EX-10.2






Execution Version




 





Published CUSIP Number:                     




364-DAY 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




The Other Term Lenders Party Hereto




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
	 	 	21	 
	1.03 Accounting Terms
	 	 	22	 
	1.04 Rounding
	 	 	23	 
	1.05 Times of Day
	 	 	23	 
	1.06 Annualization
	 	 	23	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND BORROWINGS
	 	 	23	 
	2.01 The Term Loan Borrowing
	 	 	23	 
	2.02 Term Loan Borrowing, Conversions and Continuations of Term Loans
	 	 	24	 
	2.03 Prepayments
	 	 	25	 
	2.04 Repayment of Term Loans
	 	 	26	 
	2.05 Interest
	 	 	26	 
	2.06 Fees
	 	 	26	 
	2.07 Computation of Interest and Fees
	 	 	27	 
	2.08 Evidence of Debt
	 	 	27	 
	2.09 Payments Generally; Administrative Agent’s Clawback
	 	 	28	 
	2.10 Sharing of Payments by Term Lenders
	 	 	29	 
	2.11 Determination of Eurocurrency Rate
	 	 	30	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	31	 
	3.01 Taxes
	 	 	31	 
	3.02 Illegality
	 	 	35	 
	3.03 Inability to Determine Rates
	 	 	35	 
	3.04 Increased Costs; Reserves on Eurocurrency Rate Loans
	 	 	36	 
	3.05 Compensation for Losses
	 	 	38	 
	3.06 Mitigation Obligations; Replacement of Term Lenders
	 	 	38	 
	3.07 Survival
	 	 	39	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO BORROWINGS
	 	 	39	 
	4.01 Conditions of the Term Loan Borrowing
	 	 	39	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	42	 
	5.01 Organization; Powers
	 	 	42	 
	5.02 Authorization; Enforceability
	 	 	42	 
	5.03 Governmental Approvals; No Conflicts
	 	 	42	 
	5.04 Financial Condition; No Material Adverse Change
	 	 	42	 
	5.05 Properties
	 	 	43	 
	5.06 Litigation and Environmental Matters
	 	 	43	 
	5.07 Compliance with Laws; Absence of Default
	 	 	43	 
	5.08 Investment Company Status
	 	 	43	 
	5.09 Taxes
	 	 	43	 
	5.10 ERISA
	 	 	44	 
	5.11 Disclosure
	 	 	44	 






i









 






	 	 	 	 	 
	 	 	Page	 
	5.12 Subsidiaries
	 	 	44	 
	5.13 Solvency
	 	 	44	 
	5.14 Use of Proceeds
	 	 	45	 
	5.15 Pari Passu
	 	 	45	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	45	 
	6.01 Financial Statements; Ratings Change and Other Information
	 	 	45	 
	6.02 Notices of Material Events
	 	 	48	 
	6.03 Existence; Conduct of Business
	 	 	48	 
	6.04 Payment of Taxes
	 	 	48	 
	6.05 Maintenance of Properties; Insurance
	 	 	48	 
	6.06 Books and Records; Inspection Rights
	 	 	49	 
	6.07 Compliance with Laws
	 	 	49	 
	6.08 Use of Proceeds
	 	 	49	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	49	 
	7.01 Subsidiary Indebtedness
	 	 	49	 
	7.02 Liens
	 	 	50	 
	7.03 Investments
	 	 	51	 
	7.04 Fundamental Changes
	 	 	52	 
	7.05 Asset Sales
	 	 	53	 
	7.06 Sale and Leaseback Transactions
	 	 	54	 
	7.07 Restricted Payments
	 	 	54	 
	7.08 Financial Covenants
	 	 	55	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	55	 
	8.01 Events of Default
	 	 	55	 
	8.02 Remedies Upon Event of Default
	 	 	57	 
	8.03 Application of Funds
	 	 	57	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	58	 
	9.01 Appointment and Authority
	 	 	58	 
	9.02 Rights as a Term Lender
	 	 	58	 
	9.03 Exculpatory Provisions
	 	 	59	 
	9.04 Reliance by Administrative Agent
	 	 	59	 
	9.05 Delegation of Duties
	 	 	60	 
	9.06 Resignation of Administrative Agent
	 	 	60	 
	9.07 Non-Reliance on Administrative Agent and Other Term Lenders
	 	 	61	 
	9.08 No Other Duties, Etc
	 	 	61	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	61	 
	9.10 Guaranty Matters
	 	 	62	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	62	 
	10.01 Amendments, Etc
	 	 	62	 
	10.02 Notices; Effectiveness; Electronic Communications
	 	 	63	 
	10.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	65	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	66	 
	10.05 Payments Set Aside
	 	 	68	 
	10.06 Successors and Assigns
	 	 	68	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	71	 
	10.08 Right of Setoff
	 	 	72	 
	10.09 Interest Rate Limitation
	 	 	72	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	72	 
	10.11 Survival of Representations and Warranties
	 	 	73	 
	10.12 Severability
	 	 	73	 
	10.13 Replacement of Term Lenders
	 	 	73	 
	10.14 Governing Law; Jurisdiction; Etc
	 	 	74	 
	10.15 Waiver of Jury Trial
	 	 	75	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	75	 
	10.17 Electronic Execution of Assignments and Certain Other Documents
	 	 	76	 
	10.18 USA PATRIOT Act
	 	 	76	 
	 
	 	 	 	 
	SIGNATURES
	 	 	S-1	 







iii









 








SCHEDULES




	 	 	 
	1.01(a)

	 	Mandatory Cost Formulae
	1.01(b)

	 	Guarantors
	1.01(c)

	 	Consolidated EBITDA
	2.01

	 	Applicable Percentages and Term Loan Commitments
	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

	 	Term Loan Notice
	B

	 	Term Loan 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









 








364-DAY CREDIT AGREEMENT




     This 364-DAY 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 “Term
Lenders” and individually, a “Term Lender”), and BANK OF AMERICA, N.A., as
Administrative Agent.



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 Term Lenders provide to the Borrower a
term loan 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 related to the Merger and (iii) to refinance the Existing Material Indebtedness (defined
below).



     In furtherance of the foregoing, the Term Lenders are willing to make available the term loan
facility 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 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



1









 







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 the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify to the Borrower and the Term 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.



     “Agreement” means this Credit Agreement.



     “Applicable Percentage” means, 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 such
Term Lender’s Term Loan Commitment at such time or, after the termination of the Term Loan
Commitments (whether as a result of the funding of the Term Loans on the Closing Date or
otherwise), the principal amount of such Term Lender’s Term Loans at such time. The initial
Applicable Percentage of each Term Lender in respect of the Term Loan Facility is set forth
opposite the name of such Term Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Term Lender becomes a party hereto, as applicable.



2









 





     “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	 	Rate+	 	 	Rate+	 
	1	 	BBB-/Baa3 or better
	 	 	225.0	 	 	 	125.0	 
	2	 	BBB-/Ba1
	 	 	275.0	 	 	 	175.0	 
	 	 	or

BB+/Baa3
	 	 	 	 	 	 	 	 
	3	 	BB+/Ba1 or worse
	 	 	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 2 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 3 being the lowest); (b) if there is a split in Debt Ratings of more than one level, then the
Pricing 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 3 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 Term 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 Term Lenders
pursuant to Section 6.01(f) or otherwise, and ending on the date immediately preceding the
effective date of the next such change.



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



3









 





     “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 Term
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).



     “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.



     “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 Term Loan that bears interest based on the Base Rate.



     “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 Term Loan Facility.



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



     “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
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.



     “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



4









 







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 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.



     “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



5









 







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 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



6









 







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.



     “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.



     “Debt Issuance” means, with respect to any Person, any incurrence or issuance by such
Person of any credit facility, debt facility or debt securities (including bonds, debentures, notes
or similar instruments, and including any increase in the maximum aggregate principal amount of the
Five-Year Credit Facilities after the Closing Date (whether as a result of an amendment, a
refinancing, or otherwise)) in a capital markets transaction.



     “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, the Default Rate shall be an
interest rate equal to the interest rate



7









 




(including any Applicable Rate and any Mandatory Cost) otherwise applicable to such Term Loan
plus 2% per annum.




     “Defaulting Lender” means any Term Lender that has failed to fund any portion of the
Term 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 Term 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.



     “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.



     “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)).



     “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



8









 







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.



     “Equity Issuance” means the sale or issuance of (i) any Equity Interests or (ii) any
hybrid securities that may be characterized as Equity Interests, Indebtedness or both, by the
Parent or any of its Subsidiaries to any Person other than in each of (i) and (ii) above (x) the
Parent or any of its Subsidiaries or (y) any such issuance of common stock of the Parent or any of
its Subsidiaries occurring in the ordinary course of business as compensation, or in connection
with any compensation plan, to any director, member of the management or employee of the Parent or
its Subsidiaries.



     “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 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.



     “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 Dollars
(for delivery on the first day of such Interest Period) with a term equivalent to such Interest
Period. If such rate is not available at such time for any reason (as provided in Section
2.11), 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 2.11.



9









 





     “Eurocurrency Rate Loan” means a Term Loan denominated in Dollars that bears interest
at a rate based on the Eurocurrency Rate.



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



     “Excluded Taxes” means, with respect to the Administrative Agent, any Term 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 Term 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 Term 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). 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 Term Lender hereunder or under any other Loan Document;
provided that such Term 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.



     “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.



10









 





     “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.



     “Five-Year Credit Facilities” means those certain senior unsecured credit facilities
provided to the Borrower pursuant to a Credit Agreement dated as of the date hereof by and among
the Borrower, as the borrower, Bank of America, N.A., as administrative agent, and the lenders from
time to time party thereto.



     “Foreign Lender” means any Term 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.



     “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).



     “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



11









 







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.



     “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



12









 







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 Term Loan other than a Base Rate Loan,
the last day of each Interest Period applicable to such Term Loan and the Maturity Date;
provided that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate 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 (or such shorter period requested by
the Borrower and consented to by all of the Term Lenders) thereafter, as selected by the Borrower
in its Term 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



13









 







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” means a Term Lender.



     “Lending Office” means, as to any Term Lender, the office or offices of such Term
Lender described as such in such Term Lender’s Administrative Questionnaire, or such other office
or offices as a Term 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 a Term Loan.



     “Loan Documents” means this Agreement, each Term Loan 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 Term Lenders in connection with the syndication of the
Five-Year Credit Facilities.



14









 





     “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 (a) Indebtedness (other than the Term Loans) of any one
or more of the Parent and its Subsidiaries in an aggregate principal amount exceeding $30,000,000
and (b) the Five-Year Credit Facilities.



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



     “Maturity Date” means September 30, 2009; provided that 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.



     “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).



     “Net Cash Proceeds” means, with respect to any Equity Issuance or Debt Issuance, the
excess of (i) the sum of the cash and cash equivalents received in connection with such transaction
over (ii) the underwriting discounts and commissions, and other 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.



     “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.



     “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 Term
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



15









 







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.



     “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 on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments of Term Loans occurring on such date.



     “Overnight Rate” means, for any day, 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.



     “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).



16









 





     “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 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 Term 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 Term 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



17









 







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;



     (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 for any Term Loan Borrowing, conversion or continuation means the day on which
quotations would normally be given by prime banks in the London interbank market for deposits in
Dollars 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.



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     “Quoted Rate” means, with respect to any Term Loan Borrowing, conversion or
continuation, the rate at which deposits in Dollars 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 for Dollars at 11:00 a.m., London time on the Quotation Day 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.



     “Required Lenders” means, as of any date of determination, Term Lenders holding, as of
such date, more than 50% of the aggregate amount of the Term Loan Commitments or, after the
termination of the Term Loan Commitments (whether as a result of the funding of the Term Loans on
the Closing Date or otherwise), of the Total Outstandings; provided that the portion of the
Term Loan Commitments or the Total Outstandings held or deemed held by any Defaulting Lender shall
be excluded for purposes of making a determination of Required 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).



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



     “Same Day Funds” means, with respect to disbursements and payments in Dollars,
immediately available funds.



19









 





     “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”.



     “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 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.



     “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.



     “Term Lender” has the meaning specified in the introductory paragraph hereto.



20









 





     “Term Loan” means an advance made by any Term Lender under the Term Loan Facility.



     “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 on the Closing Date 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. The initial aggregate principal amount of the Term Loan
Facility, all of which is to be drawn on the Closing Date, is $1,000,000,000.



     “Term Loan Facility” means (a) at any time prior to the funding of the Term Loans on
the Closing Date, 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.



     “Term Loan Notice” means a notice of (a) the Term Loan Borrowing, (b) a conversion of
Term Loans from one Type to the other, or (c) 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.



     “Total 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.



     “Type” means, with respect to a Term 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



21









 







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.



     (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 Term 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 Term 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



22









 







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



     1.06 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 Term Loan Borrowing. Subject to the terms and conditions set forth herein, each Term
Lender severally agrees to make a single loan in Dollars to the Borrower on the Closing Date in an
amount not to exceed such Term Lender’s Term Loan Commitment. The 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. After the funding of the Term Loans on the
Closing Date, the Term Loan Commitments shall terminate,



23









 







and amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be
reborrowed. Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided
herein.



     2.02 Term Loan Borrowing, Conversions and Continuations of Term Loans.



     (a) The Term Loan Borrowing, each conversion of Term 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 the Term Loan Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or of
any conversion of Eurocurrency Rate Loans to Base Rate Loans, and (ii) one Business Day prior to
the requested date of the Term Loan Borrowing of Base Rate Loans. 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 Term Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Each of the Term Loan 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.



     (b) Each Term Loan Notice (whether telephonic or written) shall specify (i) whether the
Borrower is requesting the Term Loan Borrowing, a conversion of Term Loans from one Type to the
other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Term Loan
Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii)
the principal amount of Term Loans to be borrowed, converted or continued, (iv) the Type of Term
Loans to be borrowed or to which existing Term Loans are to be converted, and (v) if applicable,
the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type
of Term Loan in a Term Loan Notice or if the Borrower fails to give a timely notice requesting a
conversion or continuation, then the applicable Term Loans shall be made as, or converted to, Base
Rate Loans. Any automatic conversion to Base 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 the Term Loan Borrowing of, conversion to, or continuation of Eurocurrency Rate
Loans in any such Term Loan Notice, but fails to specify an Interest Period, it will be deemed to
have specified an Interest Period of one month.



     (c) Following receipt of a Term Loan Notice, the Administrative Agent shall promptly notify
each Term Lender of the amount of its Applicable Percentage of the Term Loans, and if no timely
notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall
notify each Term Lender of the details of any automatic conversion to Base Rate Loans as described
in the preceding subsection. In the case of the Term Loan Borrowing, each Term Lender shall make
the amount of its Term Loan available to the Administrative Agent in Same Day Funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the Term
Loan Notice. Upon satisfaction of the applicable conditions set forth in 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



24









 







such 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.



     (d) 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 Term Loans may be requested as, converted to or continued as
Eurocurrency Rate Loans without the consent of the Required Lenders.



     (e) The Administrative Agent shall promptly notify the Borrower and the Term 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 Term 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.



     (f) After giving effect to the Term Loan Borrowing and all continuations of Term Loans, there
shall not be more than four Interest Periods in effect in respect of the Term Loan Facility.



     (g) Notwithstanding anything in this Section 2.02 to the contrary, if the Borrower
desires to borrow any or all of the Term Loans pursuant to the Term Loan Borrowing as Eurocurrency
Loans, the Borrower shall have delivered to the Administrative Agent for the benefit of the Term
Lenders at least three Business Days prior to the Closing Date 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.



     2.03 Prepayments.



     (a) Optional Prepayments. Subject to the last sentence of this Section
2.03(a), the Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Term 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, and (B) one
Business Day prior to the date of prepayment of Base Rate Loans; and (ii) any prepayment of Term
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. Each such
notice shall specify the date and amount of such prepayment and the Type(s) of Term Loans to be
prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Term
Loans. The Administrative Agent will promptly notify each applicable Term Lender of its receipt of
each such notice, and of the amount of such Term Lender’s ratable portion of such prepayment (based
on such Term Lender’s Applicable Percentage in respect of the Term Loan 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 2.03(a)



25









 




shall be paid to the Term Lenders in accordance with their respective Applicable Percentages
in respect of the Term Loan Facility.




     (b) Mandatory Prepayments. Within ten Business Days from the date of receipt by the
Parent or any of its Subsidiaries of Net Cash Proceeds arising from any Debt Issuance or Equity
Issuance, the Borrower shall prepay an aggregate principal amount of Term Loans in an amount equal
to 100% of such Net Cash Proceeds.



     2.04 Repayment of Term Loans. 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.



     2.05 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 Term Lender which is
lent from a Lending Office in the United Kingdom or a Participating Member State) the Mandatory
Cost; and (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.



     (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 Term 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.



     2.06 Fees.



     (a) The Borrower shall pay to each of the Term Lenders a duration fee on the dates and in the
amounts as follows:




     (i) on the 90th day after the Closing Date (or, if such day is not a Business Day, the
first Business Day preceding such date), the Borrower will pay to the



26









 







Administrative Agent, for the account of each Term Lender in accordance with such Term
Lender’s Applicable Percentage of the Term Loan Facility, an amount equal to 0.25% times the
Total Outstandings on such date;




     (ii) on the 180th day after the Closing Date (or, if such day is not a Business Day,
the first Business Day preceding such date), the Borrower will pay to the Administrative
Agent, for the account of each Term Lender in accordance with such Term Lender’s Applicable
Percentage of the Term Loan Facility, an amount equal to 0.50% times the Total Outstandings
on such date; and




     (iii) on the 270th day after the Closing Date (or, if such day is not a Business Day,
the first Business Day preceding such date), the Borrower will pay to the Administrative
Agent, for the account of each Term Lender in accordance with such Term Lender’s Applicable
Percentage of the Term Loan Facility, an amount equal to 0.50% times the Total Outstandings
on such date.



     (b) 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.



     (c) 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.



     (d) The Borrower shall pay to the Term 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.



     2.07 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).
Interest shall accrue on each Term Loan for the day on which the Term Loan is made, and shall not
accrue on a Term Loan, or any portion thereof, for the day on which the Term Loan or such portion
is paid; provided that any Term Loan that is repaid on the same day on which it is made
shall, subject to Section 2.09(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.



     2.08 Evidence of Debt. The Term Loans made by each Term Lender shall be evidenced by one or
more accounts or records maintained by such Term Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the Administrative Agent and
each Term Lender shall be conclusive absent manifest error of the amount of the Term Loans made by
the Term 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



27









 







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 Term 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 Term Lender made through the Administrative Agent, the
Borrower shall execute and deliver to such Term Lender (through the Administrative Agent) a Term
Loan Note, which shall evidence such Term Lender’s Term Loans in addition to such accounts or
records. Each Term Lender may attach schedules to a Term Loan Note and endorse thereon the date,
Type (if applicable), amount and maturity of its Term Loans and payments with respect thereto.



     2.09 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, all payments by the
Borrower hereunder shall be made to the Administrative Agent, for the account of the respective
Term 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. Without
limiting the generality of the foregoing, the Administrative Agent may require that any payments
due under this Agreement be made in the United States. The Administrative Agent will promptly
distribute to each Term Lender its Applicable Percentage in respect of the Term Loan Facility (or
other applicable share as provided herein) of such payment in like funds as received by wire
transfer to such Term Lender’s Lending Office. All payments received by the Administrative Agent
after 2:00 p.m. shall 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 Term Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Term Lender prior to the proposed date of
the Term Loan Borrowing of Eurocurrency Rate Loans (or, in the case of the Term Loan Borrowing of
Base Rate Loans, prior to 12:00 noon on the date of the Term Loan Borrowing) that such Term Lender
will not make available to the Administrative Agent such Term Lender’s share of such Term Loan
Borrowing, the Administrative Agent may assume that such Term Lender has made such share available
on such date in accordance with Section 2.02 (or, in the case of a Term Loan Borrowing of
Base Rate Loans, that such Term 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 Term Lender has not in fact made its
share of the Term Loan Borrowing available to the Administrative Agent, then the applicable Term
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 Term 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. If the Borrower and such Term
Lender shall pay



28









 







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 Term Lender pays its share of the Term Loan Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Term Lender’s Term Loan
included in such Term Loan Borrowing. Any payment by the Borrower shall be without prejudice to
any claim the Borrower may have against a Term 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 Term 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 and may, in reliance upon
such assumption, distribute to the appropriate Term Lenders the amount due. In such event,
if the Borrower has not in fact made such payment, then each of the applicable Term Lenders
severally agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Term 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 Term 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 Term Lender makes available to
the Administrative Agent funds for any Term Loan to be made by such Term 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 Term Loan 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 Term
Lender) to such Term Lender, without interest.



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



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



     2.10 Sharing of Payments by Term Lenders. If any Term Lender shall, by exercising any right
of setoff or counterclaim or otherwise, obtain payment in respect of (a)



29









 







Obligations in respect of the Term Loan Facility due and payable to such Term 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 Term Lender at such time
to (ii) the aggregate amount of the Obligations in respect of the Term Loan Facility due and
payable to all Term Lenders hereunder and under the other Loan Documents at such time) of payments
on account of the Obligations in respect of the Term Loan Facility due and payable to all Term
Lenders hereunder and under the other Loan Documents at such time obtained by all the Term Lenders
at such time or (b) Obligations in respect of any of the Term Loan Facility owing (but not due and
payable) to such Term 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 Term Lender at such time to (ii) the aggregate amount of the Obligations
in respect of the Term Loan Facility owing (but not due and payable) to all Term Lenders hereunder
and under the other Loan Parties at such time) of payment on account of the Obligations in respect
of the Term Loan Facility owing (but not due and payable) to all Term Lenders hereunder and under
the other Loan Documents at such time obtained by all of the Term Lenders at such time then the
Term 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 Term Loans of the other Term
Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such
payments shall be shared by the Term Lenders ratably in accordance with the aggregate amount of
Obligations in respect of the Term Loan Facility then due and payable to the Term Lenders or owing
(but not due and payable) to the Term 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 Term Lender as consideration for the assignment of or sale of
a participation in any of its Term 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 Term 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 Term Lender were a direct creditor of the Borrower in the
amount of such participation.



     2.11 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



30









 







the relevant Term Loan 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 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 Term 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



31









 







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 Term 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 Term
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 Agent or such
Term 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 Term 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 Term Lender (with a copy to the Administrative Agent), or by the Administrative Agent
on its own behalf or on behalf of a Term Lender, shall be conclusive absent manifest error.




     (ii) Without limiting the provisions of subsection (a) or (b) above, each Term 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 Term Lender to
deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any documentation
required to be delivered by such Term Lender to the Borrower or the Administrative Agent
pursuant to subsection (e). Each Term Lender hereby authorizes the Administrative Agent to
set off and apply any and all amounts at any time owing to such Term 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 Term Lender, the termination of the Term Loan 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



32









 







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 Term Lenders; Tax Documentation. (i) Each Term 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 Term Lender’s entitlement to any available exemption from,
or reduction of, applicable Taxes in respect of all payments to be made to such Term Lender by the
Borrower pursuant to this Agreement or otherwise to establish such Term Lender’s status for
withholding tax purposes in the applicable jurisdictions.




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




     (A) any Term 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 Term
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 Term
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,



33









 






     (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.




     (iii) Each Term 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 Term 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 Term Lender.




     (iv) The Borrower shall promptly deliver to the Administrative Agent or any Term
Lender, as the Administrative Agent or such Term 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 Term Lender or the Administrative Agent under such
Laws in connection with any payment by the Administrative Agent or any Term 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
Term Lender, or have any obligation to pay to any Term Lender, any refund of Taxes withheld or
deducted from funds paid for the account of such Term Lender, as the case may be. If the
Administrative Agent or any Term 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



34









 







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 Term 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 Term 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 Term Lender in
the event the Administrative Agent or such Term Lender is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative Agent
or any Term 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 Term Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Term Lender or its applicable
Lending Office to make, maintain or fund Eurocurrency Rate Loans, 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 Term Lender to purchase or sell, or to take deposits of,
Dollars in the applicable interbank market, then, on notice thereof by such Term Lender to the
Borrower through the Administrative Agent, any obligation of such Term Lender to make or continue
Eurocurrency Rate Loans or to convert Base Rate Loans to Eurocurrency Rate Loans, shall be
suspended until such Term 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 Term Lender (with a copy to the Administrative Agent), either
prepay or, if applicable, convert all Eurocurrency Rate Loans of such Term Lender to Base Rate
Loans, either on the last day of the Interest Period therefor, if such Term Lender may lawfully
continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Term 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 (i) Dollar deposits are not
being offered to banks in the London interbank eurodollar market for the applicable amount and
Interest Period of such Eurocurrency Rate Loan, (ii) 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, or (iii) 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 Term Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent will promptly so
notify the Borrower and each Term Lender. Thereafter, the obligation of the Term Lenders to make
or maintain Eurocurrency Rate Loans 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 the Term Loan Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans or, failing



35









 







that, will be deemed to have converted such request into a request for the Term Loan Borrowing
of (or conversion to) Base Rate Loans in the amount specified therein.



     (b) Without limitation of the provisions of Section 3.03(a), if, with respect to any
Term Loan 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 2.11, (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 Term Lenders whose participation in such Term Loan
Borrowing, conversion or continuation exceeds 35% of the amount of such Term Loan Borrowing,
conversion or continuation that the cost to such Term Lenders of obtaining matching deposits in the
London interbank market would be in excess of the Eurocurrency Rate 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
Term Loan Borrowing, conversion or continuation shall be the Base Rate plus the Applicable Rate.



     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 Term 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 Term 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 Term 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 Term Lender);




     (iii) result in the failure of the Mandatory Cost, as calculated hereunder, to
represent the cost to any Term 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 Term Lender or the London interbank market any other condition, cost
or expense affecting this Agreement or Eurocurrency Rate Loans made by such Term Lender;


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


36









 






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




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



     (c) Certificates for Reimbursement. A certificate of a Term Lender setting forth the
amount or amounts necessary to compensate such Term 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 Term 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 Term Lender to demand
compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of
such Term Lender’s right to demand such compensation; provided that the Borrower shall not
be required to compensate a Term 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 Term Lender notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Term 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 Term Lender, (i)
as long as such Term 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 Term Loan by such Term Lender (as
determined by such Term Lender in good faith, which determination shall be conclusive), and (ii) as
long as such Term 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 Term Loan 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 Term
Loan Commitment or Term Loan by such Term Lender (as determined by such Term 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 Term Loan; provided the Borrower shall have received
at least ten days’ prior notice (with a copy to



37









 







the Administrative Agent) of such additional interest or costs from such Term Lender. If a
Term 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 Term Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate such Term Lender
for and hold such Term Lender harmless from any loss, cost or expense incurred by it as a result
of:



     (a) any continuation, conversion, payment or prepayment of any Term Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such Term 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 Term Lender to
make a Term Loan) to prepay, borrow, continue or convert any Term Loan other than a Base Rate Loan
on the date or in the amount notified by the Borrower;



     (c) 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 Term 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 Term
Lender in connection with the foregoing.



     For purposes of calculating amounts payable by the Borrower to the Term Lenders under this
Section 3.05, each Term Lender shall be deemed to have funded each Eurocurrency Rate Loan
made by it at the Eurocurrency Rate for such Term Loan by a matching deposit or other borrowing in
the offshore interbank market for Dollars 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 Term Lenders.



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



38









 





     (b) Replacement of Term Lenders. If any Term Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any Term
Lender or any Governmental Authority for the account of any Term Lender pursuant to Section
3.01, the Borrower may replace such Term 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 Term Loan Commitments, repayment of all other Obligations hereunder, and
resignation of the Administrative Agent.



ARTICLE IV.

CONDITIONS PRECEDENT TO BORROWINGS




     4.01 Conditions of the Term Loan Borrowing. The obligation of each Term Lender to make its
Applicable Percentage of the Term 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 Term Lenders:




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




     (ii) Term Loan Notes executed by the Borrower in favor of each Term Lender that
requested Term Loan 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 Term
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, in-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



39









 







such opinion 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 the Five-Year Credit
Facilities;




     (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(g), 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 Term Loan 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 Term 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) The substantially simultaneous closing of the Five-Year Credit Facilities in an aggregate
principal amount of not more than $1,000,000,000, and with undrawn availability under the revolving
credit facility of the Five-Year Credit Facilities (after giving effect to the Transactions, the
Term Loan Borrowing and the entering into and funding of the Five-Year Credit Facilities) of not
less than $100,000,000.



40









 





     (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.



     (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 Term 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 Term Loan Borrowing.



     (h) The Administrative Agent shall have received a Term Loan Notice in accordance with the
requirements hereof. The Term Loan Notice submitted by the Borrower in connection with the Term
Loan 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) (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 Term Lenders on or before the Closing Date shall have been paid.



     (j) 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 Term 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 Term Lender, unless the
Administrative Agent shall have received notice from such Term Lender prior to the proposed Closing
Date specifying its objection thereto.




41











 





ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     Each of the Parent and the Borrower represents and warrants to the Administrative Agent and
the Term Lenders (each such representation and warranty expressly being made on the date of this
Agreement whether or not the accuracy thereof is a condition to the making of the Term Loan
Borrowing pursuant to Section 4.01) 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
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 Term 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,



42









 







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 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



43









 







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 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 Term 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.



44









 





     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.



ARTICLE VI.

AFFIRMATIVE COVENANTS




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



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



45









 







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 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 Term Lender, all documentation and other information
that such Term 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 Term 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



46









 







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 Term 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 Term Lender upon the written request of such
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 Term
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 Term 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 Term 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 Term 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 Term 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.”



47









 





     6.02 Notices of Material Events. The Parent or the Borrower will furnish to the
Administrative Agent and each Term 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;



     (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



48









 







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 Term Lender, upon 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 Term 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, and (d) to finance, in part, the Permitted Parent Equity
Repurchases. 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 Term 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 Term Lender shall have any Term Loan Commitment hereunder, any Term Loan or
other Obligation hereunder shall remain unpaid, the Parent and the Borrower covenant and agree with
the Term 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;



49









 





     (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)
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



50









 







Person becomes a Subsidiary, as the case may be, and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;



     (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



51









 







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



     (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 Term 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



52









 







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 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; 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.




53









 








     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 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



54









 







effect pursuant to Section 7.08(b), and (B) the aggregate amount of undrawn
availability under the revolving credit facilities of the Five-Year Credit Facilities is at least
$100,000,000 (such permitted purchases, the “Permitted Parent Equity Repurchases”);



     (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 2.50 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 3.75 to 1.00.



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 Term
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 Term 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 Term Lender); or



55









 





     (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



     (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



56









 







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.



     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 Term Lender to make Term Loans to be terminated, whereupon
such commitments and obligation shall be terminated;



     (b) declare the unpaid principal amount of all outstanding Term 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 Term Lenders all rights and remedies available to it
and the Term 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 Term
Lender to make Term Loans shall automatically terminate, and the unpaid principal amount of all
outstanding Term 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 Term Lender.



     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Term 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:



57









 





     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 Term Lenders (including fees,
charges and disbursements of counsel to the respective Term 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 Term Loans and other Obligations, ratably among the Term 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 Term Loans ratably among the Term 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.



ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authority.



     Each of the Term 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 Term 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 Term Lender. The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Term Lender as any other Term Lender and may
exercise the same as though it were not the Administrative Agent and the term “Term Lender” or
“Term 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 Term Lenders.



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     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 Term 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 of the
Term 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 Term 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



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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 Term Loan that by its terms must be fulfilled to the satisfaction of a
Term Lender, the Administrative Agent may presume that such condition is satisfactory to such Term
Lender unless the Administrative Agent shall have received notice to the contrary from such Term
Lender prior to the making of such Term 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 Term 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 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 Term 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 Term 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 Term 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



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any actions taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.



     9.07 Non-Reliance on Administrative Agent and Other Term Lenders. Each Term Lender
acknowledges that it has, independently and without reliance upon the Administrative Agent or any
other Term 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 Term Lender also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Term 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 Administrative Agent or a Term
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 Term 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 Term 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 Term
Lenders and the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Term Lenders and the Administrative Agent and their
respective agents and counsel and all other amounts due the Term 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 Term 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 Term 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.



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



     9.10 Guaranty Matters. The Term 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 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(i)(i) or (j), which may be waived solely by the Person to whom any such amounts
are due) without the written consent of each Term Lender;



     (b) extend or increase the Term Loan Commitment of any Term Lender (or reinstate any Term Loan
Commitment terminated as a result of funding the Term Loans on the Closing Date or pursuant to
Section 8.02) without the written consent of such Term Lender;



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



     (d) reduce the principal of, or the rate of interest specified herein on, any Term Loan, or
(subject to clause (ii) 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 Term
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 Term Loan or to reduce any fee payable hereunder;



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     (e) change Section 2.10 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Term Lender;



     (f) change any provision of this Section 10.01 or the definition of “Required Lenders”
or any other provision hereof specifying the number or percentage of Term Lenders required to
amend, waive or otherwise modify any rights hereunder or make any determination or grant any
consent hereunder without the written consent of each Term Lender; or



     (g) release all or substantially all of the value of the Guaranty Agreement without the
written consent of each Term 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);


and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Term Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; and (ii) 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 Term Loan Commitment of such Term Lender may not be increased or
extended without the consent of such Term Lender.




     If any Term Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of each Term Lender or such Term Lender and
that has been approved by the Required Lenders, the Borrower may replace such non-consenting Term
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 or the Administrative Agent, to the address,
telecopier number, electronic mail address or telephone number specified for such Person on
Schedule 10.02; and




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



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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 Term 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 Term Lender pursuant to Article II, if
such Term 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 Term 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 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,



64









 







any Term 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 and the Administrative
Agent 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 Term Lender may change
its address, telecopier, e-mail or telephone number for notices and other communications hereunder
by notice to the Borrower and the Administrative Agent. In addition, each Term 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 Term 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 Term Lenders. The Administrative Agent and
the Term Lenders shall be entitled to rely and act upon any notices (including telephonic Term 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 Term 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 Term 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.



     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



65









 







the Term 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) any Term Lender from exercising setoff rights in accordance with Section
10.08 (subject to the terms of Section 2.10), or (c) any Term 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 2.10, any Term
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 Term Lender (including the fees, charges and disbursements of
any counsel for the Administrative Agent or any Term 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 Term Loans made hereunder,
including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Term 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 Term 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
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 Term 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,



66









 







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 Term 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 Term Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent) or such Related Party, as the case may be, such Term 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 Term Lenders under this subsection (c) are subject to
the provisions of Section 2.09(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 Term 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 Term 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.



     (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, the replacement of any Term Lender, the termination of the Term Loan
Commitments and the repayment, satisfaction or discharge of all the other Obligations.



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     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 Term Lender, or the Administrative Agent or any Term 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 Term 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 Term 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. The obligations
of the Term 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 Term 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 Term 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, or (iii) by way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) 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 Term Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.



     (b) Assignments by Term Lenders. Any Term Lender may at any time assign to one or
more assignees all or a portion of its rights and obligations under this Agreement (including all
or a portion of its Term 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 Term Lender’s Term Loans at the time owing to it under the Term Loan
Facility, or in the case of an assignment to a Term Lender, an Affiliate of a Term
Lender or an Approved Fund, no minimum amount need be assigned; and



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     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate principal outstanding balance of the Term Loans of the assigning Term
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 Term Lender’s rights and obligations
under this Agreement with respect to the Term Loans assigned;




     (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 Term Lender, an Affiliate of a Term Lender or an
Approved Fund; and




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
any Term Loan to a Person that is not a Term Lender, an Affiliate of a Term Lender
or an Approved Fund.




     (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 Term 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.



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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 Term Lender under this
Agreement, and the assigning Term 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 Term Lender’s rights and
obligations under this Agreement, such Term 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 Term Loan Note
to the assignee Term Lender. Any assignment or transfer by a Term 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 Term 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
Term Lenders, and the Term Loan Commitments of, and principal amounts of the Term Loans owing to,
each Term 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 Term Lenders may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Term 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 Term Lender, at any reasonable time and from time to time upon reasonable prior notice.



     (d) Participations. Any Term 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 Term
Lender’s rights and/or obligations under this Agreement (including all or a portion of its Term
Loans owing to it); provided that (i) such Term Lender’s obligations under this Agreement
shall remain unchanged, (ii) such Term 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 Term Lenders shall continue to deal solely and directly with such Term
Lender in connection with such Term Lender’s rights and obligations under this Agreement.



     Any agreement or instrument pursuant to which a Term Lender sells such a participation shall
provide that such Term 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 Term 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 Term Lender and had
acquired its interest



70









 







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 Term Lender; provided such Participant agrees to be subject to Section 2.10 as
though it were a Term 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 Term
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 Term 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 Term Lender.



     (f) Certain Pledges. Any Term 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 Term Loan
Note(s), if any) to secure obligations of such Term Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment
shall release such Term Lender from any of its obligations hereunder or substitute any such pledgee
or assignee for such Term Lender as a party hereto.



     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent and
the Term 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 Term 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 Term Lender on a nonconfidential basis prior to disclosure by the Parent, the



71









 







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 Term 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
Term 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 Term 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 Term Lender, irrespective of whether or not such
Term 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 Term Lender different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Term Lender and their respective Affiliates
under this Section are in addition to other rights and remedies (including other rights of setoff)
that such Term Lender or their respective Affiliates may have. Each Term 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 Term Lender shall receive interest in an amount that exceeds the
Maximum Rate, the excess interest shall be applied to the principal of the Term 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 Term 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.



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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 Term Lender, regardless of any investigation made by the Administrative Agent or any Term
Lender or on their behalf and notwithstanding that the Administrative Agent or any Term Lender may
have had notice or knowledge of any Default at the time of the Term Loan Borrowing, and shall
continue in full force and effect as long as any Term 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
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 Term Lenders. If any Term Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Term Lender or any
Governmental Authority for the account of any Term Lender pursuant to Section 3.01, or if
any Term 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 Term Lender as a party hereto,
then the Borrower may, at its sole expense and effort, upon notice to such Term Lender and the
Administrative Agent, require such Term 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 Term
Lender, if a Term 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 Term Lender shall have received payment of an amount equal to the outstanding
principal of its Term Loans, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder and under the other Loan Documents (including any amounts



73









 







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 Term Lender shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Term 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 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



74









 







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.



     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



75









 







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 Term Lender that is subject to the Act (as hereinafter defined)
and the Administrative Agent (for itself and not on behalf of any Term 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 Term 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 Term
Lender, provide all documentation and other information that the Administrative Agent or such Term
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.



[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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Willis North America Inc.

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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/ Robert Maddox	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	Robert Maddox	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	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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Willis North America Inc.

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