alternative Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency at
such time on the basis of the Spot Rate for the purchase of such Alternative Currency with Dollars.



     “Applicable Percentage” means (a) in respect of the Term Loan Facility, with respect
to any Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term
Loan Facility represented by (i) at any time during the Availability Period in respect of the Term
Loan Facility, such Term Lender’s Term Loan Commitment at such time and (ii) thereafter, the
principal amount of such Term Lender’s Term Loans at such time, (b) in respect of the Dollar
Revolving Credit Facility, with respect to any Dollar Revolving Credit Lender at any time, the
percentage (carried out to the ninth decimal place) of the Dollar Revolving Credit Facility
represented by such Dollar Revolving Credit Lender’s Dollar Revolving Credit Commitment at such
time, and (c) in respect of the Multicurrency Revolving Credit Facility, with respect to any
Multicurrency Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal
place) of the Multicurrency Revolving Credit Facility represented by such Multicurrency Revolving
Credit Lender’s Multicurrency Revolving Credit Commitment at such time. If the commitment of each
Lender to make Loans has been terminated pursuant to Section 8.02, or if the applicable
Commitments have expired, then the Applicable Percentage of each Lender in respect of the
applicable Facility shall be determined based on the Applicable Percentage of such Lender in
respect of such Facility most recently in effect, giving effect to any subsequent assignments. The
initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite the
name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which
such Lender becomes a party hereto, as applicable.



     “Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Debt Rating as set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate
	Pricing	 	Debt Ratings	 	 	 	 	 	Eurocurrency	 	Base
	Level	 	S&P/Moody’s	 	Commitment Fee	 	Rate+	 	Rate+
	 	1	 	 	BBB+/Baa1 or better
	 	 	20.0	 	 	 	175.0	 	 	 	75.0	 
	 	2	 	 	BBB/Baa2
	 	 	25.0	 	 	 	200.0	 	 	 	100.0	 
	 	3	 	 	BBB-/Baa3
	 	 	37.5	 	 	 	225.0	 	 	 	125.0	 
	 	4	 	 	BBB-/Ba1
	 	 	50.0	 	 	 	275.0	 	 	 	175.0	 
	 	 	 	 	or

BB+/Baa3
	 	 	 	 	 	 	 	 	 	 	 	 
	 	5	 	 	BB+/Ba1 or worse
	 	 	50.0	 	 	 	350.0	 	 	 	250.0	 







     “Debt Rating” means, as of any date of determination, the rating as determined by
either S&P or Moody’s (collectively, the “Debt Ratings”), as applicable, of the Borrower’s
non-credit-enhanced, senior unsecured long-term debt; provided that (a) if the respective
Debt Ratings issued by foregoing rating agencies differ by one level, other than as expressly
provided in Pricing Level 4 above, then the Pricing Level for the higher of such Debt Ratings shall
apply (with the Debt Rating for Pricing Level 1 being the highest and the Debt Rating for Pricing
Level 5 being the lowest); (b) if there is a split in Debt Ratings of more than one level, then the
Pricing



3









 




Level that is one level lower than the Pricing Level of the higher Debt Rating shall apply;
(c) if the Borrower has only one Debt Rating, the Pricing Level for such Debt Rating shall apply;
(d) if the Borrower does not have any Debt Rating (other than as a result of both S&P and Moody’s
ceasing to be engaged in the business of rating debt, in which case the provisions of the next
sentence shall apply), then Pricing Level 5 will apply. If either the rating system of S&P or
Moody’s shall change in a manner that directly and materially impacts the pricing grid set forth
above, or if both S&P and Moody’s shall cease to be engaged in the business of rating debt, then in
either such case the Parent, the Borrower and the Lenders shall negotiate in good faith to amend
the references to Debt Ratings in the table above to reflect such changed rating system or to
replace such rating system with an alternative measurement scheme, as applicable, and pending the
effectiveness of any such amendment, the ratings of such rating agency (or both rating agencies, if
applicable) most recently in effect prior to such change or cessation shall be employed in
determining the Applicable Rate.




     Initially, the Applicable Rate shall be determined based upon the Debt Rating specified in the
certificate delivered pursuant to Section 4.01(a)(ix)(A). Thereafter, each change in the
Applicable Rate resulting from a publicly announced change in the Debt Rating (other than as a
result of a change in the rating system of S&P or Moody’s) shall be effective during the period
commencing on the date of the public announcement thereof, irrespective of when notice of such
change shall have been furnished by the Borrower to the Administrative Agent and the Lenders
pursuant to Section 6.01(f) or otherwise, and ending on the date immediately preceding the
effective date of the next such change.



     “Applicable Time” means, with respect to any borrowings and payments in any
Alternative Currency, the local time in the place of settlement for such Alternative Currency as
may be determined by the Administrative Agent to be necessary for timely settlement on the relevant
date in accordance with normal banking procedures in the place of payment.



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



     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit
D-1 or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” in respect of a sale and leaseback transaction means, as
of the time of determination, the present value (discounted at the implicit interest rate for such
sale and leaseback transaction, compounded annually) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in such sale and leaseback
transaction (including any period for which such lease has been extended).



4









 





     “Audited Financial Statements” means the audited consolidated balance sheet of the
Parent and its Subsidiaries for the fiscal year ended December 31, 2007, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Parent and its Subsidiaries, including the notes thereto.



     “Availability Period” means (a) with respect to both of the Revolving Credit
Facilities, the period from and including the Closing Date to the earliest of (i) the Maturity
Date, (ii) the date of termination of the Dollar Revolving Credit Commitments or the Multicurrency
Revolving Credit Commitments, as applicable, pursuant to Section 2.05, and (iii) the date
of termination of the commitment of each Lender to make Loans pursuant to Section 8.02, and
(b) with respect to the Term Loan Facility, the period from and including the Closing Date to the
earliest of (i) the date that is one year after the Closing Date, (ii) the date that the aggregate
maximum principal amount of the Term Loan has been drawn, (iii) the date of termination of the Term
Loan Commitments pursuant to Section 2.05, and (iv) the date of termination of the
commitment of each Term Lender to make Term Loans pursuant to Section 8.02;
provided that if any amount of either the Dollar Revolving Credit Facility or the
Multicurrency Revolving Credit Facility is drawn on the Closing Date, the Availability Period for
the Term Loan Facility shall terminate with the initial drawing of the Term Loan Facility on the
Closing Date.



     “Bank of America” means Bank of America, N.A. and its successors.



     “BAS” means Banc of America Securities LLC and its successors.



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



     “Base Rate Loan” means a Multicurrency Revolving Credit Loan that bears interest based
on the Base Rate. All Base Rate Loans shall be denominated in Dollars.



     “Book Managers” means, individually or collectively, each of BAS, J.P. Morgan
Securities Inc., SunTrust Robinson Humphrey, Inc., and The Royal Bank of Scotland plc, each in its
capacity as a joint book manager for the Facilities.



     “Borrower” has the meaning specified in the introductory paragraph hereto.



     “Borrowing” means a Dollar Revolving Credit Borrowing, a Multicurrency Revolving
Credit Borrowing, a Term Loan Borrowing or a Swing Line Borrowing, as the context may require.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state



5









 







where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is
located and:



     (a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect
of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to
this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings
in deposits in Dollars are conducted by and between banks in the London interbank eurodollar
market;



     (b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of
any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET Day;



     (c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, means any such day on which dealings in
deposits in the relevant currency are conducted by and between banks in the London or other
applicable offshore interbank market for such currency; and



     (d) if such day relates to any fundings, disbursements, settlements and payments in a currency
other than Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a currency other
than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be
carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan (other than
any interest rate settings), means any such day on which banks are open for foreign exchange
business in the principal financial center of the country of such currency.



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



     “Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) of Equity Interests representing more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Parent; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the Parent by Persons
who were neither (i) nominated by the board of directors of the Borrower or the Parent nor (ii)
appointed by directors so nominated; or (c) the failure of the Parent to own, directly or
indirectly, at least 80% of the outstanding Equity Interests of the Borrower.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof



6









 







by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.



     “Code” means the Internal Revenue Code of 1986.



     “Commitment” means a Term Loan Commitment, a Dollar Revolving Credit Commitment or a
Multicurrency Revolving Credit Commitment, as the context may require.



     “Committed Loan Notice” means a notice of (a) a Term Borrowing, (b) a Dollar Revolving
Credit Borrowing, (c) a Multicurrency Revolving Credit Borrowing, (d) a conversion of Loans from
one Type to the other, or (e) a continuation of Eurocurrency Rate Loans, pursuant to Section
2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
C.



     “Consolidated Adjusted EBITDA” means, for any period, for the Parent and its
Subsidiaries on a consolidated basis, the difference of (a) Consolidated EBITDA for such period,
minus (b) taxes paid in cash during such period, minus (c) ordinary (as opposed to
special) dividends paid in cash during such period.



     “Consolidated EBITDA” means, for any period, Consolidated Net Income for such period
plus (a) without duplication and to the extent deducted in determining Consolidated Net
Income, the sum of (i) consolidated interest expense for such period, (ii) consolidated
income tax expense for such period, (iii) all amounts attributable to depreciation and amortization
for such period, (iv) any extraordinary losses and nonrecurring charges for such period, (v) any
non-cash charges (including the non-cash portion of pension expense) for such period, (vi) losses
on asset sales outside the ordinary course of business for such period, (vii) restructuring charges
or provisions for such period, (viii) any costs incurred in connection with (1) acquisitions other
than the Merger (including in connection with closure and/or consolidation of facilities) in an
aggregate amount with respect to any such acquisition not to exceed 5% of the aggregate
consideration for such acquisition and (2) the Merger in an aggregate amount (including amounts
added in arriving at the Consolidated EBITDA amounts set forth on Schedule 1.01(c), if any)
not to exceed $50,000,000, (ix) any expenses or charges incurred in connection with any issuance of
debt or equity securities for such period and (x) any deduction for minority interest expense for
such period with respect to a Subsidiary that is not wholly owned by the Parent (provided,
that (A) the amount added to Consolidated Net Income pursuant to this subclause (x) for any period
shall not exceed 5% of the amount of Consolidated EBITDA computed in accordance with this
definition for such period, and (B) the Indebtedness and interest expense of such Subsidiary are
included in the calculation of Indebtedness and Consolidated Interest Charges to the same extent as
would be required if such Subsidiary were wholly owned by the Parent) and minus (b) without
duplication and to the extent included in determining such Consolidated Net Income, (i) any
extraordinary gains and non-recurring gains for such period, (ii) any non-cash gains for such
period and (iii) any gains on asset sales outside the ordinary course of business for such period,
all determined on a consolidated basis in accordance with GAAP; provided that for purposes
of



7









 







determining the Consolidated Leverage Ratio only, (A) there shall be included in determining
the Consolidated EBITDA for any period the Acquired EBITDA of any Person, property, business or
asset acquired outside the ordinary course of business during such period by the Parent or a
Subsidiary, to the extent not subsequently sold, transferred or otherwise disposed of by the Parent
or a Subsidiary during such period (each such Person, property, business or asset acquired and not
subsequently so disposed of, an “Acquired Entity or Business”), based on the actual
Acquired EBITDA of such Acquired Entity or Business for such period (including the portion thereof
occurring prior to such acquisition) and (B) there shall be excluded in determining Consolidated
EBITDA for any period the Acquired EBITDA of any Person, property, business or asset sold,
transferred or otherwise disposed of outside the ordinary course of business by the Parent or any
Subsidiary during such period (each such Person, property, business or asset so sold or disposed
of, a “Sold Entity or Business”) based on the actual Acquired EBITDA of such Sold Entity or
Business for such period (including the portion thereof occurring prior to such sale, transfer or
disposition). For purposes of this Agreement, Consolidated EBITDA for the Parent and its
Subsidiaries for each fiscal quarter during the twelve (12) months preceding the Closing Date shall
be deemed to be the amounts set forth on the “Consolidated EBITDA Schedule,” attached
hereto as Schedule 1.01(c) for each such fiscal quarter.



     “Consolidated Fixed Charge Coverage Ratio” means, on any date, the ratio of (a)
Consolidated Adjusted EBITDA for the period of four consecutive fiscal quarters of the Parent ended
on such date to (b) Consolidated Fixed Charges for such period; provided that for the
measurement of such ratio at any applicable time from the Closing Date through and including the
last day of the fiscal quarter of the Parent ending closest to June 30, 2009, Consolidated Fixed
Charges shall be measured in accordance with Section 1.09.



     “Consolidated Fixed Charges” means, for any period, for the Parent and its
Subsidiaries on a consolidated basis, the sum of (a) Consolidated Interest Charges for such period,
plus (b) all payments of principal on Indebtedness of the Parent and its Subsidiaries
scheduled to be made in cash during such period (whether or not so made, and expressly excluding
any voluntary, unscheduled prepayments or repayments thereof).



     “Consolidated Funded Indebtedness” means, as of any date of determination, the sum of
(a) the aggregate principal amount of Indebtedness of the Parent and its Subsidiaries outstanding
as of such date, in the amount that would be reflected on the balance sheet of the Parent and its
Subsidiaries prepared as of such date on a consolidated basis in accordance with GAAP, plus
(b) the aggregate principal amount of obligations for borrowed money that are outstanding as of
such date of Persons other than the Parent and its Subsidiaries, to the extent Guaranteed by the
Parent or any of its Subsidiaries.



     “Consolidated Interest Charges” means, for any period, for the Parent and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt discount,
fees, charges and related expenses of the Parent and its Subsidiaries in connection with borrowed
money (including capitalized interest) or in connection with the deferred purchase price of assets,
in each case to the extent treated as interest in accordance with GAAP, and (b) the portion of rent
expense of the Parent and its Subsidiaries with respect to such period under capital leases that is
treated as interest in accordance with GAAP.



8









 





     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the
four fiscal quarters most recently ended.



     “Consolidated Net Income” means, for any period, the net income or loss of the Parent
and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded from such net income or loss the income or loss of
any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with
the Parent or any Subsidiary or the date that such Person’s assets are acquired by the Parent or
any Subsidiary.



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



     “Cost of Funds Rate” means, as of any day, the rate of interest determined by the
Administrative Agent to be representative of its or the applicable Lenders’ cost of funds, as
applicable, to extend or maintain credit under this Agreement on such day.



     “Debt Rating” has the meaning specified in the definition of “Applicable Rate.”



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would, unless cured or waived, become
an Event of Default.



     “Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the
Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum;
provided that with respect to a Eurocurrency Rate Loan (or a Loan bearing interest at the
Cost of Funds Rate), the Default Rate shall be an interest rate equal to the interest rate
(including any Applicable Rate and any Mandatory Cost) otherwise applicable to such Loan
plus 2% per annum.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Term Loans, the Dollar Revolving Credit Loans, the Multicurrency Revolving Credit Loans or
participations in Swing Line Loans required to be funded by it hereunder within one Business Day of
the date required to be funded by it hereunder unless such failure has been cured, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when due, unless the
subject of a good faith dispute or unless such failure has been cured, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.



9









 





     “Disclosed Matters ” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 5.06.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith.



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



     “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency,
the equivalent amount thereof in Dollars as determined by the Administrative Agent at such time on
the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the
purchase of Dollars with such Alternative Currency.



     “Dollar Revolving Credit Borrowing” means a borrowing consisting of simultaneous
Dollar Revolving Credit Loans having the same Interest Period made by each of the Dollar Revolving
Credit Lenders pursuant to Section 2.01(b).



     “Dollar Revolving Credit Commitment” means, as to each Dollar Revolving Credit Lender,
its obligation to make Dollar Revolving Credit Loans to the Borrower pursuant to Section
2.01(b) in an aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender’s name on Schedule 2.01 under the caption “Dollar Revolving
Credit Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such
Dollar Revolving Credit Lender becomes a party hereto, as applicable, as such amount may be
adjusted from time to time in accordance with this Agreement. The initial aggregate amount of the
Dollar Revolving Credit Commitments on the Closing Date is $15,000,000.



     “Dollar Revolving Credit Facility” means, at any time, the aggregate amount of the
Dollar Revolving Credit Lenders’ Dollar Revolving Credit Commitments at such time and the
provisions herein related to the Dollar Revolving Credit Loans.



     “Dollar Revolving Credit Lender” means, at any time, any Lender that either (a) has a
Dollar Revolving Credit Commitment or (b) holds a Dollar Revolving Credit Loan at such time.



     “Dollar Revolving Credit Loan” has the meaning specified in Section 2.01(b).



     “Dollar Revolving Credit Note” means a promissory note made by the Borrower in favor
of a Dollar Revolving Credit Lender evidencing Dollar Revolving Credit Loans made by such Dollar
Revolving Credit Lender, substantially in the form of Exhibit B-1.



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 10.06(b)(iii)).



10









 





     “EMU” means the economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam
Treaty of 1998.



     “EMU Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Parent, any other Loan Party or any of their respective Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure
to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Parent, is treated as a single employer under Section 414(b) or (c) of the Code
(and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Parent or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Parent or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Pension Plan



11









 







amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Parent or any ERISA Affiliate.



     “Euro” and “EUR” mean the lawful currency of the Participating Member States
introduced in accordance with the EMU Legislation.



     “Eurocurrency Rate” means, for any Interest Period with respect to a Eurocurrency Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing quotations of BBA LIBOR
as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for deposits in the
relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for any reason (as provided in
Section 2.13), then the “Eurocurrency Rate” for such Interest Period shall be the rate per
annum determined as the average of the Quoted Rates supplied to the Administrative Agent by the
Reference Banks in accordance with Section 2.13.



     “Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on the
Eurocurrency Rate. Eurocurrency Rate Loans may be denominated in Dollars or, with respect only to
Multicurrency Revolving Credit Loans, in an Alternative Currency. All Loans denominated in an
Alternative Currency must be Eurocurrency Rate Loans that are Multicurrency Revolving Credit Loans.



     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) Taxes imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the Laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable Lending Office is located,
(b) any branch profits taxes imposed by the United States or any similar tax imposed by any other
jurisdiction in which the Borrower or the recipient is located, (c) any backup withholding tax that
is required by the Code to be withheld from amounts payable to a Lender that has failed to comply
with clause (A) of Section 3.01(e)(ii), and (d) in the case of a Foreign Lender (other than
an assignee pursuant to a request by the Borrower under Section 10.13), any withholding tax
that (i) is required to be imposed on amounts payable to such Foreign Lender pursuant to the Laws
in force at the time such Foreign Lender becomes a party hereto (or designates a new Lending
Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new Lending Office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 3.01(a)(ii) or (iii).



12









 




Notwithstanding anything to the contrary contained in this definition, “Excluded Taxes” shall
not include any withholding tax imposed at any time on payments made by or on behalf of a Foreign
Obligor to any Lender hereunder or under any other Loan Document; provided that such Lender
shall have complied with Section 3.01(e)(i).




     “Existing Material Indebtedness” means the Indebtedness under (a) that certain Credit
Agreement dated as of October 17, 2005 among the Parent, the Borrower, Bank of America, as
administrative agent, and a syndicate of lenders, (b) that certain Credit Agreement dated as of
April 26, 2006 among the Acquired Company, as borrower, Bank of America, as administrative agent,
and a syndicate of lenders, and (c) those certain 6.44% Senior Secured Series A Notes of the
Acquired Company due 2017.



     “Extraordinary Receipt” means any cash received by or paid to or for the account of
any Person not in the ordinary course of business as proceeds of insurance (excluding proceeds of
business interruption insurance to the extent such proceeds constitute compensation for lost
earnings) and indemnity payments.



     “Facility” means, individually or collectively as the context may indicate, any or all
of the Term Loan Facility, the Dollar Revolving Credit Facility or the Multicurrency Revolving
Credit Facility.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by the Administrative
Agent.



     “Fee Letters” means, individually or collectively, each of (a) the Joint Fee Letter
and (b) the Administrative Agency Fee Letter.



     “Financial Officer” means, with respect to the Parent or the Borrower, the chief
executive officer, chief financial officer, principal accounting officer, treasurer or controller
thereof, as applicable.



     “Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes. For purposes of this
definition, the United States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.



     “Foreign Obligor” means a Loan Party that is a Foreign Subsidiary.



     “Foreign Subsidiary” means any Subsidiary of the Parent that is organized under the
laws of a jurisdiction other than the United States, a State thereof or the District of Columbia.



13









 





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



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



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be in general use by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



     “Granting Lender” has the meaning specified in Section 10.06(g).



     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the
term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of
business. The amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as
a verb has a corresponding meaning.



14









 





     “Guaranty Agreement” means the Guaranty Agreement, substantially in the form of
Exhibit E, among the Borrower, the Guarantors and the Administrative Agent.



     “Guarantors” means (a) the Parent and each of its Subsidiaries identified on
Schedule 1.01(b) and (b) each other Subsidiary that, at the option of the Parent, becomes a
party to the Guaranty Agreement as a Guarantor thereunder.



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



     “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of
such Person upon which interest charges are customarily paid, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the deferred purchase price of property or
services (excluding current accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed (the amount of such
Indebtedness shall be deemed to be an amount equal to the stated or determinable amount of the
related primary obligation, or portion thereof, in respect of which such Lien is granted or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the Person who granted such Lien in good faith), (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations,
contingent or otherwise, of such Person as an account party in respect of letters of credit and
letters of guaranty and (j) all obligations, contingent or otherwise, of such Person in respect of
bankers’ acceptances. For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which such Person is a general partner or a joint
venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of
any net obligation under any Swap Contract, to the extent otherwise constituting Indebtedness, on
any date shall be deemed to be the Swap Termination Value thereof as of such date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes and Other Taxes.



     “Indemnitees” has the meaning specified in Section 10.04(b).



     “Information” has the meaning specified in Section 10.07.



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date; provided
that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates
that fall



15









 







every three months after the beginning of such Interest Period shall also be Interest Payment
Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of
each March, June, September and December and the Maturity Date.



     “Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on
the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency
Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the
Borrower in its Committed Loan Notice; provided that:




     (i) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day, unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;




     (ii) any Interest Period 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 the calendar month at the
end of such Interest Period; and




     (iii) no Interest Period shall extend beyond the Maturity Date.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of any Equity Interests
of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt
of, or purchase or other acquisition of any other debt or equity participation or interest in,
another Person, including any partnership or joint venture interest in such other Person and any
arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) the
purchase or other acquisition (in one transaction or a series of transactions) of assets of another
Person that constitute a business unit. For purposes of covenant compliance, the amount of any
Investment shall be the amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.



     “IRS” means the United States Internal Revenue Service.



     “Joint Fee Letter” means the joint fee letter agreement, dated as of July 4, 2008,
among the Parent, the Borrower, the Administrative Agent, JPMorgan Chase Bank, N.A., SunTrust Bank,
The Royal Bank of Scotland plc and the Book Managers.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.



16









 





     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



     “Loan” means an extension of credit by a Lender to the Borrower under Article
II in the form of a Term Loan, a Dollar Revolving Credit Loan, a Multicurrency Revolving Credit
Loan or a Swing Line Loan.



     “Loan Documents” means this Agreement, each Note, the Fee Letters and the Guaranty
Agreement.



     “Loan Parties” means, collectively, the Borrower and the Guarantors.



     “Mandatory Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.01(a).



     “Marketing Information” means (a) the form 10-K of the Parent filed with the SEC for
the fiscal year ended December 31, 2007, (b) the form 10-Q of the Parent filed with the SEC for the
period ended March 31, 2008, (c) rating agency reports and presentations provided or made prior to
the Closing Date, and (d) the Confidential Information Memorandum of the Borrower and the Parent
dated “July 2008” and provided to the Lenders in connection with the syndication of the Facilities.



     “Material Acquisition” means an acquisition by the Parent or any of its Subsidiaries
of any Person, property, business or asset outside the ordinary course of business for total
consideration in excess of $25,000,000.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the business, financial position, property or results of operations of the
Parent and its Subsidiaries taken as a whole; (b) a material impairment of the ability of any Loan
Party to perform its obligations under any Loan Document to which it is a party; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party
of any Loan Document to which it is a party.



     “Material Indebtedness” means Indebtedness (other than the Loans) of any one or more
of the Parent and its Subsidiaries in an aggregate principal amount exceeding $30,000,000.



     “Material Swap Obligations” means obligations in respect of one or more Swap Contracts
with an aggregate Swap Termination Value exceeding $30,000,000.



17









 





     “Maturity Date” means, with respect to the Dollar Revolving Credit Facility, the
Multicurrency Revolving Credit Facility and the Term Loan Facility, October 1, 2013;
provided that, in each case, if such date is not a Business Day, the Maturity Date shall be
the next preceding Business Day.



     “Merger” has the meaning specified in the Preliminary Statements.



     “Merger Agreement” has the meaning specified in the Preliminary Statements.



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



     “Multicurrency Revolving Credit Borrowing” means a borrowing consisting of
simultaneous Multicurrency Revolving Credit Loans of the same Type, in the same currency and, in
the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the
Multicurrency Revolving Credit Lenders pursuant to Section 2.01(c).



     “Multicurrency Revolving Credit Commitment” means, as to each Multicurrency Revolving
Credit Lender, its obligation to (a) make Multicurrency Revolving Credit Loans to the Borrower
pursuant to Section 2.01(c) and (b) purchase participations in Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite
such Lender’s name on Schedule 2.01 under the caption “Multicurrency Revolving Credit
Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such
Multicurrency Revolving Credit Lender becomes a party hereto, as applicable, as such amount may be
adjusted from time to time in accordance with this Agreement. The initial aggregate amount of the
Multicurrency Revolving Credit Commitments on the Closing Date is $285,000,000.



     “Multicurrency Revolving Credit Facility” means, at any time, the aggregate amount of
the Multicurrency Revolving Credit Lenders’ Multicurrency Revolving Credit Commitments at such time
and the provisions herein related to the Multicurrency Revolving Credit Loans and Swing Line Loans.



     “Multicurrency Revolving Credit Lender” means, at any time, any Lender that either (a)
has a Multicurrency Revolving Credit Commitment or (b) holds a Multicurrency Revolving Credit Loan
at such time.



     “Multicurrency Revolving Credit Loan” has the meaning specified in Section
2.01(c).



     “Multicurrency Revolving Credit Note” means a promissory note made by the Borrower in
favor of a Multicurrency Revolving Credit Lender evidencing Multicurrency Revolving Credit Loans
made by such Multicurrency Revolving Credit Lender, substantially in the form of Exhibit
B-2.



     “Multiemployer Plan” means any employee benefit plan as defined in Section 4001(a)(3)
of ERISA, to which the Parent or any ERISA Affiliate makes or is obligated to make contributions,
or during the preceding five plan years, has made or been obligated to make contributions
(excluding any foreign plans of Parent or any of its ERISA Affiliates).



18









 





     “Net Cash Proceeds” means, with respect to any Disposition by the Parent or any of its
Subsidiaries the excess, if any, of (i) the sum of cash and cash equivalents received in connection
with such transaction (including any cash or cash equivalents received by way of deferred payment
pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so
received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the
applicable asset and that is required to be repaid in connection with such transaction (other than
Indebtedness under the Loan Documents), (B) the reasonable and customary fees, commissions,
out-of-pocket expenses and other costs paid or incurred by the Parent or any Subsidiary in
connection with such transaction, (C) all taxes paid or reasonably estimated to be actually payable
as of the date of the relevant transaction as a result of any gain recognized in connection
therewith; provided that, if the amount of any estimated taxes pursuant to subclause (C)
exceeds the amount of taxes actually required to be paid in cash in respect of such Disposition,
the aggregate amount of such excess shall constitute Net Cash Proceeds, and (D) the amount of any
reasonable reserve established in accordance with GAAP against any liabilities (other than any
taxes deducted pursuant to clause (C)) (x) associated with the assets that are the subject of such
Disposition and (y) retained by the Parent or any of its Subsidiaries; provided that the
amount of any subsequent reduction of such reserve (other than in connection with a payment in
respect of any such liability) shall be deemed to be Net Cash Proceeds.



     “Net Worth” means, as of any date, (a) the amount of total assets of the Parent and
its Subsidiaries minus (b) the amount of total liabilities of the Parent and its
Subsidiaries, in each case, that would be reflected on a balance sheet prepared as of such date on
a consolidated basis in accordance with GAAP.



     “Note” means a Term Loan Note, a Dollar Revolving Credit Note or a Multicurrency
Revolving Credit Note, as the context may require.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any
Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent,
due or to become due, now existing or hereafter arising and including interest and fees with
respect thereto that accrue after the commencement by or against any Loan Party or any Affiliate
thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



19









 





     “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.



     “Outstanding Amount” means, with respect to Term Loans, Dollar Revolving Credit Loans,
Multicurrency Revolving Credit Loans and Swing Line Loans on any date, the aggregate outstanding
principal amount thereof after giving effect to any borrowings and prepayments or repayments of
Term Loans, Dollar Revolving Credit Loans, Multicurrency Revolving Credit Loans and Swing Line
Loans, as the case may be, occurring on such date.



     “Overnight Rate” means, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation, and (b)
with respect to any amount denominated in an Alternative Currency, the rate of interest per annum
at which overnight deposits in the applicable Alternative Currency, in an amount approximately
equal to the amount with respect to which such rate is being determined, would be offered for such
day by a branch or Affiliate of Bank of America in the applicable offshore interbank market for
such currency to major banks in such interbank market.



     “Parent” has the meaning specified in the introductory paragraph hereto.



     “Parent and Borrower Materials” has the meaning specified in Section 6.01.



     “Participant” has the meaning specified in Section 10.06(d).



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



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



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Parent or any ERISA Affiliate or to which the Parent or any ERISA
Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years (excluding any foreign pension plans of Parent or any of its
ERISA Affiliates).



     “Permitted Acquisitions” means the purchase or other acquisition of all of the Equity
Interests in, or all or substantially all of the property of, or a business unit of, any Person
that, upon the consummation thereof, will be wholly-owned directly by the Parent or one or more of
its wholly-owned Subsidiaries (including as a result of a merger or consolidation), in each case so
long as:




     (a) (i) the Person to be (or the property of which is to be) so purchased or otherwise
acquired shall not object to such acquisition and (ii) the lines of business of the Person
to be (or the property of which is to be) so purchased or otherwise acquired shall



20









 






be substantially the same as, reasonably related or complementary to, or a reasonable
extension of, the lines of business of one or more of the principal businesses of the Parent
and its Subsidiaries;




     (b) such purchase or other acquisition shall not include or result in any contingent
liabilities that could reasonably be expected to be material to the business, financial
condition or operations of the Parent and its Subsidiaries, taken as a whole (as determined
in good faith by the board of directors (or the persons performing similar functions) of the
Parent or such Subsidiary if the board of directors is otherwise approving such transaction
and, in each other case, by a Responsible Officer);




     (c) the total cash and noncash consideration (including the fair market value of all
Equity Interests issued or transferred to the sellers thereof, all indemnities, earnouts and
other contingent payment obligations to, and the aggregate amounts paid or to be paid under
noncompete, consulting and other affiliated agreements with, the sellers thereof, all
write-downs of property and reserves for liabilities with respect thereto and all
assumptions of debt, liabilities and other obligations in connection therewith) paid by or
on behalf of the Borrower and its Subsidiaries for any such purchase or other acquisition,
when aggregated with all other Investments made pursuant to Section 7.03(g), shall
not exceed the limits set forth in Section 7.03(g);




     (d) (i) immediately before and immediately after giving pro forma effect to any such
purchase or other acquisition, no Default shall have occurred and be continuing and (ii)
immediately after giving effect to such purchase or other acquisition, the Parent and its
Subsidiaries shall be in pro forma compliance with all of the covenants set forth in
Section 7.08, such compliance to be determined on the basis of the financial
information most recently delivered to the Administrative Agent and the Lenders pursuant to
Section 6.01(a) or (b) as though such purchase or other acquisition had been
consummated as of the first day of the fiscal period covered thereby; and




     (e) if the total consideration for such purchase or other acquisition shall be greater
than (i) with respect to Investments permitted under the proviso of Section 7.03(g),
$100,000,000 and (ii) with respect to all other purchases or acquisitions, $25,000,000, then
the Borrower shall have delivered to the Administrative Agent and each Lender, at least five
Business Days prior to the date on which any such purchase or other acquisition is to be
consummated, a certificate of a Responsible Officer, in form and substance reasonably
satisfactory to the Administrative Agent and the Required Lenders, certifying that all of
the requirements set forth in this definition, as well as the total Investment limitation
set forth in Section 7.03(g), have been satisfied or will be satisfied on or prior
to the consummation of such purchase or other acquisition.



     “Permitted Encumbrances” means:



     (a) Liens imposed by law for taxes that are not yet due or are being contested in compliance
with Section 6.04;



21









 





     (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business;



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



     (d) deposits and other Liens (limited solely to Liens on consideration owing under the
contracts and other like obligations the performance of which is secured thereby) to secure the
performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case in the ordinary course of
business;



     (e) judgment liens in respect of judgments that do not constitute an Event of Default under
Section 8.01(i); and



     (f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected property or interfere with
the ordinary conduct of business of the Parent or any Subsidiary;



     provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.



     “Permitted Parent Equity Repurchases” has the meaning specified in Section
7.07(e).



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



     “Platform” has the meaning specified in Section 6.01.



     “Public Lender” has the meaning specified in Section 6.01.



     “Quotation Day” in respect of the determination of the Eurocurrency Rate for any
Interest Period (a) for any Borrowing, conversion or continuation in Dollars or any Alternative
Currency (other than Sterling), means the day on which quotations would normally be given by prime
banks in the London interbank market for deposits in the currency in which such Borrowing,
conversion or continuation is denominated for delivery on the first day of such Interest Period;
provided that if quotations would normally be given on more than one date, the Quotation
Day for such Interest Period shall be the last of such dates, and (b) for any Borrowing, conversion
or continuation denominated in Sterling, means the first day of such Interest Period.



     “Quoted Rate” means, with respect to any Borrowing, conversion or continuation, the
rate at which deposits in the relevant currency for delivery on the first day of the relevant
Interest Period in Same Day Funds in the approximate amount of the Eurocurrency Rate Loan being
made, converted or continued are offered by the applicable Reference Bank in the London interbank
market at 11:00 a.m., London time (in the case of Loans denominated in Dollars or an Alternative
Currency other than Euro) or the European interbank market at 11:00 a.m., Brussels time (in the
case of Loans denominated in Euro), as applicable, in each case, on the Quotation



22









 







Day for the currency in which such Loan is denominated prior to the commencement of such
Interest Period.



     “Reference Banks” means Bank of America, JPMorgan Chase Bank, N.A., SunTrust Bank and
The Royal Bank of Scotland plc.



     “Register” has the meaning specified in Section 10.06(c).



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



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice requirement has been waived under the applicable
regulations.



     “Request for Credit Extension” means (a) with respect to a Term Borrowing, a Dollar
Revolving Credit Borrowing, a Multicurrency Revolving Credit Borrowing, a conversion of
Multicurrency Revolving Credit Loans from one Type to the other, or a continuation of Eurocurrency
Rate Loans, a Committed Loan Notice, and (b) with respect to a Swing Line Loan, a Swing Line Loan
Notice.



     “Required Lenders” means, as of any date of determination, Lenders holding, as of such
date, more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each
Multicurrency Revolving Credit Lender’s risk participation and funded participation in Swing Line
Loans being deemed “held” by such Multicurrency Revolving Credit Lender for purposes of this
definition), (b) aggregate unused Dollar Revolving Credit Commitments, (c) aggregate unused
Multicurrency Revolving Credit Commitments and (d) aggregate unused and unexpired Term Loan
Commitments; provided that the unused Commitments of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making
a determination of Required Lenders.



     “Required Mandatory Prepayment Amount” means, with respect to any prepayment required
by Section 2.04(c)(i) or (ii), the lesser of (a) 100% of the amount of any
Extraordinary Receipts or of the Net Cash Proceeds from any Disposition giving rise to the required
prepayment or (b) the amount necessary so that, after giving pro forma effect to such prepayment,
the Consolidated Leverage Ratio is no greater than 2.50 to 1.00.



     “Required Dollar Revolving Lenders” means, as of any date of determination, Dollar
Revolving Credit Lenders holding, as of such date, more than 50% of the sum of the (a) Total Dollar
Revolving Credit Outstandings and (b) aggregate unused Dollar Revolving Credit Commitments;
provided that the unused Dollar Revolving Credit Commitment of, and the portion of the
Total Dollar Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Dollar Revolving Lenders.



     “Required Multicurrency Revolving Lenders” means, as of any date of determination,
Multicurrency Revolving Credit Lenders holding, as of such date, more than 50% of the sum of



23









 







the (a) Total Multicurrency Revolving Credit Outstandings and (b) aggregate unused
Multicurrency Revolving Credit Commitments; provided that the unused Multicurrency
Revolving Credit Commitment of, and the portion of the Total Multicurrency Revolving Credit
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making
a determination of Required Multicurrency Revolving Lenders.



     “Required Term Loan Lenders” means, as of any date of determination, Term Lenders
holding, as of such date, more than 50% of the sum of the (a) Total Term Loan Outstandings and (b)
aggregate unused and unexpired Term Commitments; provided that the unused and unexpired
Term Commitment of, and the portion of the Term Loan Facility held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of Required Term Loan
Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer, controller or (to the extent such Person is permitted to
take any applicable action pursuant to the Organization Documents of such Loan Party) director of a
Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity Interest of the
Parent or any Subsidiary, or any payment (whether in cash, securities or other property), including
any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on
account of any return of capital to the Parent’s or the Borrower’s stockholders, partners or
members (or the equivalent Person thereof).



     “Revaluation Date” means, with respect to any Loan, each of the following: (a) each
date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency, (b) each
date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency pursuant
to Section 2.02, and (c) such other dates on which an Alternative Currency Equivalent is
required to be determined hereunder.



     “Revolving Credit Facilities” means the Dollar Revolving Credit Facility and the
Multicurrency Revolving Credit Facility.



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



     “Same Day Funds” means (a) with respect to disbursements and payments in Dollars,
immediately available funds, and (b) with respect to disbursements and payments in an Alternative
Currency, same day or other funds as may be determined by the Administrative Agent to be customary
in the place of disbursement or payment for the settlement of international banking transactions in
the relevant Alternative Currency.



24









 





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



     “Sold Entity or Business” has the meaning assigned to such term in the definition of
“Consolidated EBITDA”.



     “SPC” has the meaning specified in Section 10.06(g).



     “Special Notice Currency” means at any time an Alternative Currency, other than the
currency of a country that is a member of the Organization for Economic Cooperation and Development
at such time located in North America or Europe.



     “Spot Rate” for a currency means the rate determined by the Administrative Agent to be
the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such
Person of such currency with another currency through its principal foreign exchange trading office
at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign
exchange computation is made; provided that the Administrative Agent may obtain such spot
rate from another financial institution designated by the Administrative Agent if the Person acting
in such capacity does not have as of the date of determination a spot buying rate for any such
currency.



     “Sterling” and “£” mean the lawful currency of the United Kingdom.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the Equity Interests having
ordinary voting power for the election of directors or other governing body (other than Equity
Interests having such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise Controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or
Subsidiaries of the Parent.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement; provided that no phantom stock or similar
plan providing for payments only on




25











 




account of services provided by current or former directors, officers, employees or
consultants of the Parent of the Subsidiaries shall be a Swap Contract.




     “Swap Termination Value” means, in respect of any one or more Swap Contracts,
after taking into account the effect of any legally enforceable netting agreement relating to such
Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the termination value(s) for such Swap Contract,
as determined in accordance therewith as if such Swap Contract had been closed out on such date and
each counterparty thereto were an “Affected Party” (or similar term) thereunder.



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.03.



     “Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.03(a).



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.03(b), which, if in writing, shall be substantially in the form of Exhibit
A-2.



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $50,000,000 and (b)
the aggregate amount of the Multicurrency Revolving Credit Commitments then in effect. The Swing
Line Sublimit is part of, and not in addition to, the Multicurrency Revolving Credit Commitments.



     “TARGET” means the Trans-European Automated Real-time Gross Settlement Express
Transfer payment system which utilizes interlinked national real time gross settlement systems and
the European Central Bank’s payment mechanism and which began operations on January 4, 1999.



     “TARGET2” means the Trans-European Automated Real-time Gross Settlement Express
Transfer payment system which utilizes a single shared platform and which was launched on November
19, 2007.



     “TARGET Day” means:




     (a) until such time as TARGET is permanently closed down and ceases operations, any day
on which both TARGET and TARGET2 are open for the settlement of payments in Euro; and




     (b) following such time as TARGET is permanently closed down and ceases operations, any
day on which TARGET2 is open for the settlement of payments in Euro.



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties applicable thereto.



26









 





     “Term Lender” means (a) at any time during the Availability Period, any Lender that
has a Term Loan Commitment or holds Term Loans at such time and (b) at any time after the
termination of the Availability Period, any Lender that holds Term Loans at such time.



     “Term Loan” has the meaning specified in Section 2.01(a).



     “Term Loan Borrowing” means a borrowing consisting of simultaneous Term Loans having
the same Interest Period made by each of the Term Lenders pursuant to Section 2.01(a).



     “Term Loan Commitment” means, as to each Term Lender, its obligation to make Term
Loans to the Borrower pursuant to Section 2.01(a) in an aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Term Lender’s name on
Schedule 2.01 under the caption “Term Loan Commitment” or opposite such caption in the
Assignment and Assumption pursuant to which such Term Loan Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
The initial aggregate principal amount of the Term Loan Facility on the Closing Date, prior to
giving effect to any Term Loan Borrowing, is $700,000,000.



     “Term Loan Facility” means (a) at any time during the Availability Period in respect
of such Facility, the aggregate amount of the Term Loan Commitments at such time, (b) at any time
thereafter, the aggregate principal amount of the Term Loans of all Term Lenders outstanding at
such time and (c) the provisions herein related to the Term Loans.



     “Term Loan Note” means a promissory note made by the Borrower in favor of a Term
Lender evidencing Term Loans made by such Term Lender, substantially in the form of Exhibit
B-2.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans.



     “Total Dollar Revolving Credit Outstandings” means the aggregate Outstanding Amount of
all Dollar Revolving Credit Loans.



     “Total Multicurrency Revolving Credit Outstandings” means the aggregate Outstanding
Amount of all Multicurrency Revolving Credit Loans and Swing Line Loans.



     “Total Revolving Credit Outstandings” means, at any time, the sum of the Total Dollar
Revolving Credit Outstandings and the Total Multicurrency Revolving Credit Outstandings.



     “Total Term Loan Outstandings” means the aggregate Outstanding Amount of all Term
Loans.



     “Transactions” means, collectively, (a) the consummation of the Merger, (b) the
entering by the Loan Parties into the Loan Documents to which they are or are intended to be a
party, (c) the refinancing of the Existing Material Indebtedness, and the termination of all
commitments and release of all Liens with respect thereto, (d) the making of that portion of the
Permitted Parent Equity Repurchases to be made on the Closing Date and (e) the payment of the fees
and expenses incurred in connection with the consummation of the foregoing.



27









 





     “Type” means, with respect to a Loan, its character as a Base Rate Loan or a
Eurocurrency Rate Loan.



     “United States” and “U.S.” mean the United States of America.



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



     (a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word
“will” shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be construed as referring
to such agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications
set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending, replacing or interpreting
such law and any reference to any law or regulation shall, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented from time to time, and (vi) the words
“asset” and “property” shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.



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



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



     1.03 Accounting Terms. (a) Generally. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing the Audited Financial
Statements, except as otherwise specifically prescribed herein.



28









 





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



     (c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Parent and its Subsidiaries or to the determination of any
amount for the Parent and its Subsidiaries on a consolidated basis or any similar reference shall,
in each case, be deemed to include each variable interest entity that the Parent is required to
consolidate pursuant to FASB Interpretation No. 46 (revised December 2003) – Consolidation of
Variable Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such variable
interest entity were a Subsidiary as defined herein.



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



     1.05 Exchange Rates; Currency Equivalents. (a) The Administrative Agent shall determine the
Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of
Borrowings and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates shall
become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any
amounts between the applicable currencies until the next Revaluation Date to occur. Except for
purposes of financial statements delivered by Loan Parties hereunder and calculating financial
covenants hereunder, and, except as otherwise provided herein, the applicable amount of any
currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent
amount as so determined by the Administrative Agent.



     (b) Wherever in this Agreement in connection with a Borrowing, conversion, continuation or
prepayment of a Eurocurrency Rate Loan, an amount, such as a required minimum or multiple amount,
is expressed in Dollars, but such Borrowing or Eurocurrency Rate Loan is denominated in an
Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such
Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being
rounded upward), as determined by the Administrative Agent.



     1.06 Additional Alternative Currencies. (a) The Borrower may from time to time request that
Eurocurrency Rate Loans under the Multicurrency Revolving Credit Facility be made in a currency
other than those specifically listed in the definition of “Alternative



29









 







Currency;” provided that such requested currency is a lawful currency (other than
Dollars) that is readily available and freely transferable and convertible into Dollars. Any such
request shall be subject to the approval of the Administrative Agent and the Multicurrency
Revolving Credit Lenders.



     (b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m.,
twenty (20) Business Days prior to the date of the desired Borrowing (or such other time or date as
may be agreed by the Administrative Agent in its sole discretion). In the case of any such
request, the Administrative Agent shall promptly notify each Multicurrency Revolving Credit Lender
thereof. Each Multicurrency Revolving Credit Lender shall notify the Administrative Agent, not
later than 11:00 a.m., ten (10) Business Days after receipt of such request whether it consents, in
its sole discretion, to the making of Eurocurrency Rate Loans in such requested currency.



     (c) Any failure by a Multicurrency Revolving Credit Lender to respond to such request within
the time period specified in the preceding sentence shall be deemed to be a refusal by such
Multicurrency Revolving Credit Lender to permit Eurocurrency Rate Loans to be made in such
requested currency. If the Administrative Agent and all the Multicurrency Revolving Credit Lenders
consent to making Eurocurrency Rate Loans in such requested currency, the Administrative Agent
shall so notify the Borrower and such currency shall thereupon be deemed for all purposes to be an
Alternative Currency hereunder for purposes of any Borrowings of Eurocurrency Rate Loans. If the
Administrative Agent shall fail to obtain consent to any request for an additional currency under
this Section 1.06, the Administrative Agent shall promptly so notify the Borrower.



     1.07 Change of Currency. (a) Each obligation of the Borrower to make a payment denominated
in the national currency unit of any member state of the European Union that adopts the Euro as its
lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption
(in accordance with the EMU Legislation). If, in relation to the currency of any such member
state, the basis of accrual of interest expressed in this Agreement in respect of that currency
shall be inconsistent with any convention or practice in the London interbank market for the basis
of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such
convention or practice with effect from the date on which such member state adopts the Euro as its
lawful currency; provided that if any Borrowing in the currency of such member state is
outstanding immediately prior to such date, such replacement shall take effect, with respect to
such Borrowing, at the end of the then current Interest Period.



     (b) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to reflect
the adoption of the Euro by any member state of the European Union and any relevant market
conventions or practices relating to the Euro.



     (c) Each provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to reflect
a change in currency of any other country and any relevant market conventions or practices relating
to the change in currency.



30









 





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



     1.09 Annualization. For purposes of measuring the Consolidated Fixed Charge Coverage Ratio on
any date on or prior to the last day of the fiscal quarter of the Parent ending closest to June 30,
2009, the term Consolidated Fixed Charges (including the embedded term Consolidated Interest
Charges) shall be measured as follows:



     (a) for any measurement date prior to the last day of the fiscal quarter of the Parent ending
closest to December 31, 2008, such terms shall be measured by multiplying the amount of such term
for the one fiscal quarter of the Parent and its Subsidiaries ended closest to September 30, 2008
times four;



     (b) for any measurement date from and including the last day of the fiscal quarter of the
Parent ending closest to December 31, 2008 through the day prior to the last day of the fiscal
quarter of the Parent ending closest to March 31, 2009, such terms shall be measured by multiplying
the amount of such term for the two fiscal quarters of the Parent and its Subsidiaries ended
closest to December 31, 2008 times two; and



     (c) for any measurement date from and including the last day of the fiscal quarter of the
Parent ending closest to March 31, 2009 through the day prior to the last day of the fiscal quarter
of the Parent ending closest to June 30, 2009, such terms shall be measured by multiplying the
amount of such term for the three fiscal quarters of the Parent and its Subsidiaries ended closest
to March 31, 2009 times four-thirds.



ARTICLE II.

THE COMMITMENTS AND BORROWINGS




     2.01 The Loans.



     (a) The Term Loan Borrowings. Subject to the terms and conditions set forth herein,
each Term Lender severally agrees to make loans (each such loan, a “Term Loan”) to the
Borrower in Dollars from time to time, on any Business Day during the Availability Period for the
Term Loan Facility, in an aggregate amount not to exceed such Term Lender’s Term Loan Commitment;
provided that after giving effect to the Term Loan Borrowing on the Closing Date, and
during the Availability Period for the Term Loan Facility, the Borrower may borrow the remaining
undrawn amount of the Term Loan Facility in an aggregate amount not to exceed the lesser of (A) the
initial aggregate principal amount of the Term Loan Facility less the amount of the Term Loan
Borrowing made on the Closing Date, and (B) $250,000,000 (it being understood that each Term
Lender’s Term Loan Commitment in excess of such Lender’s Applicable Percentage thereof shall be
terminated immediately after the Term Loan Borrowing on the Closing Date); provided that
any Term Loan made after the Closing Date shall be drawn by the Borrower solely for the purpose of
making Permitted Parent Equity Repurchases (and the related distributions by the Borrower and the
other Guarantors to the Parent to accomplish such Permitted Parent Equity Repurchases) or repaying
existing Indebtedness of the Parent and its Subsidiaries, or both. Notwithstanding the foregoing,
and in accordance with the definition of



31









 




“Availability Period”, if any portion of the Revolving Credit Facility is drawn on the Closing
Date then no portion of the Term Loan Facility shall be available for drawing at any time after the
Closing Date. Each Term Loan Borrowing shall consist of Term Loans made simultaneously by the Term
Lenders in accordance with their respective Applicable Percentage of the Term Loan Facility.
Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed.
Term Loans may only be Eurocurrency Rate Loans, as further provided herein; provided that
the Borrower may request that Term Loans made on the Closing Date bear interest at the Base Rate
plus the Applicable Rate applicable to Base Rate Loans for a period of no more than two
Business Days after the Closing Date, so long as the Borrower substantially simultaneously requests
that all such Term Loans be converted to Eurocurrency Rate Loans on the day that is two Business
Days after the Closing Date pursuant to a Committed Loan Notice delivered, along with a funding
indemnity letter in accordance with Section 2.02(f), at least one Business Day prior to the
Closing Date (such occurrence being the only availability of Term Loans as Base Rate Loans under
the Term Loan Facility).




     (b) The Dollar Revolving Credit Borrowings. Subject to the terms and conditions set
forth herein, each Dollar Revolving Credit Lender severally agrees to make loans (each such loan, a
“Dollar Revolving Credit Loan”) to the Borrower in Dollars from time to time, on any
Business Day during the Availability Period for the Dollar Revolving Credit Facility, in an
aggregate amount not to exceed at any time outstanding the amount of such Dollar Revolving Credit
Lender’s Dollar Revolving Credit Commitment; provided that after giving effect to any
Dollar Revolving Credit Borrowing, (i) the Total Dollar Revolving Credit Outstandings shall not
exceed the aggregate Dollar Revolving Credit Commitments and (ii) the aggregate Outstanding Amount
of the Dollar Revolving Credit Loans of any Dollar Revolving Credit Lender shall not exceed such
Dollar Revolving Credit Lender’s Dollar Revolving Credit Commitment. Within the limits of each
Dollar Revolving Credit Lender’s Dollar Revolving Credit Commitment, and subject to the other terms
and conditions hereof, the Borrower may borrow under this Section 2.01(b), prepay under
Section 2.04, and reborrow under this Section 2.01(b). Dollar Revolving Credit
Loans may only be Eurocurrency Rate Loans, as further provided herein.



     (c) The Multicurrency Revolving Credit Borrowings. Subject to the terms and
conditions set forth herein, each Multicurrency Revolving Credit Lender severally agrees to make
loans (each such loan, a “Multicurrency Revolving Credit Loan”) to the Borrower in Dollars
or in one or more Alternative Currencies from time to time, on any Business Day during the
Availability Period for the Multicurrency Revolving Credit Facility, in an aggregate amount not to
exceed at any time outstanding the amount of such Multicurrency Revolving Credit Lender’s
Multicurrency Revolving Credit Commitment; provided that after giving effect to any
Multicurrency Revolving Credit Borrowing, (i) the Total Multicurrency Revolving Credit Outstandings
shall not exceed the aggregate Multicurrency Revolving Credit Commitments and (ii) the aggregate
Outstanding Amount of the Multicurrency Revolving Credit Loans of any Multicurrency Revolving
Credit Lender, plus such Multicurrency Revolving Credit Lender’s Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Multicurrency Revolving Credit
Lender’s Multicurrency Revolving Credit Commitment. Within the limits of each Multicurrency
Revolving Credit Lender’s Multicurrency Revolving Credit Commitment, and subject to the other terms
and conditions hereof, the Borrower may borrow under this Section 2.01(c), prepay under
Section 2.04, and reborrow under this Section 2.01(c).



32









 




Multicurrency Revolving Credit Loans may be Base Rate Loans or Eurocurrency Rate Loans, as
further provided herein.




     (d) The parties hereto agree that, notwithstanding anything to the contrary in any Committed
Loan Notice or other notice given to the Administrative Agent, and subject to remaining
availability under each applicable Revolving Credit Facility, each Borrowing of Eurocurrency Rate
Loans in Dollars under the Revolving Credit Facilities shall be made pro rata between the Dollar
Revolving Credit Facility and the Multicurrency Revolving Credit Facility. The parties hereto
further agree that in the event a Committed Loan Notice is received that fails to reflect the
agreement in the first sentence of this Section 2.01(d), the Administrative Agent shall
(with reasonably prompt notice to the Borrower), adjust such Committed Loan Notice to reflect the
agreement provided in the first sentence of this Section 2.01(d).



     2.02 Borrowings, Conversions and Continuations of Loans.



     (a) Each Term Loan Borrowing, each Dollar Revolving Credit Borrowing, each Multicurrency
Revolving Credit Borrowing, each conversion of Multicurrency Revolving Credit Loans from one Type
to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice
must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days
prior to the requested date of (A) any Borrowing of, conversion to or continuation of Eurocurrency
Rate Loans denominated in Dollars or (B) any conversion of Eurocurrency Rate Loans denominated in
Dollars to Base Rate Loans (solely with respect to Multicurrency Revolving Credit Loans denominated
in Dollars), (ii) four Business Days (or five Business Days in the case of a Special Notice
Currency) prior to the requested date of any Borrowing or continuation of Eurocurrency Rate Loans
under the Multicurrency Revolving Credit Facility denominated in Alternative Currencies, and (iii)
one Business Day prior to the requested date of any Borrowing of Base Rate Loans in Dollars under
the Multicurrency Revolving Credit Facility. Each telephonic notice by the Borrower pursuant to
this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of
a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or Base Rate
Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof; provided that (A) with respect to any Borrowing of Eurocurrency Rate Loans that is
required to be divided pro rata between the Dollar Revolving Credit Facility and the Multicurrency
Revolving Credit Facility pursuant to Section 2.01(d), such minimum and multiple
requirement shall apply to the aggregate amount of such Borrowing and not to the amount allocable
to either the Dollar Revolving Credit Facility or the Multicurrency Revolving Credit Facility
individually), and (B) each Borrowing of a Term Loan after the Closing Date shall be in a principal
amount of $50,000,000 (or the remaining undrawn and available amount of the Term Loan Facility) or
a whole multiple of $5,000,000 in excess thereof. Each Committed Loan Notice (whether telephonic
or written) shall specify (i) whether the Borrower is requesting a Term Loan Borrowing, a Dollar
Revolving Credit Borrowing, a Multicurrency Revolving Credit Borrowing , a conversion of
Multicurrency Revolving Credit Loans from one Type to the other, or a continuation of Eurocurrency
Rate Loans (and such Committed Loan Notice shall, subject to confirmation and correction by the
Administrative Agent, comply with Section 2.01(d) regarding pro rata Borrowings of
Eurocurrency Rate Loans denominated in



33









 







Dollars), (ii) the requested date of the Borrowing, conversion or continuation, as the case
may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed,
converted or continued, (iv) the Type of Loans to be borrowed or to which existing Multicurrency
Revolving Credit Loans are to be converted, (v) if applicable, the duration of the Interest Period
with respect thereto, and (vi) with respect to Multicurrency Revolving Credit Loans only, the
currency of the Multicurrency Revolving Credit Loans to be borrowed. If the Borrower fails to
specify a currency in a Committed Loan Notice requesting a Multicurrency Revolving Credit
Borrowing, then the Multicurrency Revolving Credit Loans so requested shall be made in Dollars. If
the Borrower fails to specify a Type of Loan in a Committed Loan Notice or if the Borrower fails to
give a timely notice requesting a conversion or continuation, then (A) the applicable Multicurrency
Revolving Credit Loans denominated in an Alternative Currency, Term Loans or Dollar Revolving
Credit Loans shall be made or continued, as applicable, as Eurocurrency Rate Loans with an Interest
Period of one month, and (B) the applicable Multicurrency Revolving Credit Loans denominated in
Dollars shall be made as, or converted to, Base Rate Loans. Any automatic conversion to Base Rate
Loans or continuation as Eurocurrency Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the
Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any
such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month. No Multicurrency Revolving Credit Loan may be converted
into or continued as a Multicurrency Revolving Credit Loan denominated in a different currency, but
instead must be prepaid in the original currency of such Multicurrency Revolving Credit Loan and
reborrowed in the other currency. Notwithstanding anything to the contrary herein, a Swing Line
Loan may not be converted to a Eurocurrency Rate Loan.



     (b) Following receipt of a Committed Loan Notice, and after application of Section
2.01(d) if not accurately reflected in such Committed Loan Notice, the Administrative Agent
shall promptly notify each Lender of the amount (and currency) of its Applicable Percentage under
the applicable Facility of the applicable Term Loans, Dollar Revolving Credit Loans and
Multicurrency Revolving Credit Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any
automatic conversion to Base Rate Loans (in the case of Multicurrency Revolving Credit Loans
denominated in Dollars) or continuation as Eurocurrency Rate Loans with an Interest Period of one
month (in the case of Term Loans, Dollar Revolving Credit Loans and Multicurrency Revolving Credit
Loans denominated in a currency other than Dollars), in each case as described in the preceding
subsection. In the case of a Term Loan Borrowing, a Dollar Revolving Credit Borrowing or a
Multicurrency Revolving Credit Borrowing, each applicable Lender shall make the amount of its Term
Loan, Dollar Revolving Credit Loan or Multicurrency Revolving Credit Loan, as applicable, available
to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office for the
applicable currency not later than 1:00 p.m., in the case of any Loan denominated in Dollars, and
not later than the Applicable Time specified by the Administrative Agent in the case of any
Multicurrency Revolving Credit Loan in an Alternative Currency, in each case on the Business Day
specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions
set forth in Section 4.02 (and, if such Borrowing is the initial Borrowing, Section
4.01), the Administrative Agent shall make all funds so received available to the Borrower in
like funds as received by the Administrative Agent either by (i) crediting the account of the
Borrower on the books of Bank of America with the amount of such



34









 







funds or (ii) wire transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.



     (c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. During the
existence of a Default, no Loans may be requested as, converted to or continued as Eurocurrency
Rate Loans (whether in Dollars or any Alternative Currency) without the consent of the Required
Lenders, and the Required Lenders may demand that any or all of the then outstanding Eurocurrency
Rate Loans, other than Eurocurrency Rate Loans denominated in Dollars under the Multicurrency
Revolving Credit Facility (which shall be automatically converted to Base Rate Loans at the
conclusion of the then-applicable Interest Period), be prepaid, or (solely in the case of
Multicurrency Revolving Credit Loans) redenominated into Dollars in the amount of the Dollar
Equivalent thereof and converted to Base Rate Loans, on the last day of the then current Interest
Period with respect thereto.



     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of
such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in
determining the Base Rate promptly following the public announcement of such change.



     (e) After giving effect to all Term Loan Borrowings and all continuations of Term Loans, (i)
at any time prior to the termination of the Availability Period with respect to the Term Loan
Facility, there shall not be more than ten Interest Periods in effect in respect of the Term Loan
Facility, and (ii) at any time on or after the termination of the Availability Period with respect
to the Term Loan Facility, there shall not be more than four Interest Periods in effect in respect
of the Term Loan Facility. After giving effect to all Dollar Revolving Credit Borrowings and all
continuations of Dollar Revolving Credit Loans, there shall not be more than five Interest Periods
in effect in respect of the Dollar Revolving Credit Facility. After giving effect to all
Multicurrency Revolving Credit Borrowings, all conversions of Multicurrency Revolving Credit Loans
from one Type to the other, and all continuations of Multicurrency Revolving Credit Loans as the
same Type, there shall not be more than five Interest Periods in effect in respect of the
Multicurrency Revolving Credit Facility.



     (f) Notwithstanding anything in this Section 2.02 to the contrary, because all Term
Loans, Dollar Revolving Credit Loans and Multicurrency Revolving Credit Loans denominated in an
Alternative Currency and made on the Closing Date as part of the initial Borrowing must be made as
Eurocurrency Loans, and Multicurrency Revolving Credit Loans denominated in Dollars and made on the
Closing Date as part of the initial Borrowing may be made as Eurocurrency Loans, the Borrower shall
have delivered to the Administrative Agent for the benefit of the Lenders at least three Business
Days prior to the Closing Date (or four Business Days in the event any portion of the initial
Borrowing to be made on the Closing Date is to be a Multicurrency Revolving Credit Loans
denominated in an Alternative Currency) a funding indemnity letter in form and substance reasonably
satisfactory to the Administrative Agent addressing matters substantially the same as those set
forth in Section 3.05.



35









 





     2.03 Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this
Section 2.03, to make loans in Dollars (each such loan, a “Swing Line Loan”) to
the Borrower from time to time on any Business Day during the Availability Period with respect to
the Multicurrency Revolving Credit Facility in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line
Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Multicurrency
Revolving Credit Loans of the Lender acting as Swing Line Lender, may exceed the amount of such
Lender’s Multicurrency Revolving Credit Commitment; provided that after giving effect to
any Swing Line Loan, (i) the Total Multicurrency Revolving Credit Outstandings shall not exceed the
aggregate Multicurrency Revolving Credit Commitments, and (ii) the aggregate Outstanding Amount of
the Multicurrency Revolving Credit Loans of any Multicurrency Revolving Credit Lender, plus such
Multicurrency Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all
Swing Line Loans shall not exceed such Multicurrency Revolving Credit Lender’s Multicurrency
Revolving Credit Commitment; and provided, further, that the Borrower shall not use
the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the
foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow
under this Section 2.03, prepay under Section 2.04, and reborrow under this
Section 2.03. Each Swing Line Loan shall be a Base Rate Loan made in Dollars. Immediately
upon the making of a Swing Line Loan, each Multicurrency Revolving Credit Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a
risk participation in such Swing Line Loan in an amount equal to the product of such Multicurrency
Revolving Credit Lender’s Applicable Percentage in respect of the Multicurrency Revolving Credit
Facility times the amount of such Swing Line Loan.



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 2:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing
Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request of any
Multicurrency Revolving Credit Lender) prior to 3:00 p.m. on the date of the proposed Swing Line
Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the
limitations set forth in the first proviso to the first sentence of Section 2.03(a), or (B)
that one or more of the applicable conditions specified in Article IV is not then
satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later
than 4:00 p.m. on the borrowing date specified in



36









 







such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower
at its office by crediting the account of the Borrower on the books of the Swing Line Lender in
immediately available funds.



     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Multicurrency Revolving Credit Lender make a Base Rate
Loan in Dollars under the Multicurrency Revolving Credit Facility in an amount equal to such
Multicurrency Revolving Credit Lender’s Applicable Percentage (in respect of the
Multicurrency Revolving Credit Facility) of the amount of Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be deemed to be a
Committed Loan Notice for purposes hereof) and in accordance with the requirements of
Section 2.02, without regard to the minimum and multiples specified therein for the
principal amount of Base Rate Loans, but subject to the unutilized portion of the aggregate
Multicurrency Revolving Credit Commitments and the conditions set forth in Section
4.02. The Swing Line Lender shall furnish the Borrower with a copy of the applicable
Committed Loan Notice promptly after delivering such notice to the Administrative Agent.
Each Multicurrency Revolving Credit Lender shall make an amount equal to its Applicable
Percentage (in respect of the Multicurrency Revolving Credit Facility) of the amount
specified in such Committed Loan Notice available to the Administrative Agent in immediately
available funds for the account of the Swing Line Lender at the Administrative Agent’s
Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.03(c)(ii), each Multicurrency Revolving Credit
Lender that so makes funds available shall be deemed to have made a Base Rate Loan in
Dollars to the Borrower under the Multicurrency Revolving Credit Facility in such amount.
The Administrative Agent shall remit the funds so received to the Swing Line Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Multicurrency
Revolving Credit Borrowing in accordance with Section 2.03(c)(i), the request for
Base Rate Loans under the Multicurrency Revolving Credit Facility submitted by the Swing
Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender
that each of the Multicurrency Revolving Credit Lenders fund its risk participation in the
relevant Swing Line Loan and each Multicurrency Revolving Credit Facility Revolving Credit
Lender’s payment to the Administrative Agent for the account of the Swing Line Lender
pursuant to Section 2.03(c)(i) shall be deemed payment in respect of such
participation.




     (iii) If any Multicurrency Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any amount required to be paid
by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the
time specified in Section 2.03(c)(i), the Swing Line Lender shall be entitled to
recover from such Multicurrency Revolving Credit Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available to the



37









 







Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate
and a rate determined by the Swing Line Lender in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees customarily
charged by the Swing Line Lender in connection with the foregoing. If such Multicurrency
Revolving Credit Lender pays such amount (with interest and fees as aforesaid), the amount
so paid shall constitute such Multicurrency Revolving Credit Lender’s Multicurrency
Revolving Credit Loan included in the relevant Committed Borrowing or funded participation
in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender
submitted to any Multicurrency Revolving Credit Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.




     (iv) Each Multicurrency Revolving Credit Lender’s obligation to make Multicurrency
Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans
pursuant to this Section 2.03(c) shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense
or other right which such Multicurrency Revolving Credit Lender may have against the Swing
Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence
or continuance of a Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided that each Multicurrency Revolving Credit
Lender’s obligation to make Multicurrency Revolving Credit Loans pursuant to this
Section 2.03(c) is subject to the conditions set forth in Section 4.02. No
such funding of risk participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swing Line Loans, together with interest as provided herein.



     (d) Repayment of Participations.




     (i) At any time after any Multicurrency Revolving Credit Lender has purchased and
funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such
Multicurrency Revolving Credit Lender its Applicable Percentage (in respect of the
Multicurrency Revolving Credit Facility) thereof in the same funds as those received by the
Swing Line Lender.




     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Multicurrency
Revolving Credit Lender shall pay to the Swing Line Lender its Applicable Percentage (in
respect of the Multicurrency Revolving Credit Facility) thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the date such
amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative
Agent will make such demand upon the request of the Swing Line Lender. The obligations of
the Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.



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     (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each
Multicurrency Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant to
this Section 2.03 to refinance such Multicurrency Revolving Credit Lender’s Applicable
Percentage (in respect of the Multicurrency Revolving Credit Facility) of any Swing Line Loan,
interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line
Lender.



     (f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.



     2.04 Prepayments.



     (a) Optional Prepayments.




     (i) Subject to the last sentence of this Section 2.04(a)(i), the Borrower may,
upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay
Term Loans, Dollar Revolving Credit Loans and Multicurrency Revolving Credit Loans in whole
or in part without premium or penalty; provided that (i) such notice must be
received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior
to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four
Business Days (or five Business Days, in the case of prepayment of Revolving Credit Loans
denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency
Rate Loans denominated in Alternative Currencies, and (C) one Business Day prior to the date
of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated
in Dollars under the Dollar Revolving Credit Facility or the Multicurrency Revolving Credit
Facility shall be applied pro rata between each such Revolving Credit Facility (and the
Administrative Agent shall make such application regardless of any contradictory notice from
the Borrower); and (iii) any prepayment of Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof or, in each case, if less,
the entire principal amount thereof then outstanding (provided that in the event of a
prepayment to be applied pro rata between the Dollar Revolving Credit Facility and the
Multicurrency Revolving Credit Facility pursuant to the immediately preceding subsection
(ii), such minimum and multiple shall apply to the entirety of such prepayment and not to
the prepayment applicable to one or the other Revolving Credit Facility). Each such notice
shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid
and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans.
The Administrative Agent will promptly notify each applicable Lender of its receipt of each
such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on
such Lender’s Applicable Percentage in respect of the relevant Facility). If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein. Any
prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to Section
3.05. Each prepayment of the outstanding Term Loans pursuant to this Section
2.04(a) shall be applied to the principal repayment



39









 







installments thereof on a pro rata basis, and each such prepayment shall be paid to the
Lenders in accordance with their respective Applicable Percentages in respect of each of the
relevant Facilities.




     (ii) The Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans
in whole or in part without premium or penalty; provided that (A) such notice must
be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m.
on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal
amount of $100,000. Each such notice shall specify the date and amount of such prepayment.
If such notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified
therein.



     (b) Revolving Credit Facility Mandatory Prepayments. If the Administrative Agent
notifies the Borrower at any time that:




     (i) the Total Multicurrency Revolving Credit Outstandings at such time exceed an amount
equal to 105% of the aggregate amount of the Multicurrency Revolving Credit Commitments then
in effect, then, within two Business Days after receipt of such notice, the Borrower shall
prepay Multicurrency Revolving Credit Loans and/or Swing Line Loans in an aggregate amount
sufficient to reduce such Total Multicurrency Revolving Credit Outstandings as of such date
of payment to an amount not to exceed 100% of the aggregate amount of the Multicurrency
Revolving Credit Commitments then in effect; or




     (ii) the Total Dollar Revolving Credit Outstandings at such time exceed an amount equal
to 100% of the aggregate amount of the Dollar Revolving Credit Commitments then in effect,
then, within two Business Days after receipt of such notice, the Borrower shall prepay
Dollar Revolving Credit Loans in an aggregate amount sufficient to reduce such Total Dollar
Revolving Credit Outstandings as of such date of payment to an amount not to exceed 100% of
the aggregate amount of the Dollar Revolving Credit Commitments then in effect.



     (c) Other Mandatory Prepayments.




     (i) If the Parent or any of its Subsidiaries Disposes of any property (other than any
Disposition of any property permitted by Section 7.05(a), (b) or
(c)), in one or a series of related transactions, which results in the realization
by such Person of aggregate Net Cash Proceeds (or the Dollar Equivalent thereof) in excess
of $5,000,000, then the Borrower shall prepay an aggregate principal amount of Term Loans
equal to the Required Mandatory Prepayment Amount within ten Business Days from the date of
receipt thereof by such Person (such prepayments to be applied as set forth in clause (iii)
below); provided that, with respect to any such Net Cash Proceeds realized in
connection with a Disposition that would otherwise give rise to a mandatory prepayment
described in this Section, at the election of the Borrower (as notified by the Borrower to
the Administrative Agent within ten Business Days from the date of such Disposition), and



40









 







so long as no Event of Default shall have occurred and be continuing, the Parent or
such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets useful
in the business of the Parent and its Subsidiaries so long as within 270 days after the
receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (as
certified by the Borrower in writing to the Administrative Agent); and provided,
further, that any Net Cash Proceeds not so applied within such period shall be
immediately applied to the prepayment of the Term Loans as set forth in this Section
2.04(c)(i).




     (ii) If any Extraordinary Receipt (whether occurring as a result of a single
transaction or occurrence or a series of related transactions or occurrences) in excess of
$5,000,000 (or the Dollar Equivalent thereof) is received by or paid to or for the account
of the Parent or any of its Subsidiaries, and not otherwise included in clause (i) of this
Section 2.04(c), the Borrower shall prepay an aggregate principal amount of Term
Loans equal to the Required Mandatory Prepayment Amount within ten Business Days from the
date of receipt thereof by the Parent or such Subsidiary (such prepayments to be applied as
set forth in clause (iii) below); provided that with respect to any proceeds of
insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the
election of the Borrower (as notified by the Borrower to the Administrative Agent within ten
Business Days from the date of receipt of such insurance proceeds, condemnation awards or
indemnity payments), and so long as no Event of Default shall have occurred and be
continuing, the Parent or such Subsidiary may apply such cash proceeds within 270 days after
the receipt thereof to replace or repair the equipment, fixed assets, real property or other
property in respect of which such cash proceeds were received; and provided,
further that any such cash proceeds not so applied within such period shall be
immediately applied to the prepayment of the Term Loans as set forth in this Section
2.04(c)(ii).




     (iii) Each prepayment of Term Loans pursuant to the foregoing provisions of this
Section 2.04(c) shall be applied to the principal installments thereof on a pro rata
basis.



     2.05 Termination or Reduction of Commitments.



     (a) Optional. The Borrower may, at its option and upon notice to the Administrative
Agent, terminate the Dollar Revolving Credit Commitments, the Multicurrency Revolving Credit
Commitments and/or or the unused portion of the Term Loan Commitments, or from time to time
permanently reduce in part the Dollar Revolving Credit Commitments, the Multicurrency Revolving
Credit Commitments and/or the unused portion of the Term Loan Commitments; provided that
(i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five
Business Days prior to the date of termination or reduction, (ii) any reduction of the Dollar
Revolving Credit Facility or the Multicurrency Revolving Credit Facility shall be applied pro rata
between each such Revolving Credit Facility (and the Administrative Agent shall make such
application regardless of any contradictory notice from the Borrower), (iii) any such partial
reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in
excess thereof (provided that in the event of a partial reduction to be applied pro rata between
the Dollar Revolving Credit Facility and the Multicurrency Revolving Credit Facility pursuant to
the immediately preceding subsection (ii), such minimum and multiple shall



41









 







apply to the entirety of such reduction and not to the reduction applicable to one or the
other Revolving Credit Facility), (iv) the Borrower shall not terminate or reduce the Dollar
Revolving Credit Commitments or the Multicurrency Revolving Credit Commitments if, after giving
effect thereto and to any concurrent prepayments hereunder, the Total Dollar Revolving Credit
Outstandings or the Total Multicurrency Revolving Credit Outstandings, as applicable, would exceed
the aggregate Dollar Revolving Credit Commitments or the aggregate Multicurrency Revolving Credit
Commitments, respectively, and (v) if, after giving effect to any reduction of the aggregate
Multicurrency Revolving Credit Commitments, the Swing Line Sublimit exceeds the amount of the
aggregate Multicurrency Revolving Credit Commitments, such Swing Line Sublimit shall be
automatically reduced by the amount of such excess. The Administrative Agent will promptly notify
the applicable Lenders of any such notice of termination or reduction of the Dollar Revolving
Credit Commitments, the Multicurrency Revolving Credit Commitments or the unused portion of the
Term Loan Commitments. Any reduction of the Dollar Revolving Credit Commitments, the Multicurrency
Revolving Credit Commitments or the unused portion of the Term Loan Commitments shall be applied to
the applicable Commitment of each applicable Lender according to its Applicable Percentage of the
appropriate Facility. All fees accrued until the effective date of any termination of the Dollar
Revolving Credit Commitments, the Multicurrency Revolving Credit Commitments or the unused portion
of the Term Loan Commitments shall be paid on the effective date of such termination,
notwithstanding any later payment date provided for herein.



     (b) Mandatory. The aggregate Term Loan Commitments shall be automatically and
permanently reduced to zero on the earlier of (i) the last day of the Availability Period for the
Term Loan Facility and (ii) the day on which the entire aggregate principal amount of the Term Loan
Commitments have been advanced in accordance with Section 2.01(a). The Administrative
Agent will promptly notify the Term Lenders of the termination of the unused portion of the
aggregate Term Loan Commitments under this Section 2.05(b), and immediately upon any such
termination the Term Loan Commitment of each Term Lender shall be reduced to zero. All fees in
respect of the Term Loan Facility accrued until the effective date of such termination of the Term
Loan Commitments shall be paid on the effective date of such termination, notwithstanding any later
payment date provided for herein.



     2.06 Repayment of Loans.



     (a) Term Loans. The Borrower shall repay to the Term Lenders on the last day of each
fiscal quarter of the Parent ending after the first anniversary of the Closing Date an amount of
the Term Loans equal to the lesser of (i) $35,000,000 and (ii) 5% of the aggregate
principal amount of the Term Loan Facility outstanding on the date the Term Loan Commitments are
reduced to zero pursuant to Section 2.05(b) which amounts shall be reduced as a result of
the application of prepayments in accordance with the order of priority set forth in Section
2.04. In addition, the Borrower shall repay to the Term Lenders on the Maturity Date for the
Term Loan Facility the aggregate principal amount of the Term Loans outstanding on such date.



     (b) Dollar Revolving Credit Loans. The Borrower shall repay to the Dollar Revolving
Credit Lenders on the Maturity Date for the Dollar Revolving Credit Facility the aggregate
principal amount of all Dollar Revolving Credit Loans outstanding on such date.



42









 





     (c) Multicurrency Revolving Credit Loans. The Borrower shall repay to the
Multicurrency Revolving Credit Lenders on the Maturity Date for the Multicurrency Revolving Credit
Facility the aggregate principal amount of all Multicurrency Revolving Credit Loans outstanding on
such date.



     (d) Swing Line Loans. The Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) the date that is five Business Days after such Loan is made and (ii) the Maturity Date
for the Multicurrency Revolving Credit Facility.



     2.07 Interest. (a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency
Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period
at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the
Applicable Rate plus (in the case of a Eurocurrency Rate Loan of any Lender which is lent
from a Lending Office in the United Kingdom or a Participating Member State) the Mandatory Cost;
(ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate.



     (b) (i) If any amount payable by any Loan Party under any Loan Document is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by acceleration or
otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (ii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder
at a fluctuating interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.




     (iii) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.



     2.08 Fees.



     (a) Commitment Fees. The Borrower shall pay to the Administrative Agent for the
account of:




     (i) each Dollar Revolving Credit Lender in accordance with its Applicable Percentage of
the Dollar Revolving Credit Facility, a commitment fee in Dollars equal to the Applicable
Rate times the actual daily amount by which the aggregate amount of the



43









 







Dollar Revolving Credit Commitments exceeds the Outstanding Amount of Dollar Revolving
Credit Loans;




     (ii) each Multicurrency Revolving Credit Lender in accordance with its Applicable
Percentage of the Multicurrency Revolving Credit Facility, a commitment fee in Dollars equal
to the Applicable Rate times the actual daily amount by which the aggregate amount
of the Multicurrency Revolving Credit Commitments exceeds the Outstanding Amount of
Multicurrency Revolving Credit Loans (excluding Swing Line Loans);




     (iii) each Term Lender in accordance with its Applicable Percentage of the Term Loan
Facility, a commitment fee equal to the Applicable Rate times the actual daily
amount by which the aggregate amount of the Term Loan Commitments exceeds the Outstanding
Amount of Term Loans.


The commitment fees set forth above shall accrue at all times during the relevant Availability
Period, including at any time during which one or more of the conditions in Article IV is
not met, and shall be due and payable quarterly in arrears on the last Business Day of each March,
June, September and December, commencing with the first such date to occur after the Closing Date,
and on the last day of the Availability Period for each such applicable Facility. The commitment
fees set forth above shall be calculated quarterly in arrears, and if there is any change in the
relevant Applicable Rate during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.




     (b) Other Fees. (i) The Borrower shall pay to the Book Managers and the
Administrative Agent for their own respective accounts, in Dollars, fees in the amounts and at the
times specified in the Joint Fee Letter. Such fees shall be fully earned when paid and shall not
be refundable for any reason whatsoever.




     (ii) The Borrower shall pay to the Administrative Agent, for its own account, in
Dollars, fees in the amounts and at the times specified in the Administrative Agency Fee
Letter. Such fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever.




     (iii) The Borrower shall pay to the Lenders, in Dollars, such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified. Such fees
shall be fully earned when paid and shall not be refundable for any reason whatsoever.



     2.09 Computation of Interest and Fees. All computations of interest for Base Rate Loans when
the Base Rate is determined by Bank of America’s “prime rate” shall be made on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees
and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year),
or, in the case of interest in respect of Multicurrency Revolving Credit Loans denominated in
Alternative Currencies as to which market practice differs from the



44









 







foregoing, in accordance with such market practice. Interest shall accrue on each Loan for
the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid; provided that any Loan that is repaid on the
same day on which it is made shall, subject to Section 2.11(a), bear interest for one day.
Each determination by the Administrative Agent of an interest rate or fee hereunder shall be
conclusive and binding for all purposes, absent manifest error.



     2.10 Evidence of Debt.



     (a) The Loans made by each Lender shall be evidenced by one or more accounts or records
maintained by such Lender and by the Administrative Agent in the ordinary course of business. The
accounts or records maintained by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Loans made by the Lenders to the Borrower and the
interest and payments thereon. Any failure so to record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing
with respect to the Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control in the absence of
manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower
shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall
evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach
schedules to a Note and endorse thereon the date, Type (if applicable), amount, currency and
maturity of its Loans and payments with respect thereto.



     (b) In addition to the accounts and records referred to in subsection (a), each Multicurrency
Revolving Credit Lender and the Administrative Agent shall maintain in accordance with its usual
practice accounts or records evidencing the purchases and sales by such Multicurrency Revolving
Credit Lender of participations in Swing Line Loans. In the event of any conflict between the
accounts and records maintained by the Administrative Agent and the accounts and records of any
Multicurrency Revolving Credit Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.



     2.11 Payments Generally; Administrative Agent’s Clawback. (a) General. All payments
to be made by the Borrower shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff. Except as otherwise expressly provided herein and except with
respect to principal of and interest on Loans denominated in an Alternative Currency, all payments
by the Borrower hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office
in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein. Except as
otherwise expressly provided herein, all payments by the Borrower hereunder with respect to
principal and interest on Loans denominated in an Alternative Currency shall be made to the
Administrative Agent, for the account of the respective Lenders to which such payment is owed, at
the applicable Administrative Agent’s Office in such Alternative Currency and in Same Day Funds not
later than the Applicable Time specified by the Administrative Agent on the dates specified herein.
Without limiting the



45









 







generality of the foregoing, the Administrative Agent may require that any payments due under
this Agreement be made in the United States. If, for any reason, the Borrower is prohibited by any
Law from making any required payment hereunder in an Alternative Currency, the Borrower shall make
such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount. The
Administrative Agent will promptly distribute to each Lender its Applicable Percentage in respect
of the relevant Facility (or other applicable share as provided herein) of such payment in like
funds as received by wire transfer to such Lender’s Lending Office. All payments received by the
Administrative Agent (i) after 2:00 p.m., in the case of payments in Dollars, or (ii) after the
Applicable Time specified by the Administrative Agent in the case of payments in an Alternative
Currency, shall in each case be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower
shall come due on a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing interest or fees, as the
case may be.



     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to
12:00 noon on the date of such Borrowing) that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with Section 2.02
(or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available
in accordance with and at the time required by Section 2.02) and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith
on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but excluding the date of
payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the
Overnight Rate, plus any administrative, processing or similar fees customarily charged by
the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be
made by the Borrower, the interest rate applicable to Base Rate Loans (in the case of Multicurrency
Revolving Credit Loans denominated in Dollars) or the Cost of Funds Rate plus the Applicable Rate
for Eurocurrency Rate Loans (in all other cases). If the Borrower and such Lender shall pay such
interest to the Administrative Agent for the same or an overlapping period, the Administrative
Agent shall promptly remit to the Borrower the amount of such interest paid by such Borrower for
such period. If such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any
payment by the Borrower shall be without prejudice to any claim the Borrower may have against a
Lender that shall have failed to make such payment to the Administrative Agent.




     (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders hereunder that
the Borrower will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith



46









 







and may, in reliance upon such assumption, distribute to the appropriate Lenders the
amount due. In such event, if the Borrower has not in fact made such payment, then each of
the applicable Lenders severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender, in Same Day Funds with interest thereon,
for each day from and including the date such amount is distributed to it to but excluding
the date of payment to the Administrative Agent, at the Overnight Rate.



     A notice of the Administrative Agent to any Lender or to the Borrower with respect to any
amount owing under this subsection (b) shall be conclusive, absent manifest error.



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Borrowing set forth in Article
IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent
shall promptly return such funds (in like funds as received from such Lender) to such Lender,
without interest.



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Term Loans, Dollar Revolving Credit Loans and Multicurrency Revolving Credit Loans, to fund
participations in Swing Line Loans, and to make payments pursuant to Section 10.04(c), are
several and not joint. The failure of any Lender to make any Loan or to make any payment under
Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be responsible for the failure
of any other Lender to so make its Loan or to make its payment under Section 10.04(c).



     (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



     2.12 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any the
Facilities due and payable to such Lender hereunder and under the other Loan Documents at such time
in excess of its ratable share (according to the proportion of (i) the amount of such Obligations
due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations in
respect of the Facilities due and payable to all Lenders hereunder and under the other Loan
Documents at such time) of payments on account of the Obligations in respect of the Facilities due
and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by
all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but not
due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess
of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but
not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in
respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the
other Loan Parties at such time) of payment on account of the Obligations in respect of the
Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan
Documents at such time obtained by all of the



47









 







Lenders at such time then the Lender receiving such greater proportion shall (x) notify the
Administrative Agent of such fact, and (y) purchase (for cash at face value) participations in the
Loans and subparticipations in Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of Obligations in respect of the Facilities
then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case
may be; provided that:




     (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




     (ii) the provisions of this Section shall not be construed to apply to (A) any payment
made by a Borrower pursuant to and in accordance with the express terms of this Agreement or
(B) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or subparticipations in Swing Line Loans to any assignee
or participant, other than to the Borrower or any Subsidiary thereof (as to which the
provisions of this Section shall apply).



     The Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.



     2.13 Determination of Eurocurrency Rate. If with respect to any determination of the
Eurocurrency Rate the Administrative Agent determines (which determination shall be conclusive
absent manifest error) that BBA LIBOR will not be available on a Quotation Day using Reuters or
another commercially available source providing quotations of BBA LIBOR, the Administrative Agent
shall promptly request that each Reference Bank supply it with its Quoted Rate, and the
Eurocurrency Rate to be used to determine the interest rate applicable to the relevant Borrowing,
conversion or continuation shall be the average of the Quoted Rates supplied to the Administrative
Agent by the Reference Banks. If the Administrative Agent makes such request and one or more
Reference Banks fails to supply its Quoted Rate to the Administrative Agent by 11:30 a.m., London
time, on a Quotation Day, the applicable Eurocurrency Rate shall (subject to Section
3.03(b)) be determined on the basis of the Quoted Rates supplied by the remaining Reference
Banks.



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. (i)
Any and all payments by or on account of any obligation of the Borrower hereunder or under



48









 







any other Loan Document shall to the extent permitted by applicable Laws be made free and
clear of and without reduction or withholding for any Taxes. If, however, applicable Laws require
the Borrower or the Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld
or deducted in accordance with such Laws as determined by the Borrower or the Administrative Agent,
as the case may be, upon the basis of the information and documentation to be delivered pursuant to
subsection (e) below.




     (ii) If the Borrower or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or
make such deductions as are determined by the Administrative Agent to be required based upon
the information and documentation it has received pursuant to subsection (e) below, (B) the
Administrative Agent shall timely pay the full amount withheld or deducted to the relevant
Governmental Authority in accordance with the Code, and (C) to the extent that the
withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum
payable by the Borrower shall be increased as necessary so that after any required
withholding or the making of all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender, as the case
may be, receives an amount equal to the sum it would have received had no such withholding
or deduction been made.




     (iii) If the Borrower or the Administrative Agent shall be required by any applicable
Laws other than the Code to withhold or deduct any Taxes from any payment, then (A) the
Borrower or the Administrative Agent, as required by such Laws, shall withhold or make such
deductions as are determined by it to be required based upon the information and
documentation it has received pursuant to subsection (e) below, (B) the Borrower or the
Administrative Agent, to the extent required by such Laws, shall timely pay the full amount
so withheld or deducted by it to the relevant Governmental Authority in accordance with such
Laws, and (C) to the extent that the withholding or deduction is made on account of
Indemnified Taxes or Other Taxes, the sum payable by the Borrower shall be increased as
necessary so that after any required withholding or the making of all required deductions
(including deductions applicable to additional sums payable under this Section) the
Administrative Agent or Lender, as the case may be, receives an amount equal to the sum it
would have received had no such withholding or deduction been made.



     (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable Laws.



     (c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or
(b) above, the Borrower shall, and does hereby, indemnify the Administrative Agent and each Lender,
and shall make payment in respect thereof within ten days after written demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) withheld or deducted
by the Borrower or the Administrative Agent or paid by the Administrative



49









 







Agent or such Lender, as the case may be, and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. The Borrower
shall also, and does hereby, indemnify the Administrative Agent, and shall make payment in respect
thereof within ten days after written demand therefor, for any amount which a Lender for any reason
fails to pay indefeasibly to the Administrative Agent as required by clause (ii) of this
subsection. A certificate as to the amount of any such payment or liability delivered to the
Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on
its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.




     (ii) Without limiting the provisions of subsection (a) or (b) above, each Lender shall,
and does hereby, indemnify the Borrower and the Administrative Agent, and shall make payment
in respect thereof within ten days after demand therefor, against any and all Taxes and any
and all related losses, claims, liabilities, penalties, interest and expenses (including the
fees, charges and disbursements of any counsel for the Borrower or the Administrative Agent)
incurred by or asserted against the Borrower or the Administrative Agent by any Governmental
Authority as a result of the failure by such Lender to deliver, or as a result of the
inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by such
Lender to the Borrower or the Administrative Agent pursuant to subsection (e). Each Lender
hereby authorizes the Administrative Agent to set off and apply any and all amounts at any
time owing to such Lender under this Agreement or any other Loan Document against any amount
due to the Administrative Agent under this clause (ii). The agreements in this clause (ii)
shall survive the resignation and/or replacement of the Administrative Agent, any assignment
of rights by, or the replacement of, a Lender, the termination of the Aggregate Commitments
and the repayment, satisfaction or discharge of all other Obligations.



     (d) Evidence of Payments. Upon request by a Borrower or the Administrative Agent, as
the case may be, after any payment of Taxes by the Borrower or by the Administrative Agent to a
Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be,
the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of any return required by Laws to report such payment or other evidence of such
payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.



     (e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
Borrower and to the Administrative Agent, at the time or times prescribed by applicable Laws or
when reasonably requested by the Borrower or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit the Borrower or the
Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder
or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower
pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax
purposes in the applicable jurisdictions.



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     (ii) Without limiting the generality of the foregoing, if a Borrower is resident for tax
purposes in the United States,




     (A) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent
executed originals of Internal Revenue Service Form W-9 or such other documentation
or information prescribed by applicable Laws or reasonably requested by the Borrower
or the Administrative Agent as will enable the Borrower or the Administrative Agent,
as the case may be, to determine whether or not such Lender is subject to backup
withholding or information reporting requirements; and




     (B) each Foreign Lender that is entitled under the Code or any applicable
treaty to an exemption from or reduction of withholding tax with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the request of the
Borrower or the Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:




     (I) executed originals of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States
is a party,




     (II) executed originals of Internal Revenue Service Form W-8ECI,




     (III) executed originals of Internal Revenue Service Form W-8IMY and
all required supporting documentation,




     (IV) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a “bank”
within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent
shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue
Service Form W-8BEN, or




     (V) executed originals of any other form prescribed by applicable Laws
as a basis for claiming exemption from or a reduction in United States
Federal withholding tax together with such supplementary documentation as
may be prescribed by applicable Laws to permit the Borrower or the
Administrative Agent to determine the withholding or deduction required to
be made.



51









 






     (iii) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent of
any change in circumstances which would modify or render invalid any claimed exemption or
reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable Laws of any
jurisdiction that the Borrower or the Administrative Agent make any withholding or deduction
for taxes from amounts payable to such Lender.




     (iv) The Borrower shall promptly deliver to the Administrative Agent or any Lender, as
the Administrative Agent or such Lender shall reasonably request, on or prior to the Closing
Date (or such later date on which it first becomes a Borrower), and in a timely fashion
thereafter, such documents and forms required by any relevant taxing authorities under the
Laws of any jurisdiction, duly executed and completed by the Borrower, as are required to be
furnished by such Lender or the Administrative Agent under such Laws in connection with any
payment by the Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in
connection with the Loan Documents, with respect to such jurisdiction.



     (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from
funds paid for the account of such Lender, as the case may be. If the Administrative Agent or any
Lender determines, in its sole discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has
paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal to
such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses and net of any loss or gain realized in the conversion of such
funds from or to another currency incurred by the Administrative Agent or such Lender, as the case
may be, and without interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower
(plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such
Lender is required to repay such refund to such Governmental Authority. This subsection shall not
be construed to require the Administrative Agent or any Lender to make available its tax returns
(or any other information relating to its taxes that it deems confidential) to the Borrower or any
other Person.



     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurocurrency Rate Loans (whether denominated in Dollars or an
Alternative Currency), or to determine or charge interest rates based upon the Eurocurrency Rate,
or any Governmental Authority has imposed material restrictions on the authority of such Lender to
purchase or sell, or to take deposits of, Dollars or any Alternative Currency in the applicable
interbank market, then, on notice thereof by such Lender to the



52









 







Borrower through the Administrative Agent, any obligation of such Lender to make or continue
Eurocurrency Rate Loans in the affected currency or currencies or, in the case of Eurocurrency Rate
Loans in Dollars, to convert Base Rate Loans to Eurocurrency Rate Loans, shall be suspended until
such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise
to such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon
demand from such Lender (with a copy to the Administrative Agent), either prepay or convert all
such Eurocurrency Rate Loans of such Lender to Base Rate Loans (in the case of Multicurrency
Revolving Credit Loans denominated in Dollars) or to Loans bearing interest at the Cost of Funds
Rate plus the Applicable Rate for Eurocurrency Rate Loans (in the case of any other Loan), either
on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain
such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue
to maintain such Eurocurrency Rate Loans. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or converted.



     3.03 Inability to Determine Rates.



     (a) If the Required Lenders determine that for any reason in connection with any request for a
Eurocurrency Rate Loan or a conversion to or continuation thereof that (a) deposits (whether in
Dollars or an Alternative Currency) are not being offered to banks in the applicable offshore
interbank market for such currency for the applicable amount and Interest Period of such
Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist for determining the
Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate
Loan (whether denominated in Dollars or an Alternative Currency), or (c) the Eurocurrency Rate for
any requested Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately
and fairly reflect the cost to such Lenders of funding such Eurocurrency Rate Loan, the
Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, the
obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the affected currency or
currencies shall be suspended until the Administrative Agent (upon the instruction of the Required
Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending
request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in the
affected currency or currencies or, failing that, will be deemed to have converted such request
into a request (a) for a Borrowing of (or conversion to) Base Rate Loans in the amount specified
therein, in the case of Multicurrency Revolving Credit Loans denominated in Dollars, or (b) for a
Borrowing of (or conversion to) a Loan bearing interest at the Cost of Funds Rate plus the
Applicable Margin with respect to Eurocurrency Rate Loans, in the case of any other Loan.



     (b) Without limitation of the provisions of Section 3.03(a), if, with respect to any
Borrowing, conversion or continuation for which the Eurocurrency Rate is to be determined by
reference to the Quoted Rates supplied to the Administrative Agent by the Reference Banks in
accordance with Section 2.13, (i) fewer than two Reference Banks supply the Administrative
Agent with a Quoted Rate or (ii) prior to the close of business on the Quotation Day, the
Administrative Agent receives notification from Lenders to the applicable Facility whose
participation in such Borrowing, conversion or continuation exceeds 35% of the amount of such
Borrowing, conversion or continuation that the cost to such Lenders of obtaining matching deposits
in the London interbank market (in the case of Loans denominated in Dollars or an



53









 







Alternative Currency other than Euro) or the European interbank market (in the case of Loans
denominated in Euro) would be in excess of the Eurocurrency Rate, as applicable, for the relevant
Interest Period, then the Administrative Agent shall give notice thereof to the Parent, the
Borrower and the Lenders in writing as promptly as practicable thereafter, and the interest rate
applicable to such Borrowing, conversion or continuation shall be (a) the Base Rate plus
the Applicable Rate, in the case of Multicurrency Revolving Credit Loans denominated in Dollars, or
(b) the Cost of Funds Rate plus the Applicable Rate with respect to Eurocurrency Rate
Loans, in the case of any other Loan.



     (c) If any event described in the first sentence of Section 3.03(a) or in Section
3.03(b) occurs and results in the application of the Cost of Funds Rate, then at the request of
the Administrative Agent, the Parent or the Borrower, the Administrative Agent, the Parent and the
Borrower shall enter into negotiations for a period of no more than 30 days for the purpose of
agreeing to a substitute basis for determining the rate of interest to be applied to the applicable
Borrowing (and, to the extent required, any future Borrowings). Any substitute basis agreed upon
shall be, with the consent of all Lenders with respect to the applicable Facility, binding on all
of the parties to this Agreement.



     3.04 Increased Costs; Reserves on Eurocurrency Rate Loans.



     (a) Increased Costs Generally. If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except (A) any reserve requirement
contemplated by Section 3.04(e) and (B) the requirements of the Bank of England and
the Financial Services Authority or the European Central Bank reflected in the Mandatory
Cost, other than as set forth below);




     (ii) subject any Lender to any tax of any kind whatsoever with respect to this
Agreement or any Eurocurrency Rate Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender);




     (iii) result in the failure of the Mandatory Cost, as calculated hereunder, to
represent the cost to any Lender of complying with the requirements of the Bank of England
and/or the Financial Services Authority or the European Central Bank in relation to its
making, funding or maintaining Eurocurrency Rate Loans; or




     (iv) impose on any Lender or the London interbank market any other condition, cost or
expense affecting this Agreement or Eurocurrency Rate Loans made by such Lender;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or
to reduce the amount of any sum received or receivable by such Lender hereunder (whether of
principal, interest or any other amount) then, upon request of such Lender, the




54









 







Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender
for such additional costs incurred or reduction suffered.




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



     (c) Certificates for Reimbursement. A certificate of a Lender setting forth the
amount or amounts necessary to compensate such Lender or its holding company, as the case may be,
as specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within ten days after receipt thereof.



     (d) Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of
such Lender’s right to demand such compensation; provided that the Borrower shall not be
required to compensate a Lender pursuant to the foregoing provisions of this Section for any
increased costs incurred or reductions suffered more than nine months prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect thereof).



     (e) Additional Reserve Requirements. The Borrower shall pay to each Lender, (i) as
long as such Lender shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Eurocurrency Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), and (ii) as long as such
Lender shall be required to comply with any reserve ratio requirement or analogous requirement of
any other central banking or financial regulatory authority imposed in respect of the maintenance
of the Commitments or the funding of the Eurocurrency Rate Loans, such additional costs (expressed
as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places)
equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which in each case shall be
due and payable on each date on which interest is payable on such Loan; provided the
Borrower shall have received at least ten days’ prior notice (with a copy to the Administrative
Agent) of such additional interest or costs from such Lender.



55









 




If a Lender fails to give notice ten days prior to the relevant Interest Payment Date, such
additional interest or costs shall be due and payable ten days from receipt of such notice.




     3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);



     (b) any failure by the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Borrower;



     (c) any failure by the Borrower to make payment of any Loan (or interest due thereon)
denominated in an Alternative Currency on its scheduled due date or any payment thereof in a
different currency; or



     (d) any assignment of a Eurocurrency Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section
10.13;


including any foreign exchange losses and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the
deposits from which such funds were obtained or from the performance of any foreign exchange
contract. The Borrower shall also pay any customary administrative fees charged by such Lender in
connection with the foregoing.




     For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made
by it at the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the
offshore interbank market for such currency for a comparable amount and for a comparable period,
whether or not such Eurocurrency Rate Loan was in fact so funded.



     3.06 Mitigation Obligations; Replacement of Lenders.



     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then such Lender shall, as applicable,
use reasonable efforts to designate a different Lending Office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in
the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable,
and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.



56









 





     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower
may replace such Lender in accordance with Section 10.13.



     3.07 Survival. All of the Borrower’s obligations under this Article III shall survive
termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and
resignation of the Administrative Agent.



ARTICLE IV.

CONDITIONS PRECEDENT TO BORROWINGS




     4.01 Conditions of Initial Borrowing. The obligation of each Lender to make its initial Loans
available to the Borrower hereunder is subject to satisfaction of the following conditions
precedent:



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals or
telecopies or other electronic format (followed promptly by originals) unless otherwise specified,
each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing
Date (or, in the case of certificates of governmental officials, a recent date before the Closing
Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each
of the Lenders:




     (i) executed counterparts of this Agreement and the Guaranty Agreement, sufficient in
number for distribution to the Administrative Agent, each Lender and the Borrower;




     (ii) Notes executed by the Borrower in favor of each Lender that requested Notes at
least two Business Days prior to the Closing Date;




     (iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the Administrative Agent
may reasonably require evidencing the identity, authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in connection with this Agreement
and the other Loan Documents to which such Loan Party is a party or is to be a party;




     (iv) such documents and certifications as the Administrative Agent or its counsel may
reasonably request to evidence that each Loan Party is duly organized or formed, validly
existing and in good standing in its jurisdiction of organization;




     (v) a favorable written opinion (addressed to the Administrative Agent and the Lenders
and dated the Closing Date) of (i) Adam G. Ciongoli, in-house counsel to the Borrower and
the other Loan Parties organized or existing under the laws of the United States or any
state thereof, substantially in the form of Exhibit F-1, (ii) Appleby, local counsel
to the Parent, substantially in the form of Exhibit F-2 and (iii) Oliver Goodinge,
1in-house counsel to the Loan Parties organized or existing under the laws of the United
Kingdom, substantially in the form of Exhibit F-3, and, in the case of each such
opinion



57









 







required by this clause (v), covering such other matters relating to the Loan Parties,
the Loan Documents or the Transactions as the Required Lenders shall reasonably request, and
the Parent and the Borrower hereby request such counsel to deliver such opinions;




     (vi) a pro forma consolidated balance sheet of the Parent and its Subsidiaries after
giving effect to the Merger as of June 30, 2008, and the statements of income of the Parent
and its Subsidiaries after giving effect to the Merger for the fiscal year ended December
31, 2007 and the six-month period ended June 30, 2008, all as filed in the statement S-4/A
of the Parent filed August 21, 2008;




     (vii) forecasts prepared by the Parent or the Borrower of balance sheets, income
statements and cash flow statements of the Parent and its Subsidiaries, after giving effect
to the Transactions, on a quarterly basis for the first year following the Closing Date and
on an annual basis for each year thereafter during the term of this Agreement;




     (viii) [reserved];




     (ix) a certificate signed by a Responsible Officer of the Parent and the Borrower (A)
certifying the current Debt Ratings, which shall be not less than BBB- from S&P and not less
than Baa3 from Moody’s, and neither of such Debt Ratings shall be on “negative watch,” and
(B) demonstrating that, pro forma for all elements of the Transactions to be effected on or
before the Closing Date, the Consolidated Leverage Ratio is not greater than 3.75 to 1.00;




     (x) evidence that all Existing Material Indebtedness has been or concurrently with the
Closing Date is being terminated and all Liens securing obligations under any Existing
Material Indebtedness have been or concurrently with the Closing Date are being released;
and




     (xi) the funding indemnity letter referenced in Section 2.02(f), which shall
have been received within the time prior to the Closing Date as required in such section.



     (b) The Merger shall be consummated prior to or concurrently with the initial Borrowing
substantially in accordance with the Merger Agreement and the other material agreements,
instruments and documents relating thereto (without any alteration, amendment, change, supplement
or waiver of any such document or any condition therein, in each case in a manner materially
adverse to the interests of the Administrative Agent and the Lenders either individually or in the
aggregate, without the prior written consent of the Book Managers; provided that the aggregate
purchase price may be reduced without any such consent).



     (c) After giving effect to the Transactions and all Borrowings under the Facilities on the
date hereof, the aggregate undrawn amount under the Revolving Credit Facilities shall not be less
than $100,000,000.



     (d) Since June 7, 2008 there shall not have occurred any events or changes that, individually
or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect (as
defined in the Merger Agreement) on the Acquired Company.



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     (e) Other than shareholders’ or noteholders’ litigation relating to the Merger, there shall
not be any litigation in any court or before any arbitrator or Governmental Authority, that could
reasonably be expected, individually or in the aggregate, to impose materially adverse conditions,
or which could reasonably be expected, individually or in the aggregate, to have a material adverse
effect, upon the consummation of the Merger or any of the other Transactions.



     (f) The representations and warranties made by or on behalf of the Acquired Company and its
subsidiaries in the Merger Agreement as are material, individually or in the aggregate, to the
interests of the Lenders shall be true and correct (pursuant to the standard contained in the
Merger Agreement, including being true and correct in all material respects if provided therein),
but only to the extent that the Parent or the Acquisition Subsidiary has the right to terminate its
obligations under the Merger Agreement as a result of a breach of such representations and
warranties in the Merger Agreement.



     (g) The representations and warranties contained in Sections 5.01, 5.02,
5.03, 5.04(a), 5.08, 5.11 (with respect to the Parent and its
Subsidiaries without giving effect to the Merger) and 5.13 shall be true and correct on and
as of the date of the initial Borrowing.



     (h) The Administrative Agent shall have received a Committed Loan Notice in accordance with
the requirements hereof. The Committed Loan Notice submitted by the Borrower in connection with
the initial Borrowing hereunder shall be deemed to be a representation and warranty that each of
the conditions specified in Sections 4.01(b) through (g) have been satisfied on and
as of the Closing Date.



     (i) In the case of a Borrowing to be denominated in an Alternative Currency, there shall not
have occurred any change in national or international financial, political or economic conditions
or currency exchange rates or exchange controls that in the reasonable opinion of the
Administrative Agent or the Required Lenders would make it impracticable for such Borrowing to be
denominated in the relevant Alternative Currency.



     (j) (i) All fees required to be paid to the Administrative Agent and/or any of the Book
Managers on or before the Closing Date shall have been paid and (ii) all fees required to be paid
to the Lenders on or before the Closing Date shall have been paid.



     (k) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable
fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel,
if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date,
plus such additional amounts of such fees, charges and disbursements as shall constitute
its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it
through the closing proceedings (provided that such estimate shall not thereafter preclude a final
settling of accounts between the Borrower and the Administrative Agent).



     Without limiting the generality of the provisions of the last paragraph of Section
9.03, for purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender, unless the Administrative



59









 







Agent shall have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.



     4.02 Conditions to all Borrowings. The obligation of each Lender to honor any Request for
Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the
other Type, or a continuation of Eurocurrency Rate Loans) is subject to the following conditions
precedent (except the following shall not apply to the initial Borrowing on the Closing Date, which
shall be subject only to the conditions set forth in Section 4.01):



     (a) The representations and warranties of (i) the Parent and the Borrower contained in Article
V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at
any time under or in connection herewith or therewith, shall be true and correct in all material
respects (or, if such representation or warranty is itself modified by materiality or Material
Adverse Effect, it shall be true and correct in all respects) on and as of the date of such
Borrowing, except (A) to the extent that such representations and warranties specifically refer to
an earlier date, in which case they shall be true and correct as of such earlier date, and (B) the
making of the representation and warranty contained in Section 5.04(b) shall only be
required as a condition precedent to the first Borrowing after the occurrence of the Closing Date.



     (b) No Default shall exist, or would result from such proposed Borrowing or the application of
the proceeds thereof.



     (c) The Administrative Agent and, if applicable, the Swing Line Lender shall have received a
Request for Credit Extension in accordance with the requirements hereof.



     (d) In the case of a Borrowing to be denominated in an Alternative Currency, there shall not
have occurred any change in national or international financial, political or economic conditions
or currency exchange rates or exchange controls that in the reasonable opinion of the
Administrative Agent or the Required Lenders would make it impracticable for such Borrowing to be
denominated in the relevant Alternative Currency.



     Each Request for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Loans to the other Type or a continuation of Eurocurrency Rate Loans and other than a
Committed Loan Notice submitted on or prior to the Closing Date in connection with the initial
Borrowing) submitted by the Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of
the date of the applicable Borrowing.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     Each of the Parent and the Borrower represents and warrants to the Administrative Agent and
the Lenders that:



     5.01 Organization; Powers. Each of the Parent and its Subsidiaries is duly organized, validly
existing and in good standing under the Laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be expected to result in a



60









 







Material Adverse Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.



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



     5.03 Governmental Approvals; No Conflicts. The Transactions (a) do not require any consent or
approval of, registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (b) will not violate
any material applicable Law or the charter, by-laws or other Organization Documents of the Parent
or any Subsidiary or any order of any Governmental Authority, (c) will not violate or result in a
default under any material indenture, agreement or other material instrument binding upon the
Parent or any Subsidiary or its assets, or give rise to a right thereunder to require any payment
to be made by the Parent or any Subsidiary, and (d) will not result in the creation or imposition
of any Lien on any asset of the Parent or any Subsidiary pursuant to the terms of such material
indenture, agreement or other material instrument.



     5.04 Financial Condition; No Material Adverse Change.



     (a) The Parent has heretofore furnished to the Lenders its consolidated balance sheet and
statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended
December 31, 2007, reported on by Deloitte & Touche LLP, independent public accountants, and (ii)
as of and for the fiscal quarter and the portion of the fiscal year ended June 30, 2008, certified
by its chief financial officer. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the Parent and its
consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to
year-end audit adjustments and the absence of footnotes in the case of the statements referred to
in clause (ii) above.



     (b) Since December 31, 2007, there has not occurred any event or change that, individually or
in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect.



     5.05 Properties.



     (a) Each of the Parent and its Subsidiaries has good title to, or valid leasehold interests
in, all its real and personal property material to its business, except for minor defects in title
that do not interfere with its ability to conduct its business as currently conducted or to utilize
such properties for their intended purposes and except where the failure to have such good



61









 







title or valid leasehold interests, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.



     (b) Each of the Parent and its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its business, and the
use thereof by the Parent and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect.



     5.06 Litigation and Environmental Matters.



     (a) There are no actions, suits or proceedings (including investigative proceedings) by or
before any arbitrator or Governmental Authority pending against or, to the knowledge of the Parent
or the Borrower, threatened against or affecting the Parent or any Subsidiary, that would
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect
(other than the Disclosed Matters).



     (b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect, neither the Parent nor any Subsidiary (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability or (iii) has received
notice of any claim with respect to any Environmental Liability.



     5.07 Compliance with Laws; Absence of Default. Each of the Parent and its Subsidiaries is in
compliance with all Laws applicable to it or its property, except where the failure to do so,
individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.



     5.08 Investment Company Status. Neither the Parent nor any Subsidiary is an “investment
company” as defined in, or subject to regulation under, the Investment Company Act of 1940.



     5.09 Taxes. Each of the Parent and its Subsidiaries has timely filed or caused to be filed
all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes
required to have been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Parent or such Subsidiary, as applicable, has set aside
on its books adequate reserves or (b) to the extent that the failure to do so would not reasonably
be expected to result in a Material Adverse Effect.



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



62









 







Financial Accounting Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the assets of all such
underfunded Pension Plans, in each case, by an amount that has had, or would reasonably be expected
to have, a Material Adverse Effect.



     5.11 Disclosure. Neither the Marketing Information nor any of the other reports, financial
statements, certificates or other information furnished by or on behalf of the Parent or the
Borrower to the Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered on or prior to the Closing Date hereunder (as modified or supplemented by
other information so furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that, with respect to projected financial
information, the Parent and the Borrower represent only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time.



     5.12 Subsidiaries. Schedule 5.12 sets forth the name and jurisdiction of organization
of, and the direct or indirect ownership interest of the Parent in, each Subsidiary, and identifies
each Subsidiary that is a Guarantor, in each case as of the Closing Date.



     5.13 Solvency. Immediately after the consummation of the Transactions to occur on the Closing
Date, (a) the fair value of the assets of each Loan Party, at a fair valuation, will exceed its
debts and liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value
of the property of each Loan Party will be greater than the amount that will be required to pay the
probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as
such debts and other liabilities become absolute and matured; (c) each Loan Party will be able to
pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities
become absolute and matured; (d) each Loan Party will not have unreasonably small capital with
which to conduct the business in which it is engaged as such business is now conducted and is
proposed to be conducted following the Closing Date; (e) no Loan Party, by reason of actual or
anticipated financial difficulties, has commenced or intends to commence negotiations with one or
more of its creditors with a view to rescheduling any of its Indebtedness; and (f) no moratorium
has been declared and, in the opinion of the Parent and the Borrower, no moratorium is reasonably
likely to be declared in the foreseeable future, in each case, in respect of any Indebtedness of
any Loan Party.



     5.14 Use of Proceeds. No Loan Party is engaged, and none of them will engage, principally or
as one of its important activities, in the business of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing
or carrying margin stock.



     5.15 Pari Passu. The Obligations rank at least pari passu with all other unsecured
Indebtedness of the Loan Parties.



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ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder or any Loan or other Obligation
hereunder shall remain unpaid, the Parent and the Borrower covenant and agree with the Lenders
that:



     6.01 Financial Statements; Ratings Change and Other Information. The Parent will furnish to
the Administrative Agent and each Lender:



     (a) as soon as available and in any event within 120 days (or, if earlier, the date that is
fifteen (15) days after the reporting date for such information required by the SEC) after the end
of each fiscal year of the Parent, its audited consolidated balance sheet and related statements of
operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth
in each case in comparative form the figures for the previous fiscal year, all reported on by
Deloitte & Touche LLP or other independent public accountants of recognized national standing
(without a “going concern” or like qualification or exception and without any material
qualification or exception as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial condition and results of
operations of the Parent and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied;



     (b) as soon as available and in any event within 60 days (or, if earlier, the date that is
fifteen (15) days after the reporting date for such information required by the SEC) after the end
of each of the first three fiscal quarters of each fiscal year of the Parent, its consolidated
balance sheet and related statements of operations, stockholders’ equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth
in each case in comparative form the figures for the corresponding period or periods of (or, in the
case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial
Officer of the Parent as presenting fairly in all material respects the financial condition and
results of operations of the Parent and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;



     (c) concurrently with any delivery of financial statements under clause (a) or (b) above, a
Compliance Certificate executed by a Financial Officer of the Parent (i) certifying as to whether a
Default that has not been disclosed in any prior Compliance Certificate (unless such Default exists
anew or continues to exist at such time, in which case it shall be included on such Compliance
Certificate) has occurred and, if such Default has occurred or exists, specifying the details
thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations of the financial covenants set forth in, and demonstrating
compliance with, Sections 7.08(a) and (b), (iii) stating whether any Material
Acquisition has occurred during the period covered by such financial statements and, if so, setting
forth the changes to the amounts referred to in Section 7.05(d) as a result of each such
Material Acquisition, and a reasonably detailed explanation of the calculation of such changes and
(iv) stating whether any change in GAAP or in the application thereof that has not been disclosed
in any prior Compliance Certificate has occurred since the date of the audited financial statements



64









 







referred to in Section 5.04 that would be relevant in the calculation of any of the
financial covenants set forth in Sections 7.08(a) and (b) and, if any such change
has occurred, specifying the effect of such change on the financial statements accompanying such
certificate; provided that for the fiscal quarter of the Parent ended September 30, 2008,
because such period ended prior to the Closing Date, the delivery under this Section
6.01(c) shall not require the certifications set forth in subparts (i) and (ii) above, but
shall include a calculation of Consolidated EBITDA and of Consolidated Adjusted EBITDA for such
fiscal quarter substantially in the form set forth as an attachment to the form of Compliance
Certificate;



     (d) concurrently with any delivery of financial statements under clause (a) above, a report
from the accounting firm that reported on such financial statements, stating that (i) the financial
information in the certificate prepared by a Financial Officer of the Parent pursuant to clause (c)
above has been accurately extracted from the sources identified therein and, where applicable,
agrees with the underlying accounting records, (ii) the calculations of the financial covenants in
Sections 7.08(a) and (b) set forth in such certificate are arithmetically correct
and (iii) the financial information set forth in such certificate is, as to elements and
composition, presented in accordance with the relevant accounting definitions set forth in
Section 1.01;



     (e) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Parent or any Subsidiary with the SEC,
or any Governmental Authority succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed by the Parent to its shareholders generally, as
the case may be;



     (f) promptly after S&P or Moody’s shall have announced a change in the Debt Rating, written
notice of such change;



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



     (h) promptly following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Parent or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.



     Documents required to be delivered pursuant to Section 6.01(a), (b) or
(e) (to the extent any such documents are included in materials otherwise filed with the
SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on
the date (i) on which the Parent or the Borrower posts such documents, or provides a link thereto
on the Parent’s or the Borrower’s website on the Internet at the website address listed on
Schedule 10.02; or (ii) on which such documents are posted on the Parent’s or the
Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided that: (i) the Parent or the Borrower, as applicable,
shall deliver paper copies of such documents to the Administrative Agent or any Lender upon the
written request of such



65









 







Person and until a written request to cease delivering paper copies is given by such Person
and (ii) the Parent or the Borrower, as applicable, shall notify the Administrative Agent and each
Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance the Parent and the Borrower shall be
required to provide paper copies of the Compliance Certificates required by Section 6.01(c)
to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent
shall have no obligation to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by the Parent or the
Borrower with any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.



     Each of the Parent and the Borrower hereby acknowledges that (a) the Administrative Agent
and/or one or more of the Book Managers will make available to the Lenders materials and/or
information provided by or on behalf of the Parent or the Borrower, as applicable, hereunder
(collectively, “Parent and Borrower Materials”) by posting the Parent and Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”) and (b)
certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to the Parent, the Borrower or their
respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged
in investment and other market-related activities with respect to such Persons’ securities. Each
of the Parent and the Borrower hereby agrees that (w) all Parent and Borrower Materials that are to
be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a
minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x)
by marking Parent and Borrower Materials “PUBLIC,” the Parent and the Borrower shall be deemed to
have authorized the Administrative Agent, the Book Managers and the Lenders to treat such Parent
and Borrower Materials as not containing any material non-public information with respect to the
Parent, the Borrower or their respective securities for purposes of United States Federal and state
securities laws (provided that to the extent such Parent and Borrower Materials constitute
Information, they shall be treated as set forth in Section 10.07); (y) all Parent and
Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Side Information”; and (z) the Administrative Agent and the Book
Managers shall be entitled to treat any Parent and Borrower Materials that are not marked “PUBLIC”
as being suitable only for posting on a portion of the Platform not designated “Public Side
Information”. Notwithstanding the foregoing, the Borrower shall not be under any obligation to
mark any Borrower Materials “PUBLIC.”



     6.02 Notices of Material Events. The Parent or the Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:



     (a) the occurrence of any Default;



     (b) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or affecting the Borrower or any Affiliate thereof that would
reasonably be expected to result in a Material Adverse Effect;



66









 





     (c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that
have occurred, would reasonably be expected to result in a Material Adverse Effect; and



     (d) any other development that results in, or could reasonably be expected to result in, a
Material Adverse Effect.


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




     6.03 Existence; Conduct of Business.



     (a) The Parent and the Borrower will, and will cause each of the other Loan Parties to, do or
cause to be done all things necessary to preserve, renew and keep in full force and effect its
legal existence and the rights, licenses, permits, privileges and franchises material to the
conduct of its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.04.



     (b) The Parent and the Borrower will, and will cause each of the other Subsidiaries to,
continue to engage (including after giving effect to any acquisition) only in a business of the
type that does not represent a fundamental change in the character of the business of the Parent
and its Subsidiaries, taken as a whole, conducted by the Parent and its Subsidiaries on the date of
execution of this Agreement, and businesses reasonably related thereto.



     6.04 Payment of Taxes. The Parent and the Borrower will, and will cause each of the other
Subsidiaries to, pay its Tax liabilities before the same shall become delinquent or in default,
except where (a) the validity or amount thereof is being contested in good faith by appropriate
proceedings and for which the Parent or such Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP or (b) the failure to make payment would not
reasonably be expected to result in a Material Adverse Effect.



     6.05 Maintenance of Properties; Insurance. The Parent and the Borrower will, and will cause
each of the other Subsidiaries to, (a) keep and maintain all property material to the conduct of
its business in good working order and condition, ordinary wear and tear excepted, and (b) maintain
in full force and effect, with insurance companies that the Parent and the Borrower believe (in the
good faith judgment of the management of the Parent and the Borrower) are financially sound and
responsible at the time the relevant coverage is placed or renewed, insurance in at least such
amounts and against at least such risks (and with such risk retentions) as are usually insured
against in the same general area by companies engaged in the same or a similar business.



     6.06 Books and Records; Inspection Rights. The Parent and the Borrower will, and will cause
each of the other Subsidiaries to, keep proper books of record and account in which full, true and
correct entries are made in all material respects of all dealings and transactions in relation to
its business and activities. The Parent will, and will cause each of its Subsidiaries to, permit
any representatives designated by the Administrative Agent or any Lender, upon



67









 







reasonable prior notice, to visit and inspect its properties, to examine and make extracts
from its books and records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as reasonably requested.



     6.07 Compliance with Laws. The Parent and the Borrower will, and will cause each of the other
Subsidiaries to, comply with all Laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse Effect.



     6.08 Use of Proceeds. The proceeds of the Loans will be used, along with certain other funds
of the Parent and its Subsidiaries, (a) to pay the holders of the Equity Interests of the Acquired
Company a portion of the cash consideration for their shares of the Acquired Company in connection
with the Merger, (b) to pay fees and expenses of the Transactions, (c) to refinance the Existing
Material Indebtedness, (d) to finance, in part, the Permitted Parent Equity Repurchases and (e) in
the case of the Revolving Credit Facilities only, for working capital, capital expenditures,
permitted acquisitions and other lawful corporate purposes. Any amount of the Term Loan drawn in a
Borrowing made after the Closing Date will be used solely for the purpose of making Permitted
Parent Equity Repurchases (and the related distributions by the Borrower and the other Guarantors
to the Parent to accomplish such Permitted Parent Equity Repurchases) or repaying existing
Indebtedness of the Parent and its Subsidiaries, or both (and in each case to pay fees and expenses
related thereto). Notwithstanding anything to the contrary in this Section or in any other Loan
Document, the Parent and the Borrower agree that they will ensure, and will cause their
Subsidiaries to ensure, that no part of the proceeds of any Loan will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.



ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid, the Parent and the Borrower covenant and agree with the Lenders
that:



     7.01 Subsidiary Indebtedness. The Parent will not permit any Subsidiary that is not a Loan
Party to create, incur, assume or permit to exist any Indebtedness (including pursuant to any
Guarantee of Indebtedness of the Parent or another Subsidiary), except:



     (a) Indebtedness owing to the Parent or another Subsidiary;



     (b) Guarantees of Indebtedness of another Subsidiary that is not a Loan Party, to the extent
such Indebtedness is permitted by this Section 7.01;



     (c) Indebtedness of any Person that becomes a Subsidiary after the date hereof;
provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary and
is not created in contemplation of or in connection with such Person becoming a Subsidiary and (ii)



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such Indebtedness shall not be Guaranteed by the Parent or any other Subsidiary, except
Indebtedness that, in the aggregate, but without duplication, does not exceed $25,000,000 may be
Guaranteed;



     (d) Indebtedness incurred to finance the acquisition, construction or improvement of any fixed
or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection
with the acquisition of any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof; provided that (i) such Indebtedness is
incurred prior to or within 180 days after such acquisition or the completion of such construction
or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause (d)
shall not exceed $25,000,000 at any time outstanding;



     (e) Indebtedness incurred in relation to arrangements made in the ordinary course of business
to facilitate the operation of bank accounts on a net balance basis;



     (f) short term Indebtedness from banks incurred in the ordinary course of business pursuant to
a facility required in order to comply with rules and regulations issued from time to time by
regulatory authorities; provided that such compliance is required for the applicable
Subsidiary to remain licensed to conduct its business; and



     (g) other Indebtedness in an aggregate principal amount (for all such Subsidiaries combined,
but without duplication) not exceeding $100,000,000 at any time outstanding.



     7.02 Liens. The Parent and the Borrower will not, and will not permit any other Subsidiary
to, create, incur, assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable)
or rights in respect of any thereof, except:



     (a) Permitted Encumbrances;



     (b) any Lien on any property or asset of the Parent or any Subsidiary existing on the date
hereof and set forth in Schedule 7.02; provided that (i) such Lien shall not apply
to any other property or asset of the Parent or any Subsidiary and (ii) such Lien shall secure only
those obligations which it secures on the date hereof and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;



     (c) any Lien existing on any property or asset prior to the acquisition thereof by the Parent
or any Subsidiary after the date hereof or existing on any property or asset of any Person that
becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Parent or any Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition or the date such
Person becomes a Subsidiary, as the case may be, and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;



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     (d) Liens on fixed or capital assets acquired, constructed or improved by the Parent or any
Subsidiary; provided that (i) such security interests secure only Indebtedness incurred to
finance the acquisition, construction or improvement of such fixed or capital assets (including
Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of such
assets) and extensions, renewals and replacements thereof that do not increase the outstanding
principal amount thereof, (ii) such security interests and the Indebtedness secured thereby are
incurred prior to or within 180 days after such acquisition or the completion of such construction
or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of acquiring,
constructing or improving such fixed or capital assets and (iv) such security interests shall not
apply to any other property or assets of the Parent or any Subsidiary;



     (e) charges or Liens in favor of a regulatory authority or a third party, in each case, as
contemplated by the rules or regulations issued by a regulatory authority and with which the
applicable Subsidiary is required to comply in order to remain licensed to conduct its business;



     (f) Liens over credit balances created in favor of any bank in order to facilitate the
operation of bank accounts on a net balance basis or in connection with any BACS facility used in
the ordinary course of business;



     (g) Liens comprised by escrow arrangements entered into in connection with asset sales,
transfers or other dispositions permitted by Section 7.04; and



     (h) other Liens; provided that the sum of the aggregate principal amount of
obligations secured by such Liens plus the aggregate amount of Attributable Indebtedness in
respect of sale and leaseback transactions permitted by Section 7.05(c) shall not, at any
time, exceed 10% of Net Worth.



     7.03 Investments. The Parent and the Borrower will not, and will not permit any other
Subsidiary to, make or hold any Investments, except:



     (a) Investments held by the Parent and its Subsidiaries in the form of cash equivalents;



     (b) advances to officers, directors and employees of the Parent and its Subsidiaries made in
the ordinary course or business, consistent with past practice, and in compliance with Laws, for
travel, entertainment, relocation and analogous ordinary business purposes;



     (c) Investments by the Parent and its Subsidiaries in the Parent or other Subsidiaries
(provided that if such Investments are in the form of Indebtedness owing by any Loan Party
to any Subsidiary that is not a Loan Party, then any such Indebtedness in excess of $100,000,000 in
the aggregate at any time outstanding shall be expressly subordinated to the Obligations);



     (d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;



     (e) Guarantees permitted by Section 7.01; and



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     (f) Investments (i) existing on the date hereof (other than those referred to in Section
7.03(c)) and set forth on Schedule 7.03, and (ii) in Gras Savoye & Cie, France,
pursuant to “put” agreements and “call” agreements in place on the Closing Date (without any
amendment or modification of any such agreement that would increase the required amount or price of
such Investment or would otherwise be materially adverse to the interests of the Administrative
Agent and the Lenders);



     (g) other Investments (including Permitted Acquisitions) not exceeding $50,000,000 in the
aggregate in any fiscal year of the Parent; provided that Investments under this
Section 7.03(g) shall be permitted in an unlimited amount so long as, both before and after
giving effect to any such Investment (and any Indebtedness incurred or repaid in connection
therewith), the pro forma Consolidated Leverage Ratio is no greater than 2.50 to 1.00.



     7.04 Fundamental Changes. The Parent and the Borrower will not, and will not permit any other
Loan Party to, either (x) merge into or consolidate with any other Person, or permit any other
Person to merge into or consolidate with it, or (y) liquidate or dissolve, except that, if at the
time thereof and immediately after giving effect thereto no Default shall have occurred and be
continuing and, in the event such merger or consolidation is in connection with an Investment
(including a Permitted Acquisition), the Investment is permitted by Section 7.03:



     (a) any Subsidiary may merge with or into the Parent, the Borrower or any other Loan Party in
a transaction in which the Parent, the Borrower or such Loan Party, as the case may be, is the
surviving entity; provided that (i) the Parent and the Borrower will not merge with or into
each other and (ii) if the Parent or the Borrower merges with any other Loan Party, the Parent or
the Borrower, as the case may be, must be the surviving entity;



     (b) any Person may merge with or into the Parent, the Borrower or any other Loan Party in a
transaction in which the Parent, the Borrower or such Loan Party, as the case may be, is not the
surviving entity; provided that (i) the Person formed by or surviving any such merger or
consolidation shall be a corporation organized or existing under the laws of the United States, any
state thereof, the District of Columbia or any territory thereof or, in the case of a merger or
consolidation involving the Parent, the laws of the jurisdiction in which the Parent is organized
(such Person being herein referred to as the “Successor Entity”), (ii) the Successor Entity
shall expressly assume all the obligations of the Parent, the Borrower or the applicable Loan
Party, as the case may be, under the Loan Documents to which the Parent, the Borrower or such Loan
Party, as applicable, is a party, pursuant to a supplement hereto or thereto in form reasonably
satisfactory to the Administrative Agent, (iii) if such merger or consolidation involves the
Borrower, then each Guarantor, unless it is the other party to such merger or consolidation, shall
have (by a supplement to the Guaranty Agreement) confirmed that its Guarantee shall apply to all of
the Successor Entity’s obligations under this Agreement, (iv) if requested by the Administrative
Agent, the Administrative Agent shall have received an opinion of counsel reasonably satisfactory
to the Administrative Agent to the effect that the applicable Loan Documents are legal, valid,
binding and enforceable obligations of the Successor Entity and (v) this clause (b) shall not be
construed to permit the Borrower to merge with or into the Parent.


In the case of any such merger of the Parent or the Borrower in accordance with clause (b) above,
the Successor Entity shall be deemed to be the Parent or the Borrower, as applicable, for




71









 







all purposes of the Loan Documents. Notwithstanding anything to the contrary herein, the Parent
will not engage, and will not permit the Borrower to engage, in any transaction that would reduce
the percentage of Equity Interests owned by the Parent in the Borrower, except for (x) sales,
transfers and other disposals of such Equity Interests to directors, officers or employees of the
Borrower pursuant to any employee stock ownership plan or similar plan for the benefit of
directors, officers or employees of the Borrower and (y) the issuance of such Equity Interests as
consideration for any acquisition from a third party; provided that following any such
issuance of Equity Interests to a third party, no Change in Control shall have occurred and the
majority of the seats (other than vacant seats) on the board of directors of the Borrower shall be
occupied by Persons nominated by the board of directors of the Borrower or the Parent or appointed
by directors so nominated.




     7.05 Asset Sales. The Parent and the Borrower will not, and will not permit any other
Subsidiary to, Dispose of any asset, including any Equity Interest owned by it, except:



     (a) Dispositions in the ordinary course of business;



     (b) Dispositions to the Parent or a Subsidiary;



     (c) Dispositions pursuant to sale and leaseback transactions permitted by Section
7.06(a); and



     (d) Dispositions of assets that are not permitted by any other clause of this Section
7.05 so long as the Net Cash Proceeds of such Dispositions are applied in accordance with
Section 2.04(c); provided that the aggregate fair market value of all assets sold,
transferred or otherwise disposed in reliance upon this clause (d) shall not exceed $1,100,000,000
during any fiscal year and shall not exceed $2,750,000,000 during the period from and including
June 30, 2008 to but excluding the Maturity Date; provided further that in the event, and
on each occasion, that any Material Acquisition is consummated after the Closing Date, each of the
two amounts set forth in the immediately preceding proviso shall be increased by an amount equal to
25% of the value of the assets acquired pursuant to such Material Acquisition (valued based upon
the amount at which such assets would be reflected on a balance sheet of the Parent and its
Subsidiaries prepared on a consolidated basis in accordance with GAAP after giving effect to such
Material Acquisition);


provided that all Dispositions permitted hereby (other than those permitted by clause (a)
or (b) above) shall be made for full fair value and on an arm’s length basis, as reasonably
determined in good faith by the Parent or the Borrower, taking into account all relevant
considerations. Any merger or consolidation of a Subsidiary with or into any other Person that
results in such Subsidiary ceasing to be a Subsidiary or the Parent owning a reduced percentage of
the Equity Interests in such Subsidiary shall, in each case, be treated as a Disposition of such
Subsidiary (or the relevant portion thereof) for purposes of this Section 7.05.




     7.06 Sale and Leaseback Transactions. The Parent and the Borrower will not, and will not
permit any other Subsidiary to, enter into any arrangement, directly or indirectly, whereby it
shall sell or transfer any property, real or personal, used or useful in its business, whether now
owned or hereinafter acquired, and thereafter rent or lease such property or other



72









 







property that it intends to use for substantially the same purpose or purposes as the property
sold or transferred, except:



     (a) any such sale of any fixed or capital assets that is made for cash consideration in an
amount not less than the cost of such fixed or capital asset and is consummated within 180 days
after the Parent or such Subsidiary acquires or completes the construction of such fixed or capital
asset;



     (b) any such sale of the property listed on Schedule 7.06;



     (c) any other such sale if, after giving effect thereto, the Attributable Debt in respect of
the applicable sale and leaseback transaction is within the limits set forth in Section
7.02(h) (after giving effect to all such sale and leaseback transactions and applicable Liens).



     7.07 Restricted Payments. The Parent and the Borrower will not, and will not permit any other
Subsidiary to, declare or make, directly or indirectly, any Restricted Payment, or incur any
obligation (contingent or otherwise) to do so, except that, so long as no Default shall have
occurred and be continuing at the time of any action described below or would result therefrom:



     (a) each Subsidiary may make Restricted Payments to the Parent or another Subsidiary, and any
other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective
holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;



     (b) the Parent and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity Interests of such Person;



     (c) the Parent and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests
issued by it with the proceeds received from the substantially concurrent issue of new shares of
its common stock or other common Equity Interests;



     (d) the Parent may declare or pay ordinary (as opposed to special) cash dividends to its
stockholders in the ordinary course of business;



     (e) the Parent may repurchase Equity Interests of the Parent (and Subsidiaries of the Parent
may make Restricted Payments, directly or indirectly, up to the Parent for such purpose)
consummated on or after the Closing Date, but prior to the date that is eighteen (18) months after
the Closing Date, so long as (i) the aggregate amount of such repurchases does not exceed an amount
equivalent to the number of shares issued to shareholders of the Acquired Company as consideration
for the Merger, (ii) all such Equity Interests repurchased by the Parent are retired and not held
as treasury stock, and (iii) before and after giving pro forma effect thereto (including to any
Indebtedness incurred in connection therewith), both (A) the Consolidated Leverage Ratio is not
greater than an amount 0.25 to 1.00 lower than the covenant level then in effect pursuant to
Section 7.08(b), and (B) the amount by which the Aggregate Revolving Credit Commitments
exceeds the Total Revolving Credit Outstandings is at least $100,000,000 (such permitted purchases,
the “Permitted Parent Equity Repurchases”);



73









 





     (f) the Parent and its Subsidiaries may make other Restricted Payments that are not otherwise
permitted in any other clause of this Section 7.07 in an aggregate amount in any fiscal
year of the Parent not to exceed the sum of (i) $50,000,000 plus (ii) up to $25,000,000 of
the amount available pursuant to clause (i) above for the preceding fiscal year, but unused in such
fiscal year (the amounts in clause (i) above being deemed to be utilized first in any fiscal year
prior to the utilization of any carryover amount provided in this clause (ii)); and



     (g) the Parent and its Subsidiaries may make other Restricted Payments that are not otherwise
permitted in any other clause of this Section 7.07 in an unlimited amount so long as, both before
and after giving effect to any such Restricted Payment (and any Indebtedness incurred or repaid in
connection therewith), the pro forma Consolidated Leverage Ratio is no greater than 2.50 to 1.00.



     7.08 Financial Covenants.



     (a) Consolidated Fixed Charge Coverage Ratio. The Parent and the Borrower will not
permit the Consolidated Fixed Charge Coverage Ratio as of the end of any fiscal quarter of the
Parent set forth below to be less than the ratio set forth below opposite such fiscal quarter:



	 	 	 	 	 
	 	 	Minimum
	 	 	Consolidated
	 	 	Fixed Charge
	Fiscal Quarters	 	Coverage Ratio
	 
	Closing Date through the fiscal quarter ending on or
closest to September 30, 2009
	 	 	2.50 to 1.00	 
	 
	 	 	 	 
	Fiscal quarter ending on or closest to December 31, 2009
and each fiscal quarter thereafter
	 	 	1.50 to 1.00	 






     (b) Consolidated Leverage Ratio. The Parent and the Borrower will not permit the
Consolidated Leverage Ratio as of the end of any fiscal quarter of the Parent set forth below to be
greater than the ratio set forth below opposite such fiscal quarter:



	 	 	 	 	 
	 	 	Maximum
	 	 	Consolidated
	Fiscal Quarters	 	Leverage Ratio
	 
	Closing Date through the fiscal quarter ending on or
closest to September 30, 2009
	 	 	3.75 to 1.00	 
	 
	 	 	 	 
	Fiscal quarters ending on or closest to December 31, 2009
and March 31, 2010
	 	 	3.50 to 1.00	 
	 
	 	 	 	 
	Fiscal quarters ending on or closest to June 30, 2010 and
September 30, 2010
	 	 	3.25 to 1.00	 
	 
	 	 	 	 
	Fiscal quarter ending on or closest to December 31, 2010
and each fiscal quarter thereafter
	 	 	3.00 to 1.00	 






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ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:



     (a) Non-Payment. Either (i) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment thereof or otherwise or (ii) the Borrower shall fail to pay any interest on
any Loan or any fee or any other amount (other than an amount referred to in subclause (i) of this
clause (a)) payable under this Agreement, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of three Business Days; or



     (b) Specific Covenants. The Parent or the Borrower shall fail to observe or perform
any covenant, condition or agreement contained in Section 6.02, 6.03 (with respect
to the existence of the Parent or the Borrower) or 6.08 or in Article VII; or



     (c) Other Defaults. Any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those specified in clause (a) or
(b) of this Article), and, if such failure is capable of remedy, such failure shall continue
unremedied for a period of 30 days after notice thereof from the Administrative Agent to the
Borrower (which notice will be given at the request of any Lender); or



     (d) Representations and Warranties. any representation or warranty made or deemed
made by or on behalf of the Parent, the Borrower or any other Subsidiary in or in connection with
any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in connection with any
Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have
been incorrect in any material respect (or, with respect to any representation or warranty modified
by materiality or Material Adverse Effect, in any respect) when made or deemed made; or



     (e) Cross-Default. Either (i) the Parent or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in respect of any Material
Indebtedness or Material Swap Obligations, when and as the same shall become due and payable, or
(ii) any event or condition occurs that results in any Material Indebtedness becoming due prior to
its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse
of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its
or their behalf to cause any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided
that this clause (e) shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such Indebtedness; or



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



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



     (h) Inability to Pay Debts. The Parent or any Subsidiary shall become unable, admit
in writing its inability or fail generally to pay its debts as they become due; or



     (i) Judgments. One or more judgments for the payment of money in an aggregate amount
in excess of $30,000,000 (to the extent not covered by insurance provided by a carrier that is not
disputing coverage) shall be rendered against the Parent, any Subsidiary or any combination thereof
and the same shall remain unpaid or undischarged, in each case for a period of 60 consecutive days
during which period execution shall not be effectively stayed, or any formal legal process has been
commenced by a judgment creditor to attach or levy upon any material assets of the Parent or any
Subsidiary to enforce any such judgment; or



     (j) ERISA. An ERISA Event shall have occurred that, in the opinion of the Required
Lenders, when taken together with all other ERISA Events that have occurred, would reasonably be
expected to result in a Material Adverse Effect;



     (k) Invalidity of Loan Documents. Any Loan Document, at any time after its execution
and delivery and for any reason other than as expressly permitted hereunder or thereunder or
satisfaction in full of all the Obligations, ceases to be in full force and effect; or the Parent
or any Subsidiary (including any Loan Party) contests in any manner the validity or enforceability
of any Loan Document; or any Loan Party denies that it has any or further liability or obligation
under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or



     (l) Change in Control. There occurs any Change in Control.



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     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:



     (a) declare the commitment of each Lender to make Loans to be terminated, whereupon such
commitments and obligation shall be terminated;



     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Parent and the Borrower; and



     (c) exercise on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents;


provided that upon the occurrence of an actual or deemed entry of an order for relief with
respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each
Lender to make Loans shall automatically terminate, and the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall automatically become due
and payable, in each case without further act of the Administrative Agent or any Lender.




     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable as set forth in
the proviso to Section 8.02), any amounts received on account of the Obligations shall be
applied by the Administrative Agent in the following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders (including fees,
charges and disbursements of counsel to the respective Lenders arising under the Loan Documents and
amounts payable under Article III), ratably among them in proportion to the respective
amounts described in this clause Second payable to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and other Obligations, ratably among the Lenders in proportion to the
respective amounts described in this clause Third payable to them;



     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans ratably among the Lenders in proportion to the respective amounts described in this
clause Fourth held by them; and



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.




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ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authority.



     Each of the Lenders hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto. The provisions of this Article are solely for the benefit of the
Administrative Agent and the Lenders, and neither the Borrower nor any other Loan Party shall have
rights as a third party beneficiary of any of such provisions.



     9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the Parent or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.



     9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:



     (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;



     (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents); provided that the Administrative Agent shall
not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Loan Document or applicable law;
and



     (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Parent, the Borrower or any of their respective Affiliates that is communicated to or obtained
by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage



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of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good
faith shall be necessary, under the circumstances as provided in Sections 10.01 and
8.02) or (ii) in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower or a Lender.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



     9.04 Reliance by Administrative Agent.



     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the
Administrative Agent may presume that such condition is satisfactory to such Lender unless the
Administrative Agent shall have received notice to the contrary from such Lender prior to the
making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel
for the Borrower or the Parent), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance with the advice of any
such counsel, accountants or experts.



     9.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or through any one or
more sub agents appointed by the Administrative Agent. The Administrative Agent and any such sub
agent may perform any and all of its duties and exercise its rights and powers by or through their
respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub
agent and to the Related Parties of the Administrative Agent and any such sub agent, and shall
apply to their respective activities in connection with the syndication of the credit facilities
provided for herein as well as activities as Administrative Agent.



     9.06 Resignation of Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor, which shall be a bank with an office in the United States, or an



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Affiliate of any such bank with an office in the United States. If no such successor shall
have been so appointed by the Required Lenders and shall have accepted such appointment within 30
days after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint, in consultation with the Borrower, a
successor Administrative Agent meeting the qualifications set forth above; provided that if
the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent shall instead be made
by or to each Lender directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already discharged therefrom as
provided above in this Section). The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.



     Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as Swing Line Lender. Upon the acceptance of a successor’s appointment
as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all
of the rights, powers, privileges and duties of the retiring Swing Line Lender, and (b) the
retiring Swing Line Lender shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents.



     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or any related agreement
or any document furnished hereunder or thereunder.



     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Lead
Arranger, the Book Managers, the Syndication Agents or the Documentation Agents listed on the cover
page hereof shall have any powers, duties or responsibilities under this Agreement or any of the
other Loan Documents, except in its capacity, as applicable, as the



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Administrative Agent or a Lender hereunder or, with respect to the Book Managers, as expressly
provided herein.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered,
by intervention in such proceeding or otherwise



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders and the Administrative Agent and their respective agents and counsel
and all other amounts due the Lenders and the Administrative Agent under Sections 2.08 and
10.04) allowed in such judicial proceeding; and



     (b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent under Sections 2.08
and 10.04.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.



     9.10 Guaranty Matters. The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion, to release any Guarantor from its obligations under the Guaranty
Agreement if such Person ceases to be a Subsidiary of the Parent as a result of a transaction
permitted hereunder. Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent’s authority to release any Guarantor from its
obligations under the Guaranty Agreement pursuant to this Section 9.10.



ARTICLE X.

MISCELLANEOUS




     10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower or any other Loan



81









 







Party therefrom, shall be effective unless in writing signed by the Required Lenders (or the
Administrative Agent with the consent of the Required Lenders) and the Borrower or the applicable
Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver
or consent shall be effective only in the specific instance and for the specific purpose for which
given; provided that no such amendment, waiver or consent shall:



     (a) waive any condition set forth in Section 4.01 (other than Section
4.01(j)(i) or (k), which may be waived solely by the Person to whom any such amounts
are due) without the written consent of each Lender;



     (b) waive any condition set forth in Section 4.02 as to any Borrowing under a
particular Facility without the written consent of the Required Dollar Revolving Lenders, the
Required Multicurrency Revolving Lenders or the Required Term Loan Lenders, as the case may be
(including any effective waiver resulting from an amendment, consent or waiver otherwise approved
hereunder, but without which a condition set forth in Section 4.02 would not be satisfied);



     (c) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the written consent of such Lender;



     (d) postpone any date fixed by this Agreement or any other Loan Document for any payment
(excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby;



     (e) reduce the principal of, or the rate of interest specified herein on, any Loan, or
(subject to clause (iv) of the second proviso to this Section 10.01) any fees or other
amounts payable hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby; provided that only the consent of the Required Lenders
shall be necessary (i) to amend the definition of “Default Rate” or to waive any obligation of the
Borrower to pay interest at the Default Rate or (ii) to amend any financial covenant hereunder (or
any defined term used therein) even if the effect of such amendment would be to reduce the rate of
interest on any Loan or to reduce any fee payable hereunder;



     (f) change Section 2.12 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender;



     (g) amend Section 1.06 or the definition of “Alternative Currency” without the written
consent of each Multicurrency Revolving Credit Lender;



     (h) change (i) any provision of this Section 10.01 or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of Lenders required to
amend, waive or otherwise modify any rights hereunder or make any determination or grant any
consent hereunder (other than the definitions specified in clause (ii) of this Section
10.01(h)) without the written consent of each Lender, or (ii) the definition of “Required
Dollar Revolving Lenders”, of “Required Multicurrency Revolving Lenders” or of “Required Term Loan
Lenders” without the written consent of each Dollar Revolving Credit Lender, Multicurrency
Revolving Credit Lender or each Term Lender, respectively;



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     (i) release all or substantially all of the value of the Guaranty Agreement without the
written consent of each Lender, except to the extent the release of any Guarantor is permitted
pursuant to Section 9.10 (in which case such release may be made by the Administrative
Agent acting alone); or



     (j) impose any greater restriction on the ability of any Lender under a Facility to assign any
of its rights or obligations hereunder without the written consent of (i) if such Facility is the
Term Loan Facility, the Required Term Loan Lenders, (ii) if such Facility is the Dollar Revolving
Credit Facility, the Required Dollar Revolving Lenders and (iii) if such Facility is the
Multicurrency Revolving Credit Facility, the Required Multicurrency Revolving Lenders;


and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders required above, affect
the rights or duties of the Administrative Agent under this Agreement or any other Loan Document;
(ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender
in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender
under this Agreement; (iii) Section 10.06(g) may not be amended, waived or otherwise
modified without the consent of each Granting Lender all or any part of whose Loans are being
funded by an SPC at the time of such amendment, waiver or other modification; and (iv) each Fee
Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the
parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent of such Lender.




     If any Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of each Lender or such Lender and that has
been approved by the Required Lenders, the Required Term Loan Lenders, the Required Dollar
Revolving Lenders or the Required Multicurrency Revolving Lenders, as applicable, the Borrower may
replace such non-consenting Lender in accordance with Section 10.13; provided that
such amendment, waiver, consent or release can be effected as a result of the assignment
contemplated by such Section (together with all other such assignments required by the Borrower to
be made pursuant to this paragraph).



     10.02 Notices; Effectiveness; Electronic Communications.



     (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopier or
(subject to subsection (b) below) email as follows, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the applicable telephone
number, as follows:




     (i) if to the Parent, the Borrower, the Administrative Agent or the Swing Line Lender,
to the address, telecopier number, electronic mail address or telephone number specified for
such Person on Schedule 10.02; and



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     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


Notices and other communications sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices and other
communications sent by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have been given at the
opening of business on the next business day for the recipient). Notices and other communications
delivered through electronic communications to the extent provided in subsection (b) below, shall
be effective as provided in such subsection (b).




     (b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and Internet
or intranet websites) pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices to any Lender pursuant to Article II, if such
Lender has notified the Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of such
procedures may be limited to particular notices or communications.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement); provided that, if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE PARENT AND BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR
OMISSIONS FROM THE PARENT AND BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
ANY AGENT PARTY IN CONNECTION WITH THE PARENT AND BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the “Agent
Parties”) have any liability to the Parent, the Borrower, any Lender or any other Person for
losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or
otherwise) arising out of the Parent’s, the Borrower’s or the Administrative Agent’s transmission
of Parent and Borrower Materials through the Internet, except to the extent that such losses,
claims, damages, liabilities



84









 







or expenses are determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Agent Party;
provided that in no event shall any Agent Party have any liability to the Parent, the
Borrower, any Lender or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages).



     (d) Change of Address, Etc. Each of the Parent, the Borrower, the Administrative
Agent and the Swing Line Lender may change its address, telecopier, e-mail or telephone number for
notices and other communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier, e-mail or telephone number for notices and other
communications hereunder by notice to the Borrower, the Administrative Agent and the Swing Line
Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to
ensure that the Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and e-mail address to which notices and other communications
may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender
agrees to cause at least one individual at or on behalf of such Public Lender to at all times have
selected the “Private Side Information” or similar designation on the content declaration screen of
the Platform in order to enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable Law, including United States Federal and state
securities Laws, to make reference to Parent and Borrower Materials that are not made available
through the “Public Side Information” portion of the Platform and that may contain material
non-public information with respect to the Parent or the Borrower or their respective securities
for purposes of United States Federal or state securities laws.



     (e) Reliance by Administrative Agent and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan
Notices and Swing Line Loan Notices) purportedly given by or on behalf of the Parent or the
Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or
were not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. The Parent and the
Borrower shall each indemnify the Administrative Agent, each Lender and the Related Parties of each
of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person
on each notice purportedly given by or on behalf of the Parent or the Borrower. All telephonic
notices to and other telephonic communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such recording.



     10.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder or under any Loan Document 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, and provided under each
other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.



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     Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders;
provided that the foregoing shall not prohibit (a) the Administrative Agent from exercising
on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as
Administrative Agent) hereunder and under the other Loan Documents, (b) the Swing Line Lender from
exercising the rights and remedies that inure to its benefit (solely in its capacity as Swing Line
Lender) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights
in accordance with Section 10.08 (subject to the terms of Section 2.12), or (d) any
Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and
provided, further, that if at any time there is no Person acting as Administrative
Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the
rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject
to Section 2.12, any Lender may, with the consent of the Required Lenders, enforce any
rights and remedies available to it and as authorized by the Required Lenders.



     10.04 Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), and (ii) all out-of-pocket expenses incurred
by the Administrative Agent or any Lender (including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender), in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the Loans made hereunder,
including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.



     (b) Indemnification by the Borrower. Each of the Parent and the Borrower shall
indemnify the Administrative Agent (and any sub-agent thereof) and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses, (including the fees, charges and disbursements of any counsel for any
Indemnitee) (excluding Taxes which shall be governed by Section 3.01), incurred by any Indemnitee
or asserted against any Indemnitee by any third party or by the Borrower or any other Loan Party
arising out of, in connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby,
the performance by the parties hereto of their respective obligations hereunder or thereunder, the
consummation of the transactions contemplated hereby or thereby, or, in the case



86









 







of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents, (ii) any Loan or the use or proposed
use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Parent or any of its Subsidiaries, or
any Environmental Liability related in any way to the Parent or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by the Borrower or any other Loan Party or any of the Borrower’s or such Loan Party’s directors,
shareholders or creditors, and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the
Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any other Loan Document, if the Borrower or such other Loan Party
has obtained a final and nonappealable judgment in its favor on such claim as determined by a court
of competent jurisdiction.



     (c) Reimbursement by Lenders. To the extent that the Parent and the Borrower for any
reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of
the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent) or such Related Party, as the case may be, such Lender’s Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) in its capacity as such, or against any Related Party
of any of the foregoing acting for the Administrative Agent (or any such sub-agent) in connection
with such capacity. The obligations of the Lenders under this subsection (c) are subject to the
provisions of Section 2.11(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, neither the Parent, the Borrower, the Administrative Agent nor any Lender shall
assert, and each of them hereby waives, any claim against any Person party to this Agreement or
against any Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as
a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds
thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising
from the use by unintended recipients of any information or other materials distributed to such
unintended recipients by such Indemnitee through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other Loan Documents or
the transactions contemplated hereby or thereby other than for direct or actual damages resulting
from the gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.



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     (e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.



     (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent and the Swing Line Lender, the replacement of any Lender, the termination of
the Aggregate Commitments and the repayment, satisfaction or discharge of all the other
Obligations.



     10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent or such Lender in
its discretion) to be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share
(without duplication) of any amount so recovered from or repaid by the Administrative Agent,
plus interest thereon from the date of such demand to the date such payment is made at a
rate per annum equal to the applicable Overnight Rate from time to time in effect, in the
applicable currency of such recovery or payment. The obligations of the Lenders under clause (b)
of the preceding sentence shall survive the payment in full of the Obligations and the termination
of this Agreement.



     10.06 Successors and Assigns.



     (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that neither (x) the Borrower nor the Parent may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender; provided that a merger or consolidation that
complies with Section 7.04 shall not be construed as an assignment or transfer for purposes of this
clause (x) and (y) no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this
Section, (iii) by way of pledge or assignment of a security interest subject to the restrictions of
subsection (f) of this Section, or (iv) to an SPC in accordance with the provisions of subsection
(g) of this Section (and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon
any Person (other than the parties hereto, their respective successors and assigns permitted
hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the
Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a



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portion of its Commitments and the Loans (including for purposes of this subsection (b),
participations in Swing Line Loans) at the time owing to it); provided that any such
assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment under any Facility and the Loans at the time owing to
it under such Facility or in the case of an assignment to a Lender, an Affiliate of
a Lender or an Approved Fund, no minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the 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 or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); provided that
concurrent assignments to members of an Assignee Group and concurrent assignments
from members of an Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a single assignment
for purposes of determining whether such minimum amount has been met.




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not (A) apply to the Swing Line Lender’s rights and obligations in respect
of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights
and obligations among separate Facilities on a non-pro rata basis;




     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:




     (A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed; provided that the Borrower will be deemed to have consented to such
assignment if its response is not received by the Administrative Agent within five
days of its receipt of notice of such assignment) shall be required unless (1) an
Event of Default has occurred and is continuing at the time of such assignment or
(2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;




     (B) the consent of the Administrative Agent (such consent not to be



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unreasonably withheld or delayed) shall be required for assignments in respect
of (1) any Term Commitment, any Dollar Revolving Credit Commitment or any
Multicurrency Revolving Credit Commitment if such assignment is to a Person that is
not a Lender with a Commitment in respect of the applicable Facility, an Affiliate
of such Lender or an Approved Fund with respect to such Lender or (2) any Term Loan
to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; and




     (C) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment in respect of the
Multicurrency Revolving Credit Facility.




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided that the
Administrative Agent may, in its sole discretion, elect to waive such processing and
recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Borrower. No such assignment shall be made to the Parent,
the Borrower or any of the Parent’s or Borrower’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection 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 subsection (d) of
this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office 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 principal amounts of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the “Register”). The entries in the Register shall
be conclusive, and the Parent, the Borrower, the Administrative Agent and the Lenders may treat



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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 Parent, the Borrower and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Parent, the Borrower or the Administrative Agent, sell participations to any Person (other than
a natural person or the Parent, the Borrower or any of the Parent’s or Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or
obligations under this Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in Swing Line Loans) owing to it); provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Parent, the Borrower, the Administrative Agent and the Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations under
this Agreement.



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this Section,
each Borrower agrees that each Participant shall be entitled to the benefits of Sections
3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.08 as though it
were a Lender; provided such Participant agrees to be subject to Section 2.12 as
though it were a Lender.



     (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01, unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.01(e) as though it were a Lender.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note(s), if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.



     (g) Special Purpose Funding Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding



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vehicle identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower (an “SPC”) the option to provide all or any part of
any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of
such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof
or, if it fails to do so, to make such payment to the Administrative Agent as is required under
Section 2.11(b)(ii). Each party hereto hereby agrees that (i) neither the grant to any SPC
nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise
increase or change the obligations of the Borrower under this Agreement (including its obligations
under Section 3.04), (ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Lender would be liable, and (iii) the Granting Lender
shall for all purposes, including the approval of any amendment, waiver or other modification of
any provision of any Loan Document, remain the lender of record hereunder. The making of a Loan by
an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding commercial paper or
other senior debt of any SPC, it will not institute against, or join any other Person in
instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to, but without prior
consent of the Borrower and the Administrative Agent and with the payment of a processing fee in
the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole
discretion), assign all or any portion of its right to receive payment with respect to any Loan to
the Granting Lender and (ii) disclose on a confidential basis any non-public information relating
to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or
Guarantee or credit or liquidity enhancement to such SPC.



     (h) Resignation as Swing Line Lender after Assignment. Notwithstanding anything to
the contrary contained herein, if at any time Bank of America assigns all of its Multicurrency
Revolving Credit Commitment and Multicurrency Revolving Credit Loans pursuant to subsection (b)
above, Bank of America may, upon 30 days’ notice to the Borrower, resign as Swing Line Lender. In
the event of any such resignation as Swing Line Lender, the Borrower shall be entitled to appoint
from among the Multicurrency Revolving Credit Lenders a successor Swing Line Lender hereunder;
provided that no failure by the Borrower to appoint any such successor shall affect the
resignation of Bank of America as Swing Line Lender. If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect
to Swing Line Loans made by it and outstanding as of the effective date of such resignation,
including the right to require the Multicurrency Revolving Credit Lenders to make Base Rate Loans
or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.03(c).
Upon the appointment of a successor Swing Line Lender, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring Swing Line Lender.



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     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, trustees, advisors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under
any other Loan Document or any action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap
or derivative transaction relating to the Borrower and its obligations, (g) with the consent of the
Borrower or the Parent or (h) to the extent such Information (x) becomes publicly available other
than as a result of a breach of this Section or (y) becomes available to the Administrative Agent,
any Lender or any of their respective Affiliates on a nonconfidential basis from a source other
than the Borrower or the Parent.



     For purposes of this Section, “Information” means all information received from the
Parent, the Borrower or any Subsidiary relating to the Parent or any Subsidiary or any of their
respective businesses, other than any such information that is available to the Administrative
Agent or any Lender on a nonconfidential basis prior to disclosure by the Parent, the Borrower or
any Subsidiary; provided that, in the case of information received from the Parent, the
Borrower or any Subsidiary after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied with its obligation to
do so if such Person has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.



     Each of the Administrative Agent and the Lenders acknowledges that (a) the Information may
include material non-public information concerning the Parent, the Borrower or a Subsidiary, as the
case may be, (b) it has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in accordance with
applicable Law, including United States Federal and state securities Laws.



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender and each of their respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever currency) at any time held
and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate
to or for the credit or the account of the Borrower or any other Loan Party against any and all of
the obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement
or any other Loan Document to such Lender, irrespective of whether or not such



93









 







Lender shall have made any demand under this Agreement or any other Loan Document and although
such obligations of the Borrower or such Loan Party may be contingent or unmatured or are owed to a
branch or office of such Lender different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Lender and their respective Affiliates under
this Section are in addition to other rights and remedies (including other rights of setoff) that
such Lender or their respective Affiliates may have. Each Lender agrees to notify the Borrower and
the Administrative Agent promptly after any such setoff and application; provided that the
failure to give such notice shall not affect the validity of such setoff and application.



     10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.



     10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging
means shall be effective as delivery of a manually executed counterpart of this Agreement.



     10.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Borrowing, and shall continue in full force and
effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.



     10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the



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remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



     10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
or if the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a
Defaulting Lender, or if any circumstance exists under the last paragraph of Section 10.01
that gives the Borrower the right to replace a Lender as a party hereto, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 10.06), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such assignment);
provided that:



     (a) the Borrower shall have paid to the Administrative Agent the assignment fee specified in
Section 10.06(b);



     (b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and
under the other Loan Documents (including any amounts under Section 3.05) from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts);



     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and



     (d) such assignment does not conflict with applicable Laws.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.



     10.14 Governing Law; Jurisdiction; Etc.



     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.



     (b) SUBMISSION TO JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT
OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY



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APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY OF THE
PARTIES HERETO MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AGAINST ANY OTHER PARTY HERETO OR THEIR RESPECTIVE PROPERTIES IN THE COURTS
OF ANY JURISDICTION.



     (c) WAIVER OF VENUE. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS
SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



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



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     10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), each of the Borrower and the Parent
acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the
arranging and other services regarding this Agreement provided by the Administrative Agent and the
Book Managers are arm’s-length commercial transactions between the Parent, the Borrower and their
respective Affiliates, on the one hand, and the Administrative Agent and the Book Managers, on the
other hand, (B) each of the Borrower and the Parent has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) each of the Borrower
and the Parent is capable of evaluating, and understands and accepts, the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the
Administrative Agent and the Book Managers each is and has been acting solely as a principal and,
except as expressly agreed in writing by the relevant parties, has not been, is not, and will not
be acting as an advisor, agent or fiduciary for the Borrower, the Parent or any of their respective
Affiliates, or any other Person and (B) neither the Administrative Agent nor any Book Manager has
any obligation to the Borrower, the Parent or any of their respective Affiliates with respect to
the transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; and (iii) the Administrative Agent and the Book Managers and their respective
Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Borrower, the Parent and their respective Affiliates, and neither the Administrative
Agent nor any Book Manager has any obligation to disclose any of such interests to the Borrower,
the Parent or any of their respective Affiliates. To the fullest extent permitted by law, each of
the Borrower and the Parent hereby waives and releases any claims that it may have against the
Administrative Agent and the Book Managers with respect to any breach or alleged breach of agency
or fiduciary duty in connection with any aspect of any transaction contemplated hereby.



     10.17 Electronic Execution of Assignments and Certain Other Documents. The words “execution,”
“signed,” “signature,” and words of like import in any Assignment and Assumption or in any
amendment or other modification hereof (including waivers and consents) shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



     10.18 USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and
the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower
and the Parent that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “USA Patriot Act”), it is required to
obtain, verify and record information that identifies the Borrower and the Parent, which
information includes the name and address of the Borrower and of the Parent, and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower or
the Parent, as applicable, in accordance with the USA Patriot Act. Each of the Borrower and the
Parent shall, promptly following a request by the Administrative Agent or any Lender, provide all
documentation and other information that the Administrative Agent or such



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Lender requests in order to comply with its ongoing obligations under applicable “know your
customer” and anti-money laundering rules and regulations, including the USA Patriot Act.



     10.19 Judgment Currency. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligation of the Borrower
in respect of any such sum due from it to the Administrative Agent or any Lender hereunder or under
the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent
that on the Business Day following receipt by the Administrative Agent or such Lender, as the case
may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such
Lender, as the case may be, may in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less
than the sum originally due to the Administrative Agent or any Lender from the Borrower in the
Agreement Currency, the Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent or such Lender, as the case may be, against such
loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due
to the Administrative Agent or any Lender in such currency, the Administrative Agent or such
Lender, as the case may be, agrees to return the amount of any excess to the Borrower (or to any
other Person who may be entitled thereto under applicable law).



[Signature pages follow.]




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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	 	WILLIS NORTH AMERICA INC., as Borrower
	 
	 	 	 	 
	 

	 	By:	 	/s/ Donald J. Bailey
	 

	 	 	 	 
	 

	 	Name:	 	Donald J. Bailey
	 

	 	 	 	 
	 

	 	Title:	 	Chief Executive Officer
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	WILLIS GROUP HOLDINGS LIMITED, as Parent
	 
	 	 	 	 
	 

	 	By:	 	/s/ Patrick C. Regan
	 

	 	 	 	 
	 

	 	Name:	 	Patrick C. Regan
	 

	 	 	 	 
	 

	 	Title:	 	Chief Financial Officer
	 

	 	 	 	 





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	 	 	BANK OF AMERICA, N.A., as

Administrative Agent
	 
	 	 	 	 
	 

	 	By:	 	/s/ Aamir Saleem
	 

	 	 	 	 
	 

	 	Name:	 	Aamir Saleem
	 

	 	 	 	 
	 

	 	Title:	 	Vice President
	 

	 	 	 	 





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	 	 	BANK OF AMERICA, N.A., as a Lender and the Swing Line
Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Kipling Davis
	 

	 	 	 	 
	 

	 	Name:	 	Kipling Davis
	 

	 	 	 	 
	 

	 	Title:	 	Senior Vice President
	 

	 	 	 	 





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	 	 	JPMORGAN CHASE BANK, N.A., as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Erin O’ Rourke
	 

	 	 	 	 
	 

	 	Name:	 	Erin O’ Rourke
	 

	 	 	 	 
	 

	 	Title:	 	Executive Director
	 

	 	 	 	 





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	 	 	SUNTRUST BANK, as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Frank Baker
	 

	 	 	 	 
	 

	 	Name:	 	Frank Baker
	 

	 	 	 	 
	 

	 	Title:	 	Managing Director 
	 

	 	 	 	 





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	 	 	THE ROYAL BANK OF SCOTLAND PLC, as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Jonathan Shaw
	 

	 	 	 	 
	 

	 	Name:	 	Jonathan Shaw
	 

	 	 	 	 
	 

	 	Title:	 	Director
	 

	 	 	 	 





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	 	 	ING CAPITAL LLC,

as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Robert D. Miners
	 

	 	 	 	 
	 

	 	Name:	 	Robert D. Miners
	 

	 	 	 	 
	 

	 	Title:	 	Vice President
	 

	 	 	 	 





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	 	 	LLOYDS TSB BANK PLC,

as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Candi Obrentz
	 

	 	 	 	 
	 

	 	Name:	 	Candi Obrentz
	 

	 	 	 	 
	 

	 	Title:	 	 Associate Director

Financial Institutions, USA 

                  O013
	 

	 	 	 	 






	 	 	 	 	 
	 

	 	By:	 	/s/  Alexander
Wilson
	 

	 	 	 	 
	 

	 	Name:	 	Alexander Wilson
	 

	 	 	 	 
	 

	 	Title:	 	Director

 Financial Institutions, USA 

                  W055
	 

	 	 	 	 





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	 	 	MORGAN STANLEY BANK,

as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/  Daniel Twenge
	 

	 	 	 	 
	 

	 	Name:	 	Daniel Twenge
	 

	 	 	 	 
	 

	 	Title:	 	Authorized Signatory
	 

	 	 	 	 





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	 	 	BARCLAYS BANK PLC,

as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Stewart McMillan
	 

	 	 	 	 
	 

	 	Name:	 	Stewart McMillan
	 

	 	 	 	 
	 

	 	Title:	 	Director Corporate Leveraged Finance
	 

	 	 	 	 





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	 	 	THE BANK OF TOKYO-MITSUBISHI UFJ,
 LTD., NY BRANCH,

as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Scott Schaffer
	 

	 	 	 	 
	 

	 	Name:	 	Scott Schaffer
	 

	 	 	 	 
	 

	 	Title:	 	Authorized Signatory
	 

	 	 	 	 





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	 	 	SCOTIABANK EUROPE PLC,

as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Mark Sparrow
	 

	 	 	 	 
	 

	 	Name:	 	Mark Sparrow
	 

	 	 	 	 
	 

	 	Title:	 	Director
	 

	 	 	 	 





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	 	 	NATIONAL CITY BANK,

as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Daniel R. Raynor
	 

	 	 	 	 
	 

	 	Name:	 	Daniel R. Raynor
	 

	 	 	 	 
	 

	 	Title:	 	Senior Vice President
	 

	 	 	 	 





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	 	 	PNC BANK, NATIONAL ASSOCIATION,

as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Kirk Seagers
	 

	 	 	 	 
	 

	 	Name:	 	Kirk Seagers
	 

	 	 	 	 
	 

	 	Title:	 	Vice President
	 

	 	 	 	 





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	 	 	MANUFACTURERS AND TRADERS TRUST COMPANY,

as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ R. Scott Royster
	 

	 	 	 	 
	 

	 	Name:	 	R. Scott Royster
	 

	 	 	 	 
	 

	 	Title:	 	Assistant Vice President
	 

	 	 	 	 





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	 	 	COMERICA BANK,

as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Aurora Battaglia
	 

	 	 	 	 
	 

	 	Name:	 	Aurora Battaglia
	 

	 	 	 	 
	 

	 	Title:	 	Vice President
	 

	 	 	 	 





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	 	 	DANSKE BANK A/S,

as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ J.P. Darque
	 

	 	 	 	 
	 

	 	Name:	 	J.P. Darque
	 

	 	 	 	 
	 

	 	Title:	 	A.G.M.
	 

	 	 	 	 






	 	 	 	 	 
	 

	 	By:	 	 /s/ A. Iversen
	 

	 	 	 	 
	 

	 	Name:	 	 A. Iversen
	 

	 	 	 	 
	 

	 	Title:	 	 A.G.M.
	 

	 	 	 	 





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	 	 	THE NORTHERN TRUST COMPANY,

as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Chris McKean
	 

	 	 	 	 
	 

	 	Name:	 	Chris McKean
	 

	 	 	 	 
	 

	 	Title:	 	Vice President
	 

	 	 	 	 





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	 	 	ALLIED IRISH BANKS, P.L.C.,

as a Lender to the Revolving Credit Facility Only
	 
	 	 	 	 
	 

	 	By:	 	/s/ Shreya Shah
	 

	 	 	 	 
	 

	 	Name:	 	Shreya Shah
	 

	 	 	 	 
	 

	 	Title:	 	Vice President
	 

	 	 	 	 






	 	 	 	 	 
	 

	 	By:	 	 /s/ Norbert Galligan
	 

	 	 	 	 
	 

	 	Name:	 	 Norbert Galligan
	 

	 	 	 	 
	 

	 	Title:	 	 Vice President
	 

	 	 	 	 




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	 	 	BANK OF COMMUNICATIONS CO., LTD.,
 NEW YORK BRANCH,

as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Shelly He
	 

	 	 	 	 
	 

	 	Name:	 	Shelly He
	 

	 	 	 	 
	 

	 	Title:	 	Deputy General Manager
	 

	 	 	 	 





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	 	 	MEGA INTERNATIONAL COMMERCIAL
 BANK CO., LTD. (NEW
YORK BRANCH),

as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Tsang - Pot Hsu
	 

	 	 	 	 
	 

	 	Name:	 	Tsang - Pot Hsu
	 

	 	 	 	 
	 

	 	Title:	 	Vice President and Deputy General Manager
	 

	 	 	 	 





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	 	 	CHANG HWA COMMERCIAL BANK, LTD., NEW YORK BRANCH

as a Lender
	 
	 	 	 	 
	 

	 	By:	 	/s/ Jim C.Y. Chen
	 

	 	 	 	 
	 

	 	Name:	 	Jim C.Y. Chen
	 

	 	Title:	 	Vice President and  General
Manager





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