Exhibit 10.1


	
   

  	
   

  



 


 


THIRD
AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated
as of May 24, 2010


 


among


 


LPL
INVESTMENT HOLDINGS INC.,


as
Holdings,


 


LPL
HOLDINGS, INC.,


as
Borrower,


 


The
Several Lenders

from Time to Time Parties Hereto,


 


MORGAN
STANLEY SENIOR FUNDING, INC.,

as Administrative Agent,


 


and


 


MORGAN
STANLEY & CO.,

as Collateral Agent


 


	
   

  	
   

  



 


MORGAN
STANLEY SENIOR FUNDING, INC.,

as Joint Lead Arranger and Joint Bookrunner

with respect to the 2015 Term Loans and the 2017 Term Loans


 


BANC OF
AMERICA SECURITIES LLC,

as Joint Lead Arranger and Joint Bookrunner

with respect to the 2015 Term Loans and the 2017 Term Loans


 





















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
  SECTION 1.

  	
  Definitions

  	
   

  	
  2

  
	
  1.1

  	
  Defined Terms

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  Amount and Terms of Credit Facilities

  	
   

  	
  42

  
	
  2.1

  	
  Loans

  	
   

  	
  42

  
	
  2.2

  	
  Minimum Amount of Each Borrowing; Maximum Number of
  Borrowings

  	
   

  	
  44

  
	
  2.3

  	
  Notice of Borrowing

  	
   

  	
  44

  
	
  2.4

  	
  Disbursement of Funds

  	
   

  	
  45

  
	
  2.5

  	
  Repayment of Loans; Evidence of Debt

  	
   

  	
  46

  
	
  2.6

  	
  Conversions and Continuations

  	
   

  	
  49

  
	
  2.7

  	
  Pro Rata Borrowings

  	
   

  	
  50

  
	
  2.8

  	
  Interest

  	
   

  	
  50

  
	
  2.9

  	
  Interest Periods

  	
   

  	
  51

  
	
  2.10

  	
  Increased Costs, Illegality, etc.

  	
   

  	
  51

  
	
  2.11

  	
  Compensation

  	
   

  	
  53

  
	
  2.12

  	
  Change of Lending Office

  	
   

  	
  53

  
	
  2.13

  	
  Notice of Certain Costs

  	
   

  	
  53

  
	
  2.14

  	
  Incremental Facilities

  	
   

  	
  54

  
	
  2.15

  	
  Extensions of Term Loans, Revolving Credit Loans and
  Revolving Credit Commitments and Additional/Replacement Revolving Credit
  Loans and Additional/Replacement Revolving Credit Commitments

  	
   

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  Letters of Credit

  	
   

  	
  60

  
	
  3.1

  	
  Issuance of Letters of Credit

  	
   

  	
  60

  
	
  3.2

  	
  Letter of Credit Requests

  	
   

  	
  60

  
	
  3.3

  	
  Letter of Credit Participations

  	
   

  	
  61

  
	
  3.4

  	
  Agreement to Repay Letter of Credit Drawings

  	
   

  	
  62

  
	
  3.5

  	
  Increased Costs

  	
   

  	
  63

  
	
  3.6

  	
  New or Successor Letter of Credit Issuer

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  Fees; Commitment Reductions and Terminations

  	
   

  	
  65

  
	
  4.1

  	
  Fees

  	
   

  	
  65

  
	
  4.2

  	
  Voluntary Reduction of Commitments

  	
   

  	
  66

  
	
  4.3

  	
  Mandatory Termination of Commitments

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  Payments

  	
   

  	
  68

  
	
  5.1

  	
  Voluntary Prepayments

  	
   

  	
  68

  
	
  5.2

  	
  Mandatory Prepayments

  	
   

  	
  68

  
	
  5.3

  	
  Method and Place of Payment

  	
   

  	
  72

  
	
  5.4

  	
  Net Payments

  	
   

  	
  72

  
	
  5.5

  	
  Computations of Interest and Fees

  	
   

  	
  74

  
	
  5.6

  	
  Limit on Rate of Interest

  	
   

  	
  74

  



 


i





















 


	
  SECTION 6.

  	
  Conditions Precedent to Effective Date

  	
   

  	
  75

  
	
  6.1

  	
  Credit Documents

  	
   

  	
  75

  
	
  6.2

  	
  Collateral

  	
   

  	
  75

  
	
  6.3

  	
  Legal Opinions

  	
   

  	
  75

  
	
  6.4

  	
  No Defaults; Representations and Warranties

  	
   

  	
  76

  
	
  6.5

  	
  Consent

  	
   

  	
  76

  
	
  6.6

  	
  Effective Date Certificates

  	
   

  	
  76

  
	
  6.7

  	
  Corporate Proceedings

  	
   

  	
  76

  
	
  6.8

  	
  Corporate Documents

  	
   

  	
  76

  
	
  6.9

  	
  Fees and Expenses

  	
   

  	
  76

  
	
  6.10

  	
  Solvency Certificate

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  Additional Conditions Precedent

  	
   

  	
  77

  
	
  7.1

  	
  No Default; Representations and Warranties

  	
   

  	
  77

  
	
  7.2

  	
  Notice of Borrowing; Letter of Credit Request

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  Representations, Warranties and Agreements

  	
   

  	
  77

  
	
  8.1

  	
  Corporate Status

  	
   

  	
  77

  
	
  8.2

  	
  Corporate Power and Authority

  	
   

  	
  78

  
	
  8.3

  	
  No Violation

  	
   

  	
  78

  
	
  8.4

  	
  Litigation

  	
   

  	
  78

  
	
  8.5

  	
  Margin Regulations

  	
   

  	
  78

  
	
  8.6

  	
  Governmental Approvals

  	
   

  	
  78

  
	
  8.7

  	
  Investment Company Act

  	
   

  	
  78

  
	
  8.8

  	
  True and Complete Disclosure

  	
   

  	
  78

  
	
  8.9

  	
  Financial Condition; Financial Statements

  	
   

  	
  79

  
	
  8.10

  	
  Tax Returns and Payments, etc

  	
   

  	
  79

  
	
  8.11

  	
  Compliance with ERISA

  	
   

  	
  79

  
	
  8.12

  	
  Subsidiaries

  	
   

  	
  80

  
	
  8.13

  	
  Patents, etc.

  	
   

  	
  80

  
	
  8.14

  	
  Environmental Laws

  	
   

  	
  80

  
	
  8.15

  	
  Properties, Assets and Rights

  	
   

  	
  80

  
	
  8.16

  	
  [Reserved]

  	
   

  	
  80

  
	
  8.17

  	
  Solvency

  	
   

  	
  80

  
	
  8.18

  	
  Capital Stock

  	
   

  	
  80

  
	
  8.19

  	
  No Defaults

  	
   

  	
  81

  
	
  8.20

  	
  Employee Matters

  	
   

  	
  81

  
	
  8.21

  	
  Senior Indebtedness

  	
   

  	
  81

  
	
  8.22

  	
  Patriot Act

  	
   

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  Affirmative Covenants

  	
   

  	
  81

  
	
  9.1

  	
  Information Covenants

  	
   

  	
  81

  
	
  9.2

  	
  Books, Records and Inspections

  	
   

  	
  84

  
	
  9.3

  	
  Maintenance of Insurance

  	
   

  	
  84

  
	
  9.4

  	
  Payment of Taxes

  	
   

  	
  84

  
	
  9.5

  	
  Consolidated Corporate Franchises

  	
   

  	
  84

  
	
  9.6

  	
  Compliance with Statutes

  	
   

  	
  85

  



 


ii





















 


	
  9.7

  	
  ERISA

  	
   

  	
  85

  
	
  9.8

  	
  Good Repair

  	
   

  	
  85

  
	
  9.9

  	
  Transactions with Affiliates

  	
   

  	
  85

  
	
  9.10

  	
  End of Fiscal Years; Fiscal Quarters

  	
   

  	
  86

  
	
  9.11

  	
  Additional Guarantors and Grantors

  	
   

  	
  86

  
	
  9.12

  	
  Pledges of Additional Stock and Evidence of Indebtedness

  	
   

  	
  87

  
	
  9.13

  	
  Changes in Business

  	
   

  	
  87

  
	
  9.14

  	
  Further Assurances

  	
   

  	
  87

  
	
  9.15

  	
  Use of Proceeds

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  Negative Covenants

  	
   

  	
  88

  
	
  10.1

  	
  Limitation on Indebtedness

  	
   

  	
  88

  
	
  10.2

  	
  Limitation on Liens

  	
   

  	
  91

  
	
  10.3

  	
  Limitation on Fundamental Changes

  	
   

  	
  93

  
	
  10.4

  	
  Limitation on Sale of Assets

  	
   

  	
  95

  
	
  10.5

  	
  Limitation on Investments

  	
   

  	
  96

  
	
  10.6

  	
  Limitation on Dividends

  	
   

  	
  99

  
	
  10.7

  	
  Limitations on Debt Payments and Amendments

  	
   

  	
  101

  
	
  10.8

  	
  Limitations on Sale Leasebacks

  	
   

  	
  102

  
	
  10.9

  	
  Consolidated Total Debt to Consolidated EBITDA Ratio

  	
   

  	
  102

  
	
  10.10

  	
  Consolidated EBITDA to Consolidated Interest Expense Ratio

  	
   

  	
  102

  
	
  10.11

  	
  [Reserved]

  	
   

  	
  103

  
	
  10.12

  	
  Burdensome Agreements

  	
   

  	
  103

  
	
  10.13

  	
  Permitted Activities of Holdings

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  Events of Default

  	
   

  	
  104

  
	
  11.1

  	
  Payments

  	
   

  	
  104

  
	
  11.2

  	
  Representations, etc.

  	
   

  	
  104

  
	
  11.3

  	
  Covenants

  	
   

  	
  104

  
	
  11.4

  	
  Default Under Other Agreements

  	
   

  	
  104

  
	
  11.5

  	
  Bankruptcy, etc.

  	
   

  	
  104

  
	
  11.6

  	
  ERISA

  	
   

  	
  105

  
	
  11.7

  	
  Guarantee

  	
   

  	
  105

  
	
  11.8

  	
  Security Documents

  	
   

  	
  105

  
	
  11.9

  	
  Subordination

  	
   

  	
  105

  
	
  11.10

  	
  Judgments

  	
   

  	
  105

  
	
  11.11

  	
  Change of Control

  	
   

  	
  106

  
	
  11.12

  	
  Borrower’s Right to Cure

  	
   

  	
  106

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  The Administrative Agent

  	
   

  	
  107

  
	
  12.1

  	
  Appointment

  	
   

  	
  107

  
	
  12.2

  	
  Delegation of Duties

  	
   

  	
  107

  
	
  12.3

  	
  Exculpatory Provisions

  	
   

  	
  107

  
	
  12.4

  	
  Reliance by Administrative Agent

  	
   

  	
  107

  
	
  12.5

  	
  Notice of Default

  	
   

  	
  108

  
	
  12.6

  	
  Non-Reliance on Administrative Agent and Other Lenders

  	
   

  	
  108

  
	
  12.7

  	
  Indemnification

  	
   

  	
  108

  



 


iii





















 


	
  12.8

  	
  Administrative Agent in its Individual Capacity

  	
   

  	
  109

  
	
  12.9

  	
  Successor Agent

  	
   

  	
  109

  
	
  12.10

  	
  Withholding Tax

  	
   

  	
  109

  
	
  12.11

  	
  Collateral Agent

  	
   

  	
  109

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
  Miscellaneous

  	
   

  	
  109

  
	
  13.1

  	
  Amendments and Waivers

  	
   

  	
  109

  
	
  13.2

  	
  Notices

  	
   

  	
  111

  
	
  13.3

  	
  No Waiver; Cumulative Remedies

  	
   

  	
  112

  
	
  13.4

  	
  Survival of Representations and Warranties

  	
   

  	
  112

  
	
  13.5

  	
  Payment of Expenses and Taxes; Indemnification

  	
   

  	
  112

  
	
  13.6

  	
  Successors and Assigns; Participations and Assignments

  	
   

  	
  113

  
	
  13.7

  	
  Replacements of Lenders under Certain Circumstances

  	
   

  	
  117

  
	
  13.8

  	
  Adjustments; Set-off

  	
   

  	
  117

  
	
  13.9

  	
  Counterparts

  	
   

  	
  118

  
	
  13.10

  	
  Severability

  	
   

  	
  118

  
	
  13.11

  	
  Integration

  	
   

  	
  118

  
	
  13.12

  	
  GOVERNING LAW

  	
   

  	
  118

  
	
  13.13

  	
  Submission to Jurisdiction; Waivers

  	
   

  	
  118

  
	
  13.14

  	
  Acknowledgments

  	
   

  	
  119

  
	
  13.15

  	
  WAIVERS OF JURY TRIAL

  	
   

  	
  119

  
	
  13.16

  	
  Confidentiality

  	
   

  	
  119

  
	
  13.17

  	
  USA PATRIOT Act

  	
   

  	
  120

  
	
  13.18

  	
  Effect of Amendment and Restatement of the Original Credit
  Agreement

  	
   

  	
  120

  
	
  13.19

  	
  Consent of Required Lenders

  	
   

  	
  120

  
	
  13.20

  	
  Legend

  	
   

  	
  120

  



 


iv





















 


	
  SCHEDULES

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1.1(a)

  	
  Mortgaged
  Property

  	
   

  	
   

  
	
  Schedule 1.1(b)

  	
  Commitments
  and Addresses of Lenders

  	
   

  	
   

  
	
  Schedule 1.1(c)

  	
  Excluded
  Subsidiaries

  	
   

  	
   

  
	
  Schedule 8.6

  	
  Government
  Approvals

  	
   

  	
   

  
	
  Schedule 8.12

  	
  Subsidiaries

  	
   

  	
   

  
	
  Schedule 8.18

  	
  Capital
  Stock

  	
   

  	
   

  
	
  Schedule 9.9

  	
  Affiliate
  Transactions

  	
   

  	
   

  
	
  Schedule 10.1

  	
  Indebtedness

  	
   

  	
   

  
	
  Schedule 10.2

  	
  Liens

  	
   

  	
   

  
	
  Schedule 10.5

  	
  Investments

  	
   

  	
   

  
	
  Schedule 10.12

  	
  Burdensome
  Agreements

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of
  Assignment and Acceptance

  	
   

  	
   

  
	
  Exhibit B

  	
  [Reserved]

  	
   

  	
   

  
	
  Exhibit C

  	
  Form of
  Mortgage

  	
   

  	
   

  
	
  Exhibit D

  	
  [Reserved]

  	
   

  	
   

  
	
  Exhibit E

  	
  [Reserved]

  	
   

  	
   

  
	
  Exhibit F

  	
  Form of
  Letter of Credit Request

  	
   

  	
   

  
	
  Exhibit G-1

  	
  Form of
  Legal Opinion of Simpson Thacher & Bartlett LLP

  	
   

  	
   

  
	
  Exhibit G-2

  	
  Form of
  Legal Opinion of Ropes & Gray LLP

  	
   

  	
   

  
	
  Exhibit G-3

  	
  Form of
  Legal Opinion of Bingham McCutchen LLP

  	
   

  	
   

  
	
  Exhibit H

  	
  Form of
  Effective Date Certificate

  	
   

  	
   

  
	
  Exhibit I-1

  	
  Form of
  Promissory Note (2013 Term Loans)

  	
   

  	
   

  
	
  Exhibit I-2

  	
  Form of
  Promissory Note (2015 Term Loans)

  	
   

  	
   

  
	
  Exhibit I-3

  	
  Form of
  Promissory Note (2017 Term Loans)

  	
   

  	
   

  
	
  Exhibit I-4

  	
  Form of
  Promissory Note (Incremental Term Loans)

  	
   

  	
   

  
	
  Exhibit I-5

  	
  Form of
  Promissory Note (2011 Revolving Credit and Swingline Loans)

  	
   

  	
   

  
	
  Exhibit I-6

  	
  Form of
  Promissory Note (2013 Revolving Credit and Swingline Loans)

  	
   

  	
   

  
	
  Exhibit I-7

  	
  Form of
  Promissory Note (Additional/Replacement Revolving Credit and Swingline Loans

  	
   

  	
   

  
	
  Exhibit J-1

  	
  Pari
  Passu Intercreditor Agreement Term Sheet

  	
   

  	
   

  
	
  Exhibit J-2

  	
  First
  Lien/Second Lien Intercreditor Agreement Term Sheet

  	
   

  	
   

  



 


v





















 


THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 24,
2010, among LPL INVESTMENT HOLDINGS INC., a
Delaware corporation (“Holdings”), LPL HOLDINGS, INC.,
a Massachusetts corporation (the “Borrower”), the lending institutions
from time to time parties hereto (each a “Lender” and, collectively, the
“Lenders”), MORGAN STANLEY SENIOR
FUNDING, INC. (“MSSF”), as Administrative Agent, and MORGAN STANLEY & CO. (“MS”), as Collateral
Agent.


 


RECITALS:


 


WHEREAS, capitalized
terms used in these Recitals and the preamble to this Agreement shall have the
respective meanings set forth for such terms in Section 1.1 hereof;


 


WHEREAS, Holdings, the Borrower, the lending institutions
party thereto (the “Original Lenders”), MSSF, as administrative agent,
and MS, as collateral agent, are parties to that certain Second Amended and
Restated Credit Agreement, dated as of June 18, 2007 (as heretofore
amended, supplemented or otherwise modified from time to time, the “Original
Credit Agreement”), pursuant to which the Original Lenders extended or
committed to extend certain credit facilities to the Borrower;


 


WHEREAS, the Obligations
(as defined in the Original Credit Agreement, hereinafter the “Original
Obligations”) of the Borrower and the other Credit Parties under the
Original Credit Agreement and the other Credit Documents (as defined in the
Original Credit Agreement, hereinafter the “Original Credit Documents”)
are secured by the Collateral (as defined in the Original Credit Agreement,
hereinafter the “Original Collateral”) and are guaranteed or supported
or otherwise benefited by the Original Credit Documents;


 


WHEREAS, the Borrower has provided a Term Loan Extension Request in accordance
with Section 2.15 of the Original Credit Agreement with respect to the
Tranche D Term Loans requesting that the final scheduled maturity date of up to
an aggregate principal amount of $500,000,000 of the Tranche D Term Loans be
extended to the 2015 Term Loan Maturity Date;


 


WHEREAS, the 2015 Term Lenders have agreed to extend an aggregate principal
amount of $500,000,000 of the Tranche D Term Loans to the 2015 Term Loan
Maturity Date (such extended term loans, the “2015 Term Loans” and such
portion of the Tranche D Term Loans not so extended, the “2013 Term Loans”);


 


WHEREAS, the Borrower
desires to amend and restate the Original Credit Agreement in its entirety to,
among other things, (a) provide for new senior secured term loans to the
Borrower in an aggregate principal amount of $580,000,000 (the “2017 Term
Loans”), which shall be used to redeem all or a portion of the Senior
Unsecured Subordinated Notes and, together with cash on hand of the Borrower,
pay any accrued and unpaid interest thereon, redemption premiums in connection
therewith and any fees and expenses in connection herewith and therewith (the “Redemption”),
(b) incorporate the terms applicable to the 2013 Term Loans and the 2015
Term Loans and (c) incorporate the terms of Amendment No. 1 and the
Incremental and Extension Agreement; and


 


WHEREAS, the Borrower has requested that the 2015 Term
Lenders extend the scheduled maturity date with respect to the 2015 Term Loans
to the 2015 Term Loan Maturity Date, that the Lenders make available the 2017
Term Loans and other extensions of credit to the Borrower and that the Original
Lenders amend and restate the Original Credit Agreement, in its entirety, in
each case, as set forth in this Agreement; and


 





















 


WHEREAS, the parties hereto intend that (a) the Original
Obligations which remain unpaid and outstanding as of the Effective Date shall
continue to exist under this Agreement on the terms set forth herein and (b) the
Original Collateral shall continue to secure, support and otherwise benefit the
Original Obligations as well as the other Obligations of the Credit Parties
under this Agreement and the other Credit Documents hereunder; and


 


WHEREAS, the 2015 Term Lenders are willing to extend the
scheduled maturity date with respect to the 2015 Term Loans to the 2015 Term
Loan Maturity Date and the Lenders are willing to provide the 2017 Term Loans
and other extensions of credit, and the Original Lenders are willing to amend
and restate the Original Credit Agreement, in each case, subject to the terms
and conditions of this Agreement.


 


AGREEMENT:


 


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


 


SECTION 1.           Definitions


 


1.1           Defined
Terms  As
used herein, the following terms shall have the meanings specified in this Section 1.1
unless the context otherwise requires (it being understood that defined terms
in this Agreement shall include in the singular number the plural and in the
plural the singular):


 


“2005 Credit Agreement” shall mean that
certain Credit Agreement, dated as of the Closing Date, among Holdings, the
Borrower, the several lenders from time to time parties thereto, MSSF, as joint
lead arranger, joint bookrunner and administrative agent, MS, as collateral
agent, and Bear Stearns Corporate Lending Inc., as documentation agent.


 


“2006 Credit Agreement” shall mean that
certain Credit Agreement, dated as of December 29, 2006, among Holdings,
the Borrower, the several lenders from time to time parties thereto, MSSF, as
administrative agent, and MS, as collateral agent.


 


“2010 Revolving Credit Extension Effective Date”
shall have the meaning provided in Section 7 of the Incremental and
Extension Agreement.


 


“2010 Revolving Credit Increase Effective Date”
shall have the meaning provided in Section 6 of the Incremental and
Extension Agreement.


 


“2011 Final Date” shall mean, with respect to
2011 Revolving Credit Commitments, the date on which the 2011 Revolving Credit
Commitments shall have terminated, no 2011 Revolving Credit Loans shall be
outstanding and the 2011 Revolving Credit Lenders shall have no more Letter of
Credit Exposure with respect to their 2011 Revolving Credit Commitments and
2011 Revolving Credit Loans.


 


“2011 Letter of Credit Fee” shall have the
meaning provided in Section 4.1(c).


 


“2011 Revolving Credit Commitment” shall
mean, (a) with respect to each 2011 Revolving Credit Lender on the 2010
Revolving Credit Extension Effective Date which does not execute the
Incremental and Extension Agreement, the amount of the Revolving Credit
Commitment of such 2011 Revolving Credit Lender which shall terminate on the
2011 Revolving Credit Maturity Date, as such Revolving Credit Commitment may be
reduced from time to time pursuant to the terms hereof, (b) with 


 


2





















 


respect to each 2011
Revolving Credit Lender on the 2010 Revolving Credit Extension Effective Date
which does execute the Incremental and Extension Agreement, the amount of such
Lender’s 2011 Revolving Credit Commitment set forth on such Lender’s signature page to
the Incremental and Extension Agreement, as such Revolving Credit Commitment
may be reduced from time to time pursuant to the terms hereof, (c) in the
case of any Lender that receives an assignment of any portion of a 2011
Revolving Credit Commitment that was held by a 2011 Revolving Credit Lender on
the 2010 Revolving Credit Extension Effective Date, the amount specified as
such Lender’s “Revolving Credit Commitment” in the Assignment and Acceptance
pursuant to which such Lender assumed a portion of the Total 2011 Revolving
Credit Commitment, as such Revolving Credit Commitment may be reduced from time
to time pursuant to the terms hereof and (d) in the case of any 2011
Revolving Credit Lender that increases its 2011 Revolving Credit Commitment or
becomes an Incremental Revolving Credit Commitment Increase Lender with respect
to its 2011 Revolving Credit Commitment, in each case pursuant to Section 2.14,
the amount specified in the applicable Incremental Agreement, as such Revolving
Credit Commitment may be reduced from time to time pursuant to the terms
hereof.


 


“2011 Revolving Credit Facility” shall mean
the revolving credit facility represented by the 2011 Revolving Credit
Commitments.


 


“2011 Revolving Credit Lender” shall have the
meaning provided in the recitals to the Incremental and Extension Agreement.


 


“2011 Revolving Credit
Loan” shall mean Revolving Credit Loans made by any 2011 Revolving Credit
Lenders pursuant to its 2011 Revolving Credit Commitment.


 


“2011 Revolving Credit Maturity Date” shall
mean December 28, 2011.


 


“2013 Final Date” shall mean, with respect to
2013 Revolving Credit Commitments and Letters of Credit, the date on which the
2013 Revolving Credit Commitments shall have terminated, no 2013 Revolving
Credit Loans shall be outstanding and the 2013 Revolving Credit Lenders shall
have no more Letter of Credit Exposure.


 


“2013 Letter of Credit Fee” shall have the
meaning provided in Section 4.1(c).


 


“2013 Revolving Credit Commitment” shall
mean, (a) with respect to each 2013 Revolving Credit Lender on the 2010
Revolving Credit Extension Effective Date, the amount set forth on such Lender’s
signature page to the Incremental and Extension Agreement, as such
Revolving Credit Commitment may be reduced from time to time pursuant to the
terms hereof, (b) in the case of any Lender that receives an assignment of
any portion of a 2013 Revolving Credit Commitment that was held by a 2013
Revolving Credit Lender on the 2010 Revolving Credit Extension Effective Date,
the amount specified as such Lender’s “Revolving Credit Commitment” in the
Assignment and Acceptance pursuant to which such Lender assumed a portion of
the Total 2013 Revolving Credit Commitment, as such Revolving Credit Commitment
may be reduced from time to time pursuant to the terms hereof and (c) in
the case of any 2013 Revolving Credit Lender that increases its 2013 Revolving
Credit Commitment or becomes an Incremental Revolving Credit Commitment
Increase Lender with respect to its 2013 Revolving Credit Commitment, in each
case pursuant to Section 2.14, the amount specified in the applicable
Incremental Agreement, as such Revolving Credit Commitment may be reduced from
time to time pursuant to the terms hereof.


 


“2013 Revolving Credit Facility” shall mean
the revolving credit facility represented by the 2013 Revolving Credit
Commitments.


 


3





















 


“2013 Revolving Credit Lender” shall have the
meaning provided in the recitals to the Incremental and Extension Agreement.


 


“2013 Revolving Credit Loan” shall mean
Revolving Credit Loans made by any 2013 Revolving Credit Lenders pursuant to
its 2013 Revolving Credit Commitment.


 


“2013 Revolving Credit Maturity Date” shall
mean June 28, 2013


 


“2013 Term Lender” shall mean, (a) as of
the Effective Date, each Tranche D Term Lender with respect to any Tranche D
Term Loans of such Lender (or a portion thereof) that have not been extended
pursuant to the 2015 Term Loan Extension Request and whose name and the
aggregate principal amount of its Tranche D Term Loans not so extended are set
forth on Schedule 1.1(b) under the heading “2013 Term Loan Amount” (for
each such Lender, the “2013 Term Loan Amount”) and (b) after the
Effective Date, each Lender that holds a 2013 Term Loan.


 


“2013 Term Loan” shall have the meaning
provided in the recitals to this Agreement. 
The aggregate amount of the 2013 Term Loans as of the Effective Date is
$317,117,390.58.


 


“2013 Term Loan Amount” shall have the
meaning provided in the definition of the term “2013 Term Lender”.


 


“2013 Term Loan Facility” shall mean the 2013
Term Loans.


 


“2013 Term Loan Maturity
Date” shall mean June 28, 2013; provided, that if such date is
not a Business Day, the “2013 Term Loan Maturity Date” will be the next
preceding Business Day.


 


“2013 Term Loan Repayment
Amount” shall have the meaning provided in Section 2.5(b).


 


“2013 Term Loan Repayment Date” shall have
the meaning provided in Section 2.5(b).


 


“2015 Term Lender”
shall mean (a) as of the Effective Date, each Tranche D Term Lender with
respect to any Tranche D Term Loans of such Lender (or a portion thereof) that
have been extended pursuant to the 2015 Term Loan Extension Request and whose
name and the aggregate principal amount of its Tranche D Term Loans so extended
are set forth on Schedule 1.1(b) under the heading “2015 Term Loan Amount”
(for each such Lender, the “2015 Term Loan Amount”) and (b) after the
Effective Date, each Lender that holds a 2015 Term Loan.


 


“2015 Term Loan” shall have the meaning
provided in the recitals to this Agreement. 
The aggregate amount of the 2015 Term Loans as of the Effective Date is
$500,000,000.


 


“2015 Term Loan Extension Request”: shall
mean the Term Loan Extension Request delivered by the Borrower to the
Administrative Agent on May 11, 2010.


 


“2015 Term Loan Amount” shall have the
meaning provided in the definition of the term “2015 Term Lender”.


 


“2015 Term Loan Facility”
shall mean the 2015 Term Loans.


 


“2015 Term Loan
Maturity Date” shall mean June 25, 2015; provided, that if such
date is not a Business Day, the “2015 Term Loan Maturity Date” will be the next
preceding Business Day.


 


4
















 


“2015 Term Loan Repayment Amount” shall have
the meaning provided in Section 2.5(b).


 


“2015 Term Loan Repayment Date” shall have
the meaning provided in Section 2.5(b).


 


“2017 Term Lender” shall mean each Lender
that has a 2017 Term Loan Commitment or holds a 2017 Term Loan.


 


“2017 Term Loan” shall have the meaning
provided in the recitals to this Agreement.


 


“2017 Term Loan Commitments” shall mean, in
the case of each Lender, the amount set forth opposite such Lender’s name on
Schedule 1.1(b) as such Lender’s “2017 Term Loan Commitment”.  The aggregate amount of 2017 Term Loans
Commitments as of the Effective Date is $580,000,000.


 


“2017 Term Loan Facility” shall mean the 2017
Term Loan Commitments and the 2017 Term Loans thereunder.


 


“2017 Term Loan Maturity
Date” shall mean June 28, 2017; provided, that if such date is
not a Business Day, the “2017 Term Loan Maturity Date” will be the next
preceding Business Day.


 


“2017 Term Loan Repayment Amount” shall have
the meaning provided in Section 2.5(c).


 


“2017 Term Loan Repayment Date” shall have
the meaning provided in Section 2.5(c).


 


“ABR” shall mean, for
any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of
1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the
Federal Funds Effective Rate in effect on such day plus 1⁄2 of 1% and (c) solely
in the case of the 2015 Term Loans and the 2017 Term Loans, 2.50%. Any change
in the ABR due to a change in the Prime Rate or the Federal Funds Effective
Rate shall be effective as of the opening of business on the effective day of
such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.


 


“ABR Loan” shall mean each Loan bearing
interest at the rate provided in Section 2.8 and, in any event, shall
include all Swingline Loans.


 


“Acceptable Reinvestment Commitment” shall
mean a binding commitment of the Borrower or any Restricted Subsidiary to
reinvest proceeds of an Asset Sale Prepayment Event, Permitted Sale Leaseback
or Recovery Prepayment Event entered into at any time prior to the date that is
15 months after the receipt of the Net Cash Proceeds of such Asset Sale
Prepayment Event, Permitted Sale Leaseback or Recovery Prepayment Event.


 


“Acquired EBITDA” shall mean, with respect to
any Acquired Entity or Business, any Converted Restricted Subsidiary, any Sold
Entity or Business or any Converted Unrestricted Subsidiary (any of the
foregoing, a “Pro Forma Entity”) for any period, the amount for such
period of Consolidated EBITDA of such Pro Forma Entity (determined using such
definitions as if references to the Borrower and its Subsidiaries therein were
to such Pro Forma Entity and its Subsidiaries), all as determined on a
consolidated basis for such Pro Forma Entity in accordance with GAAP.


 


“Acquired Entity or Business” shall have the
meaning provided in the definition of the term “Consolidated EBITDA”.


 


5

















 


“Additional Lender” shall mean, at any time,
any Person (other than any such Person that is a Lender at such time) that
agrees to provide any portion of an Incremental Term Loan Commitment, an
Additional/Replacement Revolving Credit Commitment or Incremental Revolving
Credit Commitment Increase pursuant to an Incremental Agreement in accordance
with Section 2.14.


 


“Additional/Replacement Revolving Credit
Commitment” shall have the meaning provided in Section 2.14(a).


 


“Additional/Replacement Revolving Credit Facility”
shall mean each tranche of Additional/Replacement Revolving Credit Commitments
made pursuant to Section 2.14.


 


“Additional/Replacement Revolving Credit Loans”
shall mean any loan made to the Borrower under a tranche of
Additional/Replacement Revolving Credit Commitments.


 


“Additional/Replacement Revolving Credit Lender”
shall mean, at any time, any Lender that has an Additional/Replacement
Revolving Credit Commitment.


 


“Adjusted Revolving Commitment” shall mean,
at any time and with respect to any Credit Facility other than a Term Loan
Facility, the aggregate Commitments with respect to such Credit Facility of all
Lenders less the aggregate Commitments with respect to such Credit
Facility of all Defaulting Lenders.


 


“Adjusted Total Additional/Replacement Revolving
Credit Commitment” shall mean, at any time, with respect to any tranche of
Additional/Replacement Revolving Credit Commitments, the Total
Additional/Replacement Revolving Credit Commitment for such tranche less
the aggregate Additional/Replacement Credit Commitments of all Defaulting
Lenders in such tranche.


 


“Adjusted Total Revolving Credit Commitment”
shall mean, at any time, the Total Revolving Credit Commitment less the
aggregate Revolving Credit Commitments of all Defaulting Lenders.


 


“Administrative Agent” shall mean MSSF,
together with its affiliates and permitted successors in such capacity, as the
administrative agent for the Lenders under this Agreement and the other Credit
Documents.


 


“Administrative Agent’s Office” shall mean
the office of the Administrative Agent located at 1585 Broadway, New York, New
York 10036, or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.


 


“Affiliate” shall mean, with respect to any
Person, any other Person directly or indirectly controlling, controlled by, or
under direct or indirect common control with such Person.  A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power (a) to
vote 10% or more of the securities having ordinary voting power for the
election of directors of such corporation or (b) to direct or cause the
direction of the management and policies of such corporation, whether through
the ownership of voting securities, by contract or otherwise.


 


“Agents” shall mean the Administrative Agent
and the Collateral Agent.


 


“Aggregate Customer Debits” shall have the meaning set forth in Rule 15c3-3
of the Exchange Act.


 


6

















 


“Agreement” shall mean this Third Amended and
Restated Credit Agreement, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with the terms hereof and of
the other Credit Documents.


 


“Amendment No. 1” shall mean Amendment No. 1
to the Original Credit Agreement, dated as of December 9, 2009.


 


“Applicable ABR Margin” shall mean, at any
date, (a) with respect to the 2013 Term Loans, (i) during any period
in which the Borrower’s corporate family rating by Moody’s is B2 or less, 1.25%
per annum, (ii) during any period in which the Borrower’s corporate family
rating by Moody’s is Ba3 or better, 0.75% per annum, and (iii) during all
other periods, 1.00% per annum, (b) with respect to the 2015 Term Loans,
1.75% per annum, (c) with respect to the 2017 Term Loans, 2.75% per annum,
(d) with respect to 2011 Revolving Credit Loans (and, for each day prior
to the 2010 Revolving Credit Increase Effective Date, the 2013 Revolving Credit
Loans and the Swingline Loans), 1.00% per annum and (e) with respect to
2013 Revolving Credit Loans and Swingline Loans, 2.50% per annum.  Changes in the Applicable ABR Margin
resulting from changes in ratings from Moody’s shall become effective on the
date such rating shall have changed.


 


“Applicable Eurodollar Margin” shall mean, at
any date, (a) with respect to the 2013 Term Loans, (i) during any
period in which the Borrower’s corporate family rating by Moody’s is B2 or
less, 2.25% per annum, (ii) during any period in which the Borrower’s
corporate family rating by Moody’s is Ba3 or better, 1.75% per annum, and (iii) during
all other periods, 2.00% per annum, (b) with respect to the 2015 Term
Loans, 2.75% per annum, (c) with respect to the 2017 Term Loans, 3.75% per
annum, (d) with respect to 2011 Revolving Credit Loans (and, for each day
prior to the 2010 Revolving Credit Increase Effective Date, the 2013 Revolving
Credit Loans), 2.00% per annum and (e) with respect to 2013 Revolving
Credit Loans, 3.50% per annum.  Changes
in the Applicable Eurodollar Margin resulting from changes in ratings from
Moody’s shall become effective on the date such rating shall have changed.


 


“Applicable Laws” shall mean, as to any
Person, any law, rule, regulation, ordinance or treaty, or any determination,
ruling or other directive by or from a court, arbitrator, self-regulatory body
or other Governmental Authority, in each case applicable to or binding on such
Person or any of its property or assets or to which such Person or any of its
property or assets is subject.


 


“Applicable Margin” shall mean the Applicable
ABR Margin or the Applicable Eurodollar Margin, as applicable.


 


“Approved Fund” shall have the meaning
provided in Section 13.6(b).


 


“Asset Sale Prepayment Event” shall mean any
sale, transfer or other disposition (or series of related sales, transfers or
dispositions) of any business unit, asset or property of the Borrower or any
Restricted Subsidiary (including any sale, transfer or other disposition of any
Capital Stock of any Subsidiary of the Borrower owned by the Borrower or any
Restricted Subsidiary); provided, that the term “Asset Sale Prepayment
Event” shall not include (a) any Recovery Event or Permitted Sale
Leaseback or (b) any sale, transfer or other disposition permitted under
clauses (a), (b), (d)(i), (e), (f) and (h) of Section 10.4.


 


“Assignment and Acceptance” shall mean an
assignment and acceptance substantially in the form of Exhibit A.


 


7

















 


“Authorized Officer” shall mean the Chairman
of the Board, the President, the Chief Financial Officer, the Treasurer or any
other senior officer of the Borrower designated as such in writing to the
Administrative Agent by the Borrower.


 


“Available Amount” shall mean, on any date
(the “Reference Date”), an amount equal at such time to (a) the sum
of, without duplication:


 


(i)            an amount
(which amount shall not be less than zero) equal to (x) the cumulative
amount of Excess Cash Flow for all full fiscal years completed after the
Closing Date (commencing with the fiscal year ending December 31, 2006)
and prior to the Reference Date minus (y) the portion of such Excess Cash
Flow that has been after the Closing Date and on or prior to the Reference Date
(or will be) applied to the prepayment of Loans in accordance with Section 5.2(a)(ii);


 


(ii)           the amount of
any capital contributions or other equity issuances (other than the Equity
Contributions, issuances of Permitted Cure Securities or any other capital
contribution or equity issuance to the extent utilized in connection with other
transactions permitted pursuant to Section 10.5 or 10.6) made or received
by Holdings or the Borrower during the period from and including the Business
Day immediately following the Closing Date through and including the Reference
Date;


 


(iii)          to the extent
not already included in the calculation of Consolidated Net Income, the
aggregate amount of all cash dividends and other cash distributions received by
Holdings, the Borrower or any Restricted Subsidiary from any Minority
Investments or Unrestricted Subsidiaries after the Closing Date and on or prior
to the Reference Date (other than the portion of any such dividends and other
distributions that is used by Holdings, the Borrower or any Guarantor to pay
taxes); and


 


(iv)          to the extent
not already included in the calculation of Consolidated Net Income, the
aggregate amount of all cash repayments of principal received by Holdings, the
Borrower or any Restricted Subsidiary from any Minority Investments or
Unrestricted Subsidiaries after the Closing Date and on or prior to the
Reference Date in respect of loans made by Holdings, the Borrower or any Restricted
Subsidiary to such Minority Investments or Unrestricted Subsidiaries;


 


minus (b) the sum of:


 


(i)            the aggregate
amount of any Investments made by Holdings, the Borrower or any Restricted
Subsidiary pursuant to Section 10.5(j)(ii), 10.5(t)(ii), 10.5(u)(ii) or
10.5(aa)(y) after the Closing Date and on or prior to the Reference Date;
and


 


(ii)           the aggregate
amount of prepayments, repurchases and redemptions made by Holdings, the
Borrower or any Restricted Subsidiary pursuant to clause (i)(y) of the
proviso to Section 10.7(a) and clause (i)(y) of the proviso
to Section 10.7(b) after the Closing Date and on or prior to the
Reference Date.


 


“Bankruptcy Code”
shall mean the provisions of Title 11 of the United States Code, 11 USC §§ 101
et seq., as amended, or any similar federal or state law for the relief of
debtors.


 


“Board” shall mean
the Board of Governors of the Federal Reserve System of the United States (or
any successor).


 


8

















 


“Borrower” shall have the meaning provided in
the preamble to this Agreement.


 


“Borrowing” shall mean and include (a) the
incurrence of Swingline Loans from the Swingline Lender on a given date and (b) the
incurrence of one Class and Type of Loan on a given date (or resulting
from conversions on a given date) having a single Maturity Date and, in the
case of Eurodollar Loans, the same Interest Period (provided that ABR
Loans incurred pursuant to Section 2.10(b) shall be considered part
of any related Borrowing of Eurodollar Loans).


 


“Broker-Dealer Capital Requirement” shall mean the sum of (a) the
Clearing Broker-Dealer Minimum Capital, and (b) the Introducing
Broker-Dealer Minimum Capital.


 


“Broker-Dealer Regulated Subsidiary” shall mean any Subsidiary of
the Borrower, without respect to SEC Rule 15c(3)-3, that is registered as
a broker-dealer under the Exchange Act or any other Applicable Law requiring
such registration.


 


“Broker-Dealer Required Cash” shall mean, as of any date of
determination, the greater of (a) the difference of (i) all cash
and cash equivalents (including Segregated Cash) on the balance sheet
of the Broker-Dealer Regulated Subsidiary as of such date less (ii) all
Indebtedness on the balance sheet of the Broker-Dealer Regulated Subsidiary as
of such date, other than (A) Indebtedness under Margin Lines of Credit and
(B) other Indebtedness that has been approved as regulatory capital for
computation of Net Capital (as defined in Rule 15c3-1 of the Exchange
Act) less (iii) the Broker-Dealer Surplus Capital of the Broker-Dealer
Regulated Subsidiary as of such date and (b) the sum of Calculated
Segregated Cash and the Introducing Broker-Dealer Minimum Capital as of such
date.


 


“Broker-Dealer Surplus Capital” shall mean, as of any date of
determination, the difference of (a) the Net Capital (as defined in Rule 15c3-1
of the Exchange Act) of the Broker-Dealer Regulated Subsidiary as of such date
and (b) the Broker-Dealer Capital Requirement as of such date.


 


“Business Day” shall mean any day excluding
Saturday, Sunday and any day that shall be in The City of New York or San
Diego, California a legal holiday or a day on which banking institutions are
authorized by law or other governmental actions to close.


 


“Calculated Segregated Cash” shall mean, as of any date of
determination, all cash and “qualified” cash equivalents required to be
segregated as calculated as of such date under Rule 15c3-3 of the Exchange
Act.


 


“Capital Expenditures” shall mean, for any
period, the aggregate of all expenditures (whether paid in cash or accrued as
liabilities and including in all events all amounts expended or capitalized
under Capital Leases, but excluding any amount representing capitalized
interest) by the Borrower and the Restricted Subsidiaries during such period
that, in conformity with GAAP, are or are required to be included as additions
during such period to property, plant or equipment reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries; provided,
that the term “Capital Expenditures” shall not include (a) expenditures
made in connection with the replacement, substitution, restoration or repair of
assets to the extent financed from insurance proceeds or compensation awards
paid on account of a Recovery Event, (b) the purchase price of equipment
that is purchased simultaneously with the trade-in of existing equipment to the
extent that the gross amount of such purchase price is reduced by the credit
granted by the seller of such equipment for the equipment being traded in at
such time, (c) the purchase of plant, property or equipment made within
two years of the sale of any asset to the extent purchased with the proceeds of
such sale, (d) expenditures that constitute any part of Consolidated Lease
Expense or (e) any expenditures deemed to be made as part of a Permitted
Acquisition.


 


9

















 


“Capital Lease” shall mean, as applied to any
Person, any lease of any property (whether real, personal or mixed) by that
Person as lessee that, in conformity with GAAP, is or is required to be
accounted for as a capital lease on the balance sheet of that Person.


 


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


 


“Capitalized Lease Obligations” shall mean,
as applied to any Person, all obligations under Capital Leases of such Person
or any of its Subsidiaries, in each case taken at the amount thereof accounted
for as liabilities in accordance with GAAP.


 


“Change of Control” shall mean and be deemed
to have occurred if (a) at any time prior to the consummation of an IPO,
the Permitted Investors fail to own at least 50% of the Voting Stock of
Holdings; (b) at any time after the consummation of an IPO, a “person” or “group”
(as such terms are used in Sections 13(d) and 14(d) of the Exchange
Act, but excluding any employee benefit plan of such Person and its
Subsidiaries, and any Person acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan), excluding the Permitted
Investors, shall become the “beneficial owner” (as defined in Rules 13(d)-3
and 13(d)-5 under such Act), directly or indirectly, of 35% or more of the
Voting Stock of Holdings, unless the Permitted Investors own Voting Stock of
Holdings representing a greater percentage; (c) Holdings shall cease to
beneficially own and control 100% of the Voting Stock of the Borrower; (d) the
Borrower shall cease to beneficially own and control at least 100% of the
Voting Stock of Linsco/Private Ledger Corp.; (e) the board of directors of
Holdings shall cease to consist of a majority of Continuing Directors; or (f) any
“change of control” (as defined in the Senior Unsecured Subordinated Note
Indenture) shall occur.


 


“Class”,
when used in reference to any Loan or Borrowing, shall refer to whether such
Loan, or the Loans comprising such Borrowing, are 2011 Revolving Credit Loans,
2013 Revolving Credit Loans, 2013 Term Loans, 2015 Term Loans, 2017 Term Loans,
Incremental Term Loans, Extended Term Loans (of the same Extension Series)
other than 2015 Term Loans, Extended Revolving Credit Loans (of the same Extension
Series) other than 2013 Revolving Credit Loans, Additional/Replacement
Revolving Credit Loans (made pursuant to the same tranche) or Swingline Loans
and, when used in reference to any Commitment, refers to whether such
Commitment is a 2011 Revolving Credit Commitment, a 2013 Revolving Credit
Commitment, a 2017 Term Loan Commitment, an Incremental Term Loan Commitment,
an Extended Revolving Credit Commitment (of the same Extension Series) other
than 2013 Revolving Credit Commitments, an Additional/Replacement Revolving
Credit Commitment (made pursuant to the same tranche) or a Swingline
Commitment.


 


“Clearing Broker-Dealer Minimum Capital” shall mean, for any
Subsidiary of the Borrower that is a broker-dealer subject to SEC Rule 15c(3)-3,
as of any date of determination, the greater of (a) $40,000,000 and (b) 15%
of Aggregate Customer Debits on such date.


 


“Closing Date” shall mean December 28,
2005, the date of the initial credit event under the 2005 Credit Agreement.


 


“Closing Date Indebtedness” shall mean
Indebtedness described on Schedule 10.1.


 


“Code” shall mean the
Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.  Section references to the Code are to
the


 


10

















 


Code, as in effect at the
date of this Agreement, and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.


 


“Collateral” shall have the meaning provided
in the Security Agreement, the Pledge Agreement or any Mortgage, as applicable.


 


“Collateral Agent” shall mean MS, together
with its affiliates and permitted successors in such capacity, as the
collateral agent for the Secured Parties.


 


“Commitment” shall mean, with respect to each
Lender (to the extent applicable), such Lender’s 2011 Revolving Credit
Commitment, 2013 Revolving Credit Commitment, 2017 Term Loan Commitment,
Incremental Term Loan Commitment, Extended Revolving Credit Commitment other
than the 2013 Revolving Credit Commitment, Additional/Replacement Revolving
Credit Commitment or Swingline Commitment.


 


“Confidential Information” shall have the
meaning provided in Section 13.16.


 


“Confidential Information Memorandum” shall
mean the Confidential Information Memorandum of the Borrower dated December 2005,
delivered to the Lenders in connection with this Agreement.


 


“Consolidated Earnings” shall mean, for any
period, “income (loss) before the deduction of income and franchise taxes” of
the Borrower and the Restricted Subsidiaries, excluding (a) extraordinary
items for such period, determined in a manner consistent with the manner in
which such amount was determined in accordance with the audited financial
statements referred to in Section 9.1(a) and (b) the cumulative
effect of a change in accounting principles or policies during such period,
whether effected through a cumulative effect adjustment or a retroactive
application, in each case in accordance with GAAP.


 


“Consolidated EBITDA” shall mean, for any
period:


 


(a) the sum, without duplication, of the
amounts for such period of (x) Consolidated Earnings and (y) to the
extent already deducted in arriving at Consolidated Earnings:


 


(i)            Consolidated
Interest Expense;


 


(ii)           depreciation
expense;


 


(iii)          amortization
expense, including the amortization of deferred financing fees;


 


(iv)          extraordinary
losses and unusual or non-recurring charges, severance, relocation costs and
curtailment or modification to pension and post-retirement employee benefit
plans (including any writeoffs, writedowns or other non-cash charges reducing
Consolidated Earnings for such period, but excluding any such charge that
represents an accrual or reserve for a cash expenditure for a future period or
amortization of a prepaid cash item that was paid in a prior period);


 


(v)           losses on asset
sales;


 


(vi)          restructuring
charges, accruals or reserves (excluding any non-cash item to the extent that
it represents an accrual or reserve for potential cash items in any future
period or 


 


11

















 


amortization of a prepaid cash item that was paid in a prior period),
including any one-time costs incurred in connection with acquisitions after the
Closing Date;


 


(vii)         [Reserved];


 


(viii)        any expenses or
charges (including any commissions, discounts and other fees or charges)
incurred in connection with any issuance of debt or equity securities, any
refinancing transaction or any amendment or other modification of any debt
instrument (whether or not successful);


 


(ix)           any fees and
expenses related to Permitted Acquisitions, dispositions, recapitalizations,
Investments or asset sales;


 


(x)            any deduction
for minority interest expense;


 


(xi)           the amount of
management, monitoring, consulting and advisory fees and related expenses paid
to the Sponsors (including any amortization thereof), to the extent permitted
by Section 10.6(d);


 


(xii)          any impairment
charge or asset write-off pursuant to Financial Accounting Standards Board
Statement No. 142-”Goodwill and Other Intangible Assets” or Financial
Accounting Standards Board Statement No. 144-”Accounting for the
Impairment or Disposal of Long-Lived Assets” and the amortization of
intangibles arising pursuant to Financial Accounting Standards Board Statement No. 141-”Business
Combinations”;


 


(xiii)         any costs or
expenses incurred by Holding, the Borrower or a Restricted Subsidiary pursuant
to any management equity plan or stock option plan or any other management or
employee benefit plan or agreement or any stock subscription or shareholder
agreement, to the extent that such costs or expenses are funded with cash
proceeds contributed to the capital of Holdings or the Borrower or net cash
proceeds of an issuance of Capital Stock of Holdings or the Borrower;


 


(xiv)        any losses from
the early extinguishment of Indebtedness or Hedging Agreements or other
derivative instruments; and


 


(xv)         any non-cash
compensation expense recorded from grants of stock appreciation or similar
rights, stock options, restricted stock or other rights to officers, directors
or employees;


 


less (b) the sum of the
amounts for such period of:


 


(i)            extraordinary
gains;


 


(ii)           non-cash gains
(excluding any such non-cash gain to the extent it represents the reversal of
an accrual or reserve for potential cash item in any prior period) increasing
Consolidated Earnings for such period, other than the accrual of revenues in
the ordinary course of business;


 


(iii)          any gains from
the early extinguishment of Indebtedness or Hedging Agreements or other
derivative instruments; and


 


(iv)          gains on asset
sales;


 


12

















 


all as determined on a
consolidated basis for the Borrower and the Restricted Subsidiaries in
accordance with GAAP; provided, that (A) except as provided in
clause (C) below, there shall be excluded from Consolidated Earnings
for any period the income from continuing operations before income and
franchise taxes and extraordinary items of all Unrestricted Subsidiaries for
such period to the extent otherwise included in Consolidated Earnings, except
to the extent actually received in cash by the Borrower or the Restricted
Subsidiaries during such period through dividends or other distributions, (B) there
shall be excluded in determining Consolidated EBITDA non-operating currency transaction gains and losses and (C) (x) there
shall be included in determining Consolidated EBITDA for any period (1) the
Acquired EBITDA of any Person, property, business or asset (other than an
Unrestricted Subsidiary) acquired to the extent not subsequently sold,
transferred or otherwise disposed of (but not including the Acquired EBITDA of
any related Person, property, business or assets to the extent not so acquired)
by the Borrower or any Restricted Subsidiary during such period (each such
Person, property, business or asset acquired, including pursuant to the UVEST
Acquisition and the Pacific Life Acquisition, and not subsequently so disposed
of, an “Acquired Entity or Business”), and the Acquired EBITDA of any
Unrestricted Subsidiary that is converted into a Restricted Subsidiary during
such period (each, a “Converted Restricted Subsidiary”), in each case
based on the actual Acquired EBITDA of such Acquired Entity or Business or
Converted Restricted Subsidiary for such period (including the portion thereof
occurring prior to such acquisition or conversion) and (2) for the
purposes of the definition of the term “Permitted Acquisition” and
Sections 10.1(j), 10.1(k), 10.3, 10.9 and 10.10, an adjustment in respect
of each Acquired Entity or Business equal to the amount of the Pro Forma
Adjustment with respect to such Acquired Entity or Business for such period
(including the portion thereof occurring prior to such acquisition or
conversion) as specified in the Pro Forma Adjustment Certificate delivered to
the Administrative Agent and (y) for purposes of determining the
Consolidated Total Debt to Consolidated EBITDA Ratio only, there shall be
excluded in determining Consolidated EBITDA for any period the Acquired EBITDA
of any Person, property, business or asset (other than an Unrestricted
Subsidiary) sold, transferred or otherwise disposed of by the Borrower or any
Restricted Subsidiary during such period (each such Person, property, business
or asset so sold, transferred or otherwise disposed of, a “Sold Entity or
Business”), and the Acquired EBITDA of any Restricted Subsidiary that is
converted into an Unrestricted Subsidiary during such period (each, a “Converted
Unrestricted Subsidiary”), in each case based on the actual Acquired EBITDA
of such Sold Entity or Business or Converted Unrestricted Subsidiary for such
period (including the portion thereof occurring prior to such sale, transfer,
disposition or conversion).


 


“Consolidated EBITDA Growth Factor” shall
mean, as of any date of determination, a fraction, (a) the numerator of
which is the difference (only if positive) between the Consolidated EBITDA of
the Borrower and its Restricted Subsidiaries (i) for the last Test Period
prior to such determination date for which Section 9.1 Financials have
been delivered pursuant to Section 9.1, and (ii) for the fiscal year
of the Borrower ending December 31, 2005, and (b) the denominator of
which is $188,917,000.


 


“Consolidated EBITDA to Consolidated Interest
Expense Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated
EBITDA for the relevant Test Period to (b) Consolidated Interest Expense
for such Test Period.


 


“Consolidated Interest Expense” shall mean,
for any period, the cash interest expense (including that attributable to
Capital Leases in accordance with GAAP), net of cash interest income to the
extent not included in the calculation of Consolidated EBITDA, of the Borrower
and the Restricted Subsidiaries on a consolidated basis with respect to all
outstanding Indebtedness of the Borrower and the Restricted Subsidiaries,
including all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers’ acceptance financing and net costs
under Interest Rate Hedging Agreements, but excluding, however, amortization of
deferred financing costs and any other amounts of non-cash interest, all as
calculated on a consolidated basis in accordance with GAAP, and excluding, for 


 


13

















 


the avoidance of doubt, any
interest in respect of items excluded from Indebtedness in the proviso to the
definition thereof, any non-cash interest expense attributable to the movement
in the mark-to-market valuation of Hedging Obligations or other derivative
instruments pursuant to Financial Accounting Standards Board Statement No. 133,
any one-time cash costs associated with breakage costs in respect of Interest
Rate Hedging Agreements and any interest expense in respect of Indebtedness
outstanding under any Margin Lines of Credit or Warehouse Lines of Credit; provided,
that (a) except as provided in clause (b) below, there shall be
excluded from Consolidated Interest Expense for any period the cash interest
expense (or income) of all Unrestricted Subsidiaries for such period to the
extent otherwise included in Consolidated Interest Expense, (b) for
purposes of the definition of the term “Permitted Acquisition” and
Sections 10.1(j), 10.1(k), 10.3, 10.9 and 10.10, there shall be included
in determining Consolidated Interest Expense for any period the cash interest
expense (or income) of any Acquired Entity or Business acquired during such
period and of any Converted Restricted Subsidiary converted during such period,
in each case based on the cash interest expense (or income) relating to any Indebtedness
incurred or assumed as part of an acquisition of an Acquired Entity or Business
or as part of the conversion of a Converted Restricted Subsidiary for such
period (including the portion thereof occurring prior to such acquisition or
conversion) assuming any Indebtedness incurred or repaid in connection with any
such acquisition or conversion had been incurred or repaid on the first day of
such period and (c) for purposes of the definition of the term “Permitted
Acquisition” and Sections 10.1(j), 10.1(k), 10.3, 10.9 and 10.10, there shall
be excluded from determining Consolidated Interest Expense for any period the
cash interest expense (or income) of any Sold Entity or Business disposed of
during such period and of any Converted Unrestricted Subsidiary converted
during such period, in each case, based on the cash interest expense (or
income) relating to any Indebtedness relieved or repaid in connection with any
such disposition of such Sold Entity or Business or as part of the conversion
of a Converted Unrestricted Subsidiary for such period (including the portion
thereof occurring prior to such disposal or conversion) assuming such debt
relieved or repaid in connection with such disposition or conversion had been
relieved or repaid on the first day of such period.


 


“Consolidated Lease Expense” shall mean, for
any period, all rental expenses of the Borrower and the Restricted Subsidiaries
during such period under operating leases for real or personal property
(including in connection with Permitted Sale Leasebacks), excluding real estate
taxes, insurance costs and common area maintenance charges and net of sublease
income, other than (a) obligations under vehicle leases entered into in
the ordinary course of business, (b) all such rental expenses associated
with assets acquired pursuant to a Permitted Acquisition to the extent that
such rental expenses relate to operating leases in effect at the time of (and
immediately prior to) such acquisition and (c) Capitalized Lease
Obligations, all as determined on a consolidated basis in accordance with GAAP;
provided, that there shall be excluded from Consolidated Lease Expense
for any period the rental expenses of all Unrestricted Subsidiaries for such
period to the extent otherwise included in Consolidated Lease Expense.


 


“Consolidated Net Income” shall mean, for any
period, the consolidated net income (or loss) after the deduction of income
taxes of the Borrower and the Restricted Subsidiaries, determined on a
consolidated basis in accordance with GAAP.


 


“Consolidated Total Assets” shall mean, as of
any date of determination, the total amount of all assets of the Borrower and
the Restricted Subsidiaries, determined on a consolidated basis in accordance
with GAAP as of such date.


 


“Consolidated Total Debt” shall mean, as of
any date of determination, (a) the sum of (i) all indebtedness of the
Borrower and the Restricted Subsidiaries for borrowed money outstanding on such
date and (ii) all Capitalized Lease Obligations of the Borrower and the
Restricted Subsidiaries outstanding on such date, all calculated on a
consolidated basis in accordance with GAAP minus (b) the sum of (i) the aggregate
amount of cash and cash equivalents included in the cash accounts listed on the


 


14
















 


consolidated balance sheet of the Borrower and
the Restricted Subsidiaries as at such date plus (ii) all Segregated Cash
as at such date, to the extent that such sum exceeds the amount of Required
Cash and to the extent the use thereof for application to the payment of
Indebtedness is not otherwise prohibited by law or any contract to which the
Borrower or any of the Restricted Subsidiaries is a party minus (c) all
Indebtedness of the Borrower and the Restricted Subsidiaries outstanding under
any Margin Lines of Credit or Warehouse Lines of Credit on such date.


 


“Consolidated Total Debt to Consolidated EBITDA
Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated
Total Debt as of the last day of the relevant Test Period to (b) Consolidated
EBITDA for such Test Period.


 


“Consolidated Total Net Tangible Assets”
shall mean, as of any date of determination, the total amount of (i) all
Consolidated Total Assets of the Borrower and the Restricted Subsidiaries less (ii) the
stated balance sheet “goodwill” of the Borrower and the Restricted Subsidiaries
and less (iii) the stated balance sheet “intangible assets” of the
Borrower and the Restricted Subsidiaries, in each case determined on a
consolidated basis in accordance with GAAP as of such date.


 


“Continuing Director” shall mean, at any
date, an individual (a) who is a member of the Board of Directors of
Holdings on the Closing Date, (b) who, as at such date, has been a member
of such Board of Directors of Holdings for at least the 12 preceding months, (c) who
has been nominated to be a member of such Board of Directors of Holdings,
directly or indirectly, by one or more Permitted Investors or Persons nominated
by one or more Permitted Investors or (d) who has been nominated to be a
member of such Board of Directors of Holdings by a majority of the other
Continuing Managers then in office.


 


“Contract Consideration” shall have the
meaning provided in the definition of “Excess Cash Flow”.


 


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


 


“Converted Restricted Subsidiary” shall have
the meaning provided in the definition of the term “Consolidated EBITDA”.


 


“Converted Unrestricted Subsidiary” shall
have the meaning provided in the definition of the term “Consolidated EBITDA”.


 


“Credit Documents” shall mean this Agreement,
the Guarantee, the Security Documents and each Letter of Credit and any
promissory notes issued by the Borrower hereunder.


 


“Credit Event” shall mean and include the
making (but not the conversion or continuation) of a Loan and the issuance of a
Letter of Credit.


 


“Credit Facility” shall mean any Term Loan
Facility, the 2011 Revolving Credit Facility, the 2013 Revolving Credit
Facility, any Extended Revolving Credit Facility other than the 2013 Revolving
Credit Facility and any Additional/Replacement Revolving Credit Facility.


 


“Credit Party” shall mean each of the
Borrower, Holdings, the other Guarantors and each other Subsidiary of the
Borrower that is a party to a Credit Document.


 


15

















 


“Cumulative Consolidated Net Income Available to
Stockholders” shall mean, as of any date of determination, (i) Consolidated
Net Income plus (ii) any impairment charge or asset write-off pursuant to
Financial Accounting Standards Board Statement No. 142-”Goodwill and Other
Intangible Assets” or Financial Accounting Standards Board Statement No. 144-”Accounting
for the Impairment or Disposal of Long-Lived Assets” and the amortization of
intangibles arising pursuant to Financial Accounting Standards Board Statement No. 141-”Business
Combinations” less (iii) cash dividends paid or distributions made by
Holdings with respect to its Capital Stock for the period (taken as one
accounting period) commencing on the Closing Date and ending on the last day of
the most recent fiscal quarter for which Section 9.1 Financials have been
delivered under Section 9.1.


 


“Cure Amount” shall have the meaning provided
in Section 11.12(a).


 


“Cure Right” shall have the meaning provided
in Section 11.12(a).


 


“Currency Hedging Agreement” shall mean any
swap, cap, collar, forward future, option or similar agreement or derivative
transaction entered into by the Borrower or any Restricted Subsidiary in the
ordinary course of business and not for speculative purposes in order to
protect the Borrower or such Restricted Subsidiary against fluctuations in
currency exchange rates.


 


“Debt Incurrence Prepayment Event” shall mean
any issuance or incurrence by the Borrower or any of the Restricted
Subsidiaries of any Indebtedness, but excluding Indebtedness permitted to be
issued or incurred under Section 10.1 (other than under Section 10.1(i)(ii),
Section 10.1(v)(i) or pursuant to clause (i) of the proviso to Section 2.14(b)).


 


“Default” shall mean
any event, act or condition that with notice or lapse of time, or both, would constitute
an Event of Default.


 


“Defaulting Lender” shall mean any Lender
with respect to which a Lender Default is in effect.


 


“Dividends” shall have the meaning provided
in Section 10.6.


 


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


 


“Domestic Subsidiary” shall mean each
Subsidiary of the Borrower that is organized under the laws of the
United States, any state or territory thereof, or the District of
Columbia.


 


“Drawing” shall have the meaning provided in Section 3.4(b).


 


“Effective Date” shall mean the date upon
which the conditions set forth in Section 6 are satisfied.


 


“Environmental Claims” shall mean any and all
administrative, regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigations (other
than internal reports prepared by the Borrower or any of its Subsidiaries (a) in
the ordinary course of such Person’s business or (b) as required in
connection with a financing transaction or an acquisition or disposition of
real estate) or proceedings relating in any way to any Environmental Law or any
permit issued, or any approval given, under any such Environmental Law
(hereinafter, “Claims”), including (i) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law and (ii) any and all Claims by any third party seeking
damages, contribution, indemnification, cost 


 


16

















 


recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.


 


“Environmental Law” shall mean any applicable
Federal, state, foreign or local statute, law, rule, regulation, ordinance,
code and rule of common law now or hereafter in effect and in each case as
amended, and any binding judicial or administrative interpretation thereof,
including any binding judicial or administrative order, consent decree or
judgment, relating to the environment, human health or safety or Hazardous
Materials.


 


“Equity Contributions” shall have the meaning
provided in the 2005 Credit Agreement.


 


“ERISA” shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to time.  Section references to ERISA are to ERISA
as in effect at the date of this Agreement and any subsequent provisions of
ERISA amendatory thereof, supplemental thereto or substituted therefor.


 


“ERISA Affiliate” shall mean each person (as
defined in Section 3(9) of ERISA) that together with the Borrower or
a Subsidiary thereof would be deemed to be a “single employer” within the
meaning of Section 414(b) or (c) of the Code or, solely for purposes
of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.


 


“Eurodollar Loan” shall mean any Loan bearing
interest at rate determined by reference to the Eurodollar Rate.


 


“Eurodollar Rate” shall mean, in the case of
any Eurodollar Loan, with respect to each day during each Interest Period
pertaining to such Eurodollar Loan, (a) the rate of interest determined on
the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing
on Page 3750 of the Telerate screen as of 11:00 a.m. (London time)
two Business Days prior to the beginning of such Interest Period multiplied by (b) the
Statutory Reserve Rate.  In the event
that any such rate does not appear on the applicable Page of the Telerate
Service (or otherwise on such service), the “Eurodollar Rate” for the
purposes of this paragraph shall be determined by reference to such other
publicly available service for displaying Eurodollar rates as may be agreed
upon by the Administrative Agent and the Borrower or, in the absence of such
agreement, the “Eurodollar Rate” for the purposes of this paragraph
shall instead be the rate per annum notified to the Administrative Agent by the
Reference Lender as the rate at which the Reference Lender is offered Dollar
deposits at or about 11:00 a.m. (London time) two Business Days prior to
the beginning of such Interest Period in the interbank Eurodollar market where
the Eurodollar and foreign currency and exchange operations in respect of its
Eurodollar Loans are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Loan to be outstanding during such
Interest Period.  Notwithstanding
anything to the contrary contained herein, the Eurodollar Rate with respect to
the 2015 Term Loans and the 2017 Term Loans shall in no event be less than
1.50%.


 


“Event of Default” shall have the meaning
provided in Section 11.


 


“Excess Cash Flow” shall mean, for any
period, an amount equal to the excess of (a) the sum, without duplication,
of:


 


(i)            Consolidated Net
Income for such period;


 


17

















 


(ii)           an amount equal to
the amount of all after-tax non-cash expenses and losses to the extent deducted
in arriving at such Consolidated Net Income;


 


(iii)          decreases in Net
Working Capital for such period (other than decreases arising from Permitted
Acquisitions or sales, leases, transfers or other dispositions of assets by the
Borrower or any of its Restricted Subsidiaries during such period);


 


(iv)          an amount equal to
the aggregate net after-tax non-cash loss on the sale, lease, transfer or other
disposition of assets by the Borrower and the Restricted Subsidiaries during
such period (other than sales, leases, transfers or other dispositions in the
ordinary course of business) to the extent deducted in arriving at such
Consolidated Net Income; and


 


(v)           the amount of tax
expense deducted in determining Consolidated Net Income for such period to the
extent it exceeds the amount of cash taxes paid in such period;


 


over (b) the sum, without
duplication, of:


 


(i)            an amount equal to
the amount of all after-tax non-cash gains included in arriving at such
Consolidated Net Income;


 


(ii)           without duplication
of amounts deducted pursuant to clause (xii) below in such period, the
aggregate amount actually paid by the Borrower and the Restricted Subsidiaries
in cash during such period on account of Capital Expenditures (excluding the
principal amount of Indebtedness incurred in connection with such Capital
Expenditures, whether incurred in such period or in a subsequent period);


 


(iii)          the aggregate
amount of all prepayments of Revolving Credit Loans and Swingline Loans made
during such period to the extent accompanying reductions of the Total Revolving
Credit Commitment except to the extent financed with the proceeds of other
Indebtedness of the Borrower or the Restricted Subsidiaries;


 


(iv)          the aggregate amount
of all principal payments of Indebtedness of the Borrower or the Restricted
Subsidiaries (including any Term Loans and the principal component of payments
in respect of Capitalized Lease Obligations, but excluding Revolving Credit
Loans, Swingline Loans and voluntary prepayments of Term Loans pursuant to Section 5.1)
made during such period (other than in respect of any revolving credit facility
to the extent there is not an equivalent permanent reduction in commitments
thereunder) except to the extent financed with the proceeds of other
Indebtedness of the Borrower or the Restricted Subsidiaries;


 


(v)           an amount equal to
the aggregate net after-tax non-cash gain on the sale, lease, transfer or other
disposition of assets by the Borrower and the Restricted Subsidiaries during
such period (other than sales, leases, transfers or other dispositions  in the ordinary course of business) to the
extent included in arriving at such Consolidated Net Income;


 


(vi)          increases in Net
Working Capital for such period (other than increases arising from Permitted
Acquisitions or sales, leases, transfers or other dispositions of assets by the
Borrower or any of its Restricted Subsidiaries during such period);


 


(vii)         the amount of dividends,
distributions or repurchases paid or made during such period pursuant to clause
(b), (c), (d), (e), or (f) of the proviso to Section 10.6 to the
extent such dividends or distributions were (1) paid with the proceeds of
any amount referred to in paragraph 


 


18

















 


(a) of this definition and (2) financed with internally
generated cash flow of the Borrower and the Restricted Subsidiaries;


 


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


 


(ix)           without duplication
of amounts deducted pursuant to clause (xii) below in such period, the
aggregate amount of cash consideration paid by the Borrower and its Restricted
Subsidiaries during such period in connection with Permitted Acquisitions to
the extent such Permitted Acquisitions were financed with internally generated
cash flow of the Borrower and the Restricted Subsidiaries (excluding any such
amounts funded through the utilization of the Available Amount);


 


(x)            the aggregate
amount of any premium, make-whole or penalty payments actually paid in cash by
the Borrower and the Restricted Subsidiaries during such period that are
required to be made in connection with any prepayment of Indebtedness;


 


(xi)           the amount of cash
taxes paid in such period to the extent they exceed the amount of tax expense
deducted in determining Consolidated Net Income for such period; and


 


(xii)  without duplication of
amounts deducted from Excess Cash Flow in other periods, the aggregate
consideration required to be paid in cash by the Borrower or any of the
Restricted Subsidiaries pursuant to binding contracts (the “Contract
Consideration”) entered into prior to or during such period relating to
Permitted Acquisitions or Capital Expenditures to be consummated or made during
the period of four consecutive fiscal quarters of the Borrower following the
end of such period, provided that to the extent the aggregate amount of
internally generated cash actually utilized to finance such Permitted
Acquisitions or Capital Expenditures during such period of four consecutive
fiscal quarters is less than the Contract Consideration, the amount of such
shortfall shall be added to the calculation of Excess Cash Flow at the end of
such period of four consecutive fiscal quarters;


 


provided, that, in no event shall Excess Cash Flow exceed an
amount equal to the difference of (a) all cash and cash equivalents
(including Segregated Cash) on the consolidated balance sheet of the Borrower
and its Restricted Subsidiaries, as of the last day of such period, less (b) all Indebtedness on the
balance sheet of the Regulated Subsidiaries as of such date, other than (A) Indebtedness
under Margin Lines of Credit and under Warehouse Lines of Credit and (B) other
Indebtedness that has been approved as regulatory capital for computation of
Net Capital (as defined in Rule 15c3-1 of the Exchange Act) less (c) all Required
Cash of all such Persons as of such date.


 


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


 


“Excluded Subsidiary” shall mean (i) any
Subsidiary of the Borrower (a) on the Closing Date, that is listed on
Schedule 1.1(c) and (b) created or acquired after the Closing Date or
otherwise becomes after such date, a regulated entity that is subject to net
worth or net capital or similar capital and surplus restrictions under
Applicable Laws or accounting policies or principles or that is otherwise
restricted by Applicable Law from guaranteeing Indebtedness and/or granting
security interests in its assets or property and (ii) any Immaterial
Subsidiary.


 


19

















 


“Existing Class” shall mean Existing Term
Loan Classes and each Class of Existing Revolving Credit Commitments.


 


“Existing Revolving Credit Commitments” shall
have the meaning provided in Section 2.15(a)(ii).  The 2011 Revolving Credit Commitments shall
be deemed Existing Revolving Credit Commitments for all purposes of this
Agreement.


 


“Existing Revolving Credit Loans” shall have
the meaning provided in Section 2.15(a)(ii).  The 2011 Revolving Credit Loans shall be
deemed to be Existing Revolving Credit Loans for all purposes of this
Agreement.


 


“Existing Term Loan Class” shall have the
meaning provided in Section 2.15(a)(i). 
The 2013 Term Loan Facility shall be deemed to be the Existing Term Loan
Class from which the 2015 Term Loans were extended for all purposes of
this Agreement.


 


“Extended Loans/Commitments” shall mean
Extended Term Loans, Extended Revolving Credit Loans and/or Extended Revolving
Credit Commitments.


 


“Extended Repayment Date” shall have the
meaning provided in Section 2.5(d).


 


“Extended Revolving Credit Commitments” shall
have the meaning provided in Section 2.15(a)(ii).  The 2013 Revolving Credit Commitments shall
be deemed Extended Revolving Credit Commitments for all purposes of this
Agreement.


 


“Extended Revolving Credit Facility” shall
mean each tranche of Extended Revolving Credit Commitments established pursuant
to Section 2.15(a)(ii).  The 2013
Revolving Credit Facility shall be deemed an Extended Revolving Credit Facility
for all purposes of this Agreement.


 


“Extended Revolving Credit Loans” shall have
the meaning provided in Section 2.15(a)(ii).  The 2013 Revolving Credit Loans shall be
deemed Extended Revolving Credit Loans for all purposes of this Agreement.


 


“Extended Term Loan Facility” shall mean each
tranche of Extended Term Loans made pursuant to Section 2.15.  The 2015 Term Loan Facility shall be deemed
an Extended Term Loan Facility for all purposes of this Agreement.


 


“Extended Term Loan Repayment Amount” shall
have the meaning provided in Section 2.5(d).


 


“Extended Term Loans” shall have the meaning
provided in Section 2.15(a)(i).  The
2015 Term Loans shall be deemed Extended Term Loans for all purposes of this
Agreement.


 


“Extending Lender” shall have the meaning
provided in Section 2.15(b).  The
2013 Revolving Credit Lenders and the 2015 Term Lenders shall be deemed
Extending Lenders for all purposes of this Agreement


 


“Extension Agreement” shall have the meaning
provided in Section 2.15(c).  The
Incremental and Extension Agreement shall be deemed an Extension Agreement with
respect to the 2013 Revolving Credit Loans and this Agreement shall be deemed
an Extension Agreement with respect to the 2015 Term Loans, in each case for
all purposes of this Agreement.


 


20

















 


“Extension Election” shall have the meaning
provided in Section 2.15(b).


 


“Extension Request” shall mean Term Loan
Extension Requests and Revolving Credit Extension Requests.


 


“Extension Series” shall mean all Extended
Term Loans and Extended Revolving Credit Commitments that are established
pursuant to the same Extension Agreement (or any subsequent Extension Agreement
to the extent such Extension Agreement expressly provides that the Extended
Term Loans or Extended Revolving Credit Commitments, as applicable, provided
for therein are intended to be a part of any previously established Extension
Series) and that provide for the same interest margins, extension fees, if any,
and amortization schedule.


 


“Federal Funds Effective Rate” shall mean,
for any day, the weighted average of the per annum rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.


 


“Fees” shall mean all amounts payable
pursuant to, or referred to in, Section 4.1.


 


“Final Date” shall mean, in respect of the 2011 Revolving Credit
Commitments, the 2011 Final Date and, in respect of the 2013 Revolving Credit
Commitments, the 2013 Final Date.


 


“Financial Performance Covenants” shall mean
the covenants of the Borrower set forth in Sections 10.9 and 10.10.


 


“First Lien Obligations” shall mean the
Obligations and the Permitted Other Debt Obligations (other than any Permitted
Other Debt Obligations that are unsecured or are secured by a Lien ranking
junior to the Lien securing the Obligations), collectively.


 


“First Restatement Effective Date” shall mean
December 29, 2006.


 


“Foreign Asset Sale” shall have the meaning
provided in Section 5.2(h).


 


“Foreign Recovery Event” shall have the
meaning provided in Section 5.2(h).


 


“Foreign Subsidiary” shall mean each
Subsidiary of the Borrower that is not a Domestic Subsidiary.


 


“Fronting Fee” shall have the meaning
provided in Section 4.1(b).


 


“GAAP” shall mean generally accepted
accounting principles in the United States of America as in effect from time to
time; provided, however, that if there occurs after the Effective
Date any change in GAAP that affects in any respect the calculation of any
covenant contained in Section 10, the Lenders and the Borrower shall
negotiate in good faith amendments to the provisions of this Agreement that
relate to the calculation of such covenant with the intent of having the
respective positions of the Lenders and the Borrower after such change in GAAP
conform as nearly as possible to their respective positions as of the date of
this Agreement and, until any such amendments have been agreed upon, the
covenants in Section 10 shall be calculated as if no such change in GAAP
has occurred.


 


21

















 


“Governmental Authority” shall mean any
nation or government, any state, province, territory or other political
subdivision thereof, and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government.


 


“Guarantee” shall mean the Guarantee, dated
as of the Closing Date, among each Guarantor in favor of the Administrative
Agent for the benefit of the Agents and the Lenders, substantially in the form
of Exhibit B attached to the 2005 Credit Agreement, as the same has been
or may be amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof and of the other Credit Documents.


 


“Guarantee Obligations” shall mean, as to any
Person, any obligation of such Person guaranteeing or intended to guarantee any
Indebtedness of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, including any obligation of such Person,
whether or not contingent, (a) to purchase any such Indebtedness or any
property constituting direct or indirect security therefor (b) to advance
or supply funds (i) for the purchase or payment of any such Indebtedness
or (ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such Indebtedness of the ability of
the primary obligor to make payment of such Indebtedness or (d) otherwise
to assure or hold harmless the owner of such Indebtedness against loss in
respect thereof; provided, however, that the term “Guarantee Obligations”
shall not include endorsements of instruments for deposit or collection in the
ordinary course of business or customary and reasonable indemnity obligations
in effect on the Closing Date or entered into in connection with any
acquisition or disposition of assets permitted by this Agreement (other than
such obligations with respect to Indebtedness). 
The amount of any Guarantee Obligation shall be deemed to be an amount
equal to the stated or determinable amount of the Indebtedness in respect of
which such Guarantee Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person in good
faith.


 


“Guarantors” shall mean (a) each of
Holdings and each Domestic Subsidiary of Holdings (other than Borrower or any
Excluded Subsidiary) on the Effective Date and (b) each Domestic
Subsidiary (other than any Excluded Subsidiary, any Unrestricted Subsidiary or
any direct or indirect Domestic Subsidiary of a Foreign Subsidiary) that
becomes a party to the Guarantee after the Effective Date pursuant to Section 9.11.


 


“Hazardous Materials” shall mean (a) any
petroleum or petroleum products, radioactive materials, friable asbestos, urea
formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing regulated levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or
included in the definition of “hazardous substances”, “hazardous waste”, “hazardous
materials”, “extremely hazardous waste”, “restricted hazardous waste”, “toxic
substances”, “toxic pollutants”, “contaminants”, or “pollutants”, or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, which is prohibited, limited or regulated by
any Environmental Law.


 


“Hedging Agreement” shall mean any Currency
Hedging Agreement or Interest Rate Hedging Agreement, as applicable.


 


“Hedging Obligations” shall mean, with
respect to any Person, the obligations of such Person under Hedging Agreements.


 


“Historical Financial Statements” shall mean,
as of the Second Restatement Effective Date, (a) the audited financial
statements of the Borrower and its Subsidiaries for the immediately 


 


22

















 


preceding three fiscal
years, and (b) to the extent reasonably available, the unaudited quarterly
financial statements of the Borrower and its Subsidiaries for each fiscal
quarter ended at least 45 days before the Second Restatement Effective Date and
following the latest date for which audited financial statements are available,
in each case consisting of balance sheets and the related consolidated
statements of income, stockholders’ equity and cash flows for such periods.


 


“Holdings” shall have the meaning provided in
the preamble to this Agreement.


 


“HUD” shall mean the United States Department of Housing and
Urban Development.


 


“HUD-Regulated Subsidiary” shall mean the Subsidiary of the
Borrower that is a HUD-approved non-supervised mortgagee.


 


“HUD-Regulated Subsidiary Required Cash” shall mean, as of any
date of determination, the greater of (a) $100,000 and (b) the
difference of (i) all cash and cash equivalents on the balance sheet of
the HUD-Regulated Subsidiary as of such date and (ii) the Adjusted Net
Worth (as referenced in 12 CFR Section 202.5(n)) of the HUD-Regulated
Subsidiary as of such date above $500,000.


 


“Immaterial Subsidiary” shall mean each Subsidiary
of the Borrower other than a Material Subsidiary.


 


“Incremental
Agreement” shall have the meaning set forth in Section 2.14(e).


 


“Incremental and Extension Agreement” shall
mean the Incremental and Extension Agreement, dated as of January 25, 2010,
among Holdings, the Borrower, the other Credit Parties signatory thereto, the
Incremental Revolving Credit Commitment Increase Lenders signatory thereto, the
2013 Revolving Credit Lenders signatory thereto, the Administrative Agent, the
Letter of Credit Issuer, the Swingline Lender and the Collateral Agent.


 


“Incremental
Facility Closing Date” shall have the meaning provided in Section 2.14(e).


 


“Incremental Limit” shall have the meaning
provided in Section 2.14(b).


 


“Incremental
Revolving Credit Commitment Increase” shall have the meaning
provided in Section 2.14(a).


 


“Incremental
Revolving Credit Commitment Increase Lender” shall have the meaning
provided in Section 2.14(f)(i).


 


“Incremental
Term Loan Commitment” shall mean the commitment of any lender to
make Incremental Term Loans of a particular tranche pursuant to Section 2.14(a).


 


“Incremental
Term Loan Facility” shall mean each tranche of Incremental Term
Loans made pursuant to Section 2.14.


 


“Incremental Term Loan Maturity Date” shall
mean, with respect to any tranche of Incremental Term Loans made pursuant to Section 2.14,
the final maturity date thereof.


 


“Incremental Term Loan Repayment Amount”
shall have the meaning provided in Section 2.5(d).


 


23

















 


“Incremental Term Loan Repayment Date” shall
have the meaning provided in Section 2.5(d).


 


“Incremental
Term Loans” shall have the meaning provided in Section 2.14(a).


 


“Indebtedness” of any Person shall mean (a) all
indebtedness of such Person for borrowed money, (b) the deferred purchase
price of assets or services that in accordance with GAAP would be included as
liabilities in the balance sheet of such Person, (c) the face amount of
all letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (d) all Indebtedness of a second
Person secured by any Lien on any property owned by such first Person, whether
or not such Indebtedness has been assumed, (e) all Capitalized Lease
Obligations of such Person, (f) all obligations of such Person under
interest rate swap, cap or collar agreements, interest rate future or option
contracts, currency swap agreements, currency future or option contracts,
commodity price protection agreements or other commodity price hedging
agreements and other similar agreements (including Hedging Agreements) and (g) without
duplication, all Guarantee Obligations of such Person in respect of
Indebtedness described in clauses (a) through (f); provided, that
Indebtedness shall not include (i) trade payables and accrued expenses
arising in the ordinary course of business, (ii) prepaid or deferred
revenue arising in the ordinary course of business and (iii) purchase
price holdbacks arising in the ordinary course of business in respect of a portion
of the purchase price of an asset to satisfy warrants or other unperformed
obligations of the seller of such asset.


 


“Interest Period” shall mean, with respect to
any Term Loan, Revolving Credit Loan, Additional/Replacement Revolving Credit
Loan or Extended Revolving Credit Loan, the interest period applicable thereto,
as determined pursuant to Section 2.9.


 


“Interest Rate Hedging Agreement” shall mean
any swap, cap, collar, future, option or similar agreement entered into by the
Borrower or any Restricted Subsidiary in the ordinary course of business and
not for speculative purposes in order to protect the Borrower or such
Restricted Subsidiary against fluctuations in interest rates.


 


“Introducing Broker-Dealer Minimum Capital”
shall mean for those Subsidiaries of the Borrower that are broker-dealers
exempt from the provisions of SEC Rule 15c3-3, as of any date of
determination, the greater of (a) 120% of such Subsidiaries’ consolidated
minimum dollar Net Capital required (as defined in SEC Rule 15c3-1), and (b) the
consolidated Aggregate Indebtedness (as defined in SEC Rule 15c3-1) of
such Subsidiaries, divided by ten.


 


“Investment” shall have the meaning provided
in Section 10.5.


 


“IPO” shall mean, with respect to any Person,
a registered initial public offering of the Capital Stock of such Person (other
than on Form S-8).


 


“Lender” shall have the meaning provided in
the preamble to this Agreement.


 


“Lender Consent Letters” shall mean the
lender consent letters authorizing the amendment and restatement of the
Original Credit Agreement.


 


“Lender
Counterparty” shall mean each Agent or Lender or any Affiliate of
an Agent or Lender that is a counterparty to a Hedging Agreement (including any
Person who is an Agent or Lender (and any Affiliate thereof) as of the Closing
Date but subsequently, whether before or after entering into a Hedging
Agreement, ceases to be a Lender).


 


24
















 


“Lender Default” shall mean (a) the
failure (which has not been cured) of a Lender to make available its portion of
any Borrowing or to fund its portion of any unreimbursed payment under Section 3.4
or (b) a Lender having notified the Administrative Agent and/or the
Borrower that it does not intend to comply with the obligations under Section 2.1,
3.3 or 3.4, in the case of either clause (a) or clause (b) above,
as a result of the appointment of a receiver or conservator with respect to
such Lender at the direction or request of any regulatory agency or authority.


 


“Letter of Credit” shall have the meaning
provided in Section 3.1(a).


 


“Letter of Credit Commitment” shall mean
$50,000,000, as the same may be reduced from time to time pursuant to Section 4.2.


 


“Letter of Credit Exposure” shall mean, with
respect to any Lender, at any time, the sum of (a) the amount of any
Unpaid Drawings in respect of which such Lender has made (or is required to
have made) Revolving Credit Loans pursuant to Section 3.4(a) at such
time and (b) such Lender’s Revolving Credit Commitment Percentage of the
Letters of Credit Outstanding at such time (excluding the portion thereof
consisting of Unpaid Drawings in respect of which the Lenders have made (or are
required to have made) Revolving Credit Loans pursuant to Section 3.4(a)).


 


“Letter of Credit Fee” shall mean the 2011
Letter of Credit Fee or the 2013 Letter of Credit Fee, as applicable.


 


“Letter of Credit Issuer” shall mean MSSF,
any of its Affiliates and any one or more Persons who shall become a Letter of
Credit Issuer pursuant to Section 3.6.


 


“Letter of Credit Participant” shall have the
meaning provided in Section 3.3(a).


 


“Letter of Credit Participation” shall have
the meaning provided in Section 3.3(a).


 


“Letter of Credit Request” shall have the
meaning provided in Section 3.2(a).


 


“Letters of Credit Outstanding” shall mean,
at any time, the sum of, without duplication, (a) the aggregate Stated
Amount of all outstanding Letters of Credit and (b) the aggregate amount
of all Unpaid Drawings in respect of all Letters of Credit.


 


“Level I Status” shall mean, on any
date, the Consolidated Total Debt to Consolidated EBITDA Ratio as of such date
is greater than 5.75:1.00.


 


“Level II Status” shall mean, on any
date, the Consolidated Total Debt to Consolidated EBITDA Ratio as of such date
is less than or equal to 5.75:1.00.


 


“Lien” shall mean any mortgage, pledge,
security interest, hypothecation, assignment, lien (statutory or other) or
similar encumbrance, and any easement, right-of-way, license, restriction
(including zoning restrictions), defect, exception or irregularity in title or
similar change or encumbrance (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement or any lease
in the nature thereof).


 


“Loan” shall mean any Revolving Credit Loan,
Additional/Replacement Revolving Credit Loan (including swingline loans made
thereunder), Extended Revolving Credit Loan, Swingline Loan or Term Loan made
by any Lender hereunder.


 


25

















 


“Management Investors” shall mean the
management officers, directors and employees of Holdings, the Borrower and the
Restricted Subsidiaries who became investors in Holdings, the Borrower or any
of their direct or indirect parent entities on or before the date that was 12
months after the Closing Date.


 


“Mandatory Borrowing” shall have the meaning
provided in Section 2.1(f).


 


“Margin Line of Credit” shall mean any lines
of credit established consistent with past business practices and used by the
Borrower and its Subsidiaries in the ordinary course of business and to fund or
support Margin Loans of customers of the Borrower and its Subsidiaries and any
replacement lines established on substantially similar terms and conditions.


 


“Margin Loans” as defined in
Regulation T.


 


“Material Adverse Change” shall mean any
change in the business, assets, operations, properties or financial condition
of the Borrower and its Subsidiaries, taken as a whole, that would materially
adversely affect the ability of the Borrower and the other Credit Parties,
taken as a whole, to perform their obligations under this Agreement or any of
the other Credit Documents.


 


“Material Adverse Effect” shall mean a
circumstance or condition affecting the business, assets, operations,
properties or financial condition of the Borrower and its Subsidiaries, taken
as a whole, that would materially adversely affect (a) the ability of the
Borrower and the other Credit Parties, taken as a whole, to perform their
obligations under this Agreement or any of the other Credit Documents or (b) the
rights and remedies of the Administrative Agent and the Lenders under this
Agreement or any of the other Credit Documents.


 


“Material Subsidiary” shall mean, at any date
of determination, each Restricted Subsidiary of the Borrower (a) whose
total assets at the last day of the Test Period ending on the last day of the
most recent fiscal period for which Section 9.1 Financials have been
delivered were equal to or greater than 5% of the Consolidated Total Assets of
the Borrower and the Restricted Subsidiaries at such date or (b) whose
gross revenues for such Test Period were equal to or greater than 5% of the
consolidated gross revenues of the Borrower and the Restricted Subsidiaries for
such period, in each case determined in accordance with GAAP.


 


“Maturity Date” shall mean the 2013 Term Loan
Maturity Date, the 2015 Term Loan Maturity Date, the 2017 Term Loan Maturity
Date, the 2011 Revolving Credit Maturity Date, the 2013 Revolving Credit
Maturity Date, any maturity date related to any tranche of
Additional/Replacement Revolving Credit Commitments, any Incremental Term Loan
Maturity Date, any maturity date related to any Extension Series of
Extended Term Loans other than the 2015 Term Loans and any  maturity date related to any Extension Series of
Extended Revolving Credit Commitments other than 2013 Revolving Credit
Commitments.


 


“Mezz Participants” shall mean the holders of
the Senior Unsecured Subordinated Notes who hold any equity stake in Holdings
or the Borrower.


 


“Minimum Borrowing Amount” shall mean (a) with
respect to a Borrowing of Term Loans or Revolving Credit Loans, $1,000,000 and (b) with
respect to a Borrowing of Swingline Loans, $100,000.


 


“Minority Investment” shall mean any Person
(other than a Subsidiary) in which the Borrower or any Restricted Subsidiary
owns Capital Stock.


 


26

















 


“Moody’s” shall mean Moody’s Investors
Service, Inc. or any successor by merger or consolidation to its business.


 


“Mortgage” shall mean a Mortgage or Deed of
Trust, Assignment of Leases and Rents, Security Agreement and Financing
Statement or other security document entered into by the owner of a Mortgaged
Property and the Collateral Agent for the benefit of the Secured Parties in
respect of that Mortgaged Property, substantially in the form of Exhibit C
or, in the case of any Mortgaged Property located outside the United States of
America, in such form as agreed between the Borrower and the Collateral Agent,
as the same may be amended, supplemented or otherwise modified from time to
time in accordance with the terms thereof and of the other Credit Documents.


 


“Mortgaged Property” shall mean, initially,
the parcel of real estate and the improvements thereto owned by a Credit Party
and identified on Schedule 1.1(a), and thereafter, each other parcel of real
property and improvements thereto with respect to which a Mortgage is granted
pursuant to Section 9.14(b).


 


“MS” shall have the meaning provided in the
preamble to this Agreement.


 


“MSSF” shall have the meaning provided in the
preamble to this Agreement.


 


“Net Cash Proceeds” shall mean, with respect
to any Prepayment Event, (a) the gross cash proceeds (including payments
from time to time in respect of installment obligations, if applicable)
received by or on behalf of the Borrower or any of the Restricted Subsidiaries
in respect of such Prepayment Event, less (b) the sum of:


 


(i)            in the case of any Prepayment Event, the amount, if
any, of all taxes paid or estimated to be payable by Holdings, the Borrower or
any of the Restricted Subsidiaries in connection with such Prepayment Event,


 


(ii)           in the case of any Prepayment Event, the amount of
any reasonable reserve established in accordance with GAAP against any
liabilities (other than any taxes deducted pursuant to clause (i) above)
(x) associated with the assets that are the subject of such Prepayment
Event and (y) retained by Holdings, the Borrower or any of the Restricted
Subsidiaries; provided, that the
amount of any subsequent reduction of such reserve (other than in connection
with a payment in respect of any such liability) shall be deemed to be Net Cash
Proceeds of such Prepayment Event occurring on the date of such reduction,


 


(iii)          in the case of any Prepayment Event, the amount of
any Indebtedness secured by a Lien on the assets that are the subject of such
Prepayment Event to the extent that the instrument creating or evidencing such
Indebtedness requires that such Indebtedness be repaid upon consummation of
such Prepayment Event and such Indebtedness is actually so repaid,


 


(iv)          in the case of any Asset Sale Prepayment Event
(other than a transaction permitted by Section 10.4(d)(ii)) or Permitted
Sale Leaseback, the amount of any proceeds of such Asset Sale Prepayment Event
or such Permitted Sale Leaseback that the Borrower or the applicable Restricted
Subsidiary has reinvested (or intends to reinvest), or has entered into an
Acceptable Reinvestment Commitment to reinvest, within the Reinvestment Period,
in the business of the Borrower or any of the Restricted Subsidiaries (subject
to Section 9.13); provided, that:


 


(A)          the Borrower or
the applicable Restricted Subsidiary shall comply with Sections 9.11, 9.12 and
9.14(b) with respect to such reinvestment;


 


27

















 


(B)           any portion of
such proceeds that has not been so reinvested or made subject to an Acceptable
Reinvestment Commitment within the Reinvestment Period shall (x) be deemed
to be Net Cash Proceeds of an Asset Sale Prepayment Event or Permitted Sale
Leaseback occurring on the later of (1) the last day of the Reinvestment
Period and (2) 180 days after the date that the Borrower or such
Restricted Subsidiary has entered into an Acceptable Reinvestment Commitment
and (y) be applied to the repayment of Term Loans in accordance with Section 5.2(a)(i);
and


 


(C)           any proceeds
subject to an Acceptable Reinvestment Commitment that is later canceled or
terminated for any reason before such proceeds are applied in accordance
therewith shall be applied to the repayment of Term Loans in accordance with Section 5.2(a)(i),
unless the Borrower or the applicable Restricted Subsidiary enters into another
Acceptable Reinvestment Commitment with respect to such proceeds prior to the
end of the Reinvestment Period,


 


(v)           in the case of any Recovery Prepayment Event, the
amount of any proceeds of such Recovery Prepayment Event (x) that the
Borrower or the applicable Restricted Subsidiary has reinvested (or intends to
reinvest), or has entered into an Acceptable Reinvestment Commitment to
reinvest, within the Reinvestment Period, in the business of the Borrower or
any of the Restricted Subsidiaries (subject to Section 9.13), including
for the repair, restoration or replacement of the asset or assets subject to
such Recovery Prepayment Event, or (y) for which the Borrower or the
applicable Restricted Subsidiary has provided a Restoration Certification
within the Reinvestment Period; provided, that:


 


(A)          the Borrower or
the applicable Restricted Subsidiary shall comply with Sections 9.11, 9.12 and
9.14(b) with respect to such reinvestment;


 


(B)           any portion of
such proceeds that has not been so reinvested or made subject to an Acceptable
Reinvestment Commitment or Restoration Certification within the Reinvestment
Period shall (x) be deemed to be Net Cash Proceeds of a Recovery
Prepayment Event occurring on the later of (1) the last day of the
Reinvestment Period and (2) 180 days after the date that the Borrower or
such Restricted Subsidiary has entered into an Acceptable Reinvestment
Commitment or provided a Restoration Certification and (y) be applied to
the repayment of Term Loans in accordance with Section 5.2(a)(i), as
applicable; and


 


(C)           any proceeds subject
to an Acceptable Reinvestment Commitment that is later canceled or terminated
for any reason before such proceeds are applied in accordance therewith shall
be applied to the repayment of Term Loans in accordance with Section 5.2(a)(i),
unless the Borrower or the applicable Restricted Subsidiary enters into another
Acceptable Reinvestment Commitment with respect to such proceeds prior to the
end of the Reinvestment Period,


 


(vi)          in the case of any Prepayment Event, reasonable and
customary fees, commissions, expenses, issuance costs, discounts and other
costs paid by Holdings, the Borrower or any of the Restricted Subsidiaries, as
applicable, in connection with such Prepayment Event (other than those payable
to Holdings, the Borrower or any Subsidiary of the Borrower), in each case only
to the extent not already deducted in arriving at the amount referred to in
clause (a) above.


 


“Net Working Capital” shall mean, at any date, the excess of (a) the
cumulative sum of all amounts that would in conformity with GAAP constitute “assets”
on the consolidated balance sheet of the Borrower and its Restricted
Subsidiaries at such date, excluding assets constituting (i) cash, cash
equivalents and bank overdrafts, other than all Required Cash of all such
Persons as at such date (which shall be included as part of Net Working
Capital), (ii) taxes receivable and deferred income taxes of all 


 


28

















 


such Persons, (iii) property, plant and
equipment of all such Persons and (iv) goodwill and intangibles of all
such Persons, over (b) the cumulative sum of all amounts that would, in
conformity with GAAP, constitute “liabilities” on the consolidated balance
sheet of the Borrower and its Restricted Subsidiaries on such date, excluding (i) all
Indebtedness, other than Indebtedness under Margin Lines of Credit and under
Warehouse Lines of Credit (which shall be included as part of Net Working
Capital), (ii) taxes payable and deferred income taxes of all such
Persons, (iii) stockholder’s equity of all such Persons and (iv) dividends
payable of all such Persons.


 


“Non-Defaulting Lender” shall mean and
include each Lender other than a Defaulting Lender.


 


“Non-Excluded Taxes” shall have the meaning
provided in Section 5.4(a).


 


“Non-U.S.
Lender” shall have the meaning provided in Section 5.4(a).


 


“Non-U.S.
Participant” shall have the meaning provided in Section 5.4(c).


 


“Notice of Borrowing” shall have the meaning
provided in Section 2.3.


 


“Notice of Conversion or Continuation” shall
have the meaning provided in Section 2.6.


 


“Obligations” shall mean the collective
reference to (a) the due and punctual payment of (i) the principal of
and premium, if any, and interest at the applicable rate provided in this
Agreement (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on the Loans, when and as due, whether
at maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) each payment required to be made by the Borrower under
this Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of disbursements, interest thereon and
obligations to provide cash collateral, and (iii) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Borrower or any other Credit Party to any
of the Secured Parties under this Agreement and the other Credit Documents, (b) the
due and punctual performance of all covenants, agreements, obligations and
liabilities of the Borrower under or pursuant to this Agreement and the other
Credit Documents, (c) the due and punctual payment and performance of all
the covenants, agreements, and liabilities of each other Credit Party under or
pursuant to this Agreement or the other Credit Documents, (d) the due and
punctual payment and performance of all obligations of each Credit Party under
each Hedging Agreement with a Lender Counterparty and (e) the due and
punctual payment and performance of all obligations in respect of overdrafts
and related liabilities owed to the Administrative Agent or its affiliates
arising from or in connection with treasury, depositary or cash management
services or in connection with any automated clearinghouse transfer of funds.


 


“OCC” shall mean the Office of the
Comptroller of the Currency.


 


“OCC-Regulated Subsidiary” shall mean any Subsidiary of the
Borrower that is regulated by the OCC.


 


“OCC-Regulated Subsidiary Required Cash” shall mean, as of any
date of determination, (a) all cash and cash equivalents on the balance
sheet of any OCC-Regulated Subsidiary as of such date minus (b) all
Indebtedness on the balance sheet of any OCC-Regulated Subsidiary as of such
date minus 


 


29

















 


(c) the difference of (i) the Risk-Based
Capital (as referenced in 12 U.S.C. Section 282) of any OCC-Regulated
Subsidiary as of such date and (ii) $4,000,000 (or such other amount that
is required by the OCC or otherwise agreed to by any OCC-Regulated Subsidiary
and the OCC).


 


“Original Collateral” shall have the meaning provided in the
recitals to this Agreement.


 


“Original Credit Agreement” shall have the
meaning provided in the recitals to this Agreement.


 


“Original Credit Documents” shall have the meaning provided in
the recital to this Agreement.


 


“Original Lenders” shall have the meaning
provided in the recitals to this Agreement.


 


“Original Obligations” shall have the meaning provided in the
recitals to this Agreement.


 


“Pacific Life Acquisition” shall mean the
acquisition by Borrower (or a Restricted Subsidiary thereof) of all of the
outstanding Capital Stock of Pacific Select Group, LLC.


 


“Participant” shall have the meaning provided
in Section 13.6(c)(i).


 


“PBGC” shall mean the Pension Benefit
Guaranty Corporation established pursuant to Section 4002 of ERISA, or any
successor thereto.


 


“Perfection Certificate” shall mean the
certificate of the Borrower delivered on the Closing Date in substantially the
form of Exhibit D and attached to the 2005 Credit Agreement.


 


“Permitted Acquisition” shall mean (a) the
UVEST Acquisition; (b) the Pacific Life Acquisition and (c) any other
acquisition, by merger or otherwise, by the Borrower or any of the Restricted
Subsidiaries of assets or Capital Stock, so long as (i) such acquisition
and all transactions related thereto shall be consummated in accordance with
all Applicable Laws; (ii) such acquisition shall result in the issuer of
such Capital Stock becoming a Restricted Subsidiary and, to the extent required
by Section 9.11, a Guarantor; (iii) such acquisition shall result in
the Collateral Agent, for the benefit of the Secured Parties, being granted a
security interest in any Capital Stock or any assets so acquired to the extent
required by Sections 9.11, 9.12 and/or 9.14(b); (iv) after giving effect
to such acquisition, no Default or Event of Default shall have occurred and be
continuing; (v) after giving effect to such acquisition, the Borrower and
its Restricted Subsidiaries shall be in compliance with Section 9.13; (vi) the
Borrower shall be in compliance, on a pro forma basis after giving effect to
such acquisition (including any Indebtedness assumed or permitted to exist or
incurred pursuant to Sections 10.1(j) and 10.1(k), respectively, and
any related Pro Forma Adjustment), with the covenants set forth in
Sections 10.9 and 10.10, as such covenants are recomputed as at the last
day of the most recently ended Test Period under such Sections as if such
acquisition had occurred on the first day of such Test Period.


 


“Permitted Additional Notes” shall mean
senior, mezzanine or subordinated notes issued by Holdings or the Borrower; provided,
that (a) the terms of such notes do not provide for any scheduled
repayment, mandatory redemption, sinking fund obligation or other payment prior
to the Senior Unsecured Subordinated Note Maturity Date, other than customary
offers to purchase upon a change of control, asset sale or casualty or
condemnation event and customary acceleration rights upon an event of default, (b) the
covenants, events of default, Subsidiary guarantees and other terms for such
notes (provided that such notes shall have interest rates and redemption
premiums determined by the Board of Directors of Holdings or the Borrower, as
applicable to be market rates and premiums at the time of 


 


30

















 


issuance of such notes),
taken as a whole, are not more restrictive on Holdings, the Borrower and their Subsidiaries,
or less favorable to the Lenders, taken as a whole, than the terms of the
Senior Unsecured Subordinated Notes (as in effect on the Effective Date), (c) if
such notes are subordinated notes, the terms of such notes provide for
customary subordination of such notes to the Obligations and (d) no
Subsidiary of Holdings or the Borrower (other than the Borrower or a Guarantor)
is an obligor under such notes that is not an obligor under the Senior
Unsecured Subordinated Notes.


 


“Permitted Cure Security” shall mean an
equity security of Holdings or the Borrower having no mandatory redemption,
repurchase or similar requirements prior to 91 days after the latest maturity
date for any of the Loans, and upon which all dividends or distributions (if
any) shall be payable solely in additional shares of such equity security.


 


“Permitted Investments” shall mean (a) Dollars
and, with respect to any Foreign Subsidiaries, local currencies held by such
Foreign Subsidiary, in each case in the ordinary course of business and
securities issued or unconditionally guaranteed by the United States government
or any agency or instrumentality thereof, in each case having maturities of not
more than 24 months from the date of acquisition thereof; (b) securities
issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof or any
political subdivision of any such state or any public instrumentality thereof
having maturities of not more than 24 months from the date of acquisition
thereof and, at the time of acquisition, having an investment grade rating
generally obtainable from either S&P or Moody’s (or, if at any time neither
S&P nor Moody’s shall be rating such obligations, then from another
nationally recognized rating service); (c) commercial paper or variable or
fixed rate notes issued by or  guaranteed by
any Lender or any bank holding company owning any Lender; (d) commercial
paper or variable or fixed rate notes maturing no more than 12 months
after the date of creation thereof and, at the time of acquisition, having a
rating of at least A-2 or P-2 from either S&P or Moody’s (or, if at any
time neither S&P nor Moody’s shall be rating such obligations, an
equivalent rating from another nationally recognized rating service); (e) time
deposits of, or domestic and Eurodollar certificates of deposit or bankers’
acceptances maturing no more than two years after the date of acquisition
thereof, issued by any Lender or any other bank having combined capital and
surplus of not less than $250,000,000 in the case of domestic banks and
$100,000,000 (or the dollar equivalent thereof) in the case of foreign banks; (f) repurchase
agreements with a term of not more than 30 days for underlying securities
of the type described in clauses (a), (b) and (e) above entered into
with any bank meeting the qualifications specified in clause (e) above or
securities dealers of recognized national standing; (g) marketable
short-term money market and similar securities having a rating of at least A-2
or P-2 from either S&P or Moody’s (or, if at any time neither S&P nor
Moody’s shall be rating such obligations, an equivalent rating from another
nationally recognized rating service); (h) shares of investment companies
that are registered under the Investment Company Act of 1940 and invest solely
in one or more of the types of securities described in clauses (a) through
(g) above; and (i) in the case of investments by any Restricted
Foreign Subsidiary or investments made in a country outside the United States
of America, other customarily utilized high-quality investments in the country
where such Restricted Foreign Subsidiary is located or in which such investment
is made.


 


“Permitted Investors” shall mean the
Sponsors, the Mezz Participants and the Management Investors.


 


“Permitted Liens” shall mean (a) Liens
for taxes, assessments or other governmental charges or claims that are either (i) not
yet due and payable and not subject to penalties for nonpayment or (ii) being
contested in good faith by appropriate proceedings for which appropriate
reserves have been established in accordance with GAAP; (b) Liens in
respect of property or assets of Holdings, the Borrower or any of its
Subsidiaries imposed by law, such as landlords’, carriers’, warehousemen’s and
mechanics’ Liens and other similar Liens, in each case so long as such Liens
arise in the ordinary course 


 


31

















 


of business and do not
individually or in the aggregate have a Material Adverse Effect; (c) Liens
arising from judgments or decrees in circumstances not constituting an Event of
Default under Section 11.10; (d) Liens incurred or pledges or
deposits made in connection with workers’ compensation, unemployment insurance
and other types of social security legislation, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money bonds
and other similar obligations incurred in the ordinary course of business; (e) ground
leases or subleases, licenses or sublicenses in respect of real property on
which facilities owned or leased by Holdings, the Borrower or any of its
Subsidiaries are located; (f) easements, rights-of-way, licenses,
restrictions (including zoning restrictions), minor defects, exceptions or
irregularities in title and other similar charges or encumbrances, in each case
not interfering in any material respect with the business of Holdings, the
Borrower and its Subsidiaries, taken as a whole, and any exception on the title
policies issued in connection with any Mortgaged Property; (g) any
interest or title of a lessor or secured by a lessor’s interest under any lease
permitted by this Agreement; (h) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods; (i) Liens on goods or inventory
the purchase, shipment or storage price of which is financed by a documentary
letter of credit or bankers’ acceptance issued or created for the account of
the Borrower or any of its Subsidiaries, provided that such Lien secures
only the obligations of the Borrower or such Subsidiaries in respect of such
letter of credit to the extent permitted under Section 10.1; (j) leases
or subleases, licenses or sublicenses granted to others not interfering in any
material respect with the business of the Borrower and its Subsidiaries, taken
as a whole; (k) Liens created in the ordinary course of business in favor
of banks and other financial institutions over credit balances of any bank
accounts of Holdings, the Borrower and the Restricted Subsidiaries held at such
banks or financial institutions, as the case may be, to facilitate the
operation of cash pooling and/or interest set-off arrangements in respect of
such bank accounts in the ordinary course of business; (l)  any interest
or title of a lessor, sublessor, licensor or sub licensor under leases entered
into in the ordinary course of business; and (m) Liens arising from
precautionary Uniform Commercial Code financing statement or similar filings
made in respect of operating leases entered into by the Borrower or any of its
Subsidiaries.


 


“Permitted Other Debt Documents” shall mean
any document or instrument (including any guarantee, security agreement or
mortgage and which may include any or all of the Credit Documents) issued or
executed and delivered with respect to any Permitted Other Debt by any Credit
Party.


 


“Permitted Other Debt Obligations” shall
mean, if any secured Permitted Other Debt is issued or incurred, the collective
reference to (a) the due and punctual payment of (i) the principal of
and premium, if any, and interest at the applicable rate provided in the
Permitted Other Debt Documents (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the
indebtedness outstanding thereunder, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment, redemption or
otherwise and (ii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of
any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding), of the Borrower
or any other Credit Party to any of the Permitted Other Debt Secured Parties
under the Permitted Other Debt Documents and (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of the
Borrower and each other Credit Party under or pursuant to the Permitted Other
Debt Documents.


 


“Permitted Other Debt Secured Parties” shall
mean the holders from time to time of the secured Permitted Other Debt
Obligations (and any representative on their behalf).


 


32

















 


“Permitted Other Debt” shall mean senior
secured or senior unsecured, senior subordinated or subordinated debt (which
debt, if secured, may either have the same lien priority as the Obligations or
may be secured by a Lien ranking junior to the Lien securing the Obligations),
in either case issued by any Credit Party, (a) the terms of which do not
provide for any scheduled repayment, mandatory redemption or sinking fund
obligations prior to, at the time of incurrence, of such Permitted Other Debt,
the latest Maturity Date of any Credit Facility outstanding on the date of such
incurrence (other than customary offers to repurchase upon a change of control,
asset sale or casualty or condemnation event and customary acceleration rights
after an event of default), (b) the covenants, events of default,
guarantees, collateral and other terms of such Indebtedness (provided
that such Indebtedness shall have interest rates, fees, funding discounts and
redemption or prepayment premiums determined by the Borrower to be market
rates, fees, discounts and premiums at the time of issuance of such
Indebtedness), taken as a whole, are determined by the Borrower to be market
terms on the date of issuance and in any event are not more restrictive on the
Borrower and its Restricted Subsidiaries than the terms of this Agreement (as
in effect on the effective date of Amendment No. 1) and do not require the
maintenance or achievement of any financial performance standards other than as
a condition to the relevant Credit Party’s right to take specified actions
under the relevant Permitted Other Debt Documents; provided that a
certificate of an Authorized Officer of the relevant Credit Party shall be
delivered to the Administrative Agent prior to the pricing (or any similar
commitment event on the part of the Credit Parties) of such Indebtedness,
together with a reasonably detailed description of the material terms and
conditions of such Indebtedness or drafts of the documentation relating
thereto, stating that the Borrower has determined in good faith that such terms
and conditions satisfy the foregoing requirements, (c) if such
Indebtedness is senior subordinated or subordinated Indebtedness, the terms of
such Indebtedness provide for customary subordination of such Indebtedness to
the Obligations, (d) if such Indebtedness is secured, such Indebtedness
shall not be secured by any property or assets other than the Collateral, (e) no
Subsidiary of the Borrower (other than a Guarantor) is an obligor under such
Indebtedness and (f) the Net Cash Proceeds from the issuance of such
Indebtedness shall be applied to repay Term Loans in accordance with the terms
of Section 5.2.


 


“Permitted Sale Leaseback” shall mean the
Sale Leaseback consummated by the Borrower or any of the Restricted
Subsidiaries after the Closing Date with respect to the Borrower’s property
listed on Schedule 1.1(a).


 


“Person” shall mean any individual,
partnership, joint venture, firm, corporation, limited liability company,
association, trust or other enterprise or any Governmental Authority.


 


“Plan” shall mean any multiemployer or
single-employer plan, as defined in Section 4001 of ERISA and subject to
Title IV of ERISA, that is or was within any of the preceding five plan years
maintained or contributed to by (or to which there is or was an obligation to
contribute or to make payments to) the Borrower, a Subsidiary or an ERISA
Affiliate.


 


“Pledge Agreement” shall mean the Pledge
Agreement, dated as of the Closing Date, among Borrower, the other pledgors
party thereto and the Collateral Agent for the benefit of the Secured Parties,
substantially in the form of Exhibit E-2 attached to the 2005 Credit
Agreement, as the same has been or may be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof and of the
other Credit Documents.


 


“Prepayment Event” shall mean any Asset Sale
Prepayment Event, Recovery Prepayment Event, Debt Incurrence Prepayment Event
or Permitted Sale Leaseback.


 


“Prime Rate” shall mean the rate of interest
per annum publicly announced from time to time by The Bank of New York as its
reference rate in effect at its principal office in New York City.


 


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“Pro Forma Adjustment” shall mean, for any
Test Period that includes any of the six consecutive fiscal quarters first
ending following any Permitted Acquisition, with respect to the Acquired EBITDA
of the applicable Acquired Entity or Business or the Consolidated EBITDA of the
Borrower affected by such acquisition, the pro forma increase or decrease in
such Acquired EBITDA or such Consolidated EBITDA, as the case may be, projected
by the Borrower in good faith as a result of reasonably identifiable and
factually supportable cost savings and costs (excluding one-time transition,
transaction and restructuring costs), as the case may be, expected to be
realized during such period by combining the operations of such Acquired Entity
or Business with the operations of the Borrower and its Subsidiaries; provided,
further that any such pro forma increase or decrease to such Acquired
EBITDA or such Consolidated EBITDA, as the case may be, shall be without
duplication for cost savings and costs (excluding one-time transition,
transaction and restructuring costs) actually realized during such period and
already included in such Acquired EBITDA or such Consolidated EBITDA, as the
case may be.


 


“Pro Forma Adjustment Certificate” shall mean
any certificate of an Authorized Officer of the Borrower delivered pursuant to Section 9.1(h) or
setting forth the information described in clause (iv) to Section 9.1(d).


 


“Real Estate” shall have the meaning provided
in Section 9.1(f).


 


“Recovery Event” shall mean (a) any
damage to, destruction of or other casualty or loss involving any property or
asset or (b) any seizure, condemnation, confiscation or taking under the
power of eminent domain of, or any requisition of title or use of or relating
to, or any similar event in respect of, any property or asset.


 


“Recovery Prepayment Event” shall mean the
receipt of cash proceeds with respect to any settlement or payment in
connection with any Recovery Event in respect of any property or asset of the
Borrower or any Restricted Subsidiary; provided that the term “Recovery
Prepayment Event” shall not include any Asset Sale Prepayment Event or any
Permitted Sale Leaseback.


 


“Redemption” shall have the meaning provided
in the recitals to this Agreement.


 


“Reference Lender” shall mean The Bank of New
York.


 


“Refinanced Senior Unsecured Subordinated Notes”
shall have the meaning provided in Section 10.1(i)(i).


 


“Refinanced Term Loans” shall have the
meaning provided in Section 13.1.


 


“Register” shall have the meaning provided in
Section 13.6(b)(iv).


 


“Regulated Subsidiaries” shall mean the
Broker-Dealer Regulated Subsidiary, the HUD-Regulated Subsidiary and any
OCC-Regulated Subsidiary.


 


“Regulation D” shall mean Regulation D of the
Board as from time to time in effect and any successor to all or a portion
thereof establishing reserve requirements.


 


“Regulation T” shall mean Regulation T of the
Board as from time to time in effect and any successor to all or a portion
thereof establishing margin requirements.


 


“Regulation U” shall mean Regulation U of the
Board as from time to time in effect and any successor to all or a portion
thereof establishing margin requirements.


 


34
















 


“Regulation X” shall mean Regulation X of the
Board as from time to time in effect and any successor to all or a portion
thereof establishing margin requirements.


 


“Reinvestment Period” shall mean, with
respect to any Asset Sale Prepayment Event, Permitted Sale Leaseback or
Recovery Prepayment Event, the day which is fifteen months after the receipt of
Net Cash Proceeds of such Asset Sale Prepayment Event, Permitted Sale Leaseback
or Recovery Prepayment Event.


 


“Related Parties” shall mean, with respect to
any specified Person, such Person’s Affiliates and the directors, officers,
employees, agents, trustees, advisors of such Person and any Person that
possesses, directly or indirectly, the power to direct or cause the direction
of the management or policies of such Person, whether through the ability to
exercise voting power, by contract or otherwise.


 


“Repayment
Amount”  shall mean a
2013 Term Loan Repayment Amount, a 2015 Term Loan Repayment Amount, a 2017 Term
Loan Repayment Amount, an Extended Term Loan Repayment Amount with respect to
any Extension Series of Extended Term Loans other than the 2015 Term Loans
and an Incremental Term Loan Repayment Amount.


 


“Repayment Date” shall mean a 2013 Term Loan
Repayment Date, a 2015 Term Loan Repayment Date, a 2017 Term Loan Repayment
Date, an Extended Term Loan Repayment Date with respect to any Extension Series of
Extended Term Loans other than the 2015 Term Loans and an Incremental Term Loan
Repayment Date.


 


“Replacement Term Loans” shall have the
meaning provided in Section 13.1.


 


“Reportable Event” shall mean an event
described in Section 4043 of ERISA and the regulations thereunder.


 


“Required Cash” shall mean the sum of Broker-Dealer Required
Cash, OCC-Regulated Subsidiary Required Cash and HUD-Regulated Subsidiary
Required Cash; provided, that to the extent, after the Closing Date, the
Borrower or any of its Subsidiaries shall acquire or create any new “regulated”
Domestic Subsidiary that shall not be required to guaranty the Obligations
pursuant to the Guaranty, then the definition of “Required Cash” shall also
include the required cash of any such Person, which required cash shall be
calculated in a substantially equivalent manner as Broker-Dealer Required Cash,
OCC-Regulated Subsidiary Required Cash and HUD-Regulated Subsidiary Required
Cash have been calculated and otherwise in a manner mutually agreed between the
Borrower and the Administrative Agent.


 


“Required Credit Facility Lenders” shall
mean, (a) with respect to any Credit Facility consisting of Term Loans,
the “Required Term Class Lenders” with respect to such Credit Facility and
(b) with respect to any Credit Facility that is not a Term Loan Facility,
the “Required Revolving Class Lenders” with respect to such Credit
Facility.


 


“Required Lenders” shall mean, at any date,
Non-Defaulting Lenders having or holding a majority of the sum of (a) the
outstanding principal amount of the Term Loans in the aggregate at such date,
(b)(i) the Adjusted Total Revolving Credit Commitment at such date or (ii) if
the Total Revolving Credit Commitment has been terminated or for the purposes
of acceleration pursuant to Section 11, the aggregate outstanding
principal amount of the Revolving Credit Loans and Revolving Credit Exposure
(excluding the Revolving Credit Exposure of Defaulting Lenders) at such time,
(c)(i) the Adjusted Total Additional/Replacement Revolving Credit
Commitment of each tranche of Additional/Replacement Revolving Credit
Commitments at such date or (ii) if the Total Additional/Replacement
Revolving Credit Commitment of any tranche of Additional/Replacement Revolving
Credit Commitments has been 


 


35

















 


terminated or for purposes
of acceleration pursuant to Section 11, the outstanding principal amount
of the Additional/Replacement Revolving Credit Loans of such tranche and the
related letter of credit exposure (excluding the letter of credit exposure of
Defaulting Lenders) in the aggregate at such date and (d)(i) the Extended
Revolving Credit Commitments of each Extension Series at such date or (ii) if
the Extended Revolving Credit Commitments of any Extension Series has been
terminated or for the purposes of acceleration pursuant to Section 11, the
outstanding principal amount of the Extended Revolving Credit Loans of such
Extension Series and the related letter of credit exposure (excluding the
letter of credit exposure of Defaulting Lenders) in the aggregate at such date.


 


“Required Reimbursement Date” shall have the
meaning provided in Section 3.4(a).


 


“Required Revolving Class Lenders” shall
mean, at any date and with respect to any Credit Facility that is not a Term
Loan Facility, Non-Defaulting Lenders having or holding a majority of (a) the
Adjusted Revolving Commitment at such date with respect to such Credit Facility
or (b) if the Commitments with respect to such Credit Facility have been
terminated or for the purposes of acceleration pursuant to Section 11, the
aggregate outstanding principal amount of the Loans and revolving credit
exposure, in each case with respect to such Credit Facility (excluding the
revolving credit exposure with respect to such Credit Facility of Defaulting
Lenders) at such time.


 


“Required Term Class Lenders” shall
mean, at any date and with respect to any Credit Facility consisting of Term
Loans, Non-Defaulting Lenders having or holding a majority of the outstanding
principal amount of the Term Loans of such Credit Facility in the aggregate at
such date.


 


“Restoration Certification” shall mean, with
respect to any Recovery Prepayment Event, a certification made by an Authorized
Officer of the Borrower or a Restricted Subsidiary, as applicable, to the
Administrative Agent prior to the end of the Reinvestment Period certifying (a) that
the Borrower or such Restricted Subsidiary intends to use the proceeds received
in connection with such Recovery Prepayment Event to repair, restore or replace
the property or assets in respect of which such Recovery Prepayment Event
occurred, (b) the approximate costs of completion of such repair,
restoration or replacement and (c) that such repair, restoration or
replacement will be completed by the later of (1) fifteen months after the
date on which Net Cash Proceeds were received with respect to such Recovery
Prepayment Event and (2) 180 days after delivery of such Restoration
Certification.


 


“Restricted Foreign Subsidiary” shall mean
each Restricted Subsidiary that is also a Foreign Subsidiary.


 


“Restricted Subsidiary” shall mean any
Subsidiary of the Borrower other than an Unrestricted Subsidiary.


 


“Revolving Credit
Commitment” shall mean, (a) with respect to each Lender that is a
Lender prior to the 2010 Revolving Credit Increase Effective Date, the “Revolving
Credit Commitments” as defined in the Credit Agreement as in effect at any time
prior to such date, (b) with respect to each Lender that is a Lender on
and after the 2010 Revolving Credit Increase Effective Date but prior to the
2010 Revolving Credit Extension Effective Date, the amount set forth opposite
each Lender’s name on Schedule A to the Incremental and Extension Agreement as
such Lender’s “Revolving Credit Commitment” and (c) with respect to each
Lender that is a Lender on and after the 2010 Revolving Credit Extension
Effective Date, the sum of such Lender’s 2011 Revolving Credit Commitments and
2013 Revolving Credit Commitments.  The
aggregate amount of Revolving Credit Commitments in effect prior to the 2010
Revolving Credit Increase Effective Date is $100,000,000.  The aggregate amount of the Revolving Credit
Commitments in effect on the 2010 Revolving Credit Increase Effective Date is $218,212,250.


 


36

















 


“Revolving Credit Commitment Percentage”
shall mean at any time, for each Lender, the percentage obtained by dividing (a) such
Lender’s Revolving Credit Commitment by (b) the aggregate amount of the
Revolving Credit Commitments; provided that at any time when the Total
Revolving Credit Commitment shall have been terminated, each Lender’s Revolving
Credit Commitment Percentage shall be its Revolving Credit Commitment
Percentage as in effect immediately prior to such termination.


 


“Revolving Credit Exposure” shall mean, with
respect to any Lender at any time, the sum of (a) the aggregate principal
amount of the Revolving Credit Loans of such Lender then outstanding and (b) such
Lender’s Letter of Credit Exposure at such time.


 


“Revolving Credit Extension Request” shall
have the meaning provided in Section 2.15(a)(ii).


 


“Revolving Credit Facility” shall mean the
collective reference to the 2011 Revolving Credit Facility and 2013 Revolving
Credit Facility.


 


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


 


“Revolving Credit Loan” shall have the
meaning provided in Section 2.1(c), and shall include 2011 Revolving
Credit Loans and/or 2013 Revolving Credit Loans, as applicable.


 


“Sale Leaseback” shall mean any transaction
or series of related transactions pursuant to which the Borrower or any of the
Restricted Subsidiaries (a) sells, transfers or otherwise disposes of any
property, real or personal, whether now owned or hereafter acquired, and (b) as
part of such transaction, thereafter rents or leases such property or other
property that it intends to use for substantially the same purpose or purposes
as the property being sold, transferred or disposed of.


 


“S&P” shall mean Standard & Poor’s
Ratings Services or any successor by merger or consolidation to its business.


 


“SEC” shall mean the Securities and Exchange
Commission or any successor thereto.


 


“Second Restatement Effective Date” shall
mean June 18, 2007.


 


“Section 9.1 Financials” shall mean the
financial statements delivered, or required to be delivered, pursuant to Section 9.1(a) or
(b) together with the accompanying officer’s certificate delivered, or required
to be delivered, pursuant to Section 9.1(e).


 


“Section 2.15 Additional Agreement”
shall have the meaning provided in Section 2.15(c).


 


“Secured Parties” shall have the meaning
assigned to such term in the Security Agreement.


 


“Security Agreement” shall mean the Security
Agreement, dated as of the Closing Date, among Borrower, the other grantors
party thereto and the Collateral Agent for the benefit of the Secured Parties,
substantially in the form of Exhibit E-1 attached to the 2005 Credit
Agreement, as the same has been or may be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof and of the
other Credit Documents.


 


“Security Documents” shall mean,
collectively, (a) the Security Agreement, (b) the Pledge Agreement, (c) the
Third Restatement Reaffirmation Agreement, (d) the Mortgages, (e) any



 


37

















 


intercreditor agreement
executed and delivered pursuant to Section 10.2 and (f) each other
security agreement or other instrument or document executed and delivered
pursuant to Section 9.11, 9.12 or 9.14 or pursuant to any other such
Security Documents or Permitted Other Debt Documents to secure or perfect the
security interest in any or all of the First Lien Obligations.


 


“Segregated Cash” shall mean, as of any date of determination,
all cash and “qualified” cash equivalents segregated on the balance sheet of
the Broker-Dealer Regulated Subsidiary as of such date under Rule 15c3-3
of the Exchange Act.


 


“Senior Unsecured Subordinated Note Indenture”
shall mean the Indenture, dated as of December 28, 2005, among the
Borrower, each of the guarantors party thereto and Wells Fargo Bank, N.A., as
Trustee, pursuant to which the Senior Unsecured Subordinated Notes are issued,
as the same may be amended, supplemented or otherwise modified from time to
time to the extent permitted by Section 10.7(c).


 


“Senior Unsecured Subordinated Note Maturity Date”
shall mean December 28, 2015.


 


“Senior Unsecured Subordinated Notes” shall
mean the Borrower’s 10.75% senior subordinated notes due 2015.


 


“Sold Entity or Business” shall have the
meaning provided in the definition of the term “Consolidated EBITDA”.


 


“Solvent” shall mean, with respect to any
Person, at any date, that (a) the sum of such Person’s debt (including
contingent liabilities) does not exceed the present fair saleable value of such
Person’s present assets, (b) such Person’s capital is not unreasonably
small in relation to its business as contemplated on such date, (c) such Person
has not incurred and does not intend to incur, or believe that it will incur,
debts including current obligations beyond its ability to pay such debts as
they become due (whether at maturity or otherwise), and (d) such Person is
“solvent” within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances.  For purposes of this definition, the amount
of any contingent liability at any time shall be computed as the amount that,
in light of all of the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability (irrespective of whether such contingent liabilities meet the
criteria for accrual under Statement of Financial Accounting Standard No. 5).


 


“Specified Existing Revolving Credit Commitment
Class” shall have the meaning provided in Section 2.15(a)(ii).


 


“Specified Obligations”
shall mean Obligations consisting of (a) the principal of and interest on
Loans and (b) reimbursement obligations in respect of Letters of Credit.


 


“Specified Subsidiary”
shall mean, at any date of determination, (a) any Material Subsidiary or (b) any
Unrestricted Subsidiary (i) whose total assets at the last day of the Test
Period ending on the last day of the most recent fiscal period for which Section 9.1
Financials have been delivered were equal to or greater than 15% of the
consolidated total assets of the Borrower and its Subsidiaries at such date or (ii) whose
gross revenues for such Test Period were equal to or greater than 15% of the
consolidated gross revenues of the Borrower and its Subsidiaries for such
period, in each case determined in accordance with GAAP.


 


“Sponsors” shall mean, collectively, Hellman &
Friedman LLC and Texas Pacific Group and/or their respective Affiliates.


 


38

















 


“Stated Amount” of any Letter of Credit shall
mean the maximum amount from time to time available to be drawn thereunder,
determined without regard to whether any conditions to drawing could then be
met.


 


“Status” shall mean, as to the Borrower as of
any date, the existence of Level I Status or Level II Status, as the case
may be, on such date.  Changes in Status
resulting from changes in Consolidated Total Debt to Consolidated EBITDA Ratio
shall become effective as of the first Business Day following the delivery of
the Section 9.1 Financials.


 


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


 


“Subsidiary” of any Person shall mean and
include (a) any corporation more than 50% of whose stock of any class or
classes having by the terms thereof ordinary voting power to elect a majority
of the directors of such corporation (irrespective of whether or not at the
time stock of any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries and (b) any
partnership, association, joint venture or other entity in which such Person
directly or indirectly through Subsidiaries has more than a 50% equity interest
at the time.  Unless otherwise expressly
provided, all references herein to a “Subsidiary” shall mean a Subsidiary of
the Borrower.


 


“Successor Borrower” shall have the meaning
provided in Section 10.3(a).


 


“Swingline Commitment” shall mean
$50,000,000.


 


“Swingline Lender” shall mean MSSF in its
capacity as lender of Swingline Loans hereunder, or such other financial
institution who, after the Effective Date, shall agree to act in the capacity
of lender of Swingline Loans hereunder.


 


“Swingline Loan” shall have the meaning
provided in Section 2.1(e).


 


“Swingline Maturity Date” shall mean, with
respect to any Swingline Loan, the date that is five Business Days prior to the
2013 Revolving Credit Maturity Date.


 


“Term Loan” shall
mean a 2013 Term Loan, a 2015 Term Loan, a 2017 Term Loan, an Incremental Term
Loan or any Extended Term Loans other than 2015 Term Loans, as applicable.


 


“Term Loan Extension Request” shall have the
meaning provided in Section 2.15(a)(i). 
The 2015 Term Loan Extension Request shall be deemed a Term Loan
Extension Request for all purposes hereunder.


 


39

















 


“Term Loan Facility” shall mean any of the
2013 Term Loan Facility, 2015 Term Loan Facility, 2017 Term Loan Facility, any
Incremental Term Loan Facility and any Extended Term Loan Facility other than
the 2015 Term Loan Facility.


 


“Test Period” shall mean, for any
determination under this Agreement, the four consecutive fiscal quarters of the
Borrower then last ended.


 


“Third Restatement Reaffirmation Agreement”
shall mean that certain Third Restatement Reaffirmation Agreement, dated as of
the Effective Date, by and among the Credit Parties, the Administrative Agent
and the Collateral Agent, pursuant to which the Credit Parties acknowledged and
confirmed the full force and effect of the Security Documents and the Guarantee
with respect to this Agreement and the Obligations.


 


“Total 2011 Revolving Credit Commitment”
shall mean, on any date, the sum of the 2011 Revolving Credit Commitments on
such date of all 2011 Revolving Credit Lenders.


 


“Total 2013 Revolving Credit Commitment”
shall mean, on any date, the sum of the 2013 Revolving Credit Commitments on
such date of all 2013 Revolving Credit Lenders.


 


“Total 2017 Term Loan Commitment” shall mean
the sum of the 2017 Term Loan Commitments of all the Lenders.


 


“Total
Additional/Replacement Revolving Credit Commitment” shall mean the sum of
Additional/Replacement Revolving Credit Commitments of all the Lenders
providing any tranche of Additional/Replacement Revolving Credit Commitments.


 


“Total Commitment” shall mean the sum of the
Total 2017 Term Loan Commitment, the Total Incremental Term Loan Commitment,
the Total Revolving Credit Commitment and the Total Additional/Replacement
Revolving Credit Commitment.


 


“Total Credit Exposure” shall mean, at any
date, the sum of the Total Commitment at such date and the outstanding
principal amount of all Term Loans at such date.


 


“Total Incremental Term Loan Commitment”
shall mean the sum of the Incremental Term Loan Commitments of any tranche of
Incremental Term Loans of all the Lenders providing such tranche of Incremental
Term Loans.


 


“Total Revolving Credit Commitment” shall
mean the sum of the Revolving Credit Commitments of all the Lenders.


 


“Tranche D Term Lender” shall mean each
Lender that holds a Tranche D Term Loan immediately prior to the Effective
Date.


 


“Tranche D Term Loan” shall have the meaning
provided in Section 2.1(a).


 


“Transferee” shall have the meaning provided
in Section 13.6(e).


 


“Type” shall mean (a) as to any Term
Loan, its nature as an ABR Loan or a Eurodollar Loan, (b) as to any
Revolving Credit Loan, its nature as an ABR Loan or a Eurodollar Loan and (c) as
to any Additional/Replacement Revolving Credit Loans, its nature as an ABR Loan
or a Eurodollar Loan.


 


40

















 


“Unfunded Current Liability” of any Plan
shall mean the amount, if any, by which the present value of the accrued
benefits under the Plan as of the close of its most recent plan year,
determined in accordance with Statement of Financial Accounting Standards No. 87
as in effect on the Closing Date, based upon the actuarial assumptions that
would be used by the Plan’s actuary in a termination of the Plan, exceeds the
fair market value of the assets allocable thereto.


 


“Unpaid Drawing” shall have the meaning
provided in Section 3.4(a).


 


“Unrestricted Subsidiary” shall mean (a) any
Subsidiary of Holdings or the Borrower that is formed or acquired after the
Closing Date and is designated as an Unrestricted Subsidiary by Holdings or the
Borrower at such time (or promptly thereafter) in a written notice to the
Administrative Agent, (b) any Restricted Subsidiary subsequently
re-designated as an Unrestricted Subsidiary by Holdings or the Borrower in a
written notice to the Administrative Agent; provided, that (x) such
designation or re-designation shall be deemed to be an investment (and thus
must be made in accordance with Section 10.5) on the date of such
designation or re-designation in an Unrestricted Subsidiary in an amount equal
to the sum of (i) Holdings’ or the Borrower’s direct or indirect equity
ownership percentage of the net worth of such designated or re-designated
Subsidiary immediately prior to such designation or re-designation (such net
worth to be calculated without regard to any guarantee provided by such
designated or re-designated Subsidiary) and (ii) the aggregate principal
amount of any Indebtedness owed by such designated or re-designated Subsidiary
to Holdings or the Borrower or any other Restricted Subsidiary immediately
prior to such designation or re-designation, all calculated, except as set
forth in the parenthetical to clause (i), on a consolidated basis in accordance
with GAAP and (y) no Default or Event of Default would result from such
designation or re-designation, and (c) each Subsidiary of an Unrestricted
Subsidiary; provided, however, that at the time of any written
designation or re-designation by Holdings, or the Borrower to the
Administrative Agent that any Unrestricted Subsidiary shall no longer
constitute an Unrestricted Subsidiary, such Unrestricted Subsidiary shall cease
to be an Unrestricted Subsidiary to the extent no Default or Event of Default
would result from such designation or re-designation.


 


“UVEST Acquisition” shall mean the
acquisition by Borrower or a (Restricted Subsidiary thereof) of all of the
outstanding Capital Stock of UVEST Financial Services Group Inc.


 


“Voting Stock” shall mean, with respect to
any Person, shares of such Person’s Capital Stock having the right to vote for
the election of directors of such Person under ordinary circumstances.


 


“Warehouse Line of Credit” shall mean any
warehouse lines of credit established consistent with past business practices
and used by the Borrower and its Subsidiaries in the ordinary course of
business to fund or support their mortgage lending business and any replacement
lines established on substantially similar terms and conditions.


 


(b)           The words “hereof,” “herein” and “hereunder” and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section references
are to Sections of this Agreement unless otherwise specified.  The words “include,” “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”.


 


(c)           Unless otherwise indicated, any reference to any agreement or
instrument will be deemed to include a reference to that agreement or
instrument as assigned, amended, supplemented, amended and restated, or
otherwise modified and in effect from time to time or replaced in accordance
with the terms of this Agreement (if applicable).


 


41

















 


SECTION 2.          Amount and Terms of Credit
Facilities


 


2.1           Loans (i)                Subject
to and upon terms and conditions set forth in the Original Credit Agreement,
each Tranche D Term Lender made a term loan or loans (each, a “Tranche D
Term Loan”) to the Borrower on the Second Restatement Effective Date.


 


(ii)           As
of the Effective Date, but subject to the terms and conditions set forth in
this Agreement, each Tranche D Term Lender agrees that (i) (x) its
Tranche D Term Loans will, in an amount equal to its 2015 Term Loan Amount (if
any), be exchanged into 2015 Term Loans pursuant to the provisions of Section 2.15
and (y) the remainder of its Tranche D Term Loans will, in an amount equal
to its 2013 Term Loan Amount (if any), be reclassified as 2013 Term Loans.  Any Interest Periods in effect for the
Tranche D Term Loans immediately prior to the Effective Date shall remain in
effect for the 2013 Term Loans and the 2015 Term Loans resulting from the
effectiveness of this Agreement on the Effective Date, notwithstanding that the
Applicable ABR Margin and the Applicable Eurodollar Margin will, and the
Eurodollar Rate may, change as of, and with effect from after, the Effective
Date solely with respect to the 2015 Term Loans.  The 2013 Term Loans and the 2015 Term Loans
may thereafter, at the option of the Borrower, be maintained as, and/or
converted into, ABR Loans or Eurodollar Loans in accordance with Section 2.6.  The 2013 Term Loans and the 2015 Term Loans
may be repaid or prepaid in accordance with the provisions hereof, but once
repaid or prepaid may not be reborrowed. 
With respect to 2013 Term Lenders, on the 2013 Term Loan Maturity Date,
all outstanding 2013 Term Loans shall be repaid in full.  With respect to 2015 Term Lenders, on the
2015 Term Loan Maturity Date, all outstanding 2015 Term Loans shall be repaid
in full.


 


(iii)          It
is agreed that this Agreement shall be deemed an Extension Agreement under and
as defined in Section 2.15(c) and that the 2015 Term Loans shall be
deemed to be “Extended Term Loans”, the 2013 Term Loans shall be deemed to be
the Existing Term Loan Class from which the 2015 Term Loans were extended,
the 2015 Term Loan Facility shall be deemed to be an “Extended Term Loan
Facility” and the 2015 Term Lenders shall be deemed to be “Extending Lenders”
for all purposes hereunder.


 


(b)           Subject
to and upon terms and conditions herein set forth, each 2017 Term Lender
severally agrees to make a loan or loans (each, a “2017 Term Loan”) to
the Borrower, which 2017 Term Loans (i) shall not exceed, for any such
Lender, the 2017 Term Loan Commitment of such 2017 Term Lender, (ii) shall
not exceed, in the aggregate, the Total 2017 Term Loan Commitment, (iii) shall
be made on the Effective Date, (iv) may at the option of the Borrower be
incurred and maintained as, and/or converted into, ABR Loans or Eurodollar
Loans; provided that all such 2017 Term Loans made by each of the 2017
Term Lenders pursuant to the same Borrowing shall, unless otherwise provided
herein, consist entirely of 2017 Term Loans of the same Type and (v) may
be repaid or prepaid in accordance with the provisions hereof, but once repaid
or prepaid may not be reborrowed.  On the
2017 Term Loan Maturity Date, all outstanding 2017 Term Loans shall be repaid
in full.


 


(c)           Subject
to and upon the terms and conditions herein set forth, each Lender having a
Revolving Credit Commitment severally agrees to make a loan or loans (each, a “Revolving
Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall
not exceed, for any such Lender, the Revolving Credit Commitment of such
Lender, (ii) shall not, after giving effect thereto and to the application
of the proceeds thereof, result in such Lender’s Revolving Credit Exposure at
such time exceeding such Lender’s Revolving Credit Commitment at such time, (iii) shall
not, after giving effect thereto and to the application of the proceeds
thereof, at any time result in the aggregate amount of all Lenders’ Revolving
Credit Exposures plus the aggregate principal amount outstanding of all
Swingline Loans at such time exceeding the Total Revolving Credit Commitment
then in effect, (iv) shall be made at any time and from time to time after
the Closing Date and, in the case of Lenders with 2011 Revolving 


 


42

















 


Credit
Commitments, prior to the 2011 Revolving Credit Maturity Date and, in the case
of Lenders with 2013 Revolving Credit Commitments, prior to the 2013 Revolving
Credit Maturity Date, (v) may at the option of the Borrower be incurred
and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided
that all Revolving Credit Loans made by each of the Lenders pursuant to the
same Borrowing shall, unless otherwise specifically provided herein, consist
entirely of Revolving Credit Loans of the same Type and (vi) may be repaid
and reborrowed in accordance with the provisions hereof.  With respect to 2011 Revolving Credit
Lenders, on the 2011 Revolving Credit Maturity Date, all outstanding 2011
Revolving Credit Loans shall be repaid in full. 
With respect to 2013 Revolving Credit Lenders, on the 2013 Revolving
Credit Maturity Date, all outstanding 2013 Revolving Credit Loans shall be
repaid in full.  For the avoidance of
doubt, prior to the 2011 Revolving Credit Maturity Date, all borrowings of
Revolving Credit Loans under this Section 2.1(c) shall be made by
each Lender with a Revolving Credit Commitment pro  rata based on
each such Lender’s Revolving Credit Commitment Percentage without regard to the
Class of the Revolving Credit Commitments held by such Lender.  For the avoidance of doubt, commencing on the
2010 Revolving Credit Extension Effective Date, (i) each 2013 Revolving
Credit Loan and each 2013 Revolving Credit Commitment of a 2013 Revolving Credit
Lender shall be treated for all purposes of this Agreement as a 2013 Revolving
Credit Loan and a 2013 Revolving Credit Commitment, respectively, and (ii) each
2011 Revolving Credit Loan and each 2011 Revolving Credit Commitment of a 2011
Revolving Credit Lender shall be treated for all purposes of this Agreement as
a 2011 Revolving Credit Loan and a 2011 Revolving Credit Commitment,
respectively.


 


(d)           Each
Lender may at its option make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided,
that (i) any exercise of such option shall not affect the obligation of
the Borrower, as the case may be, to repay such Loan and (ii) in
exercising such option, such Lender shall use its reasonable efforts to
minimize any increased costs to the Borrower resulting therefrom (which
obligation of the Lender shall not require it to take, or refrain from taking,
actions that it determines would result in increased costs for which it will
not be compensated hereunder or that it determines would be otherwise
disadvantageous to it and in the event of such request for costs for which
compensation is provided under this Agreement, the provisions of Section 2.10
shall apply).


 


(e)           Subject
to and upon the terms and conditions herein set forth, the Swingline Lender in
its individual capacity agrees, at any time and from time to time on and after
the Closing Date and prior to the Swingline Maturity Date, to make a loan or
loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall
be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(f),
(C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall
not, after giving effect thereto and to the application of the proceeds
thereof, result at any time in the aggregate amount of all Lenders’ Revolving
Credit Exposures plus the aggregate principal amount outstanding of all
Swingline Loans at such time exceeding the Total Revolving Credit Commitment
then in effect and (E) may be repaid and reborrowed in accordance with the
provisions hereof.  On the Swingline
Maturity Date, all outstanding Swingline Loans shall be repaid in full.  The Swingline Lender shall not make any
Swingline Loan after receiving a written notice from the Borrower or any Lender
stating that a Default or an Event of Default exists and is continuing until
such time as the Swingline Lender shall have received written notice of (x) rescission
of all such notices from the party or parties originally delivering such notice
or (y) the waiver of such Default or Event of Default in accordance with
the provisions of Section 13.1.  Any
Swingline Loan outstanding under the Original Credit Agreement on the Effective
Date shall continue to be outstanding and be deemed to be Swingline Loans made
hereunder, subject to the terms and conditions hereunder.


 


(f)            On
any Business Day, the Swingline Lender may, in its sole discretion, give notice
to the Lenders with Revolving Credit Commitments, with a copy to the Borrower,
that all then-outstanding Swingline Loans shall be funded with a Borrowing of
Revolving Credit Loans, in which case 


 


43

















 


Revolving
Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory
Borrowing”) shall be made on the immediately succeeding Business Day by all
Lenders with Revolving Credit Commitments pro  rata based on each
such Lender’s Revolving Credit Commitment Percentage (regardless of the Class of
Revolving Credit Commitments held by such Lender), and the proceeds thereof
shall be applied directly to the Swingline Lender to repay the Swingline Lender
for such outstanding Swingline Loans. 
Each Lender with a Revolving Credit Commitment hereby irrevocably agrees
to make such Revolving Credit Loans upon one Business Day’s notice pursuant to
each Mandatory Borrowing in the amount and in the manner specified in the
preceding sentence and on the date specified to it in writing by the Swingline
Lender notwithstanding (i) that the amount of the Mandatory Borrowing may
not comply with the minimum amount for each Borrowing specified in Section 2.2,
(ii) whether any conditions specified in Section 7 are then
satisfied, (iii) whether a Default or an Event of Default has occurred and
is continuing, (iv) the date of such Mandatory Borrowing or (v) any
reduction in the Total Commitment after any such Swingline Loans were
made.  In the event that, in the sole
judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason
be made on the date otherwise required above (including as a result of the
commencement of a proceeding under the Bankruptcy Code in respect of the
Borrower), each Lender with a Revolving Credit Commitment hereby agrees that it
shall forthwith purchase from the Swingline Lender (without recourse or
warranty) such participation of the outstanding Swingline Loans as shall be
necessary to cause each such Lender to share in such Swingline Loans ratably
based upon their respective Revolving Credit Commitment Percentages (regardless
of the Class of Revolving Credit Commitments held by such Lender); provided
that all principal and interest payable on such Swingline Loans shall be for
the account of the Swingline Lender until the date the respective participation
is purchased and, to the extent attributable to the purchased participation,
shall be payable to the Lender purchasing same from and after such date of
purchase.  On the Final Date for any Class of
Revolving Credit Commitments, such participations of the Revolving Credit
Lenders under and in respect of such Class shall be automatically
reallocated to the remaining Revolving Credit Lenders pro  rata
based on such Lender’s Revolving Credit Commitment Percentage after giving
effect to such Final Date.


 


2.2           Minimum Amount of Each Borrowing;
Maximum Number of Borrowings.The aggregate principal
amount of each Borrowing of Term Loans or Revolving Credit Loans shall be in a
multiple of $1,000,000 and Swingline Loans shall be in a multiple of $100,000
and, in each case, shall not be less than the Minimum Borrowing Amount with
respect thereto (except that Mandatory Borrowings shall be made in the amounts
required by Section 2.1(f)).  More
than one Borrowing may be incurred on any date, provided that at no time shall
there be outstanding more than 20 Borrowings of Eurodollar Loans under this
Agreement.


 


2.3           Notice
of Borrowing  The
Borrower shall give the Administrative Agent at the Administrative Agent’s
Office (i) prior to 1:00 p.m. (New York time) at least three Business
Days’ prior written notice (or telephonic notice promptly confirmed in writing)
of each Borrowing of Term Loans if all or any of such Term Loans are to be
initially Eurodollar Loans, and (ii) prior written notice (or telephonic
notice promptly confirmed in writing) prior to 10:00 a.m. (New York time)
on the date of each Borrowing of Term Loans if all such Term Loans are to be
ABR Loans.  Such notice (together with
each notice of a Borrowing of Revolving Credit Loans pursuant to Section 2.3(b) and
each notice of a Borrowing of Swingline Loans pursuant to Section 2.3(d),
a “Notice of Borrowing”) shall specify (i) the aggregate principal
amount of the Term Loans to be made, (ii) the date of the Borrowing (which
shall be (x) in the case of 2017 Term Loans, the Effective Date and (y) in
the case of Incremental Term Loans, the relevant Incremental Facility Closing
Date) and (iii) whether the Term Loans shall consist of ABR Loans and/or
Eurodollar Loans and, if the Term Loans are to include Eurodollar Loans, the
Interest Period to be initially applicable thereto.  The Administrative Agent shall promptly give
each Lender written notice (or telephonic notice promptly confirmed in writing)
of each proposed Borrowing of Term Loans, of such Lender’s proportionate share
thereof and of the other matters covered by the related Notice of Borrowing.


 


44
















 


(b)           Whenever
the Borrower desires to incur Revolving Credit Loans hereunder (other than
Mandatory Borrowings or borrowings to repay Unpaid Drawings under Letters of
Credit), it shall give the Administrative Agent at the Administrative Agent’s
Office, (i) prior to 1:00 p.m. (New York time) at least three
Business Days’ prior written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of Eurodollar Loans, and (ii) prior to 1:00 p.m.
(New York time) at least one Business Day’s prior written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing of Revolving Credit
Loans that are to be ABR Loans.  Each
such Notice of Borrowing, except as otherwise expressly provided in Section 2.10,
shall specify (i) the aggregate principal amount of the Revolving Credit
Loans to be made pursuant to such Borrowing, (ii) the date of Borrowing
(which shall be a Business Day) and (iii) whether the respective Borrowing
shall consist of ABR Loans or Eurodollar Loans and, if Eurodollar Loans, the
Interest Period to be initially applicable thereto.  The Administrative Agent shall promptly give
each Lender written notice (or telephonic notice promptly confirmed in writing)
of each proposed Borrowing of Revolving Credit Loans, of such Lender’s
proportionate share thereof and of the other matters covered by the related
Notice of Borrowing.


 


(c)           Whenever
the Borrower desires to incur Swingline Loans hereunder, it shall give the
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of Swingline Loans prior to 3:00 p.m. (New York
time) or such later time as is agreed by the Swingline Lender on the date of
such Borrowing.  Each such notice shall
be irrevocable and shall specify (i) the aggregate principal amount of the
Swingline Loans to be made pursuant to such Borrowing and (ii) the date of
Borrowing (which shall be a Business Day). 
The Administrative Agent shall promptly give the Swingline Lender
written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing of Swingline Loans and of the other matters covered by the
related Notice of Borrowing.


 


(d)           Mandatory
Borrowings shall be made upon the notice specified in Section 2.1(f), with
the Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to
the making of Mandatory Borrowings as set forth in such Section.


 


(e)           Borrowings
of Revolving Credit Loans to reimburse Unpaid Drawings under Letters of Credit
shall be made upon the notice specified in Section 3.4(a).


 


(f)            Without
in any way limiting the obligation of the Borrower to confirm in writing any
notice it may give hereunder by telephone, the Administrative Agent may act
prior to receipt of written confirmation without liability upon the basis of such
telephonic notice believed by the Administrative Agent in good faith to be from
an Authorized Officer of the Borrower. 
In each such case, the Borrower hereby waives the right to dispute the
Administrative Agent’s record of the terms of any such telephonic notice.


 


2.4           Disbursement
of Funds  No
later than 2:00 p.m. (New York time) on the date specified in each Notice
of Borrowing (including Mandatory Borrowings), each Lender will make available
its pro  rata portion, if any, of each Borrowing requested to be
made on such date in the manner provided below; provided, that all
Swingline Loans shall be made available in the full amount thereof by the
Swingline Lender no later than 3:00 p.m. (New York time) on the date
requested; provided, further, that, for the avoidance of doubt,
prior to the 2011 Final Date, all borrowings of Revolving Credit Loans
hereunder shall be made by each Lender with a Revolving Credit Commitment pro
rata based on each such Lender’s Revolving Credit Commitment Percentage
without regard to the Class of the Revolving Credit Commitments held by
such Lender.


 


(b)           Each
Lender shall make available all amounts it is to fund to the Borrower under any
Borrowing in immediately available funds to the Administrative Agent at the
Administrative Agent’s 


 


45

















 


Office and
the Administrative Agent will (except in the case of Mandatory Borrowings and
Borrowings to repay Unpaid Drawings under Revolving Credit Loans) make
available to the Borrower, by depositing to an account designated by the
Borrower to the Administrative Agent in writing, the aggregate of the amounts
so made available in Dollars.  Unless the
Administrative Agent shall have been notified by any Lender prior to the date
of any such Borrowing that such Lender does not intend to make available to the
Administrative Agent its portion of the Borrowing or Borrowings to be made on
such date, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on such date of Borrowing, and the
Administrative Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to the Borrower,
as the case may be, a corresponding amount. 
If such corresponding amount is not in fact made available to the
Administrative Agent by such Lender and the Administrative Agent has made
available same to the Borrower, the Administrative Agent shall be entitled to
recover such corresponding amount from such Lender.  If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent’s demand therefor,
the Administrative Agent shall promptly notify the Borrower and the Borrower
shall immediately pay such corresponding amount to the Administrative
Agent.  The Administrative Agent shall
also be entitled to recover from such Lender or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to the
Borrower, to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if paid by such
Lender, the Federal Funds Effective Rate or (ii) if paid by the Borrower,
the then-applicable rate of interest or fees, calculated in accordance with Section 2.8,
for the Loans of the applicable Class.


 


(c)           Nothing
in this Section 2.4 shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights that
the Borrower may have against any Lender as a result of any default by such
Lender hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to fulfill its commitments
hereunder).


 


2.5           Repayment
of Loans; Evidence of Debt  The Borrower shall repay to the Administrative Agent, for the
benefit of the applicable Lenders, (i) on the 2013 Term Loan Maturity
Date, all then outstanding 2013 Term Loans, (ii) on the 2015 Term Loan
Maturity Date, all then outstanding 2015 Term Loans, (iii) on the 2017
Term Loan Maturity Date, all then outstanding 2017 Term Loans, (iv) on the
relevant maturity date for any tranche of Incremental Term Loans, all then
outstanding Incremental Term Loans of such tranche, (v) on the 2011
Revolving Credit Maturity Date, all then outstanding 2011 Revolving Credit
Loans, (vi) on the 2013 Revolving Credit Maturity Date, all then
outstanding 2013 Revolving Credit Loans, (vii) on the relevant maturity
date for any tranche of Additional/Replacement Revolving Credit Commitments,
all then outstanding Additional/Replacement Revolving Credit Loans, (viii) on
the relevant maturity date for any Extension Series of Extended Term Loans
other than the 2015 Term Loans, all then outstanding Extended Term Loans of
such Extension Series, (ix) on the relevant maturity date for any other
Extension Series of Extended Revolving Credit Commitments other than the
2013 Revolving Credit Commitments, all then outstanding Extended Revolving
Credit Loans of such Extension Series and (x) on the Swingline
Maturity Date, all then outstanding Swingline Loans.


 


(b)           The
Borrower shall repay to the Administrative Agent, for the benefit of the 2013
Term Lenders and the 2015 Term Lenders, on each date set forth below (each,
with respect to the 2013 Term Lenders, a “2013 Term Loan Repayment Date”
and with respect to the 2015 Term Lenders, a “2015 Term Loan Repayment Date”),
a principal amount of the 2013 Term Loans (each such amount, a “2013 Term
Loan Repayment Amount”) and/or a principal amount of the 2015 Term Loans
(each such amount, a “2015 Term Loan Repayment Amount”), in each case as
set forth below opposite such Repayment Date:


 


46

















 


	
  Repayment
  Date

  	
   

  	
  2013 Term Loan

  Repayment Amount

  	
   

  	
  2015 Term Loan

  Repayment Amount

  	
   

  
	
  June 30, 2010

  	
   

  	
  $792,793.48

  	
   

  	
  $1,250,000

  	
   

  
	
  September 30, 2010

  	
   

  	
  $792,793.48

  	
   

  	
  $1,250,000

  	
   

  
	
  December 31, 2010

  	
   

  	
  $792,793.48

  	
   

  	
  $1,250,000

  	
   

  
	
  March 31, 2011

  	
   

  	
  $792,793.48

  	
   

  	
  $1,250,000

  	
   

  
	
  June 30, 2011

  	
   

  	
  $792,793.48

  	
   

  	
  $1,250,000

  	
   

  
	
  September 30, 2011

  	
   

  	
  $792,793.48

  	
   

  	
  $1,250,000

  	
   

  
	
  December 31, 2011

  	
   

  	
  $792,793.48

  	
   

  	
  $1,250,000

  	
   

  
	
  March 31, 2012

  	
   

  	
  $792,793.48

  	
   

  	
  $1,250,000

  	
   

  
	
  June 30, 2012

  	
   

  	
  $792,793.48

  	
   

  	
  $1,250,000

  	
   

  
	
  September 30, 2012

  	
   

  	
  $792,793.48

  	
   

  	
  $1,250,000

  	
   

  
	
  December 31, 2012

  	
   

  	
  $792,793.48

  	
   

  	
  $1,250,000

  	
   

  
	
  March 31, 2013

  	
   

  	
  $792,793.48

  	
   

  	
  $1,250,000

  	
   

  
	
  2013 Term Loan Maturity Date

  	
   

  	
  Balance of outstanding 2013 Term Loans

  	
   

  	
  —

  	
   

  
	
  June 30, 2013

  	
   

  	
  —

  	
   

  	
  $1,250,000

  	
   

  
	
  September 30, 2013

  	
   

  	
  —

  	
   

  	
  $1,250,000

  	
   

  
	
  December 31, 2013

  	
   

  	
  —

  	
   

  	
  $1,250,000

  	
   

  
	
  March 31, 2014

  	
   

  	
  —

  	
   

  	
  $1,250,000

  	
   

  
	
  June 30, 2014

  	
   

  	
  —

  	
   

  	
  $1,250,000

  	
   

  
	
  September 30, 2014

  	
   

  	
  —

  	
   

  	
  $1,250,000

  	
   

  
	
  December 31, 2014

  	
   

  	
  —

  	
   

  	
  $1,250,000

  	
   

  
	
  March 31, 2015

  	
   

  	
  —

  	
   

  	
  $1,250,000

  	
   

  
	
  2015 Term Loan Maturity Date

  	
   

  	
  —

  	
   

  	
  Balance of outstanding 2015 Term Loans

  	
   

  



 


(c)           The
Borrower shall repay to the Administrative Agent, for the benefit of the 2017
Term Lenders, on each date set forth below (each, a “2017 Term Loan
Repayment Date”), a principal amount of the 2017 Term Loans (each such
amount, a “2017 Term Loan Repayment Amount”), in each case as set forth
below opposite such 2017 Term Loan Repayment Date:


 


47

















 


	
  2017
  Term Loan

  Repayment Date

  	
   

  	
  2017 Term Loan

  Repayment Amount

  	
   

  
	
  June 30, 2010

  	
   

  	
  $1,450,000

  	
   

  
	
  September 30, 2010

  	
   

  	
  $1,450,000

  	
   

  
	
  December 31, 2010

  	
   

  	
  $1,450,000

  	
   

  
	
  March 31, 2011

  	
   

  	
  $1,450,000

  	
   

  
	
  June 30, 2011

  	
   

  	
  $1,450,000

  	
   

  
	
  September 30, 2011

  	
   

  	
  $1,450,000

  	
   

  
	
  December 31, 2011

  	
   

  	
  $1,450,000

  	
   

  
	
  March 31, 2012

  	
   

  	
  $1,450,000

  	
   

  
	
  June 30, 2012

  	
   

  	
  $1,450,000

  	
   

  
	
  September 30, 2012

  	
   

  	
  $1,450,000

  	
   

  
	
  December 31, 2012

  	
   

  	
  $1,450,000

  	
   

  
	
  March 31, 2013

  	
   

  	
  $1,450,000

  	
   

  
	
  June 30, 2013

  	
   

  	
  $1,450,000

  	
   

  
	
  September 30, 2013

  	
   

  	
  $1,450,000

  	
   

  
	
  December 31, 2013

  	
   

  	
  $1,450,000

  	
   

  
	
  March 31, 2014

  	
   

  	
  $1,450,000

  	
   

  
	
  June 30, 2014

  	
   

  	
  $1,450,000

  	
   

  
	
  September 30, 2014

  	
   

  	
  $1,450,000

  	
   

  
	
  December 31, 2014

  	
   

  	
  $1,450,000

  	
   

  
	
  March 31, 2015

  	
   

  	
  $1,450,000

  	
   

  
	
  June 30, 2015

  	
   

  	
  $1,450,000

  	
   

  
	
  September 30, 2015

  	
   

  	
  $1,450,000

  	
   

  
	
  December 31, 2015

  	
   

  	
  $1,450,000

  	
   

  
	
  March 31, 2016

  	
   

  	
  $1,450,000

  	
   

  
	
  June 30, 2016

  	
   

  	
  $1,450,000

  	
   

  
	
  September 30, 2016

  	
   

  	
  $1,450,000

  	
   

  
	
  December 31, 2016

  	
   

  	
  $1,450,000

  	
   

  
	
  March 31, 2017

  	
   

  	
  $1,450,000

  	
   

  
	
  2017 Term Loan Maturity Date

  	
   

  	
  Balance of outstanding 2017 Term Loans

  	
   

  



 


(d)           In
the event any Incremental Term Loans are made, such Incremental Term Loans
shall mature and be repaid in amounts (each such amount, an “Incremental
Term Loan Repayment Amount”) and on dates as agreed between the Borrower
and the relevant Lenders of such Incremental Term Loans in the applicable
Incremental Agreement (each an “Incremental Term Loan Repayment Date”),
subject to the requirements set forth in Section 2.14.  In the event that any Extended Term Loans
other than 2015 Term Loans are established, such Extended Term Loans shall,
subject to the requirements of Section 2.15, be repaid by the Borrower in
the amounts (each such amount, an “Extended Term Loan Repayment Amount”)
and on the dates (each an “Extended Repayment Date”) set forth in the
applicable Extension Agreement. In the event any Extended Revolving Credit
Commitments other than 2013 Revolving Credit Commitments are established, such
Extended Revolving Credit Commitments shall, subject to Section 2.15, be
terminated (and all Extended Revolving Credit Loans of the same Extension Series repaid)
on the dates set forth in the applicable Extension Agreement.


 


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


 


(f)            The
Administrative Agent shall maintain the Register pursuant to Section 13.6(b),
and a subaccount for each Lender, in which Register and subaccounts (taken
together) shall be recorded (i) the amount of each Loan made hereunder,
whether such Loan is a 2013 Term Loan, a 2015 Term Loan, a 2017 Term Loan, an
Incremental Term Loan (and the relevant tranche thereof), a 2011 Revolving
Credit Loan, a 2013 Revolving Credit Loan, an Additional/Replacement Revolving
Credit Loan, an Extended Term Loan other than 2015 Term Loans, an Extended
Revolving Credit Loan other 


 


48

















 


than 2013
Revolving Credit Loans or Swingline Loan, as applicable, the Type of each Loan
made and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender or the Swingline Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder from the
Borrower and each Lender’s share thereof.


 


(g)           The
entries made in the Register and accounts and subaccounts maintained pursuant
to paragraphs (e) and (f) of this Section 2.5 shall, to the
extent permitted by applicable law, be prima facie evidence of the existence
and amounts of the obligations of the Borrower therein recorded; provided,
however, that the failure of any Lender or the Administrative Agent to
maintain such account, such Register or such subaccount, as applicable, or any
error therein, shall not in any manner affect the obligation of the Borrower to
repay (with applicable interest) the Loans made to the Borrower by such Lender
in accordance with the terms of this Agreement.


 


2.6           Conversions
and Continuations  The Borrower shall have the option on any Business Day to
convert all or a portion equal to at least the Minimum Borrowing Amount of the
outstanding principal amount of Term Loans, Revolving Credit Loans, Additional/Replacement
Revolving Credit Loans or Extended Revolving Credit Loans of one Type into a
Borrowing or Borrowings of another Type and (y) the Borrower shall have
the option on any Business Day to continue the outstanding principal amount of
any Eurodollar Loans as Eurodollar Loans for an additional Interest Period; provided
that (i) no partial conversion of Eurodollar Loans shall reduce the
outstanding principal amount of Eurodollar Loans made pursuant to a single
Borrowing to less than the Minimum Borrowing Amount, (ii) ABR Loans may
not be converted into Eurodollar Loans if a Default or Event of Default is in
existence on the date of the conversion and the Administrative Agent has, or
the Required Lenders in respect of the Credit Facility that is subject to such
conversion have, determined in its or their sole discretion not to permit such
conversion, (iii) Eurodollar Loans may not be continued as Eurodollar
Loans for an additional Interest Period if a Default or Event of Default is in
existence on the date of the proposed continuation and the Administrative Agent
has, or the Required Lenders in respect of the Credit Facility that is subject
to such continuation have, determined in its or their sole discretion not to
permit such continuation and (iv) Borrowings resulting from conversions
pursuant to this Section 2.6 shall be limited in number as provided in Section 2.2.  Each such conversion or continuation shall be
effected by the Borrower by giving the Administrative Agent at the applicable
Administrative Agent’s Office prior to 1:00 p.m. (New York time) at least (i) three
Business Days’, in the case of a continuation of, or conversion to, Eurodollar
Loans or (ii) one Business Day’s in the case of a conversion into ABR
Loans, prior written notice (or telephonic notice promptly confirmed in
writing) (each, a “Notice of Conversion or Continuation”) specifying the
Loans to be so converted or continued, the Type of Loans to be converted into
or continued and, if such Loans are to be converted into, or continued as,
Eurodollar Loans, the Interest Period to be initially applicable thereto (if no
Interest Period is selected, the Borrower shall be deemed to have selected an
Interest Period of one month’s duration). 
The Administrative Agent shall give each applicable Lender notice as
promptly as practicable of any such proposed conversion or continuation
affecting any of its Loans.


 


(b)           If
any Default or Event of Default is in existence at the time of any proposed
continuation of any Eurodollar Loans and the Required Lenders have determined
in their sole discretion not to permit such continuation, Eurodollar Loans
shall be automatically converted on the last day of the current Interest Period
into ABR Loans.  If upon the expiration
of any Interest Period in respect of Eurodollar Loans, the Borrower has failed
to elect a new Interest Period to be applicable thereto as provided in
paragraph (a) above, the Borrower, shall be deemed to have elected to
convert such Borrowing of Eurodollar Loans into a Borrowing of ABR Loans,
effective as of the expiration date of such current Interest Period.


 


49
















 


2.7           Pro Rata Borrowings Each Borrowing
of 2017 Term Loans under this Agreement shall be granted by the Lenders pro
rata on the basis of their then-applicable 2017 Term Loan Commitments.  Each Borrowing of Revolving Credit Loans
under this Agreement shall be granted by the Lenders pro  rata on
the basis of their then-applicable Revolving Credit Commitments without regard
to the Class of the Revolving Credit Commitments held by such Lender.  Each Borrowing of Incremental Term Loans
under this Agreement shall be granted by the Lenders of the relevant tranche
thereof on a pro rata basis of their then applicable Incremental Term Loan
Commitments. Each borrowing of Additional/Replacement Revolving Credit Loans
under the Agreement shall be granted by the Lenders thereof on a pro rata basis
of their then applicable Additional/Replacement Revolving Credit Commitments
for the applicable tranche.  It is
understood that no Lender shall be responsible for any default by any other Lender
in its obligation to make Loans hereunder and that each Lender shall be
obligated to make the Loans provided to be made by it hereunder, regardless of
the failure of any other Lender to fulfill its commitments hereunder.


 


2.8           Interest  The unpaid
principal amount of each ABR Loan shall bear interest from the date of the
Borrowing thereof until maturity (whether by acceleration or otherwise) at a
rate per annum that shall at all times be the Applicable ABR Margin plus
the ABR in effect from time to time.


 


(b)           The
unpaid principal amount of each Eurodollar Loan shall bear interest from the
date of the Borrowing thereof until maturity thereof (whether by acceleration
or otherwise) at a rate per annum that shall at all times be the Applicable
Eurodollar Margin in effect from time to time plus the relevant Eurodollar
Rate.


 


(c)           If
all or a portion of the principal amount of any Loan or any interest payable
thereon or any fees or other amounts due hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) at a rate per
annum that is (i) in the case of overdue principal, the rate that would
otherwise be applicable thereto plus 2% or (ii) in the case of
overdue interest, fees or other amounts due hereunder, to the extent permitted
by Applicable Law, the rate described in Section 2.8(a) plus
2% from and including the date of such non-payment to but excluding the date on
which such amount is paid in full (after as well as before judgment).  All such interest shall be payable on demand.


 


(d)           Interest on each Loan shall accrue from and including the
date of any Borrowing to but excluding the date of any repayment thereof and
shall be payable (i) in respect of each ABR Loan, quarterly in arrears on
the last day of each March, June, September and December, (ii) in
respect of each Eurodollar Loan, on the last day of each Interest Period
applicable thereto and, in the case of an Interest Period in excess of three
months, on each date occurring at three-month intervals after the first day of
such Interest Period, and (iii) in respect of each Loan (except, other
than in the case of prepayments, any ABR Loan), on any prepayment (on the
amount prepaid), at maturity (whether by acceleration or otherwise) and, after
such maturity, on demand.


 


(e)           All computations of interest hereunder shall be made in
accordance with Section 5.5.


 


(f)            The Administrative Agent, upon determining the interest rate
for any Borrowing of Eurodollar Loans, shall promptly notify the Borrower and
the relevant Lenders thereof.  Each such
determination shall, absent clearly demonstrable error, be final and conclusive
and binding on all parties hereto.


 


50

















 


2.9           Interest Periods. At the time
the Borrower gives a Notice of Borrowing or Notice of Conversion or
Continuation in respect of the making of, or conversion into or continuation
as, a Borrowing of Eurodollar Loans (in the case of the initial Interest Period
applicable thereto) or prior to 1:00 p.m. (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower shall have the right to elect, by
giving the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing), the Interest Period applicable to such Borrowing, which
Interest Period shall, at the option of the Borrower, be a one, two, three, six
or (if available to all the Lenders making such Loans as determined by such
Lenders in good faith based on prevailing market conditions) a nine or twelve
month period; provided, that the initial Interest Period (including,
without limitation, with respect to the 2017 Term Loans)  may be for a period less than one month if
agreed upon by the Borrower and the Administrative Agent.  Notwithstanding anything to the contrary
contained above:


 


(i)            the
initial Interest Period for any Borrowing of Eurodollar Loans shall commence on
the date of such Borrowing (including the date of any conversion from a
Borrowing of ABR Loans) and each Interest Period occurring thereafter in
respect of such Borrowing shall commence on the day on which the next preceding
Interest Period expires;


 


(ii)           if
any Interest Period relating to a Borrowing of Eurodollar Loans begins on the
last Business Day of a calendar month or begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period, such Interest Period shall end on the last Business Day of the calendar
month at the end of such Interest Period;


 


(iii)          if
any Interest Period would otherwise expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day, provided
that if any Interest Period in respect of a Eurodollar Loan would otherwise
expire on a day that is not a Business Day but is a day of the month after
which no further Business Day occurs in such month, such Interest Period shall
expire on the next preceding Business Day; and


 


(iv)          the
Borrower shall not be entitled to elect any Interest Period in respect of any
Eurodollar Loan if such Interest Period would extend beyond the applicable
Maturity Date of such Loan.


 


2.10         Increased
Costs, Illegality, etc.  In the event that (x) in the case of clause (i) below,
the Administrative Agent or (y) in the case of clauses (ii) and (iii) below,
any Lender shall have reasonably determined (which determination shall, absent
clearly demonstrable error, be final and conclusive and binding upon all
parties hereto):


 


(i)            on
any date for determining the Eurodollar Rate for any Interest Period that (x) deposits
in the principal amounts of the Loans comprising any Eurodollar Borrowing are not
generally available in the relevant market or (y) by reason of any changes
arising on or after the Closing Date affecting the interbank Eurodollar market,
adequate and fair means do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of Eurodollar Rate; or


 


(ii)           at
any time, that such Lender shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect to any Eurodollar Loans
(other than any such increase or reduction attributable to taxes) because of (x) any
change since the Closing Date in any applicable law, governmental rule,
regulation, guideline or order (or in the interpretation or administration
thereof and including the introduction of any new law or governmental rule,
regulation, guideline or order), such as, for example, without limitation, a
change in official reserve requirements, 


 


51

















 


and/or (y) other
circumstances affecting the interbank Eurodollar market or the position of such
Lender in such market; or


 


(iii)          at
any time, that the making or continuance of any Eurodollar Loan has become
unlawful by compliance by such Lender in good faith with any law, governmental
rule, regulation, guideline or order (or would conflict with any such
governmental rule, regulation, guideline or order not having the force of law
even though the failure to comply therewith would not be unlawful), or has
become impracticable as a result of a contingency occurring after the Closing
Date that materially and adversely affects the interbank Eurodollar market;


 


then, and in any such event, such Lender (or
the Administrative Agent, in the case of clause (i) above) shall
within a reasonable time thereafter give notice (if by telephone, confirmed in
writing) to the Borrower and the Administrative Agent of such determination
(which notice the Administrative Agent shall promptly transmit to each of the
other Lenders).  Thereafter (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be
available until such time as the Administrative Agent notifies the Borrower and
the Lenders that the circumstances giving rise to such notice by the
Administrative Agent no longer exist (which notice the Administrative Agent
agrees to give at such time when such circumstances no longer exist), and any
Notice of Borrowing or Notice of Conversion given by the Borrower with respect
to Eurodollar Loans that have not yet been incurred shall be deemed rescinded
by the Borrower, (y) in the case of clause (ii) above, the Borrower
shall pay to such Lender, promptly after receipt of written demand therefor
such additional amounts (in the form of an increased rate of, or a different
method of calculating, interest or otherwise as such Lender in its reasonable
discretion shall determine) as shall be required to compensate such Lender for
such increased costs or reductions in amounts receivable hereunder (it being
agreed that a written notice as to the additional amounts owed to such Lender,
showing in reasonable detail the basis for the calculation thereof, submitted
to the Borrower by such Lender shall, absent clearly demonstrable error, be
final and conclusive and binding upon all parties hereto) and (z) in the
case of clause (iii) above, the Borrower shall take one of the actions
specified in Section 2.10(b) as promptly as possible and, in any
event, within the time period required by law.


 


(b)           At any time that any Eurodollar Loan is affected by the
circumstances described in Section 2.10(a)(ii) or (iii), the Borrower
may (and in the case of a Eurodollar Loan affected pursuant to Section 2.10(a)(iii) shall)
either (x) if the affected Eurodollar Loan is then being made pursuant to
a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic
notice (confirmed promptly in writing) thereof on the same date that the
Borrower was notified by a Lender pursuant to Section 2.10(a)(ii) or (iii) or
(y) if the affected Eurodollar Loan is then outstanding, upon at least
three Business Days’ notice to the Administrative Agent, require the affected
Lender to convert each such Eurodollar Loan into an ABR Loan, if applicable; provided,
that if more than one Lender is affected at any time, then all affected Lenders
must be treated in the same manner pursuant to this Section 2.10(b).


 


(c)           If, after the Closing Date, the adoption of any applicable
law, rule or regulation regarding capital adequacy, or any change therein,
or any change in the interpretation or administration thereof by any
governmental authority, the National Association of Insurance Commissioners,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by a Lender or its parent with any
request or directive made or adopted after the Closing Date regarding capital
adequacy (whether or not having the force of law) of any such authority,
association, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender’s or its parent’s capital or assets
as a consequence of such Lender’s commitments or obligations hereunder to a
level below that which such Lender or its parent could have achieved but for
such adoption, effectiveness, change or compliance (taking into consideration
such Lender’s or its parent’s policies with respect to capital adequacy), then
from time to time, promptly after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amount or amounts as will 


 


52

















 


compensate such Lender or its
parent for such reduction, it being understood and agreed, however, that a
Lender shall not be entitled to such compensation as a result of such Lender’s
compliance with, or pursuant to any request or directive to comply with, any
such law, rule or regulation as in effect on the Closing Date.  Each Lender, upon determining in good faith
that any additional amounts will be payable pursuant to this Section 2.10(c),
will give prompt written notice thereof to the Borrower (on its own behalf)
which notice shall set forth in reasonable detail the basis of the calculation
of such additional amounts, although the failure to give any such notice shall
not, subject to Section 2.13, release or diminish any of the Borrower’s
obligations to pay additional amounts pursuant to this Section 2.10(c) upon
receipt of such notice.


 


(d)           This Section 2.10 shall not apply to taxes to the extent
duplicative of Section 5.4.


 


2.11         Compensation If (a) any
payment of principal of a Eurodollar Loan is made by the Borrower to or for the
account of a Lender other than on the last day of the Interest Period for such
Eurodollar Loan as a result of a payment or conversion pursuant to Section 2.5,
2.6, 2.10, 5.1, 5.2 or 13.7, as a result of acceleration of the maturity of the
Loans pursuant to Section 11 or for any other reason, (b) any
Borrowing of Eurodollar Loans is not made as a result of a withdrawn Notice of
Borrowing, (c) any ABR Loan is not converted into a Eurodollar Loan as a
result of a withdrawn Notice of Conversion or Continuation, (d) any
Eurodollar Loan is not continued as a Eurodollar Loan as a result of a
withdrawn Notice of Conversion or Continuation or (e) any prepayment of
principal of a Eurodollar Loan is not made as a result of a withdrawn notice of
prepayment pursuant to Section 5.1 or 5.2, the Borrower shall, after
receipt of a written request by such Lender (which request shall set forth in
reasonable detail the basis for requesting such amount), pay to the Administrative
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that such Lender may
reasonably incur as a result of such payment, failure to convert, failure to
continue, failure to prepay, reduction or failure to reduce, including any
loss, cost or expense (excluding loss of anticipated profits) actually incurred
by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund or maintain such Eurodollar Loan.


 


2.12         Change of Lending Office Each Lender
agrees that, upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii),
2.10(a)(iii), 2.10(b), 3.5 or 5.4 with respect to such Lender, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any
Loans affected by such event; provided, that such designation is made on
such terms that such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such Section.  Nothing in this Section 2.12 shall
affect or postpone any of the obligations of the Borrower or the right of any
Lender provided in Section 2.10, 3.5 or 5.4.


 


2.13         Notice of Certain Costs Notwithstanding
anything in this Agreement to the contrary, to the extent any notice required
by Section 2.10, 2.11, 3.5 or 5.4 is given by any Lender more than 180 days
after such Lender has knowledge (or should have had knowledge) of the
occurrence of the event giving rise to the additional cost, reduction in
amounts, loss, tax or other additional amounts described in such Sections, such
Lender shall not be entitled to compensation under Section 2.10, 2.11, 3.5
or 5.4, as the case may be, for any such amounts incurred or accruing prior to
the giving of such notice to the Borrower.


 


2.14         Incremental
Facilities  The
Borrower may, at any time or from time to time after the Closing Date, by
written notice delivered to the Administrative Agent no later than 10 days
prior to the anticipated Incremental Facility Closing Date (or such shorter
period as may be agreed by the Administrative Agent in its discretion)
(whereupon the Administrative Agent shall promptly deliver a copy to each of
the Lenders), request (i) one or more additional tranches of term loans
(the “Incremental 


 


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Term Loans”), (ii) one or more increases in the amount of the
Revolving Credit Commitments (each such increase, an “Incremental Revolving
Credit Commitment Increase”) or (iii) one or more additional tranches
of revolving credit commitments (the “Additional/Replacement Revolving
Credit Commitments”); provided that both at the time of any such
request and after giving effect to the effectiveness of any Incremental
Agreement referred to below, no Default or Event of Default shall exist and at
the time that any such Incremental Term Loan, Incremental Revolving Credit
Commitment Increase or Additional/Replacement Revolving Credit Commitments is
made or effected (and after giving effect thereto), no Default or Event of
Default shall exist; provided, further, that after giving effect to
the incurrence of such Incremental Term Loans or borrowing under such
Incremental Revolving Credit Commitment Increase or borrowing under such Additional/Replacement Revolving Credit Commitments (and after
giving effect to any investment to be consummated in connection therewith), the
Borrower and the Restricted Subsidiaries shall be in pro forma compliance with
the requirements of Sections 10.9 and 10.10 computed as of the last day of the
most recent Test Period, in each case as if such Incremental Term Loans,
Incremental Revolving Credit Commitment Increase or Additional/Replacement
Revolving Credit Commitments, as applicable, had been outstanding on the last
day of such Test Period for testing compliance therewith.


 


(b)           Each
tranche of Incremental Term Loans, each Incremental Revolving Credit Commitment
Increase and each tranche of Additional/Replacement Revolving Credit
Commitments shall be in an aggregate principal amount that is not less than
$25,000,000 (provided that such amount may be less than $25,000,000 if
such amount represents all remaining availability under the limit set forth
below in this Section 2.14(b)) and
the aggregate amount of the Incremental Term Loans, Incremental Revolving
Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments shall not
exceed $150,000,000 (the “Incremental Limit”); provided
that (i) Incremental Term Loans may be incurred without regard to the
Incremental Limit, to the extent that the Net Cash Proceeds from such
Incremental Term Loans are used on the date of incurrence of such Incremental
Term Loans to make the prepayments as required pursuant to Section 5.2(a)(i),
(ii) Additional/Replacement Revolving Credit Commitments may be provided
without regard to the Incremental Limit to the extent that the existing Revolving
Credit Commitments shall be reduced in accordance with Section 5.2(e)(ii) by
an amount equal to the aggregate amount of Additional/Replacement Revolving
Credit Commitments so provided, (iii) in no event shall there be more than
three Classes of revolving credit commitments outstanding at any one time and (iv) in
no event shall there be more than six Classes of Term Loans outstanding at any
one time.


 


(c)           (A) The
Incremental Term Loans (i) shall rank pari passu in right of payment and
of security with the 2013 Term Loans, the 2015 Term Loans and the 2017 Term
Loans, (ii) shall not mature earlier than the 2017 Term Loan Maturity
Date, (iii) shall have all-in pricing (including, without limitation,
margins, fees, funding discounts, and premiums) and, subject to clause (ii) above,
a maturity date and amortization schedules determined by the Borrower and the
lenders thereof, (iv) shall have voluntary and mandatory prepayments
subject to the provisions of Section 5.1 and 5.2 and (v) shall
otherwise have terms and conditions substantially similar to those of the 2013
Term Loans, the 2015 Term Loans and the 2017 Term Loans unless the differences
are (x) solely technical in nature or (y) made for the benefit of the
2013 Term Lenders, the 2015 Term Lenders and the 2017 Term Lenders.


 


(B) The Incremental Revolving Credit Commitment
Increase shall be treated the same as the Revolving Credit Commitments
(including with respect to maturity date thereof) and shall be considered to be
part of the Revolving Credit Facility.


 


(C) The Additional/Replacement Revolving Credit
Commitments (i) shall rank pari passu in right of payment and of security
with the Revolving Credit Loans, (ii) shall not mature earlier than the
2013 Revolving Credit Maturity Date and shall require no mandatory commitment
reduction prior to the 


 


54

















 


2013 Revolving Credit
Maturity Date, (iii) shall have all-in pricing (including, without
limitation, margins, fees, premiums and funding discounts) determined by the
Borrower and the lenders of such commitments; (iv) shall contain
procedures that require Additional/Replacement Revolving Credit Loans
thereunder to be borrowed and repaid (other than in connection with a permanent
repayment and termination of commitments) on a pro rata basis with any
borrowings and repayments of Revolving Credit Loans under the Revolving Credit
Commitments (which procedures may be implemented through the applicable
Incremental Agreement and may include technical changes related to the borrowing
and repayment procedures of the Revolving Credit Facility), (v) shall have
voluntary and mandatory reductions of commitment rights that are subject to the
provisions of Sections 4.2 and 5.2(e)(ii), (vi) may include provisions
relating to swingline loans and/or letters of credit, as applicable, issued
thereunder, which issuances shall be on terms substantially similar (except for
the overall size of such subfacilities, the fees payable in connection
therewith and the identity of the swingline lender and letter of credit issuer,
as applicable, which shall be determined by the Borrower, the lenders of such
commitments and the applicable letter of credit issuers and swingline lenders
and borrowing, repayment and termination of commitment procedures with respect
thereto, in each case which shall be specified in the applicable Incremental
Agreement) to the terms relating to Swingline Loans and Letters of Credit with
respect to the Revolving Credit Commitments or otherwise reasonably acceptable
to the Administrative Agent and (vii) shall otherwise have terms and
conditions substantially similar to those of the Revolving Credit Facility
unless the differences are (x) solely technical in nature or (y) made
for the benefit of the Lenders of the Revolving Credit Commitments.


 


(d)           Each
notice
from the Borrower pursuant to this Section 2.14 shall be given in writing
and shall set forth the requested amount and proposed terms of the relevant
Incremental Term Loans, Incremental Revolving Credit Commitment Increases or
Additional/Replacement Revolving Credit Commitments.  Incremental Term Loans may be made,
and Incremental Revolving Credit Commitment Increases or Additional/Replacement
Revolving Credit Commitments may be provided, subject to the prior written
consent of the Borrower (not to be unreasonably withheld) by any existing
Lender (it being understood that (i) each existing Lender may elect or
decline, in its sole discretion, to make a portion of any Incremental Term
Loan, (ii) each existing Lender with a Revolving Credit Commitment may
elect or decline, in its sole discretion, to provide a portion of any
Incremental Revolving Credit Commitment Increase or any Additional/Replacement
Revolving Credit Commitment and (iii) the Borrower shall have
simultaneously offered the existing Lenders the opportunity to provide any such
Incremental Term Loans, Incremental Revolving Credit Commitment Increases or
Additional/Replacement Revolving Commitments) or by any Additional Lender; provided
that the Administrative Agent shall have consented (not to be unreasonably
withheld) to such Lender’s or Additional Lender’s making such Incremental Term
Loans or providing such Incremental Revolving Credit Commitment Increases or
Additional/Replacement Revolving Credit Commitments, if such consent would be
required under Section 13.6(b) for an assignment of Loans or
Commitments, as applicable, to such Lender or Additional Lender.


 


(e)           Commitments
in respect of Incremental Term Loans, Incremental Revolving Credit Commitment
Increases and Additional/Replacement Revolving Credit Commitments shall become
Commitments (or in the case of an Incremental Revolving Credit Commitment
Increase to be provided by an existing Lender with a Revolving Credit
Commitment, an increase in such Lender’s applicable Revolving Credit
Commitment) under this Agreement pursuant to an amendment (an “Incremental
Agreement”) to this Agreement and, as appropriate, the other Credit
Documents, executed by Holdings, the Borrower, each Lender agreeing to provide
such Commitment, if any, each Additional Lender, if any, and the Administrative
Agent.  The Incremental Agreement may,
subject to Section 2.14(c), without the consent of any other Lender,
effect such amendments to this Agreement and the other Credit Documents as may
be necessary, in the reasonable opinion of the Administrative Agent and the
Borrower, to effect the provisions of this Section.  The effectiveness of any Incremental
Agreement shall be subject to the 


 


55

















 


satisfaction
on the date thereof (each, an “Incremental Facility Closing Date”) of
each of the conditions set forth in Section 7 (it being understood that
all references to “the date of such Credit Event” or similar language in such Section 7
shall be deemed to refer to the effective date of such Incremental Agreement),
the delivery to the Administrative Agent of legal opinions of counsel
reasonably requested by the Administrative Agent in connection with any such
transaction and such other conditions as the parties thereto shall agree.  The Borrower will use the proceeds of the
Incremental Term Loans, Incremental Revolving Credit Commitment Increases and
Additional/Replacement Revolving Credit Commitments for any purpose not
prohibited by this Agreement; provided, however, that the
proceeds of any Incremental Term Loans incurred, and any Additional/Replacement
Revolving Credit Commitments provided, in either case as described in the
proviso to Section 2.14(b), shall be used in accordance with the terms
thereof.


 


(f)            (i) Upon
each increase in the Revolving Credit Commitments pursuant to this Section,
each Lender with a Revolving Credit Commitment immediately prior to such
increase will automatically and without further act be deemed to have assigned
to each Lender providing a portion of the Incremental Revolving Credit
Commitment Increase (each, an “Incremental Revolving Credit Commitment
Increase Lender”) in respect of such increase, and each such Incremental
Revolving Commitment Increase Lender will automatically and without further act
be deemed to have assumed, a portion of such Lender’s participations hereunder
in outstanding Letters of Credit and Swingline Loans such that, after giving
effect to each such deemed assignment and assumption of participations, the
percentage of the aggregate outstanding (A) participations hereunder in
Letters of Credit and (B) participations hereunder in Swingline Loans held
by each Lender with a Revolving Credit Commitment (including each such
Incremental Revolving Commitment Increase Lender) will equal the percentage of
the aggregate Revolving Credit Commitments of all Lenders represented by such
Lender’s Revolving Credit Commitment. 
If, on the date of such increase, there are any Revolving Credit Loans
outstanding, such Revolving Credit Loans shall on or prior to the effectiveness
of such Incremental Revolving Credit Commitment Increase be prepaid from the
proceeds of additional Revolving Credit Loans made hereunder (reflecting such
increase in Revolving Credit Commitments), which prepayment shall be
accompanied by accrued interest on the Revolving Credit Loans being prepaid and
any costs incurred by any Lender in accordance with Section 2.11.  The Administrative Agent and the Lenders
hereby agree that the minimum borrowing, pro rata borrowing and pro rata
payment requirements contained elsewhere in this Agreement shall not apply to
the transactions effected pursuant to the immediately preceding sentence.


 


(ii) Upon each provision of
Additional/Replacement Revolving Credit Commitments pursuant to clause (ii) of
the proviso to Section 2.14(b), each Lender with a Revolving Credit
Commitment immediately prior to the providing of such Additional/Replacement
Revolving Loan Commitments will automatically and without further act be deemed
to have assigned to each Lender providing a portion of such
Additional/Replacement Revolving Credit Commitment in respect of such
provision, and each such Lender will automatically and without further act be
deemed to have assumed, a portion of such Revolving Credit Lender’s
participations hereunder in outstanding Letters of Credit and Swingline Loans
such that, after giving effect to such deemed assignment and assumption of
participations, the percentage of the aggregate outstanding (x) participations
hereunder in Letters of Credit and (y) participations hereunder in
Swingline Loans held by each Lender with a Revolving Credit Commitment and each
Lender with an Additional/Replacement Revolving Credit Commitment will equal
the percentage of the aggregate Revolving Credit Commitments and aggregate
Additional/Replacement Revolving Credit Commitments of all Lenders represented
by such Lender’s Revolving Credit Commitment and Additional/Replacement
Revolving Credit Commitment, as applicable. 
If, on the date of the providing of such Additional/Replacement
Revolving Credit Commitments pursuant to clause (ii) of the proviso to Section 2.14(b),
there are any Revolving Credit Loans outstanding, such Revolving Credit Loans
shall, on or prior to the effectiveness of such Additional/Replacement
Revolving Credit 


 


56

















 


Commitments, be prepaid from
the proceeds of Additional/Replacement Revolving Credit Loans made hereunder
(reflecting such Additional/Replacement Revolving Credit Commitments), which
prepayment shall be accompanied by accrued and unpaid interest on the Revolving
Credit Loans being prepaid and any costs incurred by any Lender in accordance
with Section 2.11.  The
Administrative Agent and the Lenders hereby agree that the minimum borrowing,
pro rata borrowing and pro rata payment requirements contained elsewhere in
this Agreement shall not apply to the transactions effected pursuant to the
immediately preceding sentence.


 


2.15         Extensions of Term Loans,
Revolving Credit Loans and Revolving Credit Commitments and
Additional/Replacement Revolving Credit Loans and Additional/Replacement
Revolving Credit Commitments.


 


(a)           (i) The Borrower may at any time and from time to time
request that all or a portion of each Term Loan of any Class (an “Existing
Term Loan Class”) be exchanged to extend the scheduled final maturity date
thereof (any such Term Loans which have been so extended, “Extended Term
Loans”) and to provide for other terms consistent with this Section 2.15.  Prior to entering into any Extension
Agreement with respect to any Extended Term Loans, the Borrower shall provide
written notice to the Administrative Agent (who shall provide a copy of such
notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term
Loan Extension Request”) setting forth the proposed terms of the Extended
Term Loans to be established, which terms shall be identical to the Term Loans
of the Existing Term Loan Class from which they are to be extended except (x) the
scheduled final maturity date shall be extended and all or any of the scheduled
amortization payments of all or a portion of any principal amount of such
Extended Term Loans may be delayed to later dates than the scheduled
amortization of principal of the Term Loans of such Existing Term Loan Class (with
any such delay resulting in a corresponding adjustment to the scheduled
amortization payments reflected in Section 2.5 or in the Incremental
Agreement, as the case may be, with respect to the Existing Term Loan Class of
Term Loans from which such Extended Term Loans were extended, in each case as
more particularly set forth Section 2.15(c) below), (y) all-in
pricing (including, without limitation, margins, fees and premiums) with
respect to the Extended Term Loans may be higher or lower than the all-in
pricing (including, without limitation, margins, fees and premiums) for the
Term Loans of such Existing Term Loan Class, in each case, to the extent
provided in the applicable Extension Agreement and (z) the voluntary and
mandatory prepayment rights of the Extended Term Loans shall be subject to the
provisions set forth in Sections 5.1 and 5.2. 
No Lender shall have any obligation to agree to have any of its Term
Loans of any Existing Term Loan Class exchanged into Extended Term Loans
pursuant to any Term Loan Extension Request. 
Any Extended Term Loans of any Extension Series shall constitute a
separate Class of Term Loans from the Existing Term Loan Class of
Term Loans from which they were extended; provided that in no event
shall there be more than six Classes of Term Loans outstanding at any time.


 


(ii) The Borrower may at any time and from time
to time request that all or a portion of the Revolving Credit Commitments
and/or any Additional/Replacement Revolving Credit Commitments (and, in each
case, including any previously extended Revolving Credit Commitments and/or
Additional/Replacement Revolving Credit Commitments) existing at the time of
such request (each, an “Existing Revolving Credit Commitment” and any
related revolving credit loans under any such facility, “Existing Revolving
Credit Loans”) be exchanged to extend the termination date thereof and the
scheduled maturity date(s) of any payment of principal with respect to all
or a portion of any principal amount of Existing Revolving Credit Loans related
to such Existing Revolving Credit Commitments (any such Existing Revolving
Credit Commitments which have been so extended, “Extended Revolving Credit
Commitments” and any related revolving credit loans, “Extended Revolving
Credit Loans”) and to provide for other terms consistent with this Section 2.15.  Prior to entering into any Extension
Agreement with respect to any Extended Revolving Credit Commitments, the
Borrower shall provide a notice to the 


 


57

















 


Administrative Agent (who
shall provide a copy of such notice to each of the Lenders of the applicable Class of
Existing Revolving Credit Commitments) (a “Revolving Credit Extension
Request”) setting forth the proposed terms of the Extended Revolving Credit
Commitments to be established thereunder, which terms shall be identical to
those applicable to the Existing Revolving Credit Commitments from which they
are to be extended (the “Specified Existing Revolving Credit Commitment
Class”) except (x) all or any of the final maturity dates of such
Extended Revolving Credit Commitments may be delayed to later dates than the
final maturity dates of the Existing Revolving Credit Commitments of the
Specified Existing Revolving Credit Commitment Class, (y) the all-in
pricing (including, without limitation, margins, fees and premiums) with
respect to the Extended Revolving Credit Commitments may be higher or lower
than the all-in pricing (including, without limitation, margins, fees and
premiums) for the Existing Revolving Credit Commitments of the Specified
Existing Revolving Credit Commitment Class and (z) the revolving
credit commitment fee rate with respect to the Extended Revolving Credit
Commitments may be higher or lower than the revolving credit commitment fee
rate for Existing Revolving Credit Commitments of the Specified Existing
Revolving Credit Commitment, in each case, to the extent provided in the
applicable Extension Agreement; provided that, notwithstanding anything
to the contrary in this Section 2.15 or otherwise, (1) the borrowing
and repayment (other than in connection with a permanent repayment and
termination of commitments) of the Extended Revolving Credit Loans under any
Extended Revolving Credit Commitments shall be made on a pro rata basis with
any borrowings and repayments of the Existing Revolving Credit Loans (the
mechanics for which may be implemented through the applicable Extension
Agreement and may include technical changes related to the borrowing and
repayment procedures of the Revolving Credit Facility), (2) assignments
and participations of Extended Revolving Credit Commitments and Extended
Revolving Credit Loans shall be governed by the assignment and participation
provisions set forth in Section 13.6 and (3)(I) in the case of Section 4.2,
and clause (ii) of the proviso to Section 2.14(b), no permanent
repayment of Extended Revolving Credit Loans (and corresponding permanent
reduction in the related Extended Revolving Credit Commitments) shall be permitted
unless all Existing Revolving Credit Loans and all Existing Revolving Credit
Commitments of the Specified Existing Revolving Credit Commitment Class, shall
have been repaid in full and terminated, respectively and (II) in all
other cases, no termination of Extended Revolving Credit Commitments and no
repayment of Extended Revolving Credit Loans accompanied by a corresponding
permanent reduction in Extended Revolving Credit Commitments shall be permitted
unless such termination or repayment (and corresponding reduction) is
accompanied by at least a pro rata termination or permanent repayment (and
corresponding pro rata  permanent
reduction), as applicable, of the Existing Revolving Credit Loans and Existing
Revolving Credit Commitments of the Specified Existing Revolving Credit
Commitment Class (or all Existing Revolving Credit Commitments of such Class and
related Existing Revolving Credit Loans shall have otherwise been terminated
and repaid in full).  Any Extended
Revolving Credit Commitments of any Extension Series shall constitute a
separate Class of revolving credit commitments from Existing Revolving
Credit Commitments of the Specified Existing Revolving Credit Commitment Class and
from any other Existing Revolving Credit Commitments (together with any other
Extended Revolving Credit Commitments so established on such date); provided
that in no event shall there be more than three Classes of revolving credit
commitments outstanding at any one time.


 


(b)           The Borrower shall provide the applicable Extension Request
at least ten (10) Business Days (or, with respect to the 2015 Term Loan
Extension Request, at least five (5) Business Days) prior to the date on
which Lenders under the Existing Class are requested to respond.  Any Lender (an “Extending Lender”)
wishing to have all or a portion of its Term Loans, Revolving Credit
Commitments or Additional/Revolving Credit Commitments (or any earlier extended
Extended Revolving Credit Commitments) of an Existing Class subject to
such Extension Request exchanged into Extended Loans/Commitments shall notify
the Administrative Agent (an “Extension Election”) on or prior to the
date specified in such Extension Request of the amount of its Term Loans,
Revolving Credit Commitments and/or Additional/Revolving Credit Commitments
(and/or any earlier extended Extended 


 


58

















 


Revolving Credit Commitments) which
it has elected to convert into Extended Loans/Commitments.  In the event that the aggregate amount of
Term Loans, Revolving Credit Commitments and Additional/Revolving Credit
Commitments (and any earlier extended Extended Revolving Credit Commitments)
subject to Extension Elections exceeds the amount of Extended Loans/Commitments
requested pursuant to the Extension Request, Term Loans, Revolving Credit
Commitments and Additional/Revolving Credit Commitments (and any earlier
extended Extended Revolving Credit Commitments) subject to Extension Elections
shall be exchanged to Extended Loans/Commitments on a pro rata basis based on
the amount of Term Loans, Revolving Credit Commitments and Additional/Revolving
Credit Commitments (and any earlier extended Extended Revolving Credit
Commitments) included in each such Extension Election.  Notwithstanding the conversion of any Existing
Revolving Credit Commitment (other than an Additional/Replacement Revolving
Credit Commitment) into an Extended Revolving Credit Commitment, such Extended
Revolving Credit Commitment shall be treated identically to all Existing
Revolving Credit Commitments of the Specified Existing Revolving Credit
Commitment Class for purposes of the obligations of a Revolving Credit
Lender in respect of Swingline Loans under Section 2.1(e) and Letters
of Credit under Section 3, except that the applicable Extension Agreement
may provide that the Swingline Maturity Date and/or the last day for issuing
Letters of Credit may be extended and the related obligations to make Swingline
Loans and issue Letters of Credit may be continued (pursuant to mechanics set
forth in the applicable Extension Agreement) so long as the Swingline Lender
and/or the applicable Letter of Credit Issuer, as applicable, have consented to
such extensions (it being understood that no consent of any other Lender shall
be required in connection with any such extension).  Notwithstanding the conversion of any
Existing Revolving Credit Commitment into an Extended Revolving Credit
Commitment (other than a Revolving Credit Commitment), such Extended Revolving
Credit Commitment shall be treated identically to all Existing Revolving Credit
Commitments of the Specified Existing Revolving Credit Commitment Class for
purposes of the obligations of the lenders thereof in respect of swingline
loans and letters of credit, except that the applicable Extension Agreement may
provide that the applicable swingline maturity date and/or the last day for
issuing letters of credit may be extended and the related obligations to make
swingline loans and issue letters of credit may be continued so long as the
applicable swingline lender and/or the applicable letter of credit issuer, as
applicable, have consented to such extensions (it being understood that no
consent of any other Lender shall be required in connection with any such
extension).


 


(c)           Extended Loans/Commitments shall be established pursuant to
an amendment (an “Extension Agreement”) to this Agreement (which, except
to the extent expressly contemplated by the penultimate sentence of this Section 2.15(c) and
notwithstanding anything to the contrary set forth in Section 13.1, shall
not require the consent of any Lender other than the Extending Lenders with
respect to the Extended Loans/Commitments established thereby) executed by the
Credit Parties, the Administrative Agent and the Extending Lenders.   Notwithstanding anything to the contrary in
this Section 2.15 and without limiting the generality or applicability of Section 13.1
to any Section 2.15 Additional Agreements, any Extension Agreement may
provide for additional terms and/or additional amendments other than those
referred to or contemplated above (any such additional amendment, a “Section 2.15
Additional Agreement”) to this Agreement and the other Credit Documents; provided
that such Section 2.15 Additional Agreements do not become effective prior
to the time that such Section 2.15 Additional Agreements have been
consented to (including, without limitation, pursuant to (1) consents
applicable to holders of Incremental Term Loans, Additional/Replacement
Revolving Credit Commitments and Incremental Revolving Credit Commitment
Increases provided for in any Incremental Agreement and (2) consents
applicable to holders of any Extended Loans/Commitments provided for in any
Extension Agreement) by such of the Lenders, Credit Parties and other parties
(if any) as may be required in order for such Section 2.15 Additional
Agreements to become effective in accordance with Section 13.1.  It is understood and agreed that each Lender
that has consented to this Agreement has consented and shall at the effective
time thereof be deemed to consent to each amendment in this Agreement and the
other Credit Documents authorized by this Section 2.15 and the
arrangements described above in connection


 


59
















 


therewith
except that the foregoing shall not constitute a consent on behalf of any
Lender to the terms of any Section 2.15 Additional Agreement.  In connection with any Extension Agreement,
the Borrower shall deliver an opinion of counsel reasonably acceptable to the
Administrative Agent (i) as to the enforceability of such Extension
Agreement, the Credit Agreement as amended thereby, and such of the other
Credit Documents (if any) as may be amended thereby (in the case of such other
Credit Documents as contemplated by the immediately preceding sentence), (ii) to
the effect that such Extension Agreement, including without limitation, the
Extended Loans/Commitments provided for therein, does not conflict with or
violate the terms and provisions of Section 13.1 of this Agreement and (iii) as
to any other matter reasonably requested by the Administrative Agent.


 


SECTION 3.          Letters of Credit


 


3.1           Issuance
of Letters of Credit  Subject to and upon the terms and conditions herein set
forth, at any time and from time to time after the Closing Date and prior to
the 2013 Revolving Credit Maturity Date, the Letter of Credit Issuer agrees to
issue (or cause its Affiliate or other financial institution with which the
Letter of Credit Issuer shall have entered into an agreement regarding the
issuance of letters of credit hereunder, to issue on its behalf), upon the
request of and for the account of, the Borrower or any Restricted Subsidiary a
standby letter of credit or standby letters of credit (each, a “Letter of
Credit”) in such form as may be approved by the Letter of Credit Issuer in
its reasonable discretion; provided,
that the Borrower shall be a co-applicant, and be jointly and severally liable,
with respect to each Letter of Credit issued for the account of a Restricted
Subsidiary.  Each letter of credit issued
pursuant to the 2005 Credit Agreement, the 2006 Credit Agreement or the
Original Credit Agreement and outstanding on the Effective Date shall continue
to be outstanding and shall be deemed to be Letters of Credit hereunder,
subject to the terms and conditions hereof. 
Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letters of Credit
Outstanding at such time, would exceed the Letter of Credit Commitment then in
effect, (ii) no Letter of Credit shall be issued the Stated Amount of
which, when added to the Letters of Credit Outstanding and the Revolving Credit
Loans and Swingline Loans outstanding at such time, would exceed the Total
Revolving Credit Commitment then in effect and (iii) each Letter of Credit
shall have an expiration date occurring no later than the earlier of (x) one
year after the date of issuance thereof, unless otherwise agreed upon by the
Administrative Agent and the Letter of Credit Issuer, and (y) the fifth
Business Day prior to the 2013 Revolving Credit Maturity Date; provided,
however, that any Letter of Credit may be renewed for additional
12-month periods (which in no event shall extend beyond the date referred to in
clause (iii)(y) above).


 


(b)           (i) Each
Letter of Credit shall be denominated in Dollars, (ii) no Letter of Credit
shall be issued if it would be illegal under any applicable law for the
beneficiary of the Letter of Credit to have a Letter of Credit issued in its
favor, and (iii) no Letter of Credit shall be issued after the Letter of
Credit Issuer has received a written notice from the Borrower or any Lender
stating that a Default or an Event of Default has occurred and is continuing
until such time as the Letter of Credit Issuer shall have received a written
notice of (x) rescission of such notice from the party or parties
originally delivering such notice or (y) the waiver of such Default or
Event of Default in accordance with the provisions of Section 13.1.


 


3.2           Letter
of Credit Requests  Whenever the Borrower desires that a Letter of Credit be
issued for its account, it shall give the Administrative Agent and the Letter
of Credit Issuer at least two (or such lesser number as may be agreed upon by
the Administrative Agent and the Letter of Credit Issuer) Business Days’
written notice thereof.  Each notice
shall be executed by the Borrower and shall be in the form of Exhibit F
(each, a “Letter of Credit Request”). 
The Administrative Agent shall promptly transmit copies of each Letter
of Credit Request to each Lender.


 


60

















 


(b)           The
making of each Letter of Credit Request shall be deemed to be a representation
and warranty by the Borrower that the Letter of Credit may be issued in
accordance with, and will not violate the requirements of, Section 3.1.


 


3.3           Letter
of Credit Participations  Immediately upon the issuance by the Letter of Credit Issuer
of any Letter of Credit, the Letter of Credit Issuer shall be deemed to have
sold and transferred to each other Lender that has a Revolving Credit
Commitment (each such other Lender, in its capacity under this Section 3.3(a),
a “Letter of Credit Participant”), and each such Letter of Credit
Participant shall be deemed irrevocably and unconditionally to have purchased
and received from the Letter of Credit Issuer, without recourse or warranty, an
undivided interest and participation in such Letter of Credit, each substitute
letter of credit, each drawing made thereunder and the obligations of the
Borrower under this Agreement with respect thereto (each, a “Letter of
Credit Participation”), pro  rata based on such Letter of
Credit Participant’s Revolving Credit Commitment Percentage without regard to
the Class of the Revolving Credit Commitments held by such Lender, and any
security therefor or guaranty pertaining thereto (although Letter of Credit
Fees will be paid directly to the Administrative Agent for the ratable account
of the Letter of Credit Participants as provided in Section 4.1(c) and
the Letter of Credit Participants shall have no right to receive any portion of
any Fronting Fees).  On the Final Date
for any Class of Revolving Credit Commitments, such participations of
Revolving Credit Lenders under and in respect of such Class shall,
notwithstanding whether any conditions specified in Section 7 are then
satisfied, be automatically reallocated to the then remaining Revolving Credit
Lenders pro  rata based on each such Lender’s Revolving Credit
Commitment Percentage after giving effect to such Final Date.


 


(b)           In
determining whether to pay under any Letter of Credit, the Letter of Credit
Issuer shall have no obligation relative to the Letter of Credit Participants
other than to confirm that any documents required to be delivered under such
Letter of Credit have been delivered and that they appear to comply on their
face with the requirements of such Letter of Credit.  Any action taken or omitted to be taken by
the Letter of Credit Issuer under or in connection with any Letter of Credit
issued by it, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for the Letter of Credit Issuer any resulting
liability.


 


(c)           Whenever
the Letter of Credit Issuer receives a payment in respect of an unpaid
reimbursement obligation as to which the Administrative Agent has received for
the account of the Letter of Credit Issuer any payments from the Letter of
Credit Participants, the Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
Letter of Credit Participant that has paid its Letter of Credit Commitment
Percentage of such reimbursement obligation, in Dollars and in immediately
available funds, an amount equal to such Letter of Credit Participant’s share
(based upon the proportionate aggregate amount originally funded or deposited
by such Letter of Credit Participant to the aggregate amount funded or
deposited by all Letter of Credit Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of
the respective Letter of Credit Participations. For the avoidance of doubt, all
distributions under this Section 3.3(c) shall be made to each Lender
with a Revolving Credit Commitments pro  rata based on each such
Lender’s Revolving Credit Commitment Percentage without regard to the Class of
the Revolving Credit Commitments held by such Lender.


 


(d)           The
obligations of the Letter of Credit Participants to purchase Letter of Credit
Participations from the Letter of Credit Issuer and make payments to the
Administrative Agent for the account of the Letter of Credit Issuer with
respect to Letters of Credit shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of
this Agreement under all circumstances, including under any of the following
circumstances:


 


61

















 


(i)            any
lack of validity or enforceability of this Agreement or any of the other Credit
Documents;


 


(ii)           the
existence of any claim, set-off, defense or other right that the Borrower may
have at any time against a beneficiary named in a Letter of Credit, any transferee
of any Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, the Letter of Credit Issuer, any Lender or
other Person, whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated herein or any unrelated transactions (including
any underlying transaction between the Borrower and the beneficiary named in
any such Letter of Credit);


 


(iii)          any
draft, certificate or any other document presented under any Letter of Credit proving
to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;


 


(iv)          the
surrender or impairment of any security for the performance or observance of
any of the terms of any of the Credit Documents; or


 


(v)           the
occurrence of any Default or Event of Default;


 


provided, however,
that no Letter of Credit Participant shall be obligated to pay to the
Administrative Agent for the account of the Letter of Credit Issuer its Letter
of Credit Commitment Percentage of any unreimbursed amount arising from any
wrongful payment made by the Letter of Credit Issuer under a Letter of Credit
as a result of acts or omissions constituting willful misconduct or gross
negligence on the part of the Letter of Credit Issuer.


 


3.4           Agreement
to Repay Letter of Credit Drawings  The Borrower hereby agrees to reimburse the Letter of Credit
Issuer, by making payment to the Administrative Agent for the account of the
Letter of Credit Issuer in immediately available funds, for any payment or
disbursement made by the Letter of Credit Issuer under any Letter of Credit
issued by it (each such amount so paid until reimbursed, an “Unpaid Drawing”)
(i) within one Business Day of the date of such payment or disbursement,
if the Letter of Credit Issuer provides notice to the Borrower of such payment
or disbursement prior to 10:00 a.m. (New York time) on such next
succeeding Business Day after the date of such payment or disbursement or (ii) if
such notice is received after such time, on the Business Day following the date
of receipt of such notice (such required date for reimbursement under
clause (i) or (ii), as applicable, the “Required Reimbursement
Date”), with interest on the amount so paid or disbursed by such Letter of
Credit Issuer, (A) from and including the date of such payment or
disbursement to but excluding the Required Reimbursement Date, at the per annum
rate for each day equal to (x) the Applicable Eurodollar Margin applicable
to 2013 Revolving Credit Loans then in effect times (y) the amount of such
Unpaid Drawing, and (B) to the extent not reimbursed prior to 5:00 p.m.
(New York time) on the Required Reimbursement Date, from and including the
Required Reimbursement Date to but excluding the date such Letter of Credit
Issuer is reimbursed therefor, at a rate per annum that shall at all times be
the relevant Applicable ABR Margin applicable to 2013 Revolving Credit Loans plus
the ABR as in effect from time to time plus 2%; provided, that,
notwithstanding anything contained in this Agreement to the contrary, with
respect to any Letter of Credit, (i) unless the Borrower shall have
notified the Administrative Agent and the Letter of Credit Issuer prior to
10:00 a.m. (New York time) on the Required Reimbursement Date that the
Borrower intends to reimburse the Letter of Credit Issuer for the amount of
such drawing with funds other than the proceeds of Revolving Credit Loans, the
Borrower shall be deemed to have given a Notice of Borrowing requesting that the Lenders with Revolving Credit Commitments
make Revolving Credit Loans (which shall be ABR Loans) on the date on which
such drawing is honored in an amount equal to the amount of such drawing, and (ii) the
Administrative Agent shall promptly notify each Letter of Credit Participant of
such drawing and the amount of its Revolving 


 


62

















 


Credit Loan to be made in respect thereof, and each Letter of Credit
Participant shall be irrevocably obligated to make a Revolving Credit Loan to
the Borrower in the manner deemed to have been requested in the amount of its
Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 1:00 p.m.
(New York time) on such Business Day by making the amount of such Revolving
Credit Loan available to the Administrative Agent.  Such Revolving Credit Loans shall be made
without regard to the Minimum Borrowing Amount. 
The Administrative Agent shall use the proceeds of such Revolving Credit
Loans solely for purpose of reimbursing the Letter of Credit Issuer for the
related Unpaid Drawing.   For the avoidance of doubt, all borrowings
of Revolving Credit Loans under this Section 3.4(a) shall be made by
each Lender with a Revolving Credit Commitments pro  rata based on
each such Lender’s Revolving Credit Commitment Percentage without regard to the
Class of the Revolving Credit Commitments held by such Lender.


 


(b)           The obligations of the Borrower under this Section 3.4
to reimburse the Letter of Credit Issuer with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any set-off, counterclaim
or defense to payment that the Borrower or any other Person may have or have
had against the Letter of Credit Issuer, the Administrative Agent or any Lender
(including in its capacity as a Letter of Credit Participant), including any
defense based upon the failure of any drawing under a Letter of Credit (each a “Drawing”)
to conform to the terms of the Letter of Credit or any non-application or
misapplication by the beneficiary of the proceeds of such Drawing; provided,
that the Borrower shall not be obligated to reimburse the Letter of Credit
Issuer for any wrongful payment made by the Letter of Credit Issuer under the
Letter of Credit issued by it as a result of acts or omissions constituting
willful misconduct or gross negligence on the part of the Letter of Credit
Issuer.


 


3.5           Increased Costs. If, after the
Closing Date, the adoption of any applicable law, rule or regulation, or
any change therein, or any change in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or actual compliance
by the Letter of Credit Issuer or any Letter of Credit Participant with any
request or directive made or adopted after the Closing Date (whether or not
having the force of law), by any such authority, central bank or comparable
agency shall either (a) impose, modify or make applicable any reserve,
deposit, capital adequacy or similar requirement against letters of credit
issued by the Letter of Credit Issuer, or any Letter of Credit Participant’s
Letter of Credit Participation therein, or (b) impose on the Letter of
Credit Issuer or any Letter of Credit Participant any other conditions
affecting its obligations under this Agreement in respect of Letters of Credit
or Letter of Credit Participations therein or any Letter of Credit or such
Letter of Credit Participant’s Letter of Credit Participation therein, and the
result of any of the foregoing is to increase the cost to the Letter of Credit
Issuer or such Letter of Credit Participant of issuing, maintaining or
participating in any Letter of Credit, or to reduce the amount of any sum
received or receivable by the Letter of Credit Issuer or such Letter of Credit
Participant hereunder (other than any such increase or reduction attributable
to taxes) in respect of Letters of Credit or Letter of Credit Participations therein,
then, promptly after receipt of written demand to the Borrower by the Letter of
Credit Issuer or such Letter of Credit Participant, as the case may be (a copy
of which notice shall be sent by the Letter of Credit Issuer or such Letter of
Credit Participant to the Administrative Agent), the Borrower shall pay to the
Letter of Credit Issuer or such Letter of Credit Participant such additional
amount or amounts as will compensate the Letter of Credit Issuer or such Letter
of Credit Participant for such increased cost or reduction, it being understood
and agreed, however, that the Letter of Credit Issuer or a Letter of Credit
Participant shall not be entitled to such compensation as a result of such
Person’s compliance with, or pursuant to any request or directive to comply
with, any such law, rule or regulation as in effect on the Closing
Date.  A certificate submitted to the
Borrower by the Letter of Credit Issuer or a Letter of Credit Participant, as
the case may be (a copy of which certificate shall be sent by the Letter of
Credit Issuer or such Letter of Credit Participant to the Administrative Agent)
setting forth in reasonable detail the basis for the determination of such
additional amount or 


 


63

















 


amounts necessary to
compensate the Letter of Credit Issuer or such Letter of Credit Participant as
aforesaid shall be conclusive and binding on the Borrower absent clearly
demonstrable error.


 


3.6           New
or Successor Letter of Credit Issuer  The Letter of Credit Issuer may resign as a Letter of Credit
Issuer upon 60 days’ prior written notice to the Administrative Agent, the
Lenders and the Borrower. The Borrower may replace the Letter of Credit Issuer
for any reason upon written notice to the Administrative Agent and the Letter
of Credit Issuer.  The Borrower may add a
Letter of Credit Issuer at any time upon notice to the Administrative
Agent.  If the Letter of Credit Issuer
shall resign, be replaced or a new Letter of Credit Issuer is added as a Letter
of Credit Issuer under this Agreement, then the Borrower may appoint from among
the Lenders a successor issuer or new issuer of Letters of Credit or, with the
consent of the Administrative Agent (such consent not to be unreasonably
withheld), another successor issuer or new issuer of Letters of Credit,
whereupon such successor issuer or new issuer of Letters of Credit shall
succeed to or be granted the rights, powers and duties of a Letter of Credit
Issuer under this Agreement and the other Credit Documents (which in the case
of any successor Letter of Credit Issuer, shall mean the rights, powers and
duties of the relevant replaced or resigning Letter of Credit Issuer), and the
term “Letter of Credit Issuer” shall mean such successor issuer or such new
issuer of Letters of Credit effective upon such appointment.  At the time such resignation or replacement
shall become effective, the Borrower shall pay to the resigning or replaced
Letter of Credit Issuer all accrued and unpaid fees pursuant to Sections
4.1(b).  The acceptance of any
appointment as a Letter of Credit Issuer hereunder whether as a successor
issuer or new issuer of Letters of Credit in accordance with this Agreement,
shall be evidenced by an agreement entered into by such new or successor issuer
of Letters of Credit, in a form satisfactory to the Borrower and the
Administrative Agent and, from and after the effective date of such agreement,
such new or successor issuer of Letters of Credit shall have all the rights and
obligations of a Letter of Credit Issuer under this Agreement and the other
Credit Documents (which in the case of any successor Letter of Credit Issuer,
shall mean the rights, powers and duties of the relevant replaced or resigning
Letter of Credit Issuer).  After the
resignation or replacement of a Letter of Credit Issuer hereunder, the
resigning or replaced Letter of Credit Issuer shall remain a party hereto and
shall continue to have all the rights and obligations of a Letter of Credit
Issuer under this Agreement and the other Credit Documents with respect to
Letters of Credit issued by it prior to such resignation or replacement, but
shall not be required to issue additional Letters of Credit.  In connection with any resignation or
replacement pursuant to this clause (a) (but, in case of any such
resignation, only to the extent that a successor issuer of Letters of Credit
shall have been appointed), either (i) the Borrower, the resigning or
replaced Letter of Credit Issuer and the successor issuer of Letters of Credit
shall arrange to have any outstanding Letters of Credit issued by the resigning
or replaced Letter of Credit Issuer replaced with Letters of Credit issued by
the successor issuer of Letters of Credit or (ii) the Borrower shall cause
the successor issuer of Letters of Credit, if such successor issuer is
reasonably satisfactory to the replaced or resigning Letter of Credit Issuer,
to issue “back-stop” Letters of Credit naming the resigning or replaced Letter
of Credit Issuer as beneficiary for each outstanding Letter of Credit issued by
the resigning or replaced Letter of Credit Issuer, which new Letters of Credit
shall have a face amount equal to the Letters of Credit being back-stopped and
the sole requirement for drawing on such new Letters of Credit shall be a
drawing on the corresponding back-stopped Letters of Credit.  After any resigning or replaced Letter of
Credit Issuer’s resignation or replacement as Letter of Credit Issuer, the
provisions of this Agreement relating to a Letter of Credit Issuer shall inure
to its benefit as to any actions taken or omitted to be taken by it (A) while
it was a Letter of Credit Issuer under this Agreement or (B) at any time
with respect to Letters of Credit issued by such Letter of Credit Issuer.


 


(b)           To the extent that there are, at the time of any resignation
or replacement as set forth in clause (a) above, any outstanding Letters
of Credit, nothing herein shall be deemed to impact or impair any rights and
obligations of any of the parties hereto with respect to such outstanding
Letters of Credit (including, without limitation, any obligations related to
the payment of Fees or the reimbursement or funding of amounts drawn), except
that the Borrower, the resigning or replaced Letter of Credit Issuer 


 


64

















 


and the successor issuer of Letters
of Credit shall have the obligations regarding outstanding Letters of Credit
described in clause (a) above.


 


SECTION 4.          Fees; Commitment Reductions
and Terminations


 


4.1           Fees  The
Borrower agrees to pay to the Administrative Agent for the account of each 2011
Revolving Credit Lender for the period from the Closing Date to and excluding
the 2011 Final Date, a commitment fee which shall accrue at percentage per
annum set forth below of the daily average unused portion of the 2011 Revolving
Credit Commitment of such Lender (which, for purposes of this Section 4.1
only, shall not include the incurrence of Swingline Loans) based upon the
Status in effect on such date, and which shall be payable quarterly in arrears
on the last day of each March, June, September and December and on
the 2011 Final Date.


 


	
  Status

  	
   

  	
  Applicable Revolving

  Commitment Fee

  Percentage

  	
   

  
	
  Level I

  	
   

  	
  0.50

  	
  %

  
	
  Level II

  	
   

  	
  0.375

  	
  %

  



 


(ii)           The Borrower agrees to pay
to the Administrative Agent for the account of each 2013 Revolving Credit
Lender, (A) for the period from the Closing Date to and excluding the 2010
Revolving Credit Extension Effective Date, a commitment fee which shall accrue
at percentage per annum set forth below of the daily average unused portion of
the 2013 Revolving Credit Commitment of such Lender (which, for purposes of
this Section 4.1 only, shall not include the incurrence of Swingline
Loans) based upon the Status in effect on such date, and which shall be payable
quarterly in arrears on the last day of each March, June, September and
December.


 


	
  Status

  	
   

  	
  Applicable Revolving

  Commitment Fee

  Percentage

  	
   

  
	
  Level I

  	
   

  	
  0.50

  	
  %

  
	
  Level II

  	
   

  	
  0.375

  	
  %

  



 


and (B) for the period from and including the
2010 Revolving Credit Extension Effective Date to but excluding the 2013 Final
Date, a commitment fee which shall accrue at 0.75% per annum of the daily
average unused portion of the 2013 Revolving Credit Commitment of such Lender
(which, for purposes of this Section 4.1 only, shall not include the
incurrence of Swingline Loans), and which shall be payable quarterly in arrears
on the last day of each March, June, September and December and on
the 2013 Final Date.


 


(b)           The Borrower agrees to pay to the Administrative Agent for
the account of the Letter of Credit Issuer a fee in respect of each Letter of
Credit issued hereunder (the “Fronting Fee”), for the period from and
including the date of issuance of such Letter of Credit to but excluding the
termination or expiration date of such Letter of Credit, computed at the rate
for each day equal to such rate per annum as is agreed in a separate writing
between the Letter of Credit Issuer and the Borrower.  The Fronting Fee shall be due and payable
quarterly in arrears on the last day of each March, June, September and December and
on the 2013 Final Date.


 


65

















 


(c)           (i)            The
Borrower agrees to pay to the Administrative Agent for the account of each 2011
Revolving Credit Lender, pro rata according to the Letter of Credit Exposure of
such Lender, a fee in respect of each Letter of Credit (the “2011 Letter of
Credit Fee”) for the period from and including the date of issuance of such
Letter of Credit to but excluding the termination or expiration date of such
Letter of Credit, computed at the per annum rate for each day equal to the
product of (x) the Applicable Eurodollar Margin then in effect for 2011
Revolving Credit Loans the and (y) the product of (A) the average
daily Stated Amount under such Letter of Credit and (B) the quotient
obtained by dividing (I) the aggregate amount of 2011 Revolving Credit
Commitments by (II) the sum of the 2011 Revolving Credit Commitments and
the 2013 Revolving Credit Commitments. 
The 2011 Letter of Credit Fee shall be payable quarterly in arrears on
the last day of each March, June, September and December and on the
2011 Final Date.


 


(ii)           The Borrower agrees to pay
to the Administrative Agent for the account of each 2013 Revolving Credit
Lender, pro rata according to the Letter of Credit Exposure of such Lender, a
fee in respect of each Letter of Credit (the “2013 Letter of Credit Fee”)
for the period from and including the date of issuance of such Letter of Credit
to but excluding the termination or expiration date of such Letter of Credit,
computed at the per annum rate for each day equal to the product of (x) the
Applicable Eurodollar Margin then in effect for 2013 Revolving Credit Loans the
and (y) the product of (A) the average daily Stated Amount under such
Letter of Credit and (B) the quotient obtained by dividing (I) the
aggregate amount of 2013 Revolving Credit Commitments by (II) the sum of
the 2011 Revolving Credit Commitments and the 2013 Revolving Credit
Commitments.  The 2013 Letter of Credit
Fee shall be payable quarterly in arrears on the last day of each March, June, September and
December and on the 2013 Final Date.


 


(d)           The Borrower agrees to pay directly to the Letter of Credit
Issuer upon each issuance of, drawing under and/or amendment of a Letter of
Credit issued by it such amount as the Letter of Credit Issuer and the Borrower
shall have agreed upon for issuances of, drawings under or amendments of,
letters of credit issued by it.


 


(e)           Notwithstanding the foregoing, the Borrower shall not be
obligated to pay any amounts to any Defaulting Lender pursuant to this Section 4.1
until the event or circumstances giving rise to such Lender being designated as
a Defaulting Lender have been cured.


 


4.2           Voluntary Reduction of
Commitments. Upon at least one Business Day’s prior written
notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent at the Administrative Agent’s Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), the
Borrower shall have the right, without premium or penalty, on any day,
permanently to terminate or reduce the Revolving Credit Commitments and/or any
tranche of Additional/Replacement Revolving Credit Commitments, as determined
by the Borrower, in whole or in part; provided that (a) with
respect to the Revolving Credit Commitments, any such reduction shall apply
proportionately and permanently to reduce the Revolving Credit Commitments of
each of the Revolving Credit Lenders, except that, notwithstanding the
foregoing, in connection with the establishment on any date of any Extended
Revolving Credit Commitments pursuant to Section 2.15, the Revolving
Credit Commitments of any one or more Lenders providing any such Extended
Revolving Credit Commitments on such date shall be reduced in an amount equal to
the amount of Revolving Credit Commitments so extended on such date (provided
that (x) after giving effect to any such reduction and to the repayment of
any Revolving Credit Loans made on such date, the Revolving Credit Exposure of
any such Lender does not exceed the Revolving Credit Commitment thereof (such
Revolving Credit Exposure and Revolving Credit Commitment being determined in
each case, for the avoidance of doubt, exclusive of such Lender’s Extended
Revolving Credit Commitment and any exposure in respect thereof) and (y) for
the avoidance of doubt, any such repayment of Revolving Credit Loans
contemplated by the preceding clause shall be 


 


66

















 


made in compliance with the
requirements of Section 5.3(a) with respect to the ratable allocation
of payments hereunder, with such allocation being determined after giving
effect to any exchange pursuant to Section 2.15 of Revolving Credit
Commitments and Revolving Credit Loans into Extended Revolving Credit Commitments
and Extended Revolving Credit Loans, respectively, and prior to any reduction
being made to the Revolving Credit Commitment of any other Lender), (b) with
respect to any tranche of Additional/Replacement Revolving Credit Commitments,
any such reduction shall apply proportionately and permanently to reduce the
Additional/Replacement Revolving Credit Commitments of each of the
Additional/Replacement Revolving Credit Lenders of such tranche, except that,
notwithstanding the foregoing, in connection with the establishment on any date
of any Extended Revolving Credit Commitments pursuant to Section 2.15, the
Additional/Replacement Revolving Credit Commitments of any one or more Lenders
providing any such Extended Revolving Credit Commitments on such date shall be
reduced in an amount equal to the amount of Additional/Replacement Revolving
Credit Commitments so extended on such date (provided that (x) after
giving effect to any such reduction and to the repayment of any
Additional/Replacement Revolving Credit Loans made on such date, the revolving
credit exposure of any such Lender does not exceed the Additional/Replacement
Revolving Credit Commitment thereof (such revolving credit exposure and
Additional/Replacement Revolving Credit Commitment being determined in each
case, for the avoidance of doubt, exclusive of such Lender’s Extended Revolving
Credit Commitment and any exposure in respect thereof) and (y) for the
avoidance of doubt, any such repayment of Additional/Replacement Revolving
Credit Loans contemplated by the preceding clause shall be made in compliance
with the requirements of Section 5.3(a) with respect to the ratable
allocation of payments hereunder, with such allocation being determined after
giving effect to any exchange pursuant to Section 2.15 of
Additional/Replacement Revolving Credit Commitments and Additional/Replacement
Revolving Credit Loans into Extended Revolving Credit Commitments and Extended
Revolving Credit Loans, respectively, and prior to any reduction being made to
the Additional/Replacement Revolving Credit Commitment of any other Lender), (c) any
partial reduction pursuant to this Section 4.2 shall be in the amount of
at least $1,000,000, (d) after giving effect to such termination or
reduction and to any prepayments of Revolving Credit Loans or cancellation or
cash collateralization of Letters of Credit made on the date thereof in
accordance with this Agreement, the aggregate amount of the Lenders’ Revolving
Credit Exposures shall not exceed the Total Revolving Credit Commitment and (e) after
giving effect to such termination or reduction and to any prepayments of
Additional/Replacement Revolving Credit Loans of any tranche or cancellation or
cash collateralization of letters of credit made on the date thereof in
accordance with this Agreement, the aggregate amount of the Lenders’ revolving
credit exposures shall not exceed the Total Additional/Replacement Revolving
Credit Commitment for such tranche.


 


4.3           Mandatory
Termination of Commitments  The Total 2017 Term Loan Commitment shall terminate
at 5:00 p.m. (New York time) on the Effective Date.


 


(b)           (i) The Total 2011 Revolving Credit Commitment shall
terminate at 5:00 p.m. (New York time) on the 2011 Revolving Credit
Maturity Date and (ii) the Total 2013 Revolving Credit Commitment shall
terminate at 5:00 p.m. (New York time) on the 2013 Revolving Credit
Maturity Date.


 


(c)           The Swingline Commitment shall terminate at 5:00 p.m.
(New York time) on the Swingline Maturity Date.


 


(d)           The Incremental Term Loan Commitment for any tranche shall,
unless otherwise provided in the documentation governing such Incremental Term
Loan Commitment, terminate at 5:00 p.m. (New York City time) upon the
making of the Incremental Term Loans for such tranche on the Incremental
Facility Closing Date for such tranche.


 


67

















 


(e)           The Additional/Replacement
Revolving Credit Commitment for any tranche shall terminate at 5:00 p.m.
(New York City time) on the maturity date for such tranche specified in the
documentation governing such tranche.


 


SECTION 5.           Payments


 


5.1           Voluntary
Prepayments. The Borrower shall have
the right to prepay Term Loans, Revolving Credit Loans, Additional/Replacement
Revolving Credit Loans and Swingline Loans, without premium or penalty, in
whole or in part from time to time on the following terms and conditions:  (a) the Borrower shall give the
Administrative Agent at the Administrative Agent’s Office written notice (or
telephonic notice promptly confirmed in writing) of its intent to make such
prepayment, the amount of such prepayment and in the case of Eurodollar Loans,
the specific Borrowing(s) pursuant to which made, which notice shall be
given by the Borrower no later than (i) in the case of Term Loans,
Additional/Replacement Revolving Credit Loans or Revolving Credit Loans, 1:00 p.m.
(New York City time) (x) one Business Day prior to (in the case of
ABR Loans) or (y) three Business Days prior to (in the case of Eurodollar
Loans), or (ii) in the case of Swingline Loans, 1:00 p.m. (New York
City time) on, the date of such prepayment and shall promptly be transmitted by
the Administrative Agent to each of the relevant Lenders or the Swingline
Lender, as the case may be; (b) each partial prepayment of any Borrowing
of Term Loans or Revolving Credit Loans shall be in a multiple of $100,000 and
in an aggregate principal amount of at least $1,000,000 and each partial
prepayment of Swingline Loans shall be in a multiple of $100,000 and in an
aggregate principal amount of at least $100,000; provided that no
partial prepayment of Eurodollar Loans made pursuant to a single Borrowing
shall reduce the outstanding Eurodollar Loans made pursuant to such Borrowing
to an amount less than the Minimum Borrowing Amount for Eurodollar Loans; (c) any
prepayment of Eurodollar Loans pursuant to this Section 5.1 on any day
other than the last day of an Interest Period applicable thereto shall be
subject to compliance by the Borrower with the applicable provisions of Section 2.11.  Each such notice shall specify the date and
amount of such prepayment and the Class(es) and Type(s) of Loans to be
prepaid and the payment amount specified in such notice shall be due and
payable on the date specified therein. 
Each prepayment in respect of any tranche of Term Loans pursuant to this
Section 5.1 shall be applied to reduce the Repayment Amount in such order
as the Borrower may determine and may be applied to any Class of Term
Loans as directed by the Borrower; provided that the Borrower may not
prepay (i) Extended Term Loans of any Extension Series pursuant to
this Section 5.1 unless such prepayment is accompanied by at least a pro
rata prepayment, based upon the applicable remaining Repayment Amounts due in
respect thereof, of Term Loans of the Existing Term Loan Class from which
such Extended Term Loans were exchanged (or such Term Loans of the Existing
Term Loan Class have otherwise been repaid in full) and (ii) 2017
Term Loans pursuant to this Section 5.1 unless such prepayment is
accompanied by at least a pro rata prepayment, based upon the applicable
remaining Repayment Amounts due in respect thereof, of each other outstanding Class of
Term Loans with a maturity date prior to the 2017 Term Loan Maturity Date.  For the avoidance of doubt, the Borrower may
prepay Term Loans of an Existing Term Loan Class pursuant to this Section 5.1
without any requirement to prepay Extended Term Loans that were exchanged from
such Existing Term Loan Class.  In the
event that the Borrower does not specify the order in which to apply prepayments
to reduce Repayment Amounts, the Borrower shall be deemed to have elected that
such proceeds be applied to reduce the Repayment Amounts in direct order of
maturity.  All prepayments under this Section 5.1
shall also be subject to the provisions of Section 5.2(c).  At the Borrower’s election in connection with
any prepayment pursuant to this Section 5.1, such prepayment shall not be
applied to any Loan of a Defaulting Lender.


 


5.2           Mandatory
Prepayments Term Loan Prepayments.  On each
occasion that a Prepayment Event occurs, the Borrower shall, within one
Business Day after the occurrence of a Debt Incurrence Prepayment Event and
within five Business Days after the receipt of Net Cash Proceeds in connection
with the occurrence of any other Prepayment Event, prepay, in accordance with
paragraphs 


 


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(c) and
(d) below, a principal amount of Term Loans in an amount equal to 100% of
the Net Cash Proceeds from such Prepayment Event.


 


(ii)           Not
later than the date that is ninety days after the last day of any fiscal year
(commencing with the fiscal year ending December 31, 2006), the Borrower
shall prepay, in accordance with paragraphs (c) and (d) below, a
principal of Term Loans in an amount equal to (x) 50% of Excess Cash Flow
for such fiscal year (provided such percentage shall be reduced to (i) 25%  of
Excess Cash Flow for such fiscal year so long as immediately prior to such
prepayment, but without giving effect to such prepayment, the Borrower’s ratio
of Consolidated Total Debt  on such prepayment date to
Consolidated EBITDA  for the most recent Test Period ended prior
to such prepayment date is no greater than 5.00:1.00 and (ii)  0% of
Excess Cash Flow for such fiscal year so long as immediately prior to such
prepayment, but without giving effect to such prepayment, the Borrower’s ratio
of Consolidated Total Debt  on such prepayment date to
Consolidated EBITDA  for the most recent Test Period ended prior
to such prepayment date is no greater than 4.00:1.00, minus (y) the
principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1
during such fiscal year.


 


(b)           Repayment
of Revolving Credit Loans.  If on any date the aggregate amount of the
Lenders’ Revolving Credit Exposures plus the aggregate principal amount of all
Swingline Loans exceeds the Total Revolving Credit Commitment as then in
effect, the Borrower shall forthwith repay on such date the principal amount of
Swingline Loans and, after all Swingline Loans have been paid in full,
Revolving Credit Loans in an amount equal to such excess.  If, after giving effect to the prepayment of
all outstanding Swingline Loans and Revolving Credit Loans, the aggregate
amount of the Lenders’ Revolving Credit Exposures exceed the Total Revolving
Credit Commitment then in effect, the Borrower shall pay to the Administrative
Agent an amount in cash equal to such excess and the Administrative Agent shall
hold such payment for the benefit of the Lenders as security for the
obligations of the Borrower hereunder (including obligations in respect of
Letter of Credit Outstandings) pursuant to a cash collateral agreement to be
entered into in form and substance satisfactory to the Administrative Agent
(which shall permit certain investments in Permitted Investments satisfactory
to the Administrative Agent, until the proceeds are applied to the secured
obligations).


 


(c)           Application
to Repayment Amounts.  (i) Subject to clause (ii) of this Section 5.2(c),
each prepayment of Term Loans required by Sections 5.2(a)(i) and (ii) shall be applied to reduce
the scheduled Repayment Amounts of any Class of Term Loans in direct order
of maturity; provided that, subject to the pro rata application to
Repayment Amounts within any Class of Term Loans, the Borrower may
allocate such prepayment in its sole discretion among the Class or Classes
of Term Loans as the Borrower may specify, subject only to the following
limitations: (A) the Borrower shall not allocate to Extended Term Loans of
any Extension Series any mandatory prepayment made pursuant to Section 5.2(a)(ii) unless
such prepayment is accompanied by at least a pro rata prepayment, based upon
the applicable remaining Repayment Amounts due in respect thereof, of Term
Loans of the Existing Term Loan Class, if any, from which such Extended Term
Loans were exchanged (or such Term Loans of the Existing Term Loan Class have
otherwise been repaid in full); (B) the Borrower may not allocate to 2017
Term Loans any mandatory prepayment made pursuant to Section 5.2(a)(ii) unless
such prepayment is accompanied by at least a pro rata prepayment, based upon
the applicable remaining Repayment Amounts due in respect thereof, of each
other outstanding Class of Term Loans with a maturity date prior to the
2017 Term Loan Maturity Date; (C) the Borrower may not allocate any
mandatory prepayments (1) made pursuant to Section 5.2(a)(i) (other
than in connection with a Debt Incurrence Prepayment Event) to the 2017 Term
Loans unless such prepayment is accompanied by a pro rata prepayment, based
upon the applicable remaining Repayment Amounts due in respect thereof, of each
other outstanding Class of Term Loans with a maturity date prior to the
2017 Term Loan Maturity Date, (2) made pursuant to Section 5.2(a)(i) (other
than in connection with a Debt Incurrence Prepayment Event) to any Class of
Term Loans other than the 2017 Term Loans unless such prepayment is accompanied
by a pro rata


 


69
















 


prepayment,
based upon the applicable remaining Repayment Amounts due in respect thereof,
of Term Loans of the Existing Term Loan Class, if any, from which such Class of
Term Loans was exchanged and Extended Term Loans, if any, that were originally
exchanged from such Class of Term Loans and (3) made pursuant to Section 5.2(a)(i) in
connection with any Debt Incurrence Prepayment Event unless all Term Loans of
the Existing Term Loan Class have been repaid in full; and (D) prepayments
within any Class of Term Loans must be applied (1) pro rata  to Repayment Amounts within any Class of Term Loans
and (2) to reduce the scheduled Repayment Amounts in direct order of
maturity.


 


(ii) With respect to each such prepayment, (A) the
Borrower will, not later than the date specified in Section 5.2(a) for
offering to make such prepayment, give the Administrative Agent telephonic
notice (promptly confirmed in writing) requesting that the Administrative Agent
provide notice of such prepayment to each Lender of Term Loans, (B) the
Administrative Agent shall promptly provide notice of such prepayment to each
Lender of Term Loans, (C) each Lender of Term Loans will have the right to
refuse any such prepayment by giving written notice of such refusal to the
Borrower within fifteen Business Days after such Lender’s receipt of notice
from the Administrative Agent of such prepayment (and the Borrower shall not
prepay any such Term Loans until the date that is specified in the immediately
following clause), (D) the Borrower will make all such prepayments not so
refused upon the earlier of (x) such fifteenth Business Day and (y) such
time as the Borrower has received notice from each Lender that it consents to
or refuses such prepayment and (E) any prepayment so refused may be
retained by the Borrower; provided, that any prepayment so refused that
relates to Net Cash Proceeds from a Debt Incurrence Prepayment Event in respect
of the issuance of Permitted Additional Notes shall be re-allocated to the then
outstanding Term Loans and shall be applied as set forth above in this
paragraph (c).


 


(d)           Application
to Term Loans.  With respect to each prepayment of Term Loans
required by Section 5.2(a), the Borrower may designate the Types of Loans
that are to be prepaid and the specific Borrowing(s) pursuant to which
made; provided, that the Borrower pays any amounts, if any, required to
be paid pursuant to Section 2.11 with respect to prepayments of Eurodollar
Loans made on any date other than the last day of the applicable Interest
Period.  In the absence of a designation
by the Borrower as described in the preceding sentence, the Administrative
Agent shall, subject to the above, make such designation in its reasonable
discretion with a view, but no obligation, to minimize breakage costs owing under
Section 2.11.


 


(e)           Application
to Revolving Credit Loans; Mandatory Commitment Reductions.  (i) With respect to each prepayment of Revolving Credit Loans
elected by the Borrower pursuant to Section 5.1 or required by Section 5.2(b),
the Borrower may designate (i) the Types of Loans that are to be prepaid
and the specific Borrowing(s) pursuant to which made and (ii) the
Revolving Credit Loans to be prepaid; provided, that (x) Eurodollar
Loans which are Revolving Credit Loans may be designated for prepayment
pursuant to this Section 5.2 only on the last day of an Interest
Period applicable thereto unless all Eurodollar Loans with Interest Periods
ending on such date of required prepayment and all ABR Loans have been paid in
full; (y) each prepayment of any Loans made pursuant to a Borrowing shall
be applied pro rata among such Loans; and (z) notwithstanding the
provisions of the preceding clause (y), no prepayment made pursuant to Section 5.1
or Section 5.2(b) of Revolving Credit Loans shall be applied
to the Revolving Credit Loans of any Defaulting Lender.  In the absence of a designation by the
Borrower as described in the preceding sentence, the Administrative Agent
shall, subject to the above, make such designation in its reasonable discretion
with a view, but no obligation, to minimize breakage costs owing under Section 2.11.
For the avoidance of doubt, prior to the 2011 Final Date, the amount of any
prepayment of Revolving Credit Loans shall be shall be allocated among the  Revolving Credit Loans of each Lender pro
rata based on each such Lender’s Revolving Credit Commitment Percentage
without regard to the Class of the Revolving Credit Commitments held by
such Lender.


 


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(ii) With respect to each mandatory reduction
and termination of Revolving Credit Commitments, Additional/Replacement
Revolving Credit Commitments (and any previously extended Extended Revolving
Credit Commitments) required by clause (ii) of the proviso to Section 2.14(b),
the Borrower may designate (A) the Classes of Commitments to be reduced
and terminated, which prior to the 2013 Revolving Credit Maturity Date, may not
include any tranche of Additional/Replacement Revolving Credit Commitments and (B) the
corresponding Classes of Loans to be prepaid; provided that (x) any
such reduction and termination shall apply proportionately and permanently to
reduce the Commitments of each of the Lenders within any such Class, (y) no
such reduction and termination of Extended Revolving Credit Commitments (and
prepayment of Extended Revolving Credit Loans accompanying a corresponding
permanent reduction in such Extended Revolving Credit Commitments) shall be
permitted unless all Existing Revolving Credit Commitments of the Specified
Existing Revolving Credit Commitment Class (and Existing Revolving Credit
Loans related to such Commitments) shall have been terminated and repaid in
full and (z) after giving effect to such termination or reduction and to
any prepayments of Loans or cancellation or cash collateralization of letters
of credit made on the date of each such reduction and termination in accordance
with this Agreement, the aggregate amount of such Lenders’ credit exposures
shall not exceed the remaining Commitments of such Lenders’ in respect of the Class reduced
and terminated. For the avoidance of doubt, prior to the 2011 Final Date,
subject to the foregoing provisions of this Section 5.2(e)(ii), reductions
and terminations of Revolving Credit Commitments may be allocated with regard
to the Class of the Revolving Credit Commitments held by such Lender.


 


(f)            Eurodollar
Interest Periods.  In lieu of making any payment pursuant to
this Section 5.2 in respect of any Eurodollar Loan other than on the last
day of the Interest Period therefor so long as no Default or Event of Default
shall have occurred and be continuing, the Borrower at its option may deposit
with the Administrative Agent an amount equal to the amount of the Eurodollar
Loan to be prepaid and such Eurodollar Loan shall be repaid on the last day of
the Interest Period therefor in the required amount.  Such deposit shall be held by the
Administrative Agent in a corporate time deposit account established on terms
reasonably satisfactory to the Administrative Agent, earning interest at the
then-customary rate for accounts of such type. 
Such deposit shall constitute cash collateral for the Specified
Obligations, provided that the Borrower may at any time direct that such
deposit be applied to make the applicable payment required pursuant to this Section 5.2.


 


(g)           Minimum
Amount. 
No prepayment shall be required pursuant to Section 5.2(a)(i) unless
and until the amount at any time of Net Cash Proceeds from Prepayment Events
required to be applied at or prior to such time pursuant to such Section and
not yet applied at or prior to such time to prepay Term Loans pursuant to such Section exceeds
(i) $5,000,000 for any single Prepayment Event or series of related
Prepayment Events and (ii) $10,000,000 in the aggregate for all such
Prepayment Events.


 


(h)           Foreign
Asset Sales.  Notwithstanding any other provisions of this Section 5.2,
(i) to the extent that any of or all the Net Cash Proceeds of any asset
sale by a Restricted Foreign Subsidiary giving rise to an Asset Sale Prepayment
Event (a “Foreign Asset Sale”), the Net Cash Proceeds of any Recovery
Event from a Restricted Foreign Subsidiary (a “Foreign Recovery Event”),
or Excess Cash Flow are prohibited or delayed by applicable local law from
being repatriated to the United States, the portion of such Net Cash Proceeds
or Excess Cash Flow so affected will not be required to be applied to repay
Term Loans at the times provided in this Section 5.2 but may be retained
by the applicable Restricted Foreign Subsidiary so long, but only so long, as
the applicable local law will not permit repatriation to the United States (the
Borrower hereby agreeing to cause the applicable Restricted Foreign Subsidiary
to promptly take all actions required by the applicable local law to permit
such repatriation), and once such repatriation of any of such affected Net Cash
Proceeds or Excess Cash Flow is permitted under the applicable local law, such
repatriation will be immediately effected and such 


 


71

















 


repatriated
Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not
later than two Business Days after such repatriation) applied (net of
additional taxes payable or reserved against as a result thereof) to the
repayment of the Term Loans pursuant to this Section 5.2 and (ii) to
the extent that the Borrower has determined in good faith that repatriation of
any of or all the Net Cash Proceeds of any Foreign Asset Sale, any Foreign
Recovery Event or Excess Cash Flow would have a material adverse tax cost consequence
with respect to such Net Cash Proceeds or Excess Cash Flow, the Net Cash
Proceeds or Excess Cash Flow so affected may be retained by the applicable
Restricted Foreign Subsidiary; provided, that, in the case of this
clause (ii), on or before the date on which any Net Cash Proceeds so retained
would otherwise have been required to be applied to reinvestments or
prepayments pursuant to Section 5.2(a) (or such Excess Cash Flow
would have been so required if it were Net Cash Proceeds), (x) the Borrower
applies an amount equal to such Net Cash Proceeds or Excess Cash Flow to such
reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow
had been received by the Borrower rather than such Restricted Foreign
Subsidiary, less the amount of additional taxes that would have been payable or
reserved against if such Net Cash Proceeds or Excess Cash Flow had been
repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would
be calculated if received by such Foreign Subsidiary) or (y) such Net Cash
Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a
Restricted Foreign Subsidiary.


 


5.3           Method
and Place of Payment Except as
otherwise specifically provided herein, all payments under this Agreement shall
be made by the Borrower, without set-off, counterclaim or deduction of any
kind, to the Administrative Agent for the ratable account of the Lenders
entitled thereto, the Letter of Credit Issuer or the Swingline Lender, as the
case may be, not later than 1:00 p.m. (New York time) on the date when due
and shall be made in immediately available funds in Dollars at the
Administrative Agent’s Office, it being understood that written or facsimile
notice by the Borrower to the Administrative Agent to make a payment from the
funds in the Borrower’s account at the Administrative Agent’s Office shall
constitute the making of such payment to the extent of such funds held in such
account.  The Administrative Agent will
thereafter cause to be distributed on the same day (if payment was actually
received by the Administrative Agent prior to 2:00 p.m. (New York time) on
such day) like funds relating to the payment of principal or interest or Fees
ratably to the Lenders entitled thereto or to the Letter of Credit Issuer or the
Swingline Lender, as applicable.


 


(b)           For purposes of computing interest or fees, any payments
under this Agreement that are made later than 2:00 p.m. (New York time)
shall be deemed to have been made on the next succeeding Business Day.  Whenever any payment to be made hereunder
shall be stated to be due on a day that is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest shall be payable during such extension at
the applicable rate in effect immediately prior to such extension.


 


5.4           Net
Payments  Subject
to the following sentence, all payments made by or on behalf of the Borrower
under this Agreement or any other Credit Document shall be made free and clear
of, and without deduction or withholding for or on account of, any current or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding (i) net
income taxes, branch profits taxes, and franchise taxes (imposed in lieu of net
income taxes) and capital taxes imposed on the Administrative Agent or any
Lender and (ii) any taxes imposed on the Administrative Agent or any
Lender as a result of a current or former connection between the Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing authority thereof or
therein (other than any such connection arising solely from the Administrative
Agent or such Lender having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement).  If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded
Taxes”) are required to be withheld from any 


 


72

















 


amounts
payable under this Agreement, the Borrower shall increase the amounts payable
to the Administrative Agent or such Lender to the extent necessary to yield to
the Administrative Agent or such Lender (after payment of all Non-Excluded
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement; provided, however, that the Borrower shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state thereof (a “Non-U.S.
Lender”) if such Lender fails to comply with the requirements of
paragraph (b) of this Section 5.4.  Whenever any Non-Excluded Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for its own account or for the account of such Lender,
as the case may be, a certified copy of an original official receipt (or other
evidence acceptable to such Lender, acting reasonably) received by the Borrower
showing payment thereof.  If Non-Excluded
Taxes are paid by any Lender, the Borrower shall indemnify such Lender for such
Non-Excluded Taxes (including penalties, interest and reasonable expenses),
whether or not such Non-Excluded Taxes are correctly or legally asserted; provided,
however, that the Borrower shall not be obligated to indemnify any
Lender for any interest, penalties or expenses arising from the indemnitee’s
gross negligence or willful misconduct. The agreements in this Section 5.4(a) shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.


 


(b)           Each
Non-U.S. Lender shall:


 


(i)            deliver
to the Borrower and the Administrative Agent two copies of either (x) in
the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding
tax under Section 871(h) or 881(c) of the Code with respect to
payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN
(together with a certificate representing that such Non-U.S. Lender is not a
bank for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code)
of the Borrower and is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal
Revenue Service Form W-8BEN or Form W-8ECI, in each case properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or reduced rate of, U.S. Federal withholding tax on payments by the
Borrower under this Agreement;


 


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


 


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


 


unless in any such case any change in treaty,
law or regulation has occurred prior to the date on which any such delivery
would otherwise be required that renders any such form inapplicable or would
prevent such Lender from duly completing and delivering any such form with respect
to it and such Lender so advises the Borrower and the Administrative
Agent.  Each Person that shall become a
Participant pursuant to Section 13.6 or a Lender pursuant to Section 13.6
shall, upon the effectiveness of the related transfer, be required to provide
all the forms and statements required pursuant to this Section 5.4(b),
provided that in the case of a Participant such Participant shall furnish all
such required forms and statements to the Lender from which the related
participation shall have been purchased.


 


(c)           The
Borrower shall not be required to indemnify any Non-U.S. Lender, or to pay any
additional amounts to any Non-U.S. Lender, in respect of U.S. Federal
withholding tax pursuant to paragraph (a) above to the extent that (i) the
obligation to withhold amounts with respect to U.S. Federal 


 


73

















 


withholding
tax existed on the date such Non-U.S. Lender became a party to this Agreement
(or, in the case of a Participant that is not organized under the laws of the
United States of America or a state thereof (a “Non-U.S. Participant”),
on the date such Non-U.S. Participant became a Participant hereunder);
provided, however, that this clause (i) shall not apply to the extent
that (x) the indemnity payments or additional amounts any Lender (or
Participant) would be entitled to receive (without regard to this clause (i))
do not exceed the indemnity payment or additional amounts that the person
making the assignment, participation or transfer to such Lender (or
Participant) would have been entitled to receive in the absence of such
assignment, participation or transfer, or (y) such assignment,
participation or transfer had been requested by the Borrower or, (ii) the
obligation to pay such additional amounts would not have arisen but for a
failure by such Non-U.S. Lender or Non-U.S. Participant to comply with the
provisions of paragraph (b) above or (iii) any of the
representations or certifications made by a Non-U.S. Lender or Non-U.S.
Participant pursuant to paragraph (b) above are incorrect at the time
a payment hereunder is made, other than by reason of any change in treaty, law
or regulation having effect after the date such representations or
certifications were made.


 


(d)           If
the Borrower determines in good faith that a reasonable basis exists for
contesting any taxes for which indemnification has been demanded hereunder, the
relevant Lender or the Administrative Agent, as applicable, shall cooperate
with such Borrower in challenging such taxes at Borrower’s expense if so
requested by Borrower.  If any Lender or
the Administrative Agent receives a refund of a tax for which a payment has
been made by the Borrower pursuant to this Agreement, which refund in the good
faith judgment of such Lender or the Administrative Agent, as the case may be,
is attributable to such payment made by such Borrower, then such Lender or the
Administrative Agent, as the case may be, shall reimburse the Borrower for such
amount (together with any interest received thereon) as such Lender or the
Administrative Agent, as the case may be, reasonably determines to be the
proportion of the refund as will leave it, after such reimbursement, in no
better or worse position than it would have been in if the payment had not been
required.  Any Lender or the
Administrative Agent shall claim any refund that it determines is available to
it, unless it concludes in its reasonable discretion that it would be adversely
affected by making such a claim.  Neither
any Lender nor the Administrative Agent shall be obliged to disclose any
information regarding its tax affairs or computations to the Borrower in
connection with this paragraph (d) or any other provision of this Section 5.4.


 


(e)           Each
Lender represents and agrees that, on the Effective Date and at all times
during the term of this Agreement, it is not and will not be a conduit entity
participating in a conduit financing arrangement (as defined in Section 7701(1) of
the Code and the regulations thereunder) with respect to the Borrowings hereunder
unless the Borrower has consented to such arrangement prior thereto.


 


5.5           Computations
of Interest and Fees  Interest on Eurodollar Loans and, except as provided in the
next succeeding sentence, ABR Loans shall be calculated on the basis of a
360-day year for the actual days elapsed. 
Interest on ABR Loans in respect of which the rate of interest is
calculated on the basis of the Prime Rate and interest on overdue interest
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed.


 


(b)           Fees
and Letters of Credit Outstanding shall be calculated on the basis of a 365-
(or 366-, as the case may be) day year for the actual days elapsed.


 


5.6           Limit
on Rate of Interest  No Payment shall exceed Lawful Rate.  Notwithstanding any
other term of this Agreement, the Borrower shall not be obliged to pay any
interest or other amounts under or in connection with this Agreement in excess
of the amount or rate permitted under or consistent with any applicable law, rule or
regulation.


 


74

















 


(b)           Payment
at Highest Lawful Rate.  If the Borrower is not obliged to make a
payment which it would otherwise be required to make, as a result of Section 5.6(a),
the Borrower shall make such payment to the maximum extent permitted by or
consistent with applicable laws, rules and regulations.


 


(c)           Adjustment
if any Payment exceeds Lawful Rate.  If any provision of this Agreement or any of
the other Credit Documents would obligate the Borrower to make any payment of
interest or other amount payable to any Lender in an amount or calculated at a
rate which would be prohibited by any applicable law, rule or regulation,
then notwithstanding such provision, such amount or rate shall be deemed to have
been adjusted with retroactive effect to the maximum amount or rate of
interest, as the case may be, as would not be so prohibited by law (in the case
of the Borrower), such adjustment to be effected, to the extent necessary, as
follows:


 


(i)            firstly,
by reducing the amount or rate of interest required to be paid by the Borrower
to the affected Lender under Section 2.8; and


 


(ii)           thereafter,
by reducing any fees, commissions, premiums and other amounts required to be
paid by the Borrower to the affected Lender.


 


Notwithstanding the foregoing, and after
giving effect to all adjustments contemplated thereby, if any Lender shall have
received from the Borrower an amount in excess of the maximum permitted by any
applicable law, rule or regulation, then the Borrower shall be entitled,
by notice in writing to the Administrative Agent, to obtain reimbursement from
such Lender in an amount equal to such excess, and pending such reimbursement,
such amount shall be deemed to be an amount payable by such Lender to the
Borrower.


 


SECTION 6.           Conditions Precedent to
Effective Date


 


The effectiveness of this Agreement, the extension
of the 2015 Term Loans and the occurrence of the borrowing of 2017 Term Loans
under this Agreement is subject to the satisfaction of the following conditions
precedent:


 


6.1           Credit
Documents The Administrative Agent
shall have received:


 


(a)           this
Agreement, executed and delivered by (i) a duly authorized officer of each
of Holdings and the Borrower, (ii) each Agent, (iii) each 2015 Term
Lender, (iv) each 2017 Term Lender and (v) the Administrative Agent
on behalf of each other Lender that has executed and delivered a Lender Consent
Letter; and


 


(b)           the
Third Restatement Reaffirmation Agreement, executed and delivered by a duly
authorized officer of each of Holdings, the Borrower and each other Guarantor
as of the Effective Date.


 


6.2           Collateral  All
documents and instruments, including Uniform Commercial Code or other
applicable personal property security financing statements, required to be
filed, registered or recorded to continue the Liens intended to be continued by
the Security Documents, and with the priority required by the Security
Documents shall have been filed, registered or recorded or delivered to the
Collateral Agent for filing, registration or recording.


 


6.3           Legal
Opinions The Administrative Agent shall
have received the following executed legal opinions:


 


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(a)           the
legal opinion of Simpson Thacher & Bartlett LLP, counsel to Holdings, the
Borrower and its Subsidiaries, substantially in the form of Exhibit G-1;


 


(b)           the
legal opinion of Ropes & Gray LLP, special Massachusetts counsel to
LPL Holdings, Inc., substantially in the form of Exhibit G-2; and


 


(c)           the
legal opinion of Bingham McCutchen LLP, special broker-dealer regulatory
counsel to the Borrower and its Subsidiaries, substantially in the form of Exhibit G-3.


 


6.4           No Defaults; Representations
and Warranties After giving effect to each Credit Event occurring
on the Effective Date, and the other transactions contemplated hereby to occur
on or prior to the Effective Date, (a) no Default or Event of Default
shall have occurred and be continuing and (b) all representations and
warranties made on the Effective Date by any Credit Party contained herein or
in the other Credit Documents shall be true and correct as of the Effective
Date (except where such representations and warranties expressly relate to an
earlier date, in which case such representations and warranties shall have been
true and correct as of such earlier date).


 


6.5           Consent The Administrative Agent shall have received written
consents from the Lenders (as defined in the Original Credit Agreement) which
constitute Required Lenders (as defined in the Original Credit Agreement) under
the Original Credit Agreement to the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby (it being agreed
that the entering into this Agreement by a Lender shall constitute such written
consent, and that any commitments and loans of the 2015 Term Lenders and 2017
Term Lenders under the Original Credit Agreement shall be included in the
calculation of Required Lenders pursuant to this Section 6.5 (it being
understood that the 2017 Term Loan Commitments and 2017 Term Loans shall not be
so included)).


 


6.6           Effective Date Certificates The
Administrative Agent shall have received a certificate of each Person that is a
Credit Party as of the Effective Date, dated the Effective Date, substantially
in the form of Exhibit H, with appropriate insertions, executed by the
President or any Vice President and the Secretary or any Assistant Secretary of
such Credit Party, and attaching the documents referred to in Sections 6.7 and
6.8 (if applicable).


 


6.7           Corporate Proceedings The
Administrative Agent shall have received a copy of the resolutions, in form and
substance reasonably satisfactory to the Administrative Agent, of the Board of
Directors or other governing body, as applicable, of each Person that is a
Credit Party as of the Effective Date (or a duly authorized committee thereof)
authorizing (a) the execution, delivery and performance of the Credit
Documents (and any agreements relating thereto) to which it is a party and (b) in
the case of the Borrower, the extensions of credit contemplated hereunder.


 


6.8           Corporate Documents The
Administrative Agent shall have received true and complete copies of the
certificate of incorporation and by laws (or equivalent organizational
documents) of each Person that is a Credit Party as of the Effective Date; provided
that, in lieu of delivery of each of the documents set forth in this Section 6.8,
each applicable Credit Party may deliver a certificate executed by the
President or any Vice President of such Credit Party certifying that there have
been no material amendments to those documents previously delivered to the
Administrative Agent pursuant to Section 7 of the Incremental and
Extension Agreement.


 


6.9           Fees and Expenses The fees in
the amounts previously agreed in writing by the Agents to be received on the
Effective Date and all reasonable out-of-pocket expenses (including 


 


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the reasonable fees,
disbursements and other charges of counsel) for which invoices have been presented
on or prior to the Effective Date shall have been paid.


 


6.10         Solvency Certificate The
Administrative Agent shall have received a certificate from the chief financial
officer of the Borrower in form, scope and substance reasonably satisfactory to
Administrative Agent, with appropriate attachments and demonstrating that after
giving effect to the transactions contemplated hereby, the Borrower and its
Subsidiaries, taken as a whole, are Solvent.


 


SECTION 7.           Additional Conditions
Precedent


 


7.1           No Default; Representations
and Warranties The agreement of each Lender to make any Loan
requested to be made by it on any date after the date of the initial Credit
Event (excluding Mandatory Borrowings) and the obligation of the Letter of
Credit Issuer to issue Letters of Credit on any date after the date of the
Effective Date is subject to the satisfaction of the condition precedent that
at the time of each such Credit Event and also after giving effect thereto (a) no
Default or Event of Default shall have occurred and be continuing and (b) all
representations and warranties made by any Credit Party contained herein or in
the other Credit Documents shall be true and correct in all material respects
with the same effect as though such representations and warranties had been
made on and as of the date of such Credit Event (except where such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties shall have been true and correct in
all material respects as of such earlier date). 
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by each Credit Party to each of the Lenders that
the conditions contained in this Section 7.1 have been met as of such
date.


 


7.2           Notice
of Borrowing; Letter of Credit Request
Prior to the making of each Term
Loan, each Revolving Credit Loan (other than any Revolving Credit Loan made
pursuant to Section 3.4(a)) and each Swingline Loan, the Administrative
Agent shall have received a Notice of Borrowing (whether in writing or by
telephone) meeting the requirements of Section 2.3.


 


(b)           Prior to the issuance of each Letter of Credit, the
Administrative Agent and the Letter of Credit Issuer shall have received a
Letter of Credit Request meeting the requirements of Section 3.2(a).


 


SECTION 8.           Representations, Warranties
and Agreements


 


In order to induce the Lenders to enter into this
Agreement, make the Loans and issue or participate in Letters of Credit as
provided for herein, each of Holdings and the Borrower make the following
representations and warranties to, and agreements with, the Lenders, all of
which shall survive the execution and delivery of this Agreement, the making of
the Loans and the issuance of the Letters of Credit:


 


8.1           Corporate Status Holdings, the
Borrower and each Material Subsidiary (a) is a duly organized and validly
existing corporation or other entity in good standing under the laws of the
jurisdiction of its organization and has the corporate or other organizational
power and authority to own its property and assets and to transact the business
in which it is engaged and (b) has duly qualified and is authorized to do
business and is in good standing in all jurisdictions where it is required to
be so qualified, except where the failure to be so qualified could not
reasonably be expected to result in a Material Adverse Effect.


 


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8.2           Corporate Power and
Authority Each Credit Party has the corporate or other
organizational power and authority to execute, deliver and carry out the terms
and provisions of the Credit Documents to which it is a party and has taken all
necessary corporate or other organizational action to authorize the execution,
delivery and performance of the Credit Documents to which it is a party.  Each Credit Party has duly executed and
delivered each Credit Document to which it is a party and each such Credit
Document constitutes the legal, valid and binding obligation of such Credit
Party enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar
laws relating to or affecting creditors’ rights generally and general
principles of equity (whether considered in a proceeding in equity or law).


 


8.3           No Violation None of (a) the
execution, delivery and performance by any Credit Party of the Credit Documents
to which it is a party and compliance with the terms and provisions thereof, or
(b) the consummation of the other transactions contemplated hereby or
thereby on the relevant dates therefor will (i) contravene any applicable
provision of any material law, statute, rule, regulation, order, writ,
injunction or decree of any court or governmental instrumentality, (ii) result
in any breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property or assets of
any of the Borrower or any of the Restricted Subsidiaries (other than Liens
created under the Credit Documents) pursuant to, the terms of any material
indenture (including the Senior Unsecured Subordinated Note Indenture), loan
agreement, lease agreement, mortgage, deed of trust, agreement or other
material instrument to which Holdings, the Borrower or any of their Restricted
Subsidiaries is a party or by which they or any of their property or assets is
bound or (iii) violate any provision of the certificate of incorporation, By-Laws
or other constitutional documents of Holdings, the Borrower or any of their
Restricted Subsidiaries.


 


8.4           Litigation There are no
actions, suits or proceedings (including Environmental Claims) pending or, to
the knowledge of Holdings, threatened with respect to Holdings or any of its
Subsidiaries that could reasonably be expected to result in a Material Adverse
Effect.


 


8.5           Margin Regulations Neither the
making of any Loan hereunder nor the use of the proceeds thereof will violate
the provisions of Regulation T, U or X of the Board.


 


8.6           Governmental Approvals Except as set
forth in Schedule 8.6, no order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, any
Governmental Authority is required to authorize or is required in connection
with (a) the execution, delivery and performance of any Credit Document or
(b) the legality, validity, binding effect or enforceability of any Credit
Document, except, in the case of either clause (a) or clause (b), the
failure to obtain or make any of the foregoing could not reasonably be expected
to have a Material Adverse Effect.


 


8.7           Investment Company Act The Borrower
is not an “investment company” within the meaning of the Investment Company Act
of 1940, as amended.


 


8.8           True
and Complete Disclosure  None of the factual information and data (taken as a whole)
furnished by Holdings, any of its Subsidiaries or any of their respective
authorized representatives in writing to any Agent or any Lender on or before
the Effective Date (including (i) the Confidential Information Memorandum
and (ii) all information contained in the Credit Documents) for purposes
of or in connection with this Agreement or any transaction contemplated herein
contained any untrue statement of material fact or omitted to state any
material fact necessary to make such information and data (taken as a whole)
not materially misleading at such time in light of the circumstances under
which such information or data was furnished, it being understood and agreed
that for purposes of this 


 


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Section 8.8(a),
such factual information and data shall not include projections and pro forma
financial information.


 


(b)           The
projections and pro forma financial information contained in the information
and data referred to in paragraph (a) above were prepared in good
faith based upon assumptions believed by such Persons to be reasonable at the
time made, it being recognized by the Lenders that such projections as to
future events are not to be viewed as facts and that actual results during the
period or periods covered by any such projections may differ from the projected
results.


 


8.9           Financial Condition;
Financial Statements The Historical Financial Statements, in each case
present or will, when provided, present fairly in all material respects the
financial position and results of operations of the Borrower and its
Subsidiaries at the respective dates of such information and for the respective
periods covered thereby subject, in the case of the unaudited financial
information, to changes resulting from audit, normal year end audit adjustments
and the absence of footnotes.  The
Historical Financial Statements have been prepared in accordance with GAAP consistently
applied except to the extent provided in the notes thereto.  There has been no Material Adverse Change
since December 31, 2004, other than solely as a result of changes in
general economic conditions.


 


8.10         Tax Returns and Payments,
etc Holdings and its Subsidiaries have filed all Federal income tax
returns and all other material tax returns, domestic and foreign, required to
be filed by them and have paid all material taxes and assessments payable by
them that have become due, other than those not yet delinquent or contested in
good faith.  Holdings and its
Subsidiaries have paid, or have provided adequate reserves (in the good faith
judgment of the management of the Borrower) in accordance with GAAP for the
payment of, all material Federal, state and foreign income taxes applicable for
all prior fiscal years and for the current fiscal year to the Effective Date.


 


8.11         Compliance
with ERISA  Each
Plan is in compliance with ERISA, the Code and any Applicable Law; no
Reportable Event has occurred (or is reasonably likely to occur) with respect
to any Plan; no Plan is insolvent or in reorganization (or is reasonably likely
to be insolvent or in reorganization), and no written notice of any such
insolvency or reorganization has been given to any of the Borrower, any
Subsidiary thereof or any ERISA Affiliate; no Plan (other than a multiemployer
plan) has an accumulated or waived funding deficiency (or is reasonably likely
to have such a deficiency); none of Holdings, any Subsidiary thereof or any
ERISA Affiliate has incurred (or is reasonably likely expected to incur) any
liability to or on account of a Plan pursuant to Section 409, 502(i),
502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971
or 4975 of the Code or has been notified in writing that it will incur any
liability under any of the foregoing Sections with respect to any Plan; no
proceedings have been instituted (or are reasonably likely to be instituted) to
terminate or to reorganize any Plan or to appoint a trustee to administer any
Plan, and no written notice of any such proceedings has been given to any of
Holdings, any Subsidiary thereof or any ERISA Affiliate; and no lien imposed
under the Code or ERISA on the assets of any of the Borrower, any Subsidiary
thereof or any ERISA Affiliate exists (or is reasonably likely to exist) nor
has Holdings, any Subsidiary thereof or any ERISA Affiliate been notified in
writing that such a lien will be imposed on the assets of any of Holdings, any
Subsidiary thereof or any ERISA Affiliate on account of any Plan, except to the
extent that a breach of any of the representations, warranties or agreements in
this Section 8.11 would not result, individually or in the aggregate, in
an amount of liability that would be reasonably likely to have a Material
Adverse Effect or relates to any matter disclosed in the financial statements
of the Borrower contained in the Confidential Information Memorandum.  No Plan (other than a multiemployer plan) has
an Unfunded Current Liability that would, individually or when taken together
with any other liabilities referenced in this Section 8.11, be reasonably
likely to have a Material Adverse Effect. 
With respect to Plans that are multiemployer plans (as defined in Section 3(37)
of ERISA), the representations and warranties in this Section 8.11, other
than


 


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any made
with respect to (a) liability under Section 4201 or 4204 of ERISA or (b) liability
for termination or reorganization of such Plans under ERISA, are made to the
best knowledge of the Borrower.


 


8.12         Subsidiaries On the
Effective Date, Holdings does not have any Subsidiaries other than the
Subsidiaries listed on Schedule 8.12. 
Schedule 8.12 describes the direct and indirect ownership interest
of Holdings in each Subsidiary as of the Effective Date.  To the knowledge of Holdings, after due
inquiry, each Material Subsidiary and Specified Subsidiary as of the Effective
Date has been so designated on Schedule 8.12.


 


8.13         Patents, etc.  The Borrower and each of the Restricted
Subsidiaries have obtained all patents, trademarks, servicemarks, trade names, copyrights,
licenses and other rights, free from burdensome restrictions, that are
necessary for the operation of their respective businesses as currently
conducted and as proposed to be conducted, except where the failure to obtain
any such rights could not reasonably be expected to have a Material Adverse
Effect.


 


8.14         Environmental
Laws Except as could not reasonably be
expected to have a Material Adverse Effect, (i) Holdings and each of its
Subsidiaries are in compliance with all Environmental Laws in all jurisdictions
in which Holdings and each of its Subsidiaries are currently doing business
(including having obtained all material permits required under Environmental
Laws) and (ii) neither Holdings nor any of its Subsidiaries has become
subject to any Environmental Claim or any other liability under any
Environmental Law.


 


(b)           Neither
Holdings nor any of its Subsidiaries has treated, stored, transported, released
or disposed of Hazardous Materials at or from any currently or formerly owned
Real Estate or facility relating to its business in a manner that could
reasonably be expected to have a Material Adverse Effect.


 


8.15         Properties, Assets and
Rights Holdings and each of its Subsidiaries have good and marketable title
to or valid leasehold interest in all properties that are necessary for the
operation of their respective businesses as currently conducted and as proposed
to be conducted, free and clear of all Liens (other than Liens permitted by Section 10.2)
and except where the failure to have such good title could not reasonably be
expected to have a Material Adverse Effect. 
As of the Effective Date, Holdings and each of its Subsidiaries possess
or have the right to use, under contract or otherwise, all assets and rights
that are material to the operation of their respective businesses as currently
conducted and as proposed to be conducted.


 


8.16         [Reserved]  


 


8.17         Solvency On the Effective Date after giving effect to
the transactions contemplated hereby, the Credit Parties, on a consolidated
basis, are Solvent.


 


8.18         Capital
Stock The Capital Stock of each of Holdings and its Domestic Subsidiaries
has been duly authorized and validly issued and, with respect to Holdings, the
Borrower and each Domestic Subsidiary that is a corporation, is fully paid and
non-assessable.  Except as set forth on
Schedule 8.18, as of the Effective Date, there is no existing option, warrant,
call, right, commitment or other agreement to which Holdings or any of its
Subsidiaries is a party requiring, and there is no membership interest or other
Capital Stock of Holdings or any of its Subsidiaries outstanding which upon
conversion or exchange would require, the issuance by Holdings or any of its
Subsidiaries of any additional membership interests or other Capital Stock of
Holdings or any of its Subsidiaries or other Securities convertible into,
exchangeable for or evidencing the right to subscribe for or purchase, a
membership interest or other Capital Stock of Holdings or any of its
Subsidiaries.


 


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8.19         No
Defaults Neither Holdings nor any of its
Subsidiaries is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any of its Contractual
Obligations (other than Contractual Obligations in respect of Indebtedness),
and no condition exists which, with the giving of notice or the lapse of time
or both, could constitute such a default, except where the consequences, direct
or indirect, of such default or defaults, if any, could not reasonably be
expected to have a Material Adverse Effect.


 


8.20         Employee
Matters Except as, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect:  (a) there
are no strikes or other labor disputes against any of Holdings, the Borrower or
its Subsidiaries pending or, to the knowledge of Holdings or the Borrower,
threatened; (b) hours worked by and payment made to employees of each of
Holdings, the Borrower or its Subsidiaries have not been in violation of the Fair
Labor Standards Act or any other Applicable Laws dealing with such matters; and
(c) all payments due from any of Holdings, the Borrower or its
Subsidiaries on account of employee health and welfare insurance have been paid
or accrued as a liability on the books of the relevant party.


 


8.21         Senior
Indebtedness The Obligations constitute “Senior
Indebtedness” under and as defined in the Senior Unsecured Subordinated
Indenture.  The obligations of each
Guarantor under the Guarantee constitute “Guarantor Senior Indebtedness” of
such Guarantor under and as defined in the Senior Unsecured Subordinated
Indenture.


 


8.22         Patriot
Act To the extent applicable, as of
the Effective Date, each Credit Party is in compliance, in all material
respects, with the (i) Trading with the Enemy Act, as amended, and each of
the foreign assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation
or executive order relating thereto, and (ii) Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA Patriot Act of 2001).  No
part of the proceeds of the Loans will be used, directly or indirectly, for any
payments to any governmental official or employee, political party, official of
a political party, candidate for political office, or anyone else acting in an
official capacity, in order to obtain, retain or direct business or obtain any
improper advantage, in violation of the United States Foreign Corrupt Practices
Act of 1977, as amended.


 


SECTION 9.           Affirmative Covenants


 


Each of Holdings and the Borrower hereby covenants
and agrees that on the Closing Date and thereafter, until the Commitments and
all Letters of Credit have terminated (unless such Letters of Credit have been
collateralized on terms and conditions satisfactory to the Letter of Credit
Issuer following the termination of the Commitments) and the Loans and Unpaid
Drawings, together with interest, Fees and all other Obligations (excluding
contingent indemnification obligations or Obligations with respect to Hedging
Agreements) incurred hereunder, are paid in full:


 


9.1           Information Covenants The Borrower
will furnish to the Administrative Agent for further delivery to each Lender:


 


(a)           Annual
Financial Statements.  As soon as available and in any event on or
before the date on which such financial statements are required to be filed
with the SEC (or, if such financial statements are not required to be filed
with the SEC, on or before the date that is 90 days after the end of each such
fiscal year), the consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal year, and the related consolidated
statement of operations and cash flows for such fiscal year, setting forth
comparative consolidated figures for the preceding fiscal year, and certified
by independent certified public accountants of recognized national standing
whose opinion shall not be qualified as to the 


 


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scope of
audit or as to the status of the Borrower or any of the Material Subsidiaries
as a going concern, together in any event with a certificate of such accounting
firm stating that in the course of its regular audit of the business of the
Borrower and the Material Subsidiaries, which audit was conducted in accordance
with generally accepted auditing standards, such accounting firm has obtained
no knowledge of any Default or Event of Default relating to Section 10.9
or 10.10 that has occurred and is continuing or, if in the opinion of such
accounting firm such a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof.  Notwithstanding the foregoing, the obligations
in this clause (a) may be satisfied with respect to financial information
of the Borrower and the Restricted Subsidiaries by furnishing (A) the
applicable financial statements of Holdings (or any direct or indirect parent
of Holdings) or (B) the Borrower’s or Holdings’ (or any direct or indirect
parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed
with the SEC; provided, that, with respect to each of
clauses (A) and (B), to the extent such information relates to Holdings
(or a parent thereof), such information is accompanied by consolidating
information that explains in reasonable detail the differences between the
information relating to Holdings (or such parent), on the one hand, and the
information relating to the Borrower and the Restricted Subsidiaries on a
standalone basis, on the other hand.


 


(b)           Quarterly
Financial Statements.  As soon as available and in any event on or
before the date on which such financial statements are required to be filed
with the SEC with respect to each of the first three quarterly accounting
periods in each fiscal year of the Borrower (or, if such financial statements
are not required to be filed with the SEC, on or before the date that is 45
days after the end of each such quarterly accounting period), the consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such
quarterly period and the related consolidated statement of operations for such
quarterly accounting period and for the elapsed portion of the fiscal year
ended with the last day of such quarterly period, and the related consolidated
statement of cash flows for the elapsed portion of the fiscal year ended with
the last day of such quarterly period, and setting forth comparative
consolidated figures for the related periods in the prior fiscal year or, in the
case of such consolidated balance sheet, for the last day of the prior fiscal
year, all of which shall be certified by an Authorized Officer of the Borrower,
subject to changes resulting from audit, normal year-end audit adjustments and
the absence of footnotes. 
Notwithstanding the foregoing, the obligations in this clause (b) may
be satisfied with respect to financial information of the Borrower and the
Restricted Subsidiaries by furnishing (A) the applicable financial
statements of Holdings (or any direct or indirect parent of Holdings) or (B) the
Borrower’s or Holdings’ (or any direct or indirect parent thereof), as
applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided,
that, with respect to each of clauses (A) and (B), to the extent such
information relates to Holdings (or a parent thereof), such information is
accompanied by consolidating information that explains in reasonable detail the
differences between the information relating to Holdings (or such parent), on
the one hand, and the information relating to the Borrower and the Restricted
Subsidiaries on a standalone basis, on the other hand.


 


(c)           Budgets.  Within 60 days after
the commencement of each fiscal year of the Borrower, a budget of the Borrower
and its Subsidiaries in reasonable detail for the fiscal year as customarily
prepared by management of the Borrower for its internal use consistent in scope
with the financial statements provided pursuant to Section 9.1(a), setting
forth the principal assumptions upon which such budget is based.


 


(d)           Officer’s
Certificates.  At the time of the delivery of the financial
statements provided for in Sections 9.1(a) and (b), a certificate of an
Authorized Officer of the Borrower to the effect that no Default or Event of
Default exists or, if any Default or Event of Default does exist, specifying
the nature and extent thereof, which certificate shall set forth (i) the
calculations required to establish whether the Borrower and its Subsidiaries
were in compliance with the provisions of Sections 10.9 and 10.10 as at the end
of such fiscal year or period, as the case may be, (ii) a specification of
any change in the identity of the Restricted Subsidiaries, Unrestricted
Subsidiaries and Foreign Subsidiaries as at the end of such 


 


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fiscal year
or period, as the case may be, from the Restricted Subsidiaries, Unrestricted
Subsidiaries and Foreign Subsidiaries, respectively, provided to the Lenders on
the Effective Date or the most recent fiscal year or period, as the case may
be, (iii) the then applicable Status and (iv) the amount of any Pro
Forma Adjustment not previously set forth in a Pro Forma Adjustment Certificate
or any change in the amount of a Pro Forma Adjustment set forth in any Pro
Forma Adjustment Certificate previously provided and, in either case, in
reasonable detail, the calculations and basis therefor.  At the time of the delivery of the financial
statements provided for in Section 9.1(a), (i) a certificate of an
Authorized Officer of the Borrower setting forth in reasonable detail the
calculation of the Available Amount as at the end of the fiscal year to which
such financial statements relate and (ii) a certificate of an Authorized
Officer and the chief legal officer of the Borrower setting forth the
information under “Current Information” in the Perfection Certificate or
confirming that there has been no change in such information since the Closing
Date or the date of the most recent certificate delivered pursuant to this subsection
(d), as the case may be.


 


(e)           Notice
of Default or Litigation.  Promptly after an Authorized Officer of the
Borrower or any of its Subsidiaries obtains knowledge thereof, notice of (i) the
occurrence of any event that constitutes a Default or an Event of Default,
which notice shall specify the nature thereof, the period of existence thereof
and what action the Borrower proposes to take with respect thereto, and (ii) any
litigation or governmental proceeding pending against the Borrower or any of
its Subsidiaries that could reasonably be expected to result in a Material
Adverse Effect.


 


(f)            Environmental
Matters. 
Promptly after obtaining knowledge of any one or more of the following
environmental matters, unless such environmental matters would not, individually
or when aggregated with all other such matters, be reasonably expected to
result in a Material Adverse Effect:


 


(i)            any
pending or threatened Environmental Claim against Holdings or any of its
Subsidiaries or any Real Estate;


 


(ii)           any
condition or occurrence on any Real Estate that (x) results in
noncompliance by Holdings or any of its Subsidiaries with any applicable
Environmental Law or (y) could reasonably be anticipated to form the basis
of an Environmental Claim against Holdings or any of its Subsidiaries or any
Real Estate;


 


(iii)          any
condition or occurrence on any Real Estate that could reasonably be anticipated
to cause such Real Estate to be subject to any restrictions on the ownership,
occupancy, use or transferability of such Real Estate under any Environmental
Law; and


 


(iv)          the
taking of any removal or remedial action in response to the actual or alleged
presence of any Hazardous Material on any Real Estate.


 


All such notices shall describe in reasonable
detail the nature of the claim, investigation, condition, occurrence or
removal, remedial action and the response thereto.  The term “Real Estate” shall mean land,
buildings and improvements owned or leased by Holdings or any of its
Subsidiaries, but excluding all operating fixtures and equipment, whether or
not incorporated into improvements.


 


(g)           Other
Information.  Promptly upon filing thereof, copies of any
filings (including on Form 10-K, 10-Q or 8-K) or registration statements
with, and reports to, the SEC or any analogous Government Authority in any
relevant jurisdiction by Holdings or any of its Subsidiaries (other than
amendments to any registration statement (to the extent such registration
statement, in the form it becomes effective, is delivered to the Administrative
Agent for further delivery to the Lenders), exhibits to any registration
statement and, if applicable, any registration statements on Form S-8) and
copies of all 


 


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financial
statements, proxy statements, notices and reports that Holdings or any of its
Subsidiaries shall send to the holders of any publicly issued debt of Holdings
and/or any of its Subsidiaries (including the Senior Unsecured Subordinated
Notes (whether publicly issued or not)) in their capacity as such holders (in
each case to the extent not theretofore delivered to the Administrative Agent
for further delivery to the Lenders pursuant to this Agreement) and, with
reasonable promptness, such other information (financial or otherwise) as the
Administrative Agent on its own behalf or on behalf of any Lender may
reasonably request in writing from time to time.


 


(h)           Pro
Forma Adjustment Certificate.  Not later than any date on which financial
statements are delivered with respect to any six-quarter period in which a Pro
Forma Adjustment is made as a result of the consummation of the acquisition of
any Acquired Entity or Business by the Borrower or any Restricted Subsidiary
for which there shall be a Pro Forma Adjustment, a certificate of an Authorized
Officer of the Borrower setting forth the amount of such Pro Forma Adjustment
and, in reasonable detail, the calculations and basis therefor.


 


9.2           Books, Records and
Inspections Holdings and the Borrower will, and will cause each
of their Subsidiaries to, conduct meetings with the Borrower (which meetings,
unless an Event of Default has occurred and is continuing, shall only occur
once per calendar year and may be conducted via teleconference), permit (to the
extent that it is within such party’s control to permit such inspection)
officers and designated representatives of the Administrative Agent or the
Required Lenders (coordinated through the Administrative Agent) to visit and
inspect any of the properties or assets of Holdings, the Borrower and any such Subsidiary
in whomsoever’s possession, and to examine the books of account of Holdings,
the Borrower and any such Subsidiary (other than materials protected by
attorney-client privilege) and discuss the affairs, finances and accounts of
Holdings, the Borrower and any such Subsidiary with, and be advised as to the
same by, its and their officers and independent accountants (so long as the
Borrower is afforded an opportunity to be present at such discussion with such
independent accountants), all at such reasonable times and intervals and to
such reasonable extent as the Administrative Agent or the Required Lenders may
reasonably request.


 


9.3           Maintenance of Insurance Holdings and
the Borrower will, and will cause each of the Material Subsidiaries to, at all
times maintain in full force and effect, with insurance companies that the
Borrower believes (in the good faith judgment of the management of the
Borrower) are financially sound and responsible at the time the relevant
coverage is placed or renewed, insurance in at least such amounts and against
at least such risks (and with such risk retentions) as are usually insured
against in the same general area by companies engaged in the same or similar
business as that of the Borrower and its Subsidiaries; and will furnish to the
Administrative Agent for further delivery to the Lenders, upon written request
from the Administrative Agent, information presented in reasonable detail as to
the insurance so carried.


 


9.4           Payment of Taxes Holdings and
the Borrower will pay and discharge, and will cause each of their respective
Subsidiaries to pay and discharge, all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits,
or upon any properties belonging to it, prior to the date on which material
penalties attach thereto, and all lawful material claims that, if unpaid, could
reasonably be expected to become a material Lien upon any properties of
Holdings, the Borrower or any of the Restricted Subsidiaries; provided,
that neither Holdings, the Borrower nor any of their Subsidiaries shall be
required to pay any such tax, assessment, charge, levy or claim that is being
contested in good faith and by proper proceedings if it has maintained adequate
reserves (in the good faith judgment of the management of the Borrower) with
respect thereto in accordance with GAAP.


 


9.5           Consolidated Corporate
Franchises Holdings and the Borrower will do, and will cause
each Material Subsidiary to do, or cause to be done, all things necessary to
preserve and 


 


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keep in full force and
effect its existence, corporate rights and authority, except to the extent that
the failure to do so could not reasonably be expected to have a Material
Adverse Effect; provided, however, that Holdings, the Borrower
and its Subsidiaries may consummate any transaction permitted under Section 10.3,
10.4 or 10.5.


 


9.6           Compliance with Statutes.  Holdings and the Borrower will, and will
cause each of their Subsidiaries to, comply with all applicable laws, rules,
regulations and orders (including Environmental Laws and permits required
thereunder), except to the extent the failure to do so could not reasonably be
expected to have a Material Adverse Effect.


 


9.7           ERISA Promptly after
Holdings, the Borrower or any of their Subsidiaries or any ERISA Affiliate
knows or has reason to know of the occurrence of any of the following events
that, individually or in the aggregate (including in the aggregate such events
previously disclosed or exempt from disclosure hereunder, to the extent the
liability therefor remains outstanding), would be reasonably likely to have a
Material Adverse Effect, the Borrower will deliver to each of the Lenders a
certificate of an Authorized Officer or any other senior officer of the
Borrower setting forth details as to such occurrence and the action, if any,
that the Borrower, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices (required, proposed or otherwise) given
to or filed with or by the Borrower, such Subsidiary, such ERISA Affiliate, the
PBGC, a Plan participant (other than notices relating to an individual
participant’s benefits) or the Plan administrator with respect thereto: that a
Reportable Event has occurred; that an accumulated funding deficiency has been
incurred or an application is to be made to the Secretary of the Treasury for a
waiver or modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under Section 412
of the Code with respect to a Plan; that a Plan having an Unfunded Current
Liability has been or is to be terminated, reorganized, partitioned or declared
insolvent under Title IV of ERISA (including the giving of written notice
thereof); that a Plan has an Unfunded Current Liability that has or will result
in a lien under ERISA or the Code; that proceedings will be or have been
instituted to terminate a Plan having an Unfunded Current Liability (including
the giving of written notice thereof); that a proceeding has been instituted
against the Borrower, a Subsidiary thereof or an ERISA Affiliate pursuant to Section 515
of ERISA to collect a delinquent contribution to a Plan; that the PBGC has
notified the Borrower, any Subsidiary thereof or any ERISA Affiliate of its
intention to appoint a trustee to administer any Plan; that the Borrower, any
Subsidiary thereof or any ERISA Affiliate has failed to make a required
installment or other payment pursuant to Section 412 of the Code with
respect to a Plan; or that the Borrower, any Subsidiary thereof or any ERISA
Affiliate has incurred or will incur (or has been notified in writing that it
will incur) any liability (including any contingent or secondary liability) to
or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515,
4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of
the Code.


 


9.8           Good Repair Each of
Holdings and the Borrower will, and will cause each of their Restricted
Subsidiaries to, ensure that its properties and equipment used or useful in its
business in whomsoever’s possession they may be to the extent that it is within
the control of such party to cause same, are kept in good repair, working order
and condition, normal wear and tear excepted, and that from time to time there
are made in such properties and equipment all needful and proper repairs,
renewals, replacements, extensions, additions, betterments and improvements
thereto, to the extent and in the manner customary for companies in the same or
similar business as that of the Borrower and its Subsidiaries and consistent
with third party leases, except in each case to the extent the failure to do so
could not be reasonably expected to have a Material Adverse Effect.


 


9.9           Transactions with Affiliates Holdings and
the Borrower will conduct, and cause each of the Restricted Subsidiaries to
conduct, all transactions with any of its Affiliates (other than the
transactions between and among Holdings, the Borrower and the Restricted
Subsidiaries or any 


 


85

















 


Person that becomes a
Restricted Subsidiary as a result of such transaction) on terms that are
substantially as favorable to Holdings, the Borrower or such Restricted
Subsidiary as it would obtain in a comparable arm’s-length transaction with a
Person that is not an Affiliate; provided, that the foregoing
restrictions shall not apply to (a) the payment of fees and expenses
related to the UVEST Acquisition, the Pacific Life Acquisition and, in each
case, the transactions contemplated thereby, (b) the issuance of Capital
Stock to the management of Holdings, the Borrower or any of its Subsidiaries in
connection with the UVEST Acquisition, the Transactions (as defined in the 2005
Credit Agreement), the Pacific Life Acquisition and, in each case, the
transactions contemplated thereby, (c) the payment of customary
management, consulting and monitoring fees to the Sponsors in an aggregate
amount in any fiscal year not to exceed $5,000,000 plus all reasonable
out-of-pocket expenses and customary indemnities related to any such
activities, (d) employment and severance arrangements between Holdings,
the Borrower and the Restricted Subsidiaries and their respective directors,
officers and employees in the ordinary course of business, (e) payments by
Holdings (and any direct or indirect parent thereof), the Borrower and the
Restricted Subsidiaries pursuant to any tax sharing agreements among Holdings
(and any such parent thereof), the Borrower and the Restricted Subsidiaries on
customary terms, (f) the payment of customary fees and reasonable out of
pocket costs and expenses to, and indemnities provided on behalf of, directors,
officers and employees of Holdings, the Borrower and the Restricted Subsidiaries,
(g) transactions (i) with customers who are Affiliates in the
ordinary course of business and consistent with past practice as of the Closing
Date and (ii) pursuant to permitted agreements in existence on the Closing
Date and set forth on Schedule 9.9 or any amendment thereto to the extent such
an amendment is not adverse to the Lenders in any material respect, (h) transactions
permitted under Section 10.6, (i) in connection with the termination
of management agreements with the Sponsors, the payment of up to $20,000,000  in termination fees thereunder to the Sponsors pursuant to
the terms of such management agreement, (j) customary contractual
arrangements with financial advisors to the extent any such financial advisor
would be deemed to be an “Affiliate,”; (k) customary payments made by
Holdings, the Borrower or any Restricted Subsidiary to the Sponsors for any
financial advisory, financing, underwriting or placement services or in respect
of other investment banking activities (including in connection with
acquisitions or divestitures), which payments are approved by a majority of the
disinterested members of the board of directors of Holdings or the Borrower, in
good faith and (l) to the extent expressly permitted under Section 10,
payments or loans (or cancellation of loans) to employees of the Borrower,
Holdings or any Restricted  Subsidiary.


 


9.10         End of Fiscal Years; Fiscal
Quarters The Borrower will, for financial reporting
purposes, cause (a) each of its, and each of its Subsidiaries’, fiscal
years to end on December 31 of each year and (b) each of its, and
each of its Subsidiaries’, fiscal quarters to end on dates consistent with such
fiscal year-end and the Borrower’s past practice; provided, however,
that the Borrower may, upon written notice to the Administrative Agent, change
the financial reporting convention specified above to any other financial
reporting convention reasonably acceptable to the Administrative Agent, in
which case the Borrower and the Administrative Agent will, and are hereby
authorized by the Lenders to, make any adjustments to this Agreement that are
necessary in order to reflect such change in financial reporting.


 


9.11         Additional Guarantors and
Grantors Subject to any applicable limitations set forth in
the Guarantee or the Security Agreement, as applicable, the Borrower will cause
(i) any direct or indirect Domestic Subsidiary (other than any
Unrestricted Subsidiary, any direct or indirect Domestic Subsidiary of a
Foreign Subsidiary or any Excluded Subsidiary) formed or otherwise purchased or
acquired after the Effective Date (including pursuant to a Permitted
Acquisition), and (ii) any Subsidiary of the Borrower (other than any
Unrestricted Subsidiary, any direct or indirect Domestic Subsidiary of a
Foreign Subsidiary or any Excluded Subsidiary) that is not a Domestic
Subsidiary on the Closing Date but subsequently becomes a Domestic Subsidiary
(other than any Unrestricted Subsidiary, any direct or indirect Domestic
Subsidiary of a Foreign Subsidiary or any Excluded Subsidiary), in each case to



 


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execute a supplement to each
of the Guarantee and the Security Agreement, substantially in the form of Annex
B or Annex 1, as applicable, to the respective agreement in order to become a
Guarantor under the Guarantee and a grantor under the Security Agreement.


 


9.12         Pledges of Additional Stock
and Evidence of Indebtedness Subject to any applicable
limitations set forth in the Pledge Agreement, Holdings and the Borrower will pledge,
and, if applicable, will cause each Domestic Subsidiary (other than any
Unrestricted Subsidiary, any direct or indirect Domestic Subsidiary of a
Foreign Subsidiary or any Excluded Subsidiary) to pledge, to the Collateral
Agent for the benefit of the Secured Parties, (i) all the Capital Stock of
each Domestic Subsidiary (other than any Unrestricted Subsidiary, any direct or
indirect Domestic Subsidiary of a Foreign Subsidiary, PTC Holdings, Inc.
or The Private Trust Company, N.A. or any other Subsidiary, the pledge of which
would be prohibited by any Applicable Laws or Contractual Obligation) and 65%
of the issued and outstanding Capital Stock of each Foreign Subsidiary directly
held by any Credit Party, in each case, formed or otherwise purchased or acquired
after the Effective Date, in each case pursuant to a supplement to the Pledge
Agreement substantially in the form of Annex A thereto, (ii) all evidences
of Indebtedness in excess of $5,000,000 received by any Credit Party in
connection with any disposition of assets pursuant to Section 10.4(d), in
each case pursuant to a supplement to the Pledge Agreement substantially in the
form of Annex A thereto, and (iii) any global promissory notes executed
after the Closing Date evidencing Indebtedness of Holdings and the Borrower and
each of its Subsidiaries that is owing to any Credit Party, in each case
pursuant to a supplement to the Pledge Agreement in the form of Annex A
thereto.


 


9.13         Changes in Business The Borrower
and its Subsidiaries, taken as a whole, will not fundamentally and
substantively alter the character of their business, taken as a whole, from the
business conducted by the Borrower and its Subsidiaries, taken as a whole, on
the Closing Date and other business activities incidental or related to any of
the foregoing.


 


9.14         Further
Assurances Holdings and the Borrower
will, and will cause each other Credit Party to, execute any and all further
documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements,
fixture filings, mortgages, deeds of trust and other documents), which may be
required under any applicable law, or which the Administrative Agent, the
Collateral Agent or the Required Lenders may reasonably request, in order to
grant, preserve, protect and perfect the validity and priority of the security
interests created or intended to be created by the Security Agreement, the
Pledge Agreement or any Mortgage, all at the expense of Holdings and its Subsidiaries.


 


(b)           Subject
to any applicable limitations set forth in the Security Agreement or any
Mortgage, if any assets (including any real estate or improvements thereto or
any interest therein) with a book value or fair market value in excess of $3,000,000
are acquired by the Borrower or any other Credit Party after the Closing Date
(other than assets constituting Collateral under the Security Agreement that
become subject to the Lien of the Security Agreement upon acquisition thereof
or assets subject to a Lien granted pursuant to Section 10.2(c)) that are
of the nature secured by the Security Agreement or any Mortgage, as the case
may be, the Borrower will notify the Administrative Agent (who shall thereafter
notify the Lenders) and the Collateral Agent thereof, and, if requested by the
Administrative Agent, the Collateral Agent or the Required Lenders, the
Borrower will cause such assets to be subjected to a Lien securing the
applicable Obligations and will take, and cause the other Credit Parties to take,
such actions as shall be necessary or reasonably requested by the
Administrative Agent or the Collateral Agent to grant and perfect such Liens
consistent with the applicable requirements of the Security Documents,
including actions described in paragraph (a) of this Section, all at the
expense of the Credit Parties.  Any
Mortgage delivered to the Collateral Agent in accordance with the preceding
sentence shall be accompanied by (x) a policy or policies of title
insurance issued by a nationally recognized title insurance company insuring
the 


 


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Lien of
each Mortgage as a valid Lien (with the priority described therein) on the
Mortgaged Property described therein, free of any other Liens except as expressly
permitted by Section 10.2, together with such endorsements and reinsurance
as the Administrative Agent or the Collateral Agent may reasonably request and (y) an
opinion of local counsel to the Borrower (or in the event a Subsidiary of the
Borrower is the Mortgagor, to such Subsidiary) substantially in the form of the
local counsel opinion delivered on the Closing Date pursuant to Section 6.3(c) of
the 2005 Credit Agreement.


 


9.15         Use of Proceeds The proceeds
of the 2017 Term Loans shall be used only to effect the Redemption, to pay any
redemption premiums in connection therewith, and to pay fees and expenses in
connection therewith and herewith.


 


SECTION 10.         Negative Covenants


 


Each of Holdings and the Borrower hereby covenants
and agrees that on the Closing Date and thereafter, until the Commitments and
all Letters of Credit have terminated (unless such Letters of Credit have been
collateralized on terms and conditions satisfactory to the Letter of Credit
Issuer following the termination of the Commitments) and the Loans and Unpaid
Drawings, together with interest, Fees and all other Obligations (excluding
contingent indemnification obligations or Obligations with respect to Hedging
Agreements) incurred hereunder, are paid in full:


 


10.1         Limitation on Indebtedness Holdings and
the Borrower will not, and will not permit any of the Restricted Subsidiaries
to, create, incur, assume or suffer to exist any Indebtedness, except:


 


(a)           Indebtedness
owing under the Credit Documents including pursuant to Sections 2.14 and 2.15
hereof;


 


(b)           Indebtedness
of (i) Holdings, the Borrower or any Subsidiary who is a Guarantor owing
to Holdings, the Borrower or any Subsidiary, (ii) any Subsidiary who is
not a Guarantor owing to any other Subsidiary who is not a Guarantor and (iii) subject
to Section 10.5, any Subsidiary who is not a Guarantor owing to Holdings,
the Borrower or any Subsidiary who is a Guarantor;


 


(c)           Indebtedness
in respect of any bankers’ acceptance, bank guarantees, letter of credit,
warehouse receipt or similar facilities entered into in the ordinary course of
business and not in respect of Hedging Agreements;


 


(d)           Guarantee
Obligations incurred by (i) any Restricted Subsidiary in respect of
Indebtedness of Holdings, the Borrower or any other Restricted Subsidiary that
is permitted to be incurred under this Agreement and (ii) Holdings or the
Borrower in respect of Indebtedness of Holdings, the Borrower or any Restricted
Subsidiary that is permitted to be incurred under this Agreement;


 


(e)           Guarantee
Obligations incurred in the ordinary course of business in respect of
obligations to suppliers, customers, franchisees, lessors and licensees;


 


(f)            (i) Indebtedness (including Indebtedness arising under
Capital Leases) the proceeds of which are used to finance the acquisition,
construction or improvement of fixed or capital assets, or otherwise incurred
in respect of Capital Expenditures, (ii) Indebtedness arising under
Capital Leases entered into in connection with Permitted Sale Leasebacks, (iii) Indebtedness
arising under Capital Leases, other than Capital Leases in effect on the
Closing Date (and set forth on Schedule 10.1) and Capital Leases entered into
pursuant to subclauses (i) and (ii) above; provided, that
the aggregate amount of Indebtedness incurred pursuant to this subclause (iii) shall
not exceed $10,000,000 at any time 


 


88

















 


outstanding
(excluding the aggregate amount of any operating leases which are subsequently
reclassified or recharacterized as Capital Leases under GAAP), and (iv) any
modification, replacement, refinancing, refunding, renewal or extension of any
Indebtedness specified in subclause (i), (ii) or (iii) above, provided
that, except to the extent otherwise expressly permitted hereunder, the principal
amount of any Indebtedness, modified, replaced, refinanced, refunded, renewed
or extended pursuant to this clause (iv) does not exceed the principal
amount thereof outstanding immediately prior to such modification, replacement,
refinancing, refunding, renewal or extension, except by an amount equal to the
unpaid accrued interest and premium thereon plus other reasonable
amounts paid and fees and expenses incurred in connection with such
modification, replacement, refinancing, refunding, renewal or extension;


 


(g)           Closing
Date Indebtedness (other than the Senior Unsecured Subordinated Notes) and any
modification, replacement, refinancing, refunding, renewal or extension
thereof, provided that, except to the extent otherwise expressly
permitted hereunder, (i) the principal amount of any Indebtedness,
modified, replaced, refinanced, refunded, renewed or extended pursuant to this
clause (g) does not exceed the principal amount thereof outstanding
immediately prior to such modification, replacement, refinancing, refunding,
renewal or extension except by an amount equal to the unpaid accrued interest
and premium thereon plus other reasonable amounts paid and fees and expenses
incurred in connection with such modification, replacement, refinancing, refunding,
renewal or extension and (ii) the direct and contingent obligors with
respect to such Indebtedness are not changed;


 


(h)           Indebtedness
in respect of Hedging Agreements;


 


(i)            (i) Indebtedness
in respect of Senior Unsecured Subordinated Notes and any refinancing,
refunding, renewal or extension thereof; provided, that, except to the
extent otherwise expressly permitted hereunder, (x) the principal amount
thereof does not exceed the sum of (A) the principal amount thereof
outstanding immediately prior to such refinancing, refunding, renewal or
extension plus (B) the amount of any interest, premiums or penalties
required to be paid thereon plus (C) reasonable fees and expenses,
associated thereof, (y) the direct and contingent obligors with respect to
such Indebtedness are not changed and (z) such Indebtedness has terms
material to the interests of the Lenders not materially less advantageous to
the Lenders, taken as a whole, than those of the Senior Unsecured Subordinated
Notes being refinanced (such refinancing, refunding, renewed or extended
Indebtedness, “Refinanced Senior Unsecured Subordinated Notes”), and (ii) Indebtedness
in respect of Permitted Additional Notes to the extent the Net Cash Proceeds
therefrom are, immediately after the receipt thereof, applied to the prepayment
of Term Loans in accordance with Section 5.2(a)(i);


 


(j)            (i) Indebtedness
of a Person or Indebtedness attaching to assets of a Person that, in either
case, becomes a Restricted Subsidiary or Indebtedness attaching to assets that
are acquired by the Borrower or any Restricted Subsidiary, in each case after
the Closing Date as the result of a Permitted Acquisition; provided,
that (x) such Indebtedness existed at the time such Person became a
Restricted Subsidiary or at the time such assets were acquired and, in each
case, was not created in anticipation thereof, (y) such Indebtedness is
not guaranteed in any respect by Holdings, the Borrower or any Restricted
Subsidiary (other than any such person that so becomes a Restricted Subsidiary)
and (z)(A) the Capital Stock of such Person is pledged to the Collateral
Agent to the extent required under Section 9.12 and (B) such Person
executes a supplement to each of the Guarantee, the Security Agreement and the
Pledge Agreement (or alternative guarantee and security arrangements in
relation to the Obligations) to the extent required under Section 9.11 or
9.12, as applicable (provided that the assets covered by such pledges
and securing interests may, to the extent permitted under Section 10.2,
equally and ratably secure such Indebtedness assumed), and (ii) any
modification, replacement, refinancing, refunding, renewal or extension of any
Indebtedness specified in subclause (i) above; provided that, except to the
extent otherwise expressly permitted hereunder, the principal amount of any
Indebtedness modified, replaced, refinanced, refunded, renewed or extended
pursuant to this clause (ii) does not exceed the principal


 


89
















 


amount thereof outstanding immediately prior to such modification,
replacement, refinancing, refunding, renewal or extension except by an amount
equal to the unpaid accrued interest and premium thereon plus other
reasonable amounts paid and fees and expenses incurred in connection with such
modification, replacement, refinancing, refunding, renewal or extension;


 


(k)           (i) Indebtedness
of Holdings, the Borrower or any Restricted Subsidiary incurred to finance a
Permitted Acquisition; provided, that (x) if such Indebtedness is
incurred by a Restricted Subsidiary that is not a Guarantor, such Indebtedness
is not guaranteed in any respect by Holdings, the Borrower or any other
Guarantor except as permitted under Section 10.5 and (y)(A) the
Borrower or such other relevant Credit Party pledges the Capital Stock of any
Person acquired in such Permitted Acquisition (the “acquired Person”) to
the Collateral Agent to the extent required under Section 9.12 and (B) such
acquired Person executes a supplement to the Guarantee, the Security Agreement
and the Pledge Agreement (or alternative guarantee and security arrangements in
relation to the Obligations) to the extent required under Sections 9.11 or
9.12, as applicable, (provided that the assets covered by such pledges and
securing interests may, to the extent permitted by Section 10.2, equally
and ratably secure such Indebtedness incurred) and (ii) any modification,
replacement, refinancing, refunding, renewal or extension of any Indebtedness
specified in subclause (i) above; provided
that, except to the extent otherwise expressly permitted hereunder, the
principal amount of any Indebtedness modified, replaced, refinanced, refunded,
renewed or extended pursuant to this clause (ii) does not exceed the
principal amount thereof outstanding immediately prior to such modification,
replacement, refinancing, refunding, renewal or extension except by an amount
equal to the unpaid accrued interest and premium thereon plus other
reasonable amounts paid and fees and expenses incurred in connection with such
modification, replacement, refinancing, refunding, renewal or extension;


 


(l)            (i) 
Indebtedness incurred in connection with any Permitted Sale Leaseback and (ii) any
refinancing, refunding, renewal or extension of any Indebtedness specified in
subclause (i) above; provided, that, except to the extent otherwise
expressly permitted hereunder, the principal amount of any such Indebtedness
does not exceed the sum of (x) the principal amount thereof outstanding
immediately prior to such refinancing, refunding, renewal or extension plus (y) the
amount of any interest, premiums or penalties required, to be paid thereon plus
(z) reasonable fees associated therewith;


 


(m)          unsecured
Indebtedness in respect of obligations of the Borrower or any Restricted
Subsidiary to pay the deferred purchase price of goods or services or progress
payments in connection with such goods and services; provided, that such
obligations are incurred in connection with open accounts extended by suppliers
on customary trade terms (which require that all such payments be made within
60 days after the incurrence of the related obligation) in the ordinary course
of business and not in connection with the borrowing of money or any Hedging
Agreements;


 


(n)           Indebtedness
arising from agreements of Holdings, the Borrower or any Restricted Subsidiary
providing for indemnification, adjustment of purchase price or similar
obligations, in each case incurred or assumed in connection with Permitted
Acquisitions and the disposition of any business, assets or Capital Stock
permitted hereunder, other than Guarantee Obligations incurred by any Person
acquiring all or any portion of such business, assets or Capital Stock for the
purpose of financing such acquisition; provided, that (i) such
Indebtedness is not reflected on the balance sheet of the Borrower or any
Restricted Subsidiary (contingent obligations referred to in a footnote to
financial statements and not otherwise reflected on the balance sheet will not
be deemed to be reflected on such balance sheet for purposes of this clause
(i)) and (ii) the maximum assumable liability in respect of all such
Indebtedness shall at no time exceed the gross proceeds, including non-cash
proceeds (the fair market value of such non-cash proceeds being measured at the
time received and without giving effect to any subsequent changes in value),
actually received by the Borrower and the Restricted Subsidiaries in connection
with such disposition;


 


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(o)           Indebtedness
in respect of performance bonds, bid bonds, appeal bonds, surety bonds,
performance and completion guarantees and similar obligations incurred in the
ordinary course of business and not in connection with the borrowing of money
or Hedging Agreements;


 


(p)           Indebtedness
of Holdings, the Borrower or any Restricted Subsidiary consisting of
obligations to pay insurance premiums arising in the ordinary course of
business and not in connection with the borrowing of money or Hedging
Agreements;


 


(q)           Indebtedness
in respect of Margin Lines of Credit and Warehouse Lines of Credit;


 


(r)            Indebtedness
representing deferred compensation to employees, consultants and independent
contractors of Holdings, the Borrower and the Restricted Subsidiaries incurred in
the ordinary course of business;


 


(s)           subordinated
Indebtedness consisting of promissory notes issued by any Credit Party to
current or former officers, directors, managers, consultants and employees,
their respective successors, executors, administrators, heirs, legatees or
distributees to finance the retirement, acquisition, repurchase or redemption
of Capital Stock permitted by Section 10.6;


 


(t)            cash
management obligations and other Indebtedness in respect of netting services,
overdraft protections, automatic clearinghouse arrangements, employee credit
cards and similar arrangements in each case in the ordinary course of business
and consistent with past business practices;


 


(u)           all
customary premiums (if any), interest (including post-petition interest), fees,
expenses, charges and additional or contingent interest on obligations
described in each of the clauses of this Section 10.1;


 


(v)           Indebtedness
in respect of (i) Permitted Other Debt issued or incurred in exchange for,
or which modifies, extends, refinances, renews, replaces or refunds or the Net
Cash Proceeds therefrom are applied to the prepayment of Term Loans in the
manner set forth in Section 5.2(a)(i), and (ii) any refinancing,
refunding, renewal or extension of any Indebtedness specified in subclause (i) above;
provided that, in the case of this clause (ii) except to the extent
otherwise permitted hereunder, (x) the principal amount of any such
Indebtedness is not increased above the principal amount thereof outstanding
immediately prior to such refinancing, refunding, renewal or extension (except
for any original issue discount thereon and the amount of fees, expenses and
premium in connection with such refinancing) and (y) such Indebtedness
otherwise complies with the definition of Permitted Other Debt; and


 


(w)          additional
Indebtedness and any refinancing, refunding, renewal or extension thereof; provided,
that the aggregate principal amount of Indebtedness outstanding at any time
pursuant to this clause (w) shall not at any time exceed $25,000,000; provided
that the Borrower and the Restricted Subsidiary may incur additional
Indebtedness under this clause (w) in an aggregate principal amount not to
exceed the product of (1) (x) 7.5% multiplied by (y) the
Consolidated EBITDA Growth Factor multiplied by (2) $1,300,000,000.


 


10.2         Limitation on Liens Holdings and
the Borrower will not, and will not permit any of the Restricted Subsidiaries
to, create, incur, assume or suffer to exist any Lien upon any property or
assets of any kind (real or personal, tangible or intangible) of Holdings, the
Borrower or any Restricted Subsidiary, whether now owned or hereafter acquired,
except:


 


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(a)           Liens
arising under (i) the Credit Documents securing the Obligations and (ii) the
Security Documents and the Permitted Other Debt Documents securing Permitted
Other Debt Obligations permitted to be incurred under Section 10.1(v); provided
that, (A) in the case of Liens securing Permitted Other Debt Obligations
that constitute First Lien Obligations pursuant to subclause (ii) above
the applicable Permitted Other Debt Secured Parties (or a representative
thereof on behalf of such holders) shall have entered into with the Collateral
Agent an intercreditor agreement on the terms set forth on Exhibit J-1 or
otherwise reasonably acceptable to the Administrative Agent, and (B) in
the case of Liens securing Permitted Other Debt Obligations that do not
constitute First Lien Obligations pursuant to subclause (ii) above, the
applicable Permitted Other Debt Secured Parties (or a representative thereof on
behalf of such holders) shall have entered into an intercreditor agreement on
the terms set forth on Exhibit J-2 or otherwise reasonably acceptable to
the Administrative Agent.  Without any
further consent of the Lenders, the Administrative Agent and the Collateral
Agent shall be authorized to negotiate, execute and deliver on behalf of the
Secured Parties any intercreditor agreement or any amendment (or amendment and
restatement) to the Security Documents contemplated by this Section 10.2(a);


 


(b)           Permitted
Liens;


 


(c)           Liens
securing Indebtedness permitted pursuant to Section 10.1(f); provided,
that such Liens attach at all times only to the assets financed with such
Indebtedness;


 


(d)           Liens
existing on the Closing Date and listed on Schedule 10.2;


 


(e)           the
replacement, extension, modification or renewal of any Lien permitted by
clauses (a) through (d) above and clauses (f) and (g) of
this Section 10.2 upon or in the same assets theretofore subject to such
Lien (other than after-acquired property that is affixed or incorporated into
the property covered by such lien or financed by Indebtedness permitted under Section 10.1
and proceeds and products thereof) or the replacement, extension, modification
or renewal (without increase in the amount except to the extent otherwise
expressly permitted hereunder) of the Indebtedness secured thereby;


 


(f)            Liens
existing on the assets of any Person that becomes a Restricted Subsidiary, or
existing on assets acquired, pursuant to a Permitted Acquisition to the extent
the Liens on such assets secure Indebtedness permitted by Section 10.1(j);
provided, that such Liens attach at all times only to the same assets
that such Liens (other than after-acquired property that is affixed or
incorporated into the property covered by such lien or financed by Indebtedness
permitted under Section 10.1 and proceeds and products thereof) attached
to, and secure only the same Indebtedness that such Liens secured, immediately
prior to such Permitted Acquisition;


 


(g)           (i) Liens
placed upon the Capital Stock of any Restricted Subsidiary acquired pursuant to
a Permitted Acquisition to secure Indebtedness incurred pursuant to Section 10.1(k) in
connection with such Permitted Acquisition and (ii) Liens placed upon the
assets of such Restricted Subsidiary to secure a guarantee by such Restricted
Subsidiary of any such Indebtedness of Holdings, the Borrower or any other
Restricted Subsidiary;


 


(h)           Liens
securing Indebtedness or other obligations of Holdings, the Borrower or a
Subsidiary in favor of Holdings, the Borrower or any Subsidiary that is a
Guarantor and Liens securing Indebtedness or other obligations of any
Subsidiary that is not a Guarantor in favor of any Subsidiary that is not a
Guarantor;


 


(i)            Liens
of a collection bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection and (ii) in favor of a banking
institution arising as a 


 


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matter of
law encumbering deposits (including the right to set off) and which are within
the general parameters customary in the banking industry;


 


(j)            Liens
(i) on cash advances in favor of the seller of any property to be acquired
in an Investment permitted pursuant to Sections 10.5 to be applied against
the purchase price for such Investment, and (ii) consisting of an
agreement to sell, transfer, lease or otherwise dispose of any property in a
transaction permitted under Section 10.4, in each case, solely to the
extent such Investment or sale, disposition, transfer or lease, as the case may
be, would have been permitted on the date of the creation of such Lien;


 


(k)           Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by the Borrower or any of the
Restricted Subsidiaries in the ordinary course of business permitted by this
Agreement;


 


(l)            Liens
deemed to exist in connection with Investments in repurchase agreements
permitted under Section 10.5;


 


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


 


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


 


(o)           Liens
solely on any cash earnest money deposits made by Holdings, the Borrower or any
of the Restricted Subsidiaries in connection with any letter of intent or
purchase agreement permitted hereunder;


 


(p)           Liens
on insurance policies and the proceeds thereof securing the financing of the
premiums with respect thereto;


 


(q)           Liens
securing Indebtedness under any Margin Line of Credit or Warehouse Line of
Credit; and


 


(r)            other
Liens not otherwise permitted by this Section 10.2 so long as the
aggregate amount of obligations secured thereby does not exceed $10,000,000.


 


10.3         Limitation on Fundamental
Changes Except as expressly permitted by Section 10.4 or 10.5, Holdings
and the Borrower will not, and will not permit any of the Restricted
Subsidiaries to, enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of
all or substantially all its business units, assets or other properties, except
that:


 


(a)           any
Subsidiary of the Borrower or any other Person may be merged, amalgamated or
consolidated with or into the Borrower; provided, that (i) the
Borrower shall be the 


 


93

















 


continuing
or surviving corporation or the Person formed by or surviving any such merger,
amalgamation or consolidation (if other than the Borrower) shall be an entity
organized or existing under the laws of the United States, any state thereof,
the District of Columbia or any territory thereof (the Borrower or such Person,
as the case may be, being herein referred to as the “Successor Borrower”),
(ii) the Successor Borrower (if other than the Borrower) shall expressly
assume all the obligations of the Borrower under this Agreement and the other
Credit Documents pursuant to a supplement hereto or thereto in form reasonably
satisfactory to the Administrative Agent, (iii) no Default or Event of
Default would result from the consummation of such merger, amalgamation or
consolidation, (iv) the Successor Borrower shall be in compliance, on a
pro forma basis after giving effect to such merger, amalgamation or
consolidation, with the covenants set forth in Sections 10.9 and 10.10, as such
covenants are recomputed as at the last day of the most recently ended Test
Period under such Section as if such merger, amalgamation or consolidation
had occurred on the first day of such Test Period, (v) each Guarantor,
unless it is the other party to such merger or consolidation or unless the
Successor Borrower is the Borrower, shall have by a supplement to the Guarantee
confirmed that its Guarantee shall apply to the Successor Borrower’s
obligations under this Agreement, (vi) each Subsidiary grantor and each
Subsidiary pledgor, unless it is the other party to such merger, amalgamation
or consolidation or unless the Successor Borrower is the Borrower, shall have
by a supplement to the Security Agreement and the Pledge Agreement confirmed
that its obligations thereunder shall apply to the Successor Borrower’s
obligations under this Agreement, (vii) each mortgagor of a Mortgaged
Property, unless it is the other party to such merger or consolidation or
unless the Successor Borrower is the Borrower, shall have by an amendment to or
restatement of the applicable Mortgage confirmed that its obligations
thereunder shall apply to the Successor Borrower’s obligations under this
Agreement, (viii) the Borrower shall have delivered to the Administrative
Agent an officer’s certificate stating that such merger, amalgamation or
consolidation and any supplements to this Agreement or any Security Document
preserve the enforceability of the Guarantee and the perfection and priority of
the Liens under the Security Documents and (ix) if reasonably requested by
the Administrative Agent, an opinion of counsel to the effect that such merger,
amalgamation or consolidation does not violate this Agreement or any other
Credit Document; provided further that if the foregoing are satisfied,
the Successor Borrower (if other than the Borrower) will succeed to, and be
substituted for, the Borrower under this Agreement;


 


(b)           any
Subsidiary of the Borrower or any other Person may be merged, amalgamated or
consolidated with or into any one or more Subsidiaries of the Borrower; provided,
that (i) in the case of any merger, amalgamation or consolidation
involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary
shall be the continuing or surviving corporation or (B) the Borrower shall
take all steps necessary to cause the Person formed by or surviving any such
merger, amalgamation or consolidation (if other than a Restricted Subsidiary)
to become a Restricted Subsidiary, (ii) in the case of any merger,
amalgamation or consolidation involving one or more Guarantors, a Guarantor
shall be the continuing or surviving corporation or the Person formed by or
surviving any such merger, amalgamation or consolidation (if other than a
Guarantor) shall execute a supplement to the Guarantee, the Security Agreement,
the Pledge Agreement and any applicable Mortgage in form and substance
reasonably satisfactory to the Administrative Agent in order for such surviving
corporation to become a Guarantor and pledgor, mortgagor and grantor of
Collateral for the benefit of the Secured Parties, (iii) no Default or
Event of Default would result from the consummation of such merger,
amalgamation or consolidation, (iv) the Borrower shall be in compliance,
on a pro forma basis after giving effect to such merger, amalgamation or
consolidation, with the covenants set forth in Sections 10.9 and 10.10, as such
covenants are recomputed as at the last day of the most recently ended Test
Period under such Section as if such merger, consolidation or amalgamation
had occurred on the first day of such Test Period, and (v) the Borrower
shall have delivered to the Administrative Agent an officer’s certificate
stating that such merger, amalgamation or consolidation and such supplements to
any Security Document preserve the enforceability of the Guarantee and the
perfection and priority of the Liens under the Security Agreement;


 


94

















 


(c)           any
Restricted Subsidiary that is not a Guarantor may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower, a Guarantor or any other Restricted Subsidiary of
the Borrower;


 


(d)           any
Guarantor may sell, lease, transfer or otherwise dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or any other
Guarantor; and


 


(e)           any
Restricted Subsidiary may liquidate or dissolve if (x) the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders
and (y) to the extent such Restricted Subsidiary is a Credit Party, any
assets or business not otherwise disposed of or transferred in accordance with Section 10.4
or 10.5, or, in the case of any such business, discontinued, shall be
transferred to, or otherwise owned or conducted by, another Credit Party after
giving effect to such liquidation or dissolution.


 


10.4         Limitation on Sale of Assets Holdings and
the Borrower will not, and will not permit any of the Restricted Subsidiaries
to, (i) convey, sell, lease, assign, transfer or otherwise dispose of any
of its property, business or assets (including receivables and leasehold
interests), whether now owned or hereafter acquired (other than any such sale,
transfer, assignment or other disposition resulting from a Recovery Event), or (ii) sell
to any Person (other than the Borrower or a Guarantor) any shares owned by it
of any Restricted Subsidiary’s Capital Stock, except that:


 


(a)           Holdings,
the Borrower and the Restricted Subsidiaries may sell, transfer or otherwise
dispose of the following in the ordinary course of business:  (i) obsolete, worn-out, used or surplus
assets to the extent such assets are not necessary for the operation of the
Borrower’s and its Subsidiaries’ business; (ii) inventory, securities and
goods held for sale; and (iii) cash and Permitted Investments;


 


(b)           Holdings,
the Borrower and the Restricted Subsidiaries may lease, license (on a
non-exclusive basis with respect to intellectual property), or sublease or
sublicense (on a non-exclusive basis with respect to intellectual property)
real or personal property in the ordinary course of business;


 


(c)           Holdings,
the Borrower and the Restricted Subsidiaries may sell, transfer or otherwise
dispose of other assets (other than accounts receivable) for fair value; provided,
that (i) the aggregate amount of such sales, transfers and disposals by
Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole,
pursuant to this clause (c) shall not exceed in the aggregate an amount
equal to 10% of Consolidated Total Net Tangible Assets, (ii) any
consideration in excess of $5,000,000 received by Holdings, the Borrower or any
Guarantor in connection with such sales, transfers and other dispositions of
assets pursuant to this clause (c) that is in the form of Indebtedness
shall be pledged to the Administrative Agent pursuant to Section 9.12, (iii) with
respect to any such sale, transfer or disposition (or series of related sales,
transfers or dispositions) in an aggregate amount in excess of $20,000,000, the
Borrower shall be in compliance, on a pro forma basis after giving effect to
such sale, transfer or disposition, with the covenants set forth in Sections
10.9 and 10.10, as such covenants are recomputed as at the last day of the most
recently ended Test Period under such Sections as if such sale, transfer or
disposition had occurred on the first day of such Test Period and (iv) after
giving effect to any such sale, transfer or disposition, no Default or Event of
Default shall have occurred and be continuing;


 


(d)           Holdings,
the Borrower and the Restricted Subsidiaries may (i) sell or discount
without recourse accounts receivable arising in the ordinary course of business
in connection with the compromise or collection thereof and (ii) sell or
transfer accounts receivable and related rights pursuant to customary
receivables financing facilities so long as, in each case, the Net Cash
Proceeds thereof to 


 


95

















 


Holdings,
the Borrower and the Restricted Subsidiaries are promptly applied to the
prepayment of Term Loans pursuant to Section 5.2;


 


(e)           Holdings,
the Borrower and the Restricted Subsidiaries may sell, transfer or otherwise
dispose of property or assets to Holdings, the Borrower or to a Restricted
Subsidiary; provided, that if the transferor of such property is a
Guarantor or the Borrower (i) the transferee thereof must either be the
Borrower or a Guarantor or (ii) to the extent such transaction constitutes
an Investment, such transaction is permitted under Section 10.5;


 


(f)            the
Borrower and the Restricted Subsidiaries may effect any transaction permitted
by Section 10.3 and Holdings, the Borrower and the Restricted Subsidiaries
may effect any transaction permitted by Section 10.6, 10.8 or Liens
permitted by Section 10.2;


 


(g)           the
Borrower and the Restricted Subsidiaries may sell, transfer, sale leaseback,
separately develop or otherwise dispose of the property listed on Schedule 1.1(a) (it
being understood that in any of such events the Mortgage will be released by
the Collateral Agent upon the request made by the Borrower); and


 


(h)           Holdings,
the Borrower and the Restricted Subsidiaries may exchange or “swap” assets for
other assets of another Person other than Holdings, the Borrower or any
Restricted Subsidiary; provided, that (i) the assets received by
Holdings, the Borrower or such Restricted Subsidiary will be used or useful in
the business of Holdings, the Borrower and their Subsidiaries, (ii) Holdings,
the Borrower or such Restricted Subsidiary shall receive reasonably equivalent
value for such assets, (iii) such assets shall be received by Holdings,
the Borrower or such Restricted Subsidiary substantially concurrently with the
delivery of the existing assets of Holdings, the Borrower or such Restricted
Subsidiary to such other Person, (iv) Holdings, the Borrower and such
Restricted Subsidiaries shall account for such exchange or swap in accordance
with GAAP and (v) any cash or Permitted Investments received in any such
swap shall be treated as asset sale proceeds subject to the limitations of Section 10.4(c) and
not this Section 10.4(h).


 


10.5         Limitation on Investments Holdings and
the Borrower will not, and will not permit any of the Restricted Subsidiaries
to, make any advance, loan, extensions of credit or capital contribution to, or
purchase any stock, bonds, notes, debentures or other securities of or any
assets of, or make any other investment in, any Person (all of the foregoing, “Investments”),
except:


 


(a)           extensions
of trade credit, asset purchases (including purchases of inventory, supplies
and materials) and the licensing or contribution of intellectual property
pursuant to joint marketing arrangements with other Persons, in each case in
the ordinary course of business;


 


(b)           Permitted
Investments;


 


(c)           loans
and advances to officers, directors and employees of Holdings, the Borrower or
any of its Subsidiaries (i) to finance the purchase of Capital Stock of
Holdings (or any direct or indirect parent thereof; provided, that the
amount of such loans and advances used to acquire such Capital Stock shall be
contributed to Holdings or the Borrower, as applicable, in cash as common
equity) or the Borrower, (ii) for reasonable and customary business
related travel expenses, moving expenses and similar expenses, in each case
incurred in the ordinary course of business, and (iii) for additional
purposes not contemplated by subclause (i) or (ii) above in an
aggregate principal amount at any time outstanding with respect to this clause (iii) not
exceeding $10,000,000;


 


96

















 


(d)           Investments
existing on the Closing Date and listed on Schedule 10.5 and any extensions,
renewals or reinvestments thereof, so long as the aggregate amount of all
Investments pursuant to this clause (d) is not increased at any time above
the amount of such Investments existing on the Closing Date;


 


(e)           Investments
in Hedging Agreements permitted by Section 10.1(h);


 


(f)            Investments
received in connection with the bankruptcy or reorganization of supplier or
customers and in settlement of delinquent obligations of, and other disputes
with, customers arising in the ordinary course of business or upon the
foreclosure with respect to any secured Investment or other transfer of title
with respect to any secured Investment;


 


(g)           Investments
to the extent that payment for such investments is made solely with Capital
Stock of Holdings (or any direct or indirect parent thereof) or the Borrower;


 


(h)           Investments
constituting non-cash proceeds of sales, transfers and other dispositions of
assets to the extent permitted by Section 10.4;


 


(i)            Investments
in the Borrower or any Guarantor and Investments by any Subsidiary that is not
a Guarantor in any other Subsidiary;


 


(j)            Investments
constituting Permitted Acquisitions, provided, that the aggregate amount
of any such Investment, as valued at the fair market value of such Investment
at the time each such Investment is made, made by the Borrower or any
Restricted Subsidiary in any Subsidiary that shall not be, or after giving
effect to such Investment, shall not become a Guarantor shall not exceed (i) $250,000,000
plus (ii) the Available Amount plus (iii) an amount equal to any
repayments, interest, returns, profits, distributions, income and similar
amounts actually received in cash in respect of any such Investment (which
amount shall not exceed the amount of such Investment valued at the fair market
value of such Investment at the time such Investment was made);


 


(k)           Investments
in the equity interests of one or more newly formed Persons that are received
in consideration of the contribution by Holdings, the Borrower or the
applicable Restricted Subsidiaries of assets (including Capital Stock) to such
person or persons; provided, that (i) the fair market value of such
assets, determined on an arms-length basis, so contributed pursuant to this paragraph
(k) shall not in the aggregate exceed $10,000,000 and (ii) in respect
of each such contribution, an Authorized Officer of the Borrower shall certify,
in a form to be agreed upon by the Borrower and the Administrative Agent (x) after
giving effect to such contribution, no Default or Event of Default shall have
occurred and be continuing, (y) the fair market value of the assets so
contributed and (z) that the requirements of clause (i) of this
proviso remain satisfied;


 


(l)            Investments
made to repurchase or retire Capital Stock of Holdings (or any direct or
indirect parent thereof) or the Borrower owned by any employee stock ownership
plan or key employee stock ownership plan of Holdings (or any direct or
indirect parent thereof) or the Borrower;


 


(m)          Investments
in the business of the Borrower and its Restricted Subsidiaries made by the
Borrower or any of its Restricted Subsidiaries with the proceeds of any Asset
Sale Prepayment Event or Recovery Event prior to the end of the Reinvestment
Period or pursuant to an Acceptable Reinvestment Commitment or Restoration
Certification;


 


97

















 


(n)           the
Borrower may make a loan to Holdings that could otherwise be made as a Dividend
permitted under Section 10.6;


 


(o)           Investments
in the ordinary course of business consisting of Article 3 endorsements
for collection or deposit and Article 4 customary trade arrangements with
customers consistent with past practices;


 


(p)           advances
of payroll payments to employees, consultants and independent contractors in
the ordinary course of business;


 


(q)           Investments
of a Restricted Subsidiary acquired after the Closing Date or of a corporation
merged into the Borrower or merged or consolidated with a Restricted Subsidiary
in accordance with Section 10.3 after the Closing Date to the extent that
such Investments were not made in contemplation of, or in connection with, such
acquisition, merger or consolidation and were in existence on the date of such
acquisition, merger or consolidation;


 


(r)            Guarantees
by Holdings, the Borrower or any Restricted Subsidiary of leases (other than
Capital Leases) or of other obligations that do not constitute Indebtedness, in
each case entered into in the ordinary course of business;


 


(s)           Investments
of any OCC-Regulated Subsidiary in the Capital Stock of the Federal Reserve
Bank in the district in which such Subsidiary is located in accordance with the
provisions of the Federal Reserve Act;


 


(t)            Investments
in “seed investment portfolios” for the purpose of testing and determining
model portfolios in the ordinary course of business and consistent with past
business practice; provided, that such Investments as valued at the fair
market value of such Investments at the time each such Investment is made,
would not exceed (i) $10,000,000 plus (ii) the Available Amount plus (iii) an
amount equal to any repayments, interest, returns, profits, distributions,
income and similar amounts actually received in cash in respect of any such
Investment (which amount shall not exceed the amount of such Investment valued
at the fair market value of such Investment at the time such Investment was
made);


 


(u)           intercompany
Investments by Holdings, the Borrower or any Guarantor in any Person that,
prior to such investment, is an Excluded Subsidiary; provided, that the
amount of such Investment, as valued at the fair market value of such
Investment at the time such Investment is made, shall not exceed (i) $10,000,000
plus (ii) the Available Amount plus (iii) an amount equal to any repayments,
interest, returns, profits, distributions, income and similar amounts actually
received in cash in respect of any such Investment (which amount shall not
exceed the amount of such Investment valued at the fair market value of such
Investment at the time such Investment was made);


 


(v)           (i) Investments
permitted under Section 10.6 or the proviso to Section 9.9 and (ii) Guarantee
Obligations permitted under Section 10.1;


 


(w)          intercompany
Investments in the form of loans, advances or extensions of credit by any
Credit Party to any Excluded Subsidiary in the ordinary course of business for
working capital purposes; provided, that such loans, advances or
extensions of credit shall be evidenced by one global promissory note that
shall be pledged to the Collateral Agent for the benefit of the Secured Parties
and which shall be executed by each Excluded Subsidiary which shall receive
such loan, advance or extension of credit;


 


98

















 


(x)            to
the extent constituting an Investment, Margin Loans, mortgage and warehouse
loans and other similar advances and extensions of credit made by the Borrower
or any Restricted Subsidiary in the ordinary course of business to their
respective customers;


 


(y)           Investments
made by the Borrower within 10 Business Days after the Closing Date in PTC
Holdings, Inc. and The Private Trust Company, N.A. in an aggregate amount
as valued at the fair market value of such Investment at the time made not to
exceed $7,000,000;


 


(z)            Securities
Owned (as set forth on the balance sheet of the Broker-Dealer Regulated
Subsidiary) for a period no longer than 10 Business Days following a securities
trade from a customer account and constituting securities transactions entered
into by the Broker-Dealer Regulated Subsidiary for the purpose of making
adjustments to such Subsidiary’s customer accounts with respect to such
securities trade, with the fair market value of all such Securities Owned (as
set forth on the balance sheet of the Broker-Dealer Regulated Subsidiary), not
to exceed $10,000,000 in the aggregate at any time outstanding;


 


(aa)         (i) any
additional Investments (including Investments in Minority Investments and
Unrestricted Subsidiaries and in joint ventures or similar entities that do not
constitute Restricted Subsidiaries) as valued at the fair market value of such
Investment at the time each such Investment is made and (ii) Investments
in respect of loans and advances to licensed financial advisors to facilitate
the transfer of such advisors’ businesses to the Borrower and its Subsidiaries
or to platforms utilized by the Borrower and its Subsidiaries, for the purchase
of other financial advisors’ businesses and for incidental and working capital
purposes; provided, that the aggregate amount of all such additional
Investments made pursuant to this clause (aa) shall not exceed an aggregate
amount that, at the time each such Investment is made, would not exceed the sum
of (x) $125,000,000 plus (y) the Available Amount plus (z) an
amount equal to any repayments, interest, returns, profits, distributions,
income and similar amounts actually received in cash in respect of all such
Investments (which amount shall not exceed the amount of all Investments valued
at the fair market value of all such Investments at the time each respective
Investment was made), provided that the amount in clause (x) shall be
permanently increased to $250,000,000 upon the earliest to occur of (1) the
Borrower’s corporate family rating by Moody’s is Ba3 or better or (2) the
Consolidated Total Debt to Consolidated EBITDA Ratio is less than or equal to
4.00:1.00;


 


(bb)         Investments in connection
with the UVEST Acquisition; and


 


(cc)         Investments in connection
with the Pacific Life Acquisition.


 


10.6         Limitation on Dividends Neither Holdings
nor the Borrower will declare or pay any dividends (other than (a) in
respect of Holdings, dividends payable solely in respect of its Capital Stock
and (b) in respect of the Borrower, dividends payable solely in respect of
its Capital Stock) or return any capital to its stockholders or make any other
distribution, payment or delivery of property or cash to its stockholders as
such, or redeem, retire, purchase or otherwise acquire, directly or indirectly,
for consideration, any shares of any class of its Capital Stock or the Capital
Stock of any direct or indirect parent now or hereafter outstanding (or any
options or warrants or stock appreciation rights issued with respect to any of
its Capital Stock), or set aside any funds for any of the foregoing purposes,
or permit any of the Restricted Subsidiaries to purchase or otherwise acquire
for consideration (other than in connection with an investment permitted by Section 10.5)
any shares of any class of the Capital Stock of Holdings or the Capital Stock of
the Borrower, now or hereafter outstanding (or any options or warrants or stock
appreciation rights issued with respect to any of its Capital Stock) (all of
the foregoing “Dividends”):


 


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(a)           Holdings or the Borrower may (i) redeem in whole or in
part any of its Capital Stock for another class of Capital Stock or rights to
acquire its Capital Stock or with proceeds from substantially concurrent equity
contributions or issuances of new shares of its Capital Stock; provided,
that any terms and provisions material to the interests of the Lenders
contained in such other class of Capital Stock be at least as advantageous to
the Lenders, taken as a whole, as those contained in the Capital Stock redeemed
thereby or (ii) so long as no Default or Event of Default has occurred and
is continuing, declare and pay dividends or make distributions in the amount of
proceeds of equity contributions or issuances of new shares of Capital Stock
(other than Equity Contributions, issuances of Permitted Cure Securities or
other equity contributions to the extent utilized in connection with other
transactions permitted pursuant to Section 10.5 or 10.6);


 


(b)           Holdings or the Borrower may redeem, acquire, retire or repurchase
(and the Borrower and its Subsidiaries may declare and pay Dividends to
Holdings, the proceeds of which are used to so redeem, acquire, retire or
repurchase) Capital Stock (including related stock appreciation rights or
similar securities) (or to allow any of Holdings’ direct or indirect parent
companies to so redeem, acquire, retire or repurchase its Capital Stock) from
present or former officers, managers, consultants, employees and directors (or
their respective successors, executors, administrators, heirs, legatees or
distributees) of Holdings (or any direct or indirect parent thereof), the
Borrower and its Subsidiaries, with the proceeds of Dividends from, seriatim,
Holdings or the Borrower, upon the death, disability, retirement or termination
of employment of any such Person or otherwise in accordance with any stock
option or stock appreciation rights plan, any management or employee stock
ownership plan, stock subscription plan, employment termination agreement or
any employment agreements or stockholders’ agreement; provided, that
except with respect to non-discretionary repurchases, acquisitions, retirement,
or redemptions pursuant to the terms of any such agreement, the aggregate
amount of all cash paid in respect of all such shares so redeemed, acquired,
retired or repurchased in any calendar year does not exceed the sum of (i) $5,000,000
plus (ii) all amounts obtained by Holdings or the Borrower during such
calendar year from the sale of such Capital Stock to other present or former
officers, consultants, employees and directors in connection with any permitted
compensation and incentive arrangements plus (iii) all amounts obtained
from any key-man life insurance policies received during such calendar year;
notwithstanding the foregoing, 100% of the unused amount of payments in respect
of this clause (b) may be carried forward to the next succeeding fiscal
year and utilized to make payments pursuant to this clause (b);


 


(c)           Holdings, the Borrower and the Restricted Subsidiaries may
make Investments permitted by Section 10.5;


 


(d)           to the extent constituting Dividends, Holdings may enter into
and consummate transactions expressly permitted by Section 10.3 or the
proviso to Section 9.9;


 


(e)           Holdings may pay Dividends on the First Restatement Effective
Date to consummate the UVEST Acquisition;


 


(f)            Holdings may pay Dividends on the Effective Date to
consummate the Pacific Life Acquisition; and


 


(g)           the Borrower may make and pay Dividends to Holdings:


 


(i)            the proceeds of which will be used to pay (or to make
Dividends to allow any direct or indirect parent of Holdings to pay) the tax
liability to each relevant jurisdiction in respect of consolidated, combined,
unitary or affiliated returns for the relevant jurisdiction of Holdings (or
such parent) attributable to Holdings, the Borrower or its Subsidiaries;


 


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(ii)           the proceeds of which shall be used by Holdings to pay (or to
make Dividends to allow any direct or indirect parent of Holdings to pay) its
operating expenses incurred in the ordinary course of business and other
corporate overhead costs and expenses (including administrative, legal,
accounting and similar expenses provided by third parties), which are
reasonable and customary and incurred in the ordinary course of business, in an
aggregate amount not to exceed $3,000,000 in any fiscal year plus any actual,
reasonable and customary indemnification claims made by directors or officers
of Holdings (or any parent thereof);


 


(iii)          the proceeds of which shall be used by Holdings to pay
franchise taxes and other fees, taxes and expenses required to maintain its (or
any of its direct or indirect parents’) corporate existence;


 


(iv)          the proceeds of which shall be used by Holdings to make
Dividends permitted by Section 10.6; and


 


(v)           the proceeds of which shall be used by Holdings to pay (or to
make Dividends to allow any direct or indirect parent thereof to pay) fees and
expenses (other than to Affiliates) related to any unsuccessful equity or debt
offering permitted by this Agreement;


 


(h)           Holdings may declare and make distributions or pay dividends
on its Capital Stock; provided, that (i) the aggregate amount of
such distributions paid or made by Holdings pursuant to this Section 10.6(g) shall
not at any time exceed 50% of Cumulative Consolidated Net Income Available to
Stockholders at such time and (ii) at the time of payment of such
dividends or the making of such distributions, and after giving effect thereto,
the Borrower’s ratio of Consolidated Total Debt on the date of such payment of
dividends or making of such distributions to Consolidated EBITDA for the most
recent Test Period ended prior to the date of such payment of dividends or the
making of such distributions and calculated as if such payment of dividends or
making of such distributions had occurred on the first day of such Test Period,
shall be less than 3.50:1.00.


 


10.7         Limitations on Debt Payments and Amendments  The
Borrower will not prepay, repurchase or redeem or otherwise defease any Senior
Unsecured Subordinated Notes or Refinanced Senior Unsecured Subordinated Notes
(it being understood that any payment of principal prior to the Senior
Unsecured Subordinated Note Maturity Date shall be deemed a prepayment for
purposes of this Section 10.7(a)) or other subordinated Indebtedness
permitted hereunder; provided, however, that so long as no
Default or Event of Default has occurred and is continuing, the Borrower or any
Restricted Subsidiary may prepay, repurchase or redeem any Senior Unsecured
Subordinated Notes or Refinanced Senior Unsecured Subordinated Notes (i) for
an aggregate price which will not exceed, when taken together with prepayments
permitted by subclause (b) below, (x) $25,000,000 plus (y) the
Available Amount at the time of such prepayment, repurchase or redemption, (ii) with
the proceeds of Refinanced Senior Unsecured Subordinated Notes or Indebtedness
subordinated to the Obligations that is permitted by Section 10.1 and that
has terms that, taken as a whole, are not materially less favorable to the
Lenders than the Senior Unsecured Subordinated Notes or (iii) with the
proceeds of the 2017 Term Loans in connection with the Redemption, provided
that the proceeds of the 2017 Term Loans, together with cash on hand of the Borrower,
may be used to pay any accrued and unpaid interest thereon or redemption
premiums in connection with the Redemption.


 


(b)           The Borrower will not prepay, repurchase or redeem or
otherwise defease any Permitted Additional Notes (it being understood that any
payment of principal prior to the Senior Unsecured Subordinated Note Maturity
Date shall be deemed a prepayment for purposes of this Section 10.7(b)); provided,
however, that so long as no Default or Event of Default has occurred and
is continuing, the Borrower or any Restricted Subsidiary may prepay, repurchase
or redeem any Permitted 


 


101

















 


Additional Notes (i) for an
aggregate price which will not exceed, when taken together with prepayments
permitted by subclause (a) above, (x) $25,000,000 plus (y) the
Available Amount at the time of such prepayment, repurchase or redemption or (ii) with
the proceeds of other Permitted Additional Notes or other Indebtedness
subordinated to the Obligations that is permitted by Section 10.1 and that
has terms that, taken as a whole, are not materially less favorable to the
Lenders than the Permitted Additional Notes being refinanced.


 


(c)           The Borrower will not waive, amend, modify or terminate the
Senior Unsecured Subordinated Note Indenture or any indenture governing
Refinanced Senior Unsecured Subordinated Notes to the extent that any such
waiver, amendment, modification, or termination would be adverse to the Lenders
in any material respect.


 


10.8         Limitations on Sale
Leasebacks The Borrower will not, and will not permit any of
the Restricted Subsidiaries to, enter into or effect any Sale Leasebacks, other
than Permitted Sale Leasebacks.


 


10.9         Consolidated Total Debt to
Consolidated EBITDA Ratio The Borrower will not permit the
Consolidated Total Debt to Consolidated EBITDA Ratio for any Test Period ending
during any period set forth below to be greater than the ratio set forth below
opposite such period:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  April 1, 2010 through June 30, 2010

  	
   

  	
  4.10 to 1.00

  	
   

  
	
  July 1, 2010 through September 30, 2010

  	
   

  	
  3.90 to 1.00

  	
   

  
	
  October 1, 2010 through December 31, 2010

  	
   

  	
  3.70 to 1.00

  	
   

  
	
  January 1, 2011 through March 31, 2011

  	
   

  	
  3.50 to 1.00

  	
   

  
	
  April 1, 2011 through June 30, 2011

  	
   

  	
  3.25 to 1.00

  	
   

  
	
  Thereafter

  	
   

  	
  3.00 to 1.00

  	
   

  



 


10.10       Consolidated EBITDA to
Consolidated Interest Expense Ratio The Borrower will not
permit the Consolidated EBITDA to Consolidated Interest Expense Ratio for any
Test Period ending during any period set forth below to be less than the ratio
set forth below opposite such period:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  April 1, 2010 through June 30, 2010

  	
   

  	
  2.35 to 1.00

  	
   

  
	
  July 1, 2010 through September 30, 2010

  	
   

  	
  2.50 to 1.00

  	
   

  
	
  October 1, 2010 through December 31, 2010

  	
   

  	
  2.60 to 1.00

  	
   

  
	
  January 1, 2011 through March 31, 2011

  	
   

  	
  2.75 to 1.00

  	
   

  
	
  April 1, 2011 through June 30, 2011

  	
   

  	
  2.95 to 1.00

  	
   

  
	
  Thereafter

  	
   

  	
  3.00 to 1.00

  	
   

  



 


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10.11       [Reserved]  


 


10.12       Burdensome Agreements Holdings and the Borrower,
will not, nor shall they permit any of their Restricted Subsidiaries to, enter
into or permit to exist any agreement (other than this Agreement or any other
Credit Document) that limits the ability of (a) any Restricted Subsidiary
of the Borrower that is not a Guarantor to pay Dividends to Holdings, the
Borrower or any Guarantor or (b) the Borrower or any Credit Party to
create, incur, assume or suffer to exist Liens on property of such Person for
the benefit of the Secured Parties with respect to the Obligations or under the
Credit Documents; provided, that the foregoing clauses (a) and (b) shall
not apply to agreements which (i) (x) exist on the Closing Date and
(to the extent not otherwise permitted by this Section 10.12) are listed
on Schedule 10.12 hereto and (y) to the extent any such agreements
permitted by clause (x) are set forth in an agreement evidencing
Indebtedness, any agreement evidencing any permitted renewal, extension or
refinancing of such Indebtedness so long as such renewal, extension or
refinancing does not expand the scope of such agreement, (ii) are binding
on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes
a Restricted Subsidiary of the Borrower, so long as such agreement was not
entered into solely in contemplation of such Person becoming a Restricted
Subsidiary of the Borrower, (iii) represents Indebtedness of a Restricted
Subsidiary of the Borrower which is not a Credit Party and which is permitted
by Section 10.1, (iv) arise pursuant to agreements entered into with
respect to any sale, transfer, lease or other disposition permitted by Section 10.4,
(v) are customary provisions in joint venture agreements and other similar
agreements applicable to joint ventures permitted under Section 10.5 and
applicable solely to such joint venture entered into in the ordinary course of
business, (vi) are negative pledges and restrictions on Liens in favor of
any holder of Indebtedness permitted under Section 10.1, but solely to the
extent any negative pledge relates to the property financed by or the subject
of such Indebtedness, (vii) are customary restrictions on leases,
subleases, licenses or Capital Stock or asset sale agreements otherwise
permitted hereby so long as such restrictions relate to the Capital Stock or
assets subject thereto, (viii) comprise restrictions imposed by any
agreement relating to secured Indebtedness permitted pursuant to Section 10.1
to the extent that such restrictions apply only to the property or assets
securing such Indebtedness, (ix) are customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of the
Borrower or any Restricted Subsidiary, (x) are customary provisions
restricting assignment of any agreement entered into in the ordinary course of
business, (xi) are restrictions on cash or other deposits imposed by customers
under contracts entered into in the ordinary course of business, and (xii) are
imposed by law.


 


10.13       Permitted Activities of
Holdings Holdings shall not conduct, transact or otherwise
engage in any business or operations other than (i) the ownership of the
Capital Stock of the Borrower, (ii) the maintenance of its legal
existence, including the ability to incur fees, costs and expenses relating to
such maintenance, (iii) participating in tax, accounting and other
administrative matters as a member of the consolidated group of Holdings and
Borrower, (iv) the performance of the Credit Documents, (v) any
public offering of its common stock or any other issuance of its Capital Stock
not prohibited by Article 10, including the costs, fees and expenses
related thereto, (vi) any transaction that Holdings is permitted to enter
into or consummate under this Article 10, including making any Dividend
permitted by Section 10.6 or holding any cash received in connection with
Dividends made by the Borrower in accordance with Section 10.6 pending
application thereof by Holdings in the manner contemplated by Section 10.6,
(vii) incurring fees, costs and expenses relating to overhead and general
operating including, without limitation, professional fees for legal, tax and
accounting issues, (viii) providing indemnification to officers and
directors and as otherwise permitted in Section 9 and 10 and (ix) activities
incidental to the businesses or activities described in clauses (i) to (viii) of
this Section 10.13.  Holdings will
not own or acquire any assets (other than shares of Capital Stock of the
Borrower, 


 


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cash and Permitted
Investments) or incur any liabilities (other than liabilities under the Credit
Documents, liabilities under its guarantee of the Senior Unsecured Subordinated
Notes (or Refinanced Senior Unsecured Subordinated Notes or Permitted
Additional Notes) and liabilities imposed by law, including tax liabilities,
and other liabilities incidental to its existence and business and activities
permitted by this Agreement).


 


SECTION 11.         Events of Default


 


Upon the occurrence of any of the following
specified events (each an “Event of Default”):


 


11.1         Payments The Borrower
shall (a) default in the payment when due of any principal of the Loans or
(b) default, and such default shall continue for five or more days, in the
payment when due of any interest on the Loans or any Fees or any Unpaid
Drawings or of any other amounts owing hereunder or under any other Credit
Document; or


 


11.2         Representations, etc.  Any representation, warranty or statement made
or deemed made by any Credit Party herein or in any other Credit Document or
any certificate, statement, report or other document delivered or required to
be delivered pursuant hereto or thereto shall prove to be untrue in any
material respect on the date as of which made or deemed made; or


 


11.3         Covenants Any Credit
Party shall (a) default in the due performance or observance by it of any
term, covenant or agreement contained in Section 9.1(e) or Section 10
or (b) default in the due performance or observance by it of any term,
covenant or agreement (other than those referred to in Section 11.1 or
11.2 or clause (a) of this Section 11.3) contained in this Agreement
or any other Credit Document and such default shall continue unremedied for a
period of at least 30 days after receipt of written notice by the Borrower from
the Administrative Agent or the Required Lenders; or


 


11.4         Default Under Other
Agreements The Borrower or any of the Restricted Subsidiaries
shall (i) default in any payment with respect to any Indebtedness (other
than pursuant to Section 11.1) in excess of $20,000,000 in the aggregate
for the Borrower and such Subsidiaries, beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created or (ii) default in the observance or performance of any agreement
or condition relating to any such Indebtedness or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist (other than, with respect to Indebtedness consisting
of any Hedging Agreements, termination events or equivalent events pursuant to
the terms of such Hedging Agreements), the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, any such Indebtedness to become due prior to its stated maturity; or (b) without
limiting the provisions of clause (a) above, any such Indebtedness shall
be declared to be due and payable, or required to be prepaid other than by a
regularly scheduled required prepayment or as a mandatory prepayment (and, with
respect to Indebtedness consisting of any Hedging Agreements, other than due to
a termination event or equivalent event pursuant to the terms of such Hedging
Agreements), prior to the stated maturity thereof; or


 


11.5         Bankruptcy, etc.  The Borrower or any Specified Subsidiary
shall commence a voluntary case, proceeding or action concerning itself under
Title 11 of the United States Code entitled “Bankruptcy,”; or an involuntary
case, proceeding or action is commenced against the Borrower or any Specified
Subsidiary and the petition is not controverted within 10 days after
commencement of the case, proceeding or action; or an involuntary case,
proceeding or action is commenced against the Borrower or any Specified
Subsidiary and the petition is not dismissed within 60 days after commencement
of the case, proceeding or action; or a custodian (as defined in the Bankruptcy


 


104
















 


Code) receiver, receiver
manager, trustee or similar person is appointed for, or takes charge of, all or
substantially all of the property of the Borrower or any Specified Subsidiary;
or the Borrower or any Specified Subsidiary commences any other proceeding or
action under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the Borrower or any
Specified Subsidiary; or there is commenced against the Borrower or any
Specified Subsidiary any such proceeding or action that remains undismissed for
a period of 60 days; or the Borrower or any Specified Subsidiary is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any such
case or proceeding or action is entered; or the Borrower or any Specified
Subsidiary suffers any appointment of any custodian receiver, receiver manager,
trustee or the like for it or any substantial part of its property to continue
undischarged or unstayed for a period of 60 days; or the Borrower or any
Specified Subsidiary makes a general assignment for the benefit of creditors;
or any corporate action is taken by the Borrower or any Specified Subsidiary
for the purpose of effecting any of the foregoing; or


 


11.6         ERISA Any Plan shall
fail to satisfy the minimum funding standard required for any plan year or part
thereof or a waiver of such standard or extension of any amortization period is
sought or granted under Section 412 of the Code; any Plan is or shall have
been terminated or is the subject of termination proceedings under ERISA
(including the giving of written notice thereof); an event shall have occurred
or a condition shall exist in either case entitling the PBGC to terminate any
Plan or to appoint a trustee to administer any Plan (including the giving of
written notice thereof); any Plan shall have an accumulated funding deficiency
(whether or not waived); any of the Borrower, any Subsidiary thereof or any
ERISA Affiliate has incurred or is likely to incur a liability to or on account
of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069,
4201 or 4204 of ERISA or Section 4971 or 4975 of the Code (including the
giving of written notice thereof); (b) there could result from any event
or events set forth in clause (a) of this Section 11.6 the imposition
of a lien, the granting of a security interest, or a liability, or the
reasonable likelihood of incurring a lien, security interest or liability; and (c) such
lien, security interest or liability will or would be reasonably likely to have
a Material Adverse Effect; or


 


11.7         Guarantee The Guarantee
or any material provision thereof shall cease to be in full force or effect or
any Guarantor thereunder or any Credit Party shall deny or disaffirm in writing
any Guarantor’s obligations under the Guarantee; or


 


11.8         Security Documents Any Security
Document or any material provision thereof shall cease to be in full force or
effect (other than pursuant to the terms hereof or thereof or as a result of
acts or omissions of the Administrative Agent, the Collateral Agent or any
Lender) or any grantor, pledgor or mortgagor thereunder or any Credit Party
shall deny or disaffirm in writing any grantor’s, pledgor’s or mortgagor’s
obligations under such Security Document; or


 


11.9         Subordination The Specified
Obligations or the obligations of Holdings or the Restricted Subsidiaries
pursuant to the Guarantee shall cease to constitute senior indebtedness under
the subordination provisions of any document or instrument evidencing any
permitted subordinated Indebtedness or such subordination provisions shall be
invalidated or otherwise cease to be legal, valid and binding obligations of
the parties thereto, enforceable in accordance with their terms; or


 


11.10       Judgments One or more
judgments or decrees shall be entered against the Borrower or any of the
Restricted Subsidiaries involving a liability of $20,000,000 or more in the
aggregate for all such judgments and decrees for the Borrower and the
Restricted Subsidiaries (to the extent not paid or fully covered by insurance
provided by a carrier not disputing coverage) and any such judgments or decrees
shall not have been satisfied, vacated, discharged, stayed or bonded pending appeal
within 60 days from the entry thereof; or


 


105

















 


11.11       Change of Control A Change of
Control shall occur;


 


then, and in any such event, and at any time
thereafter, if any Event of Default shall then be continuing, the
Administrative Agent shall, upon the written request of the Required Lenders,
by written notice to the Borrower, take any or all of the following actions,
without prejudice to the rights of the Administrative Agent or any Lender to
enforce its claims against the Borrower, except as otherwise specifically
provided for in this Agreement (provided that, if an Event of Default specified
in Section 11.5 shall occur with respect to the Borrower or any Specified
Subsidiary, the result that would occur upon the giving of written notice by
the Administrative Agent as specified in clauses (i), (ii), (iii) and (v) below
shall occur automatically without the giving of any such notice):  (i) declare the Total Revolving Credit
Commitment or the Total Swingline Commitment terminated and whereupon any such
Commitment, if any, of each Lender or the Swingline Lender, as the case may be,
shall forthwith terminate immediately and any Fees theretofore accrued shall
forthwith become due and payable without any other notice of any kind, (ii) declare
the principal of and any accrued interest and fees in respect of all Loans and
all Obligations owing hereunder and thereunder to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower; (iii) terminate
any Letter of Credit that may be terminated in accordance with its terms;
and/or (iv) direct the Borrower to pay (and the Borrower agrees that upon
receipt of such notice, or upon the occurrence of an Event of Default specified
in Section 11.5 with respect to the Borrower or any Specified Subsidiary,
it will pay) to the Administrative Agent at the Administrative Agent’s Office
such additional amounts of cash, to be held as security for the Borrower’s
reimbursement obligations for Drawings that may subsequently occur thereunder,
equal to the aggregate Stated Amount of all Letters of Credit issued and then
outstanding.


 


11.12       Borrower’s Right to Cure
Financial Performance Covenants.  Notwithstanding
anything to the contrary contained in this Section 11, in the event that
the Borrower fails to comply with the requirements of any Financial Performance
Covenant, until the expiration of the 10th day subsequent to the date the
certificate calculating such Financial Performance Covenant is required to be
delivered pursuant to Section 9.1(d), Holdings or the Borrower shall have
the right to issue Permitted Cure Securities for cash or otherwise receive cash
contributions to the capital of Holdings or the Borrower (collectively, the “Cure
Right”), and upon the receipt by the Borrower of such cash (the “Cure
Amount”) pursuant to the exercise by the Borrower of such Cure Right such
Financial Performance Covenant shall be recalculated giving effect to the
following pro forma adjustments:


 


(i)            Consolidated EBITDA shall be increased, solely for the
purpose of measuring the Financial Performance Covenants and not for any other
purpose under this Agreement, by an amount equal to the Cure Amount; and


 


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


 


(b)           Limitation on Exercise of Cure Right.  Notwithstanding
anything herein to the contrary, (a) in each four fiscal-quarter period
there shall be at least two consecutive fiscal quarters during which the Cure
Right is not exercised and (b) the Cure Amount shall be no greater than
the amount required for purposes of complying with the Financial Performance
Covenants.


 


106

















 


SECTION 12.         The Administrative Agent


 


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


 


12.2         Delegation of Duties The
Administrative Agent may execute any of its duties under this Agreement and the
other Credit Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such
duties.  The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.


 


12.3         Exculpatory Provisions Neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (a) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Credit Document (except for its or
such Person’s own gross negligence or willful misconduct) or (b) responsible
in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower, any Guarantor, any other Credit
Party or any officer thereof contained in this Agreement or any other Credit
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Credit Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Credit Document or for any failure of the Borrower, any
Guarantor or any other Credit Party to perform its obligations hereunder or
thereunder.  The Administrative Agent
shall not be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Credit Document, or to inspect the
properties, books or records of the Borrower.


 


12.4         Reliance by Administrative
Agent The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent.  The Administrative
Agent may deem and treat the Lender specified in the Register with respect to
any amount owing hereunder as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent.  The
Administrative Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Credit Document unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense that may be incurred by it by reason
of taking or continuing to take any such action.  The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement and the other Credit Documents in accordance with a request of the
Required Lenders, and such request and 


 


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any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Loans.


 


12.5         Notice of Default The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a “notice of default”.  In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to the
Lenders.  The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders, provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders (except to the extent
that this Agreement requires that such action be taken only with the approval
of the Required Lenders or each of the Lenders, as applicable).


 


12.6         Non-Reliance on
Administrative Agent and Other Lenders Each Lender expressly
acknowledges that neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Administrative Agent
hereinafter taken, including any review of the affairs of the Borrower, any
Guarantor or any other Credit Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender.  Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and creditworthiness
of the Borrower, any Guarantor and any other Credit Party and made its own
decision to make its Loans hereunder and enter into this Agreement.  Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Credit Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower, any Guarantor and any other
Credit Party.  Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Administrative Agent hereunder, the Administrative Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the business, assets, operations, properties, financial
condition, prospects or creditworthiness of the Borrower, any Guarantor or any
other Credit Party that may come into the possession of the Administrative
Agent or any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates.


 


12.7         Indemnification The Lenders
agree to indemnify the Administrative Agent in its capacity as such (to the
extent not reimbursed by the Borrower and without limiting the obligation of
the Borrower to do so), ratably according to their respective portions of the
Total Credit Exposure in effect on the date on which indemnification is sought
(or, if indemnification is sought after the date upon which the Commitments
shall have terminated and the Loans shall have been paid in full, ratably in
accordance with their respective portions of the Total Credit Exposure in
effect immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever that may at any
time (including at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of, the Commitments, this Agreement, any of the other Credit
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent 


 


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under or in connection with
any of the foregoing, provided that no Lender shall be liable for the payment
of any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent’s gross negligence or willful misconduct.  The agreements in this Section 12.7
shall survive the payment of the Loans and all other amounts payable hereunder.


 


12.8         Administrative Agent in its
Individual Capacity The Administrative Agent and its Affiliates may
make loans to, accept deposits from and generally engage in any kind of
business with the Borrower, any Guarantor and any other Credit Party as though
the Administrative Agent were not the Administrative Agent hereunder and under
the other Credit Documents.  With respect
to the Loans made by it, the Administrative Agent shall have the same rights
and powers under this Agreement and the other Credit Documents as any Lender
and may exercise the same as though it were not the Administrative Agent, and
the terms “Lender” and “Lenders” shall include the Administrative Agent in its
individual capacity.


 


12.9         Successor Agent The
Administrative Agent may resign as Administrative Agent upon 20 days’ prior
written notice to the Lenders and the Borrower. 
If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Credit Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be approved by the Borrower (which approval shall not be
unreasonably withheld), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term “Administrative
Agent” shall mean such successor agent effective upon such appointment and
approval, and the former Administrative Agent’s rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any Lenders or other holders of the Loans.  After any retiring Administrative Agent’s
resignation as Administrative Agent, the provisions of this Section 12
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Credit
Documents.


 


12.10       Withholding Tax To the extent
required by any applicable law, the Administrative Agent may withhold from any
interest payment to any Lender an amount equivalent to any applicable
withholding tax, except taxes imposed as a result of a current or former
connection unrelated to this Agreement between the Administrative Agent and any
jurisdiction outside of the United States imposing such tax.  If the Internal Revenue Service or any
authority of the United States or other jurisdiction asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid to or for
the account of any Lender (because the appropriate form was not delivered, was
not properly executed, or because such Lender failed to notify the
Administrative Agent of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason),
such Lender shall indemnify the Administrative Agent fully for all amounts
paid, directly or indirectly, by the Administrative Agent as tax or otherwise,
including penalties and interest, together with all expenses incurred,
including legal expenses, allocated staff costs and any out of pocket expenses.


 


12.11       Collateral Agent Each Lender
hereby further authorizes the Administrative Agent to appoint the Collateral
Agent to act on behalf of the Lenders, and authorizes the Collateral Agent, on
behalf of and for the benefit of Lenders, to be the agent for and
representative of the Lenders with respect to the Collateral and the Security
Documents.


 


SECTION 13.         Miscellaneous


 


13.1         Amendments and Waivers Neither this
Agreement nor any other Credit Document, nor any terms hereof or thereof may be
amended, supplemented or modified except in 


 


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accordance with the
provisions of this Section 13.1. 
The Required Lenders may, or, with the written consent of the Required
Lenders, the Administrative Agent may, from time to time, (a) enter into
with the relevant Credit Party or Credit Parties written amendments,
supplements or modifications hereto and to the other Credit Documents for the
purpose of adding any provisions to this Agreement or the other Credit
Documents or changing in any manner the rights of the Lenders or the Credit
Parties hereunder or thereunder or (b) waive, on such terms and conditions
as the Required Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Credit Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver, amendment, supplement or
modification shall directly (i) forgive any portion of any Loan or extend
the final scheduled maturity date of any Loan or reduce the stated rate, or
forgive any portion, or extend the date for the payment, of any interest or fee
payable hereunder (other than as a result of waiving the applicability of any
post-default increase in interest rates), or reduce or extend the date for
payment of any Unpaid Drawings, or extend the final expiration date of any
Lender’s Commitment or extend the final expiration date of any Letter of Credit
beyond the date specified in Section 3.1(a), or increase the aggregate
amount of any Commitment of any Lender, or amend or modify any provisions of Section 13.8(a) or
any other provision that provides for the pro rata nature of disbursements by
or payments to Lenders, in each case without the written consent of each Lender
directly and adversely affected thereby, or (ii) amend, modify or waive
any provision of this Section 13.1 or reduce the percentages specified in
the definitions of the terms “Required Term Class Lenders”, “Required
Revolving Class Lenders”, “Required Credit Facility Lenders” and “Required
Lenders” or consent to the assignment or transfer by the Borrower of its rights
and obligations under any Credit Document to which it is a party (except as
permitted pursuant to Section 10.3), in each case without the written
consent of each Lender directly and adversely affected thereby, or (iii) amend,
modify or waive any provision of Section 12 without the written consent of
the then-current Administrative Agent, or (iv) amend, modify or waive any
provision of Section 3 without the written consent of the Letter of Credit
Issuer, or (v) amend, modify or waive any provisions hereof relating to
Swingline Loans without the written consent of the Swingline Lender, or (vi) change
any Commitment to a Commitment of a different Class in each case without
the prior written consent of each Lender directly and adversely affected
thereby, or (vii) release all or substantially all of the Guarantors under
the Guarantee (except as expressly permitted by the Guarantee), or release all
or substantially all of the Collateral under the Security Agreement, the Pledge
Agreement and the Mortgages, in each case without the prior written consent of
each Lender, or (viii) amend Section 2.9(a) so as to permit
Interest Period intervals greater than six months without regard to
availability to Lenders, without the written consent of each Lender directly
and adversely affected thereby, or (ix) decrease any Repayment Amount, extend
any scheduled Repayment Date or decrease the allocation of any mandatory
prepayment to be received by any Lender holding any Term Loans, in each case
without the written consent of the Required Term Class Lenders with
respect to any affected Credit Facility, or (x) amend, modify or waive any
provision of any Credit Document that would disproportionately affect the
obligation of the Borrower to make payments with respect to any Credit Facility
without the written consent of the Required Credit Facility Lenders with
respect to any such Credit Facility.  Any
such waiver and any such amendment, supplement or modification shall apply
equally to each of the affected Lenders and shall be binding upon the Borrower,
such Lenders, the Administrative Agent and all future holders of the affected
Loans.  In the case of any waiver, the
Borrower, the Lenders and the Administrative Agent shall be restored to their
former positions and rights hereunder and under the other Credit Documents, and
any Default or Event of Default waived shall be deemed to be cured and not
continuing, it being understood that no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.  Notwithstanding the foregoing,
the Administrative Agent and the Borrower may effect such amendments to this
Agreement as may be necessary or appropriate to effect the provisions set forth
in the proviso to the definition of Required Cash.


 


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In addition, notwithstanding the foregoing, this
Agreement may be amended with the written consent of the Administrative Agent,
the Borrower and the Lenders providing the relevant Replacement Term Loans (as
defined below) to permit the refinancing, replacement or modification of all
outstanding Term Loans (“Refinanced Term Loans”) with a replacement term
loan tranche hereunder (“Replacement Term Loans”), provided that (a) the
aggregate principal amount of such Refinanced Term Loans shall not exceed the
aggregate principal amount of such Refinanced Term Loans, (b) the
Applicable Margin for such Replacement Term Loans shall not be higher than the
Applicable Margin for such Refinanced Term Loans, (c) the weighted average
life to maturity of such Replacement Term Loans shall not be shorter than the
weighted average life to maturity of such Refinanced Term Loans at the time of
such refinancing (except to the extent of nominal amortization for periods
where amortization has been eliminated as a result of the prepayment of applicable
Term Loans) and (d) all other terms applicable to such Replacement Term
Loans shall be substantially identical to, or no less favorable to the Lenders
providing such Replacement Term Loans than those applicable to such Refinanced
Term Loans, except to the extent necessary to provide for covenants and other
terms applicable to any period after the latest final maturity of the Term
Loans of such Class in effect immediately prior to such refinancing.


 


13.2         Notices  All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by facsimile
transmission or other electronic transmission) and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered,
or three days after being deposited in the mail, postage prepaid, or, in the
case of telecopy notice, when received, addressed as follows in the case of the
Borrower and the Administrative Agent, and as set forth on Schedule 1.1(b) in
the case of the other parties hereto, or to such other address as may be
hereafter notified by the respective parties hereto:


 


The
Borrower:


 


LPL
Holdings, Inc.


9785
Towne Centre Drive


San
Diego, California 92121-1968


Attention:  Chief Financial Officer


Telecopier:  858-642-7455


 


With
a copy to:


LPL
Holdings, Inc.


1
Beacon Street, 22nd Floor


Boston,
Massachusetts 02108-3100


Attention:
General Counsel


Telecopier:
617-536-2811


 


 


The
Administrative Agent and the Collateral Agent:


 


Morgan
Stanley Senior Funding, Inc.


One
Pierrepont Plaza, 7th Floor


300
Cadman Plaza West


Brooklyn,
New York 11201


Attention:  Larry Benison


Eric De Santis


Telephone:
718-754-7299 / 7290


 


111

















 


Telecopier:
718-754-7249 / 7250


E-mail:
larry.benison@morganstanley.com


Eric.desantis@morganstanley.com


 


provided, that any
notice, request or demand to or upon the Administrative Agent or the Lenders
pursuant to Sections 2.3, 2.6, 2.9, 4.2 and 5.1 shall not be effective until
received.


 


(b)           Notices and other communications to the
Lenders and the Letter of Credit Issuer hereunder may be delivered or furnished
by electronic communication (including e-mail and Internet or intranet
websites) pursuant to procedures approved by Administrative Agent and the
Borrower; provided, that the foregoing shall not apply to notices to any
Lender or the Letter of Credit Issuer pursuant to Section 2 if such Lender
or the Letter of Credit Issuer, as applicable, has notified the Administrative
Agent that it is incapable of receiving notices under such Section 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 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.


 


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


 


13.4         Survival of Representations
and Warranties All representations and warranties made hereunder,
in the other Credit Documents and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the making of the Loans hereunder.


 


13.5         Payment of Expenses and Taxes; Indemnification The Borrower agrees (i) to pay or reimburse the Agents
for all their reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of, and any consent,
waiver, amendment, supplement or modification to, this Agreement and the other
Credit Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including the reasonable fees, disbursements
and other charges of one counsel to the Agents with statements with respect to
the foregoing to be submitted to the Borrower prior to the Effective Date (in
the case of amounts to be paid on the Effective Date and from time to time
thereafter on a quarterly basis), (ii) to pay or reimburse each Lender and
the Administrative Agent and the Collateral Agent for all their reasonable and
documented costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Credit 


 


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Documents and any such other
documents, including the reasonable fees, disbursements and other charges of
one counsel to the Administrative Agent and the Collateral Agent (unless there
is an actual or perceived conflict of interest in which case each such Person
may retain its own counsel), and one counsel for the Lenders (unless there is
an actual or perceived conflict of interest in which case each Lender affected
thereby may retain its own counsel), (iii) to pay, indemnify, and hold harmless
each Lender and each Agent from any and all reasonable out-of-pocket costs and
expenses of creating and perfecting Liens in favor of the Collateral Agent, for
the benefit of the Secured Parties including recording and filing fees, UCC
search fees, title insurance premiums (to the extent not directly paid to the
applicable insurer) and any and all liabilities with respect to, or resulting
from, any delay in paying, stamp, excise and other similar taxes, if any, that
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Credit Documents
and any such other documents, and (iv) to pay, indemnify and hold harmless
each Lender, the Collateral Agent and the Administrative Agent and their
respective Affiliates, directors, officers, employees, trustees, attorneys,
advisors and agents from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever, including
reasonable and documented fees, disbursements and other charges of one counsel
to the Administrative Agent and the Collateral Agent (unless there is an actual
or perceived conflict of interest in which case each such Person may retain its
own counsel) and one counsel for the Lenders (unless there is an actual or
perceived conflict of interest in which case each Lender affected thereby may
retain its own counsel), with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Credit Documents
and any such other documents, including any of the foregoing relating to the
violation of, noncompliance with or liability under, any Environmental Law or
any actual or alleged presence of Hazardous Materials applicable to the
operations of the Borrower, any of its Subsidiaries or any of the Real Estate
(all the foregoing in this clause (iv), collectively, the “indemnified
liabilities”); provided, that the Borrower shall have no obligation
hereunder to the Agents or any Lender nor any of their respective Affiliates,
directors, officers, employees, trustees and agents with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of the
party to be indemnified or disputes among the Agents, the Lenders and/or their
transferees not arising from any act or omission of the Borrower or any other
Credit Party.  If for any reason the
foregoing indemnification is unavailable to any Agent or Lender or insufficient
to hold it harmless, then the Borrower shall contribute to the amount paid or
payable by such Agent or such Lender as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative economic
interests of (i) Holdings, the Borrower and its Subsidiaries on the one
hand and (ii) such Agent or such Lender on the other hand in the matters
contemplated by the Credit Documents as well as the relative fault of (i) Holdings,
the Borrower and its Subsidiaries and (ii) such Agent or such Lender with
respect to such loss, claim, damage or liability and any other relevant
equitable considerations.


 


(b)           No Credit Party nor any Person indemnified pursuant to clause
(iv) of Section 13.5(a) shall have any liability for any
punitive, indirect or consequential damages resulting from this Agreement or
any other Credit Document or arising out of its activities in connection
herewith or therewith (whether before or after the Closing Date).


 


(c)           The agreements in this Section 13.5 shall survive
repayment of the Loans and all other amounts payable hereunder.


 


13.6         Successors and Assigns; Participations and Assignments The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Letter of Credit Issuer
that issues any Letter of Credit), except that (i) the Borrower may not
assign or otherwise transfer any of its rights or 


 


113

















 


obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or transfer
by the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section. 
Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the Letter
of Credit Issuer that issues any Letter of Credit), Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent
expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Letter of Credit Issuer and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.


 


(b)  Subject to the conditions set forth in paragraph (b)(ii) below,
any Lender may assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitments and the Loans at the time owing to it) with the prior written
consent (such consent not be unreasonably withheld or delayed; it being
understood that, without limitation, the Borrower shall have the right to
withhold its consent to any assignment if, in order for such assignment to
comply with applicable law, the Borrower would be required to obtain the
consent of, or make any filing or registration with, any Governmental
Authority, other than routine filings or registrations) of:


 


(A)          the Borrower; provided, that no consent of
the Borrower shall be required for an assignment to a Lender, an Affiliate of a
Lender (unless increased costs would result therefrom, except if an Event of
Default under Section 11.1 or Section 11.5 has occurred and is
continuing), an Approved Fund or, if an Event of Default under Section 11.1
or Section 11.5 has occurred and is continuing, any other assignee; and


 


(B)           the Administrative Agent, and, in the case of
Revolving Credit Commitments or Revolving Credit Loans, the Swingline Lender,
and in the case of Revolving Credit Commitments, the Letter of Credit Issuer; provided,
that no consent of the Administrative Agent, the Swingline Lender or the Letter
of Credit Issuer shall be required for an assignment of (x) any Commitment
to an assignee that is a Lender with a Commitment of the same Class immediately
prior to giving effect to such assignment or (y) any Term Loan to a
Lender, an Affiliate of a Lender or an Approved Fund.


 


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


 


(A)          except in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund or an assignment of the entire
remaining amount of the assigning Lender’s Commitments or Loans of any Class,
the amount of the Commitments or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than, in the case of Revolving Credit Commitments, Extended Revolving
Credit Commitments other than the 2013 Revolving Credit Commitments or
Additional/Replacement Revolving Credit Commitments or Revolving Credit Loans,
Additional/Replacement Revolving Credit Loans or Extended Revolving Credit
Loans other than 2013 Revolving Credit Loans, $5,000,000, or in the case of a
2017 Term Loan Commitment, an Incremental Term Loan Commitment or Term Loans,
$1,000,000 (provided that for purposes of calculating such minimum amounts of
Term Loans, any assignment of a 2017 Term Loan Commitment or an Incremental
Term Loan Commitment shall be aggregated), unless each of the Borrower and the
Administrative Agent otherwise consents; provided, that no such consent
of the Borrower shall be required if an Event of Default under Section 11.1
or Section 11.5 has


 


114
















 


occurred and is continuing;
and provided, further, that contemporaneous assignments to a
single assignee made by affiliated Lenders or Approved Funds and
contemporaneous assignments by a single assignor made to affiliated Lenders or
Approved Funds shall be aggregated for purposes of meeting the minimum
assignment amount requirements stated above;


 


(B)           each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement; provided that this paragraph shall not be
construed to prohibit the assignment of a proportionate part of all the
assigning Lender’s rights and obligations in respect of one Class of
Commitments or Loans;


 


(C)           the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance; and


 


(D)          the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an administrative questionnaire in a form
approved by the Administrative Agent.


 


For the purpose of this Section 13.6(b), the
term “Approved Fund” has the following meaning:


 


“Approved Fund” means any Person (other than
a natural person) that is engaged in making, purchasing, holding or investing
in bank loans and similar extensions of credit in the ordinary course and that
is administered, advised or managed by (a) a Lender, (b) an Affiliate
of a Lender or (c) an entity or an Affiliate of an entity that
administers, advises or manages a Lender.


 


(iii)          Subject to acceptance and recording thereof pursuant to
paragraph (b)(v) of this Section, from and after the effective date
specified in each Assignment and Acceptance, the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 2.10, 2.11, 3.5, 5.4 and 13.5).  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this Section 13.6
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.


 


(iv)          The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at the Administrative Agent’s Office a copy of
each Assignment and Acceptance delivered to it and a register for the recordation
of the names and addresses of the Lenders, and the Commitments of, and
principal amount of the Loans and any payment made by the Letter of Credit
Issuer under any Letter of Credit owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”).  Further, the Register shall contain the name
and address of the Administrative Agent and the lending office through which
each such Person acts under this Agreement. 
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Letter of Credit Issuer and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary.  The Register, as
in effect at the close of business on the preceding Business Day, shall be
available for 


 


115

















 


inspection by the Borrower, the
Letter of Credit Issuer and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.


 


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


 


(c)   Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Letter of Credit Issuer or the Swingline Lender, sell
participations to one or more banks or other entities (each, a “Participant”)
in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans owing to
it), provided that (A) such Lender’s obligations under this Agreement
shall remain unchanged, (B) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations and (C) the
Borrower, the Administrative Agent, the Letter of Credit Issuer and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement or any other Credit
Document, provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section 13.1
that affects such Participant.  Subject
to paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.10, 2.11 and 5.4 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 13.8(b) as
though it were a Lender, provided such Participant agrees to be subject to Section 13.8(a) as
though it were a Lender.


 


(ii)           A Participant shall not be entitled to receive any greater
payment under Section 2.10, 2.11, 3.5 or 5.4 than the applicable Lender
would have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant is made
with the Borrower’s prior written consent. 
A Participant that would be a Non-U.S. Lender if it were a Lender shall
not be entitled to the benefits of Section 5.4 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 5.4(b) as
though it were a Lender.


 


(d)           Any Lender may, without the consent of the Borrower or the
Administrative Agent, at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest, provided that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.  In order to facilitate such
pledge or assignment, the Borrower hereby agrees that, upon request of any
Lender at any time and from time to time after the Borrower has made its
initial borrowing hereunder, the Borrower, as the case may be, shall provide to
such Lender, at the Borrower’s own expense, a promissory note, substantially in
the form of Exhibit I-1, I-2, I-3, I-4, I-5, I-6 or I-7, as the case may
be, evidencing 2013 Term Loans, 2015 Term Loans, 2017 Term Loans, Incremental
Term Loans, 2011 Revolving Credit Loans and Swingline Loans, 2013 Revolving
Credit Loans and Swingline Loans and 


 


116

















 


Additional/Replacement Revolving
Credit Loans and Swingline Loans, respectively, owing to such Lender.


 


(e)           Subject to Section 13.16, the Borrower authorizes each
Lender to disclose to any Participant, secured creditor of such Lender or
assignee (each, a “Transferee”) and any prospective Transferee any and
all financial information in such Lender’s possession concerning the Borrower
and its Affiliates that has been delivered to such Lender by or on behalf of
the Borrower and its Affiliates pursuant to this Agreement or which has been
delivered to such Lender by or on behalf of the Borrower and its Affiliates in
connection with such Lender’s credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement.


 


13.7         Replacements of Lenders under Certain Circumstances The Borrower shall be permitted to replace any Lender (or
any Participant) that (a) requests reimbursement for amounts owing
pursuant to Section 2.10, 2.11, 3.5 or 5.4, (b) is affected in the
manner described in Section 2.10(a)(iii) and as a result thereof any
of the actions described in such Section is required to be taken or (c) becomes
a Defaulting Lender, with a replacement bank or other financial institution; provided,
that (i) such replacement does not conflict with any Applicable Law, (ii) no
Event of Default shall have occurred and be continuing at the time of such
replacement, (iii) the Borrower shall repay (or the replacement bank or
institution shall purchase, at par) all Loans and other amounts (other than any
disputed amounts) pursuant to Section 2.10, 2.11, 3.5 or 5.4, as the case
may be, owing to such replaced Lender prior to the date of replacement, (iv) the
replacement bank or institution, if not already a Lender, and the terms and
conditions of such replacement, shall be reasonably satisfactory to the
Administrative Agent, (v) the replaced Lender shall be obligated to make
such replacement in accordance with the provisions of Section 13.6 and (vi) any
such replacement shall not be deemed to be a waiver of any rights that the
Borrower, the Administrative Agent or any other Lender shall have against the
replaced Lender or that the replaced Lender shall have against the Borrower and
the other parties for indemnity, contribution, payment of disputed and other
unpaid amounts and otherwise.


 


(b)           If any Lender (such Lender a “Non-Consenting Lender”)
has failed to consent to a proposed amendment, waiver, discharge or termination,
which pursuant to the terms of Section 13.1 requires the consent of all of
the Lenders affected and with respect to which the Required Lenders shall have
granted their consent, then provided no Default or Event of Default then
exists, the Borrower shall have the right (unless such Non-Consenting Lender
grants such consent) to replace such Non-Consenting Lender by requiring such
Non-Consenting Lender to assign its Loans and Commitments to one or more
assignees reasonably acceptable to the Administrative Agent, provided
that: (i) all Obligations of the Borrower owing to such Non-Consenting
Lender being replaced shall be paid in full to such Non-Consenting Lender
concurrently with such assignment, and (ii) the replacement Lender shall
purchase the foregoing by paying to such Non-Consenting Lender a price equal to
the principal amount thereof plus accrued and unpaid interest thereon.  In connection with any such assignment, the
Borrower, the Administrative Agent, such Non-Consenting Lender and the replacement
Lender shall otherwise comply with Section 13.6.


 


13.8         Adjustments; Set-off
If any Lender (a “benefited Lender”) shall at any time receive any
payment of all or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in Section 10.5,
or otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender’s Loans
or interest thereon, such benefited Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender’s Loans, or shall provide such other Lenders with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to cause such
benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided,



 


117

















 


however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefited Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest.


 


(b)           After the occurrence and during the continuance of an Event
of Default, in addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency,
and any other credits, indebtedness or claims, in any currency, in each case
whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Lender or any branch or agency thereof to or for
the credit or the account of the Borrower, as the case may be.  Each Lender agrees promptly to notify the
Borrower, as the case may be, and the Administrative Agent after any such set-off
and application made by such Lender, provided that the failure to give such
notice shall not affect the validity of such set-off and application.


 


13.9         Counterparts This Agreement
may be executed by one or more of the parties to this Agreement on any number
of separate counterparts (including by facsimile or other electronic
transmission), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. 
A set of the copies of this Agreement signed by all the parties shall be
lodged with the Borrower and the Administrative Agent.


 


13.10       Severability Any provision
of this Agreement that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.


 


13.11       Integration This Agreement
and the other Credit Documents represent the agreement of Holdings, the
Borrower, the Administrative Agent, the Collateral Agent and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Collateral Agent, the Administrative Agent
or any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Credit Documents.


 


13.12       GOVERNING LAW THIS AGREEMENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.


 


13.13       Submission to Jurisdiction;
Waivers The Borrower hereby irrevocably and unconditionally:


 


(a)           submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to which
it is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State
of New York, the courts of the United States of America for the Southern
District of New York and appellate courts from any thereof; provided,
that the Borrower agrees that it shall not commence any actions or proceedings
against any Lender or any Agent relating to this Agreement and the other Credit
Documents in the State of California;


 


118

















 


(b)           consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;


 


(c)           agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 13.2 or at such other address
of which the Administrative Agent shall have been notified pursuant thereto;


 


(d)           agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and


 


(e)           waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section 13.13 any special, exemplary, punitive or
consequential damages.


 


13.14       Acknowledgments The Borrower
hereby acknowledges that:


 


(a)           it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Credit Documents;


 


(b)           neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to Holdings or the Borrower arising out of
or in connection with this Agreement or any of the other Credit Documents, and
the relationship between Administrative Agent and Lenders, on one hand, and
Holdings or the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and


 


(c)           no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among Holdings, the Borrower and the Lenders.


 


13.15       WAIVERS OF JURY TRIAL  HOLDINGS, THE BORROWER, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


13.16       Confidentiality The Collateral
Agent, the Administrative Agent and each Lender shall hold all non-public
information (other than non-public information that becomes public other than
by reason of a breach of this Section by a Person or from a known breach
of any confidentiality obligations owing to Holdings, the Borrower or any of
their Subsidiaries) furnished by or on behalf of Holdings and the Borrower in
connection with such Lender’s evaluation of whether to become a Lender
hereunder or obtained by such Lender, the Collateral Agent or the
Administrative Agent pursuant to the requirements of this Agreement (“Confidential
Information”) confidential in accordance with its customary procedure for
handling confidential information of this nature and (in the case of a Lender
that is a bank) in accordance with safe and sound banking practices and in any
event may make disclosure as required or requested by any governmental agency
or representative thereof or pursuant to legal or regulatory process or to such
Lender’s, the Collateral Agent’s, or the Administrative Agent’s attorneys,
professional advisors or independent auditors or Affiliates; provided,
that unless specifically prohibited 


 


119

















 


by applicable law or court
order, each Lender, the Collateral Agent and the Administrative Agent shall
notify Holdings and the Borrower of any request by any governmental agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to disclosure
of such information; and provided, further, that in no event shall any
Lender, the Collateral Agent or the Administrative Agent be obligated or
required to return any materials furnished by Holdings, the Borrower or any
Subsidiary of the Borrower.  Each Lender,
the Collateral Agent and the Administrative Agent agrees that it will not
provide to prospective Transferees or to any pledgee referred to in Section 13.6(d) or
to prospective direct or indirect contractual counterparties under Interest
Rate Hedging Agreements to be entered into in connection with Loans made
hereunder any of the Confidential Information unless such Person is advises of
and agrees to be bound by the provisions of (or provisions substantially
similar to) this Section 13.16.


 


13.17       USA PATRIOT Act Each Lender
hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Patriot Act”), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender
to identify the Borrower in accordance with the Patriot Act.


 


13.18       Effect of Amendment and
Restatement of the Original Credit Agreement On the Effective Date, the
Original Credit Agreement shall be amended, restated and superseded in its
entirety.  The parties hereto acknowledge
and agree that (a) this Agreement and the other Credit Documents, whether
executed and delivered in connection herewith or otherwise, do not constitute a
novation, payment and reborrowing, or termination of the Original Obligations
under the Original Credit Agreement as in effect prior to the Effective Date, (b) such
Original Obligations are in all respects continuing (as amended and restated
hereby) as Indebtedness and Obligations outstanding under this Agreement and (c) this
Agreement shall supersede and replace in its entirety the Original Credit
Agreement, and such Original Credit Agreement shall be of no further force and
effect.


 


13.19       Consent of Required Lenders By its
execution hereof, each Lender party to this Agreement consents to the amendment
and restatement of the Original Credit Agreement, as set forth herein, and the
amendment, amendment and restatement, replacement or other modification to any
other Credit Documents, in each case, as so amended, amended and restated,
replaced or otherwise modified on the Effective Date in the form entered into
by the Credit Parties and the applicable Agent.


 


13.20       Legend


 


The 2017 Term Loans may be issued with original
issue discount (“OID”) for U.S. Federal income tax purposes.  The issue price, amount of OID, issue date
and yield to maturity of these 2017 Term Loans may be obtained by writing to
the Administrative Agent at the address set forth in Section 13.2.


 


[SIGNATURE PAGE
FOLLOWS]


 


120

















 


IN WITNESS WHEREOF, each of the parties hereto has
caused a counterpart of this Agreement to be duly executed and delivered as of
the date first above written.


 


	
   

  	
  LPL
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert J. Moore

  
	
   

  	
   

  	
  Name:
  Robert J. Moore

  
	
   

  	
   

  	
  Title:   Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LPL
  INVESTMENT HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert J. Moore

  
	
   

  	
   

  	
  Name:
  Robert J. Moore

  
	
   

  	
   

  	
  Title:   Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INDEPENDENT
  ADVISERS GROUP 

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert J. Moore

  
	
   

  	
   

  	
  Name:
  Robert J. Moore

  
	
   

  	
   

  	
  Title:   Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GLENOAK,
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert J. Moore

  
	
   

  	
   

  	
  Name:
  Robert J. Moore

  
	
   

  	
   

  	
  Title:   Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LPL
  INSURANCE ASSOCIATES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Stephanie L. Brown

  
	
   

  	
   

  	
  Name:
  Stephanie L. Brown

  
	
   

  	
   

  	
  Title:   Vice President and Secretary

  



 

















 


	
   

  	
  LPL
  INDEPENDENT ADVISOR SERVICES 

  GROUP, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert J. Moore

  
	
   

  	
   

  	
  Name:
  Robert J. Moore

  
	
   

  	
   

  	
  Title:   Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ASSOCIATED
  FINANCIAL GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Chad D. Perry

  
	
   

  	
   

  	
  Name:
  Chad D. Perry

  
	
   

  	
   

  	
  Title:   Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ASSOCIATED
  PLANNERS INVESTMENT 

  ADVISORY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Chad D. Perry

  
	
   

  	
   

  	
  Name:
  Chad D. Perry

  
	
   

  	
   

  	
  Title:   Secretary

  



 

















 


	
   

  	
  MORGAN
  STANLEY SENIOR FUNDING, INC., as

  Administrative Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  James E. Bonetti

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MORGAN
  STANLEY & CO., as Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  James E. Bonetti

  
	
   

  	
   

  	
  Title:
  Vice President

  



 
















	
   

  	
   

  



 


SCHEDULES
TO THE


 


THIRD
AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated
as of May 24, 2010


 


among


 


LPL
INVESTMENT HOLDINGS INC.,


 


LPL
HOLDINGS, INC.,


as
Borrower,


 


The
Several Lenders

from Time to Time Parties Hereto,


 


MORGAN
STANLEY SENIOR FUNDING, INC.,

as Administrative Agent,


 


and


 


MORGAN
STANLEY & CO.,

as Collateral Agent


 


	
   

  	
   

  



 


MORGAN
STANLEY SENIOR FUNDING, INC.,

as Joint Lead Arranger and Joint Bookrunner


with
respect to the 2015 Term Loans and the 2017 Term Loans


 


BANC OF
AMERICA SECURITIES LLC,

as Joint Lead Arranger and Joint Bookrunner


with
respect to the 2015 Term Loans and the 2017 Term Loans


 

















 


Schedule 1.1(a)


 


Mortgaged Property


 


Parcel 1 of Parcel Map No. 17965,
City of San Diego, County of San Diego, State of California, located on Towne
Centre Drive, San Diego, California, 92121 (owned by LPL Holdings, Inc.).


 

















 


Schedule 1.1(b)


 


Commitments and Addresses of Lenders


 


[On
file with Administrative Agent]


 

















 


Schedule 1.1(c)


 


Excluded Subsidiaries


 


LPL
Financial Corporation, a California corporation


 


PTC
Holdings, Inc., an Ohio corporation


 


The
Private Trust Company, N.A., a national banking association


 


Uvest
Financial Services Group, Inc., a North Carolina corporation


 


LSC
Insurance Agency of Arizona, Inc., an Arizona corporation


 


IFS
Agencies, Inc., a New York corporation


 


Mutual
Service Corporation, a Michigan corporation


 


Waterstone
Financial Group, Inc., an Illinois corporation


 


Associated
Securities Corporation, a California corporation


 


Mutual
Services Mortgage, LLC, a Delaware corporation


 


MSC
Insurance & Securities, Inc., an Arizona corporation


 


Mutual
Service Corporation, a Nevada corporation


 

















 


Schedule 8.6


 


Governmental Approvals


 


None.


 
















 


Schedule 8.12


 


Subsidiaries


 


	
  Subsidiary

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  	
  Record and

  Beneficial Owner

  	
   

  	
  Percentage of

  Capital Stock

  Beneficially Owned

  	
   

  	
  Material and/or

  Specified

  Subsidiary

  	
   

  
	
  LPL
  Holdings, Inc.

  	
   

  	
  Massachusetts

  	
   

  	
  LPL
  Investment Holdings Inc.

  	
   

  	
  100%

  	
   

  	
  No

  	
   

  
	
  Glenoak,
  LLC

  	
   

  	
  Delaware

  	
   

  	
  LPL
  Holdings, Inc.

  	
   

  	
  100%

  	
   

  	
  No

  	
   

  
	
  LPL
  Financial Corporation

  	
   

  	
  California

  	
   

  	
  LPL
  Holdings, Inc.

  	
   

  	
  100%

  	
   

  	
  Material and Specified

  	
   

  
	
  Independent
  Advisers Group Corporation

  	
   

  	
  Delaware

  	
   

  	
  LPL
  Holdings, Inc.

  	
   

  	
  100%

  	
   

  	
  No

  	
   

  
	
  PTC
  Holdings, Inc.

  	
   

  	
  Ohio

  	
   

  	
  LPL
  Holdings, Inc.

  	
   

  	
  100%*

  	
   

  	
  No

  	
   

  
	
  The
  Private Trust Company, N.A.

  	
   

  	
  Ohio,
  National Association

  	
   

  	
  PTC
  Holdings Inc.

  	
   

  	
  100%

  	
   

  	
  No

  	
   

  
	
  LPL
  Insurance Associates, Inc.

  	
   

  	
  Delaware

  	
   

  	
  LPL
  Holdings, Inc.

  	
   

  	
  100%

  	
   

  	
  No

  	
   

  
	
  Uvest
  Financial Services Group, Inc.

  	
   

  	
  North
  Carolina

  	
   

  	
  LPL
  Holdings, Inc.

  	
   

  	
  100%

  	
   

  	
  Material

  	
   

  
	
  LPL
  Independent Advisor Services Group, LLC

  	
   

  	
  Delaware

  	
   

  	
  LPL
  Holdings, Inc.

  	
   

  	
  100%

  	
   

  	
  No

  	
   

  
	
  Waterstone
  Financial Group, Inc.

  	
   

  	
  Illinois

  	
   

  	
  LPL
  Independent Advisor Services Group, LLC

  	
   

  	
  100%

  	
   

  	
  No

  	
   

  
	
  Associated
  Financial Group, Inc.

  	
   

  	
  California

  	
   

  	
  LPL
  Independent Advisor Services Group, LLC

  	
   

  	
  100%

  	
   

  	
  No

  	
   

  
	
  Associated
  Securities Corp.

  	
   

  	
  California

  	
   

  	
  Associated
  Financial Group, Inc.

  	
   

  	
  100%

  	
   

  	
  No

  	
   

  
	
  Associated
  Planners Investment Advisory, Inc.

  	
   

  	
  California

  	
   

  	
  Associated
  Financial Group, Inc.

  	
   

  	
  100%

  	
   

  	
  No

  	
   

  
	
  Mutual
  Service Corporation

  	
   

  	
  Michigan

  	
   

  	
  LPL
  Independent Advisor Services Group, LLC

  	
   

  	
  100%

  	
   

  	
  No

  	
   

  
	
  Mutual
  Services Mortgage, LLC

  	
   

  	
  Delaware

  	
   

  	
  Mutual
  Service Corporation

  	
   

  	
  100%

  	
   

  	
  No

  	
   

  
	
  MSC
  Insurance & Securities, Inc.

  	
   

  	
  Arizona

  	
   

  	
  Mutual
  Service Corporation

  	
   

  	
  100%

  	
   

  	
  No

  	
   

  
	
  Mutual
  Service Corporation

  	
   

  	
  Nevada

  	
   

  	
  Mutual
  Service Corporation (MI)

  	
   

  	
  100%

  	
   

  	
  No

  	
   

  



 






*
For regulatory reasons, PTC Holdings, Inc. has a requirement that each of
the following members of its Board of Directors own 1 share of Non-Voting Class B
common stock:  Richard T. Garrett, Willis
Else, Mark Casady, Richard Beeman, Lawrence Hatch and Thomas Berry.


 

















 


Schedule 8.18


 


Capital Stock


 


LPL
Investment Holdings Inc.  2000 Stock
Bonus Plan, as amended and restated January 17, 2006,
approved by the board of directors of LPL Investment Holdings Inc. (“LPL”),
effective on June 30, 2006.


 


LPL
maintains a Stock Bonus Plan (the “Plan”) to provide equity compensation
to certain of its financial advisors. 
The total stock bonus pool consists of rights in respect of 7,563,640
shares of common stock in LPL (to be converted into shares of LPL Investment
Holdings Inc., as stated below).  These
rights are referred to as Bonus Credits (as defined in the Plan).  The pool of Bonus Credits is divided among
all qualifying financial advisors as follows:


 


·                  50% of all Bonus Credits will be allocated
among qualifying financial advisors, pro rata, based on each individual advisor’s
gross revenues relative to total gross revenues of all of qualifying financial
advisors during the Award Year (as defined in the Plan).  Gross revenues are gross commissions, total
advisory fees, 12b-1 fees paid on mutual funds and trailing fees paid on other
financial products.


 


·                  25% of all Bonus Credits will be allocated
among qualifying financial advisors, pro rata, based on each individual advisor’s
Recurring Fees (as defined in the Plan) relative to total Recurring Fees of all
of qualifying financial advisors during the Award Year.  Recurring Fees are advisory fees, 12b-1 fees
paid on mutual funds and trailing fees paid on other financial products.


 


·                  25% of all Bonus Credits will be allocated
among financial advisors who are otherwise qualified (as described above) and
who also have been registered with LPL since at least September 30, 2000,
pro rata, based on each such individual advisor’s gross revenues relative to
total gross revenues of all such tenured financial advisors during the Award
Year.


 


The
Bonus Credits is granted upon the later of (i) the consummation of the
merger or (ii) January 1, 2006.


 


The
Bonus Credits will vest over a three-year period, with 33 1/3% of Bonus Credits
vesting on each of the first, second and third anniversaries of consummation of
the merger unless the financial advisor’s representative agreement has been
terminated before the applicable anniversary. 
If, however, a financial advisor dies while his or her representative
agreement is in effect, all of his or her unvested Bonus Credits will
vest.  Upon a termination of a financial
advisor’s representative agreement with Linsco/Private Ledger Corp., all
unvested Bonus Credits will be forfeited. 
No vested Bonus Credits will be earned until the occurrence of a
conversion event.


 


Vested
Bonus Credits will convert into shares of LPL Investment Holdings Inc. upon the
earliest to occur of:


 

















 


·                  a sale of all or substantially all of the
business or assets of LPL to a third party by merger, sale of stock or assets
or otherwise that (i) occurs after the consummation of the merger and (ii) constitutes
a change in control event under Section 409A of the Internal Revenue Code
of 1986, as amended, and the regulations thereunder (“Section 409A”),


 


·                  180 days following an initial public offering
of common stock on a firm commitment basis by a nationally recognized
investment bank on a registration statement filed with, and declared effective
by, the SEC (an “IPO”).


 


In
December of 2008, the Vested Bonus Credits were converted into Restricted
Stock of LPL Investment Holdings Inc. 
The Restricted Stock is not transferrable until the earliest to occur of
(a) a sale of all or substantially all of the business or assets of LPL to
a third party by merger, sale of stock or assets or otherwise that (i) occurs
after the consummation of the merger and (ii) constitutes a change in
control event under Section 409A, and (b) an IPO.


 


LPL
Investment Holdings Inc. Employee Stock Option Plans,


·                  LPL Investment Holdings Inc. 2005
Non-Qualified Stock Option Plan, adopted May 22, 2006, and as amended and
restated effective as of December 28, 2005.


·                  LPL Investment Holdings Inc. 2005
Non-Qualified Stock Option Plan, adopted and as amended December 20, 2006.


·                  LPL Investment Holdings Inc. 2005 Incentive
Stock Option Plan, adopted May 22, 2006, and as amended and restated
effective as of December 28, 2005.


·                  LPL Investment Holdings Inc. 2005 Incentive
Stock Option Plan, adopted and as amended December 20, 2006.


·                  LPL Investment Holdings Inc. 2008 Stock
Option Plan, adopted December 18, 2007.


 


LPL
Investment Holdings, Inc. (“LPL”) Stock Option Plans (the “Stock
Option Plans”) were implemented to give highly valued employees the
opportunity to participate in the growth, development and financial success of
LPL as well as to maintain a competitive advantage by attracting, retaining and
motivating employees.  Under the LPL
Stock Option Plans, employees may purchase common stock of LPL in the amounts
and at the price guaranteed in their option contracts.


 


LPL
Investment Holdings Inc. Advisor Incentive Plan,


·                  LPL Investment Holdings Inc. Advisor
Incentive Plan, adopted as of January 1, 2008.


 


LPL
Investment Holdings, Inc. Advisor Incentive Plan (the “Advisor Plan”)
was implemented to give highly valued financial advisors the opportunity to
participate in the growth, development and financial success of LPL as well as
to maintain a competitive advantage by attracting, retaining and motivating
financial advisors.  Under the Advisor
Plan, financial advisors may purchase common stock of LPL in the amounts and at
the price guaranteed in their option contracts.


 


LPL
Investment Holdings Inc. Financial Institution Incentive Plan,


·                  LPL Investment Holdings Inc. Financial
Institution Incentive Plan, adopted as of January 1, 2008.


 

















 


LPL
Investment Holdings, Inc. Financial Institution Incentive Plan (the “Financial
Institution Plan”) was implemented to give highly valued financial
institutions the opportunity to participate in the growth, development and
financial success of LPL as well as to maintain a competitive advantage by
attracting, retaining and motivating financial institutions.  Under the Financial Institution Plan,
financial institutions may purchase common stock of LPL in the amounts and at
the price guaranteed in their warrant agreements.


 


LPL
Investment Holdings 2008 Deferred Compensation Plan


 


On
November 19, 2008, LPL established an unfunded, unsecured deferred
compensation plan to permit employees and former employees that held
non-qualified stock options issued under the 2005 Stock Option Plan for
Incentive Stock Options and 2005 Stock Option Plan for Non-qualified Stock
Options that were expiring in 2009 and 2010 to receive stock units of the 2008
Nonqualified Deferred Compensation Plan. Stock units represent the right to
receive one share of common stock. Distribution will occur at the earliest of (a) December 31,
2012; (b) a change in control of the Company; or (c) death or
disability of the participant. The issuance of stock units, which occurred in December 2008,
is not taxable for federal and state income tax purposes until the participant
receives a distribution under the deferred compensation plan. At December 31,
2009 and 2008, the Company had 2,823,452 stock units outstanding under the 2008
Nonqualified Deferred Compensation Plan.


 
















 


Schedule 9.9


 


Affiliate Transactions


 


1.               Secured Term Note, dated July 15, 2004, between
LPL Holdings, Inc., as lender, and Tom Berry, Senior Vice President of
Linsco/Private Ledger Corp., as borrower, for the sum of $200,000, due on July 14,
2007.*


 


2.               Secured Term Note, dated April 1, 2004, between
LPL Holdings, Inc., as lender, and Dave Freniere, Executive Vice President
and Assistant General Counsel of Linsco/Private Ledger Corp., as borrower, for
the sum of $200,000, due on April 1, 2007.  *


 


3.               Term Commitment Note, dated January 31, 2005,
between Linsco/Private Ledger Corp., as lender, and Steve Black Managing
Director of Linsco/Private Ledger Corp., as borrower, for the sum of $170,000
with payments due annually on December 31, and the final installment due December 31,
2008.  *


 


4.               Term Commitment Note, dated January 23, 2005,
between Linsco/Private Ledger Corp., as lender, and Dave Freniere, Executive
Vice President and Assistant General Counsel of Linsco/Private Ledger Corp., as
borrower, for the sum of $200,000, due on January 23, 2006.*


 


5.               Promissory Note, dated December 1, 2004, between
Linsco/Private Ledger Corp., as lender, and Dan Kilroy, Senior Vice President
of Linsco/Private Ledger Corp., as borrower, for the sum of $250,000, due on December 1,
2008.


 


6.               Term Commitment Note, dated May 12, 2002, between
Linsco/Private Ledger Corp., as lender, and Dawn Basore Assistant Vice
President of Linsco/Private Ledger Corp., as borrower, for the sum of $45,000,
due on May 13, 2012.


 


7.               Intercompany Marketing and Services Agreement
Amendment 1, dated January 1, 1998 and superceding the prior agreement
dated June 1, 1996, between Linsco/Private Ledger Corp. and Independent
Adviser Group Corporation, in which Linsco/Private Ledger Corp. agrees to
provide marketing services and operations support to Independent Advisers Group
Corporation, including accounting, computer, and administrative services.


 


8.               Sublease, dated September 1, 2004,
between Innovex Mortgage, Inc. and Linsco/Private Ledger Corp., for approximately
3000 square feet located at 9775 Towne Centre Drive, San Diego, CA, for monthly
rent of $6,780.00, expiring August 31, 2012.


 






* Loan is to be paid off
from transaction proceeds.


 

















 


9.               Software Development, Maintenance and Service
Agreement, dated October 27, 2005, between GPA Technologies LTD. (“GPA”)
and Linsco/Private Ledger Corp.  GPA and
LPL Holdings, Inc. have a common officer and director and common stock
ownership by certain persons.


 


10.         Services Agreement, dated October 27, 2005,
between GPA Technologies LTD. (“GPA”) and LPL Holdings, Inc.  GPA and Linsco/Private Ledger Corp. have a
common officer and director and common stock ownership by certain persons.


 

















 


Schedule 10.1


 


Indebtedness


 


1.             Linsco/Private Ledger Corp. credit card
guarantees for certain employee charge cards issued by American Express
Inc.  Maximum guarantee liability is
$47,500.


 


2.             Customer Securities Grid Note, dated April 30,
2003, between Linsco/Private Ledger Corp., as borrower, and Bank of America,
N.A., as lender, for $20,000,000*, dated April 30, 2003. ∞


 


3.             Master Promissory Note, dated July 22,
2004, and as amended July 22, 2004, between LPL Holdings, Inc., as
borrower and Bank of America, N.A., as lender, for $10,000,000.00.∞


 


4.             Master Promissory Note, dated January 24,
2005, between Linsco/Private Ledger Corp. and The Bank of New York for
$10,000,000.00. ∞


 






* Note is for
a total of $100,000,000, $80,000,000 of which is a margin line of credit, as
clarified in a revised Note proposed by Bank of Amenca, N.A.,  to Linsco/Private Ledger Corp., by letter
dated December 1, 2005.


∞ These notes will be terminated within 10
business days.  Nothing is outstanding,
nor will anything be drawn against these in the interim.


 

















 


Schedule 10.2


 


Liens


 


Lease,
dated December 14, 2000, between Konica Business Machines and
Linsco/Private Ledger Corp., creating a security interest in three Konica
copiers.


 


Lease,
dated October 18, 1999, between Forsythe/McArthur Associates, Inc.
and Linsco/Private Ledger Corp., creating a security interest in computer, data
processing and related equipment.


 


Security
interest evidenced by UCC-1 Financing Statement filed in the office of the
Secretary of State of California on February 1, 2005 under file number
2418290002, against Linsco/Private Ledger Corp., relating to the financing
through BAL Global Finance, LLC, of two Konica copiers.


 


Lease,
dated August 16, 2005, between Banc of America Leasing & Capital
LLC and Linsco/Private Ledger Corp., creating a security interest in two Konica
copiers.


 


Security
interest evidenced by UCC-1 Financing Statement filed in the office of the
Secretary of State of California on February 21, 2003 under file number
0305560672, against Linsco/Private Ledger Corp., relating to the lease of a
Canon copier.


 


Security
interest evidenced by UCC-1 Financing Statement filed in the office of the
Secretary of State of California on December 1, 2003 under file number
0333960181, against Linsco/Private Ledger Corp., relating to the financing
through Fleet Business Credit, LLC, of Konica copiers.


 


Financing Agreement, dated September 7,
2004, between Fleet Business Credit, LLC and Linsco/Private Ledger Corp.,
creating a security interest in two Konica copiers.


 


Financing Agreement, dated October 3,
2003, between Fleet Business Credit, LLC and Linsco/Private Ledger Corp.,
creating a security interest in computer and data processing equipment.


 


Letter Agreement, dated February 8,
2000, between Linsco/Private Ledger Corp. and The Depository Trust Company,
requiring Linsco/Private Ledger Corp. to maintain excess net capital of at
least $500,000 while it is a participant in DTC.


 

















 


Schedule 10.5


 


Investments


 


U.S. Treasuries & Agencies


 


	
  Holder

  	
   

  	
  Investment

  	
   

  	
  Market Valueo

  	
   

  	
  Maturity Date

  	
   

  
	
  Linsco/Private
  Ledger Corp.

  	
   

  	
  U.
  S. Treasury Bill

  	
   

  	
  $

  	
  599,880

  	
   

  	
  12/29/05*

  	
   

  
	
  Linsco/Private
  Ledger Corp.

  	
   

  	
  U.
  S. Treasury Bill

  	
   

  	
  $

  	
  1,999,600

  	
   

  	
  12/29/05

  	
   

  
	
  The
  Private Trust Company, N.A.

  	
   

  	
  U.S.
  Treasury Note

  	
   

  	
  $

  	
  100,260

  	
   

  	
  11/15/06

  	
   

  
	
  The
  Private Trust Company, N.A.

  	
   

  	
  Fanny
  Mae Discount Note

  	
   

  	
  $

  	
  987,305

  	
   

  	
  4/28/06

  	
   

  
	
  The
  Private Trust Company, N.A.

  	
   

  	
  FNMA
  Discount Note

  	
   

  	
  $

  	
  1,745,372

  	
   

  	
  1/27/06

  	
   

  



 


 


All
Subsidiaries listed on Schedule 8.12


 


Transactions
1-6 set forth on Schedule 9.9.


 






o Value as of 12/27/05.  These U.S. Treasury Bills are collateral
required by the OCC and DTC in order to clear the trades of Linsco/Private
Ledger Corp.  As the firm grows and trade
volume increases, the amount required as collateral will also increase.


*
These positions are due to mature on 12/29/05, and will be replaced at that
time.


 
















 


EXHIBIT A


TO THE CREDIT AGREEMENT


 


Schedule 10.12


 


Burdensome Agreements


 


Master
Promissory Note, dated July 22, 2004 and amended April 29, 2005,
between LPL Holdings, Inc as borrower and Bank of America, N.A. as Lender for
$10,000,000.00.


 


Master
Promissory Note, dated January 24, 2005, between Linsco/Private Ledger
Corp and The Bank of New York for $10,000,000.00.


 


Security
Agreement, dated June 5, 2004, between The Bank of New York and
Linsco/Private Ledger Corp.


 


Letter
Agreement, dated March 28, 2003 and April 18, 2003 (the “Letter
Agreement”) , between The Bank of New York and Linsco/Private Ledger Corp.,
pursuant to which the Special Reserve Account for the Exclusive Benefit of
Customers of Linsco/Private Ledger Corporation (as defined in the Letter Agreement),
was established.


 


Security
Agreement, dated February 7, 2005, between The Chase Manhattan Bank and
Linsco/Private Ledger Corp.


 


U.S.
Broker/Dealer Facility Agreement, dated June 23, 2004, between
Linsco/Private Ledger Corp., and Wachovia Bank, National Association.


 


Customers’
Securities Grid Note, dated April 30, 2003, between Bank of America, N.A.
and Linsco/Private Ledger Corp., for $100,000,000.


 


Letter Agreement, dated February 8,
2000, between Linsco/Private Ledger Corp. and The Depository Trust Company,
requiring Linsco/Private Ledger Corp. to maintain excess net capital of at
least $500,000 while it is a participant in DTC.


 


Operations
Clearing Corporation Clearing Member Agreement, dated April 19, 2005,
between The Operations Clearing Corporation and Linsco/Private Ledger Corp.,
which requires Linsco/Private Ledger Corp. to maintain collateral with value
based on daily trading volume.


 


National
Securities Clearing Corporation Networking Agreement, dated February 7,
2000, between The National Securities Clearing Corporation (the “NSCC”)
and Linsco/Private Ledger Corp., requiring pledging of securities, the amount
of which are determined based on the volume and type of business Linsco/Private
Ledger Corp. conducts through NSCC.  It is a risk based approach with NSCC
suggesting 60% of the requirement be in cash. 
Linsco/Private Ledger Corp. currently maintains excess capacity with the
NSCC.


 


Commitment
Letter, Note, Mortgage Warehousing and Security Agreement, dated February 28,
2006, between LPL Holdings, Inc. and GMAC Bank, for $10,000,000.


 


A-16

















 


FORM OF ASSIGNMENT AND ACCEPTANCE


 


This Assignment and
Acceptance (the “Assignment and Acceptance”) is dated as of the
Effective Date (as defined below) and is entered into by and between the
Assignor (as defined below) and the Assignee (as defined below). Capitalized
terms used in this Assignment and Acceptance and not otherwise defined herein
shall have the meanings specified in the Third Amended and Restated Credit
Agreement, dated as of May [      ], 2010
(the “Credit Agreement”), among LPL Holdings, Inc., a Massachusetts
corporation (“the Borrower”), LPL Investment Holdings Inc., a Delaware
corporation, the lending institutions from time to time parties thereto, Morgan
Stanley Senior Funding, Inc., as Administrative Agent and Morgan Stanley &
Co., as Collateral Agent. The Standard Terms and Conditions set forth in Annex
1 attached hereto are hereby agreed to and incorporated herein by reference and
made a part of this Assignment and Acceptance as if set forth herein in full.


 


For an agreed consideration,
the Assignor hereby irrevocably sells and assigns to the Assignee, and the
Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions set forth in Annex 1
hereto and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all the Assignor’s rights
and obligations in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of the Credit Facility
identified below and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing,
including contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations
sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the “Assigned Interest”). Such sale
and assignment is without recourse to the Assignor and, except as expressly
provided in this Assignment and Acceptance, without representation or warranty
by the Assignor.


 


	
  1.

  	
  Assignor (the “Assignor”):

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Assignee (the “Assignee”):

  	
   

  	
   

  



 


A-17

















 


3.                                       Assigned
Interest:


 


	
  Credit Facility

  	
   

  	
  Total
  Commitment

  of all Lenders

  	
   

  	
  Amount
  of Credit

  Facility Assigned

  	
   

  	
  Percentage
  Assigned

  of Total

  Commitment of all

  Lenders (Set forth, to

  at least 9 decimals, as

  a percentage of the

  Total Commitment

  of all Lenders

  	
   

  
	
  2013 Term Loan

  	
   

  	
  [       ]

  	
   

  	
   

  	
   

  	
  0.000000000

  	
  %

  
	
  2015 Term  Loan

  	
   

  	
  [       ]

  	
   

  	
   

  	
   

  	
  0.000000000

  	
  %

  
	
  2017 Term  Loan

  	
   

  	
  [       ]

  	
   

  	
   

  	
   

  	
  0.000000000

  	
  %

  
	
  2011 Revolving Credit Commitment

  	
   

  	
  $

  	
  [54,731,125]

  	
   

  	
   

  	
   

  	
  0.000000000

  	
  %

  
	
  2013 Revolving Credit Commitment

  	
   

  	
  $

  	
  [163,481,125]

  	
   

  	
   

  	
   

  	
  0.000000000

  	
  %

  



 


4.                                       Effective Date
of Assignment (the “Effective Date”):           ,
20   .(1)


 


The terms set forth in this
Assignment and Acceptance are hereby agreed to:


 


[NAME OF ASSIGNOR], as Assignor


 


	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  [NAME OF ASSIGNEE], as Assignee

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


 






(1)   To be
inserted by Administrative Agent and which shall be the effective date of
recordation of transfer in the Register therefor.


 


A-18

















 


[Consented to and](2) Accepted:


 


MORGAN
STANLEY SENIOR FUNDING, INC.,

as Administrative Agent


 


	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  [Consented to:

  	
   

  
	
   

  	
   

  
	
  LPL HOLDINGS, INC.,

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:                                                                   ](3)

  	
   

  



 






(2)          See
Section 13.6 of Credit Agreement.


(3)          See Section 13.6 of Credit
Agreement.


 


A-19

















 


ANNEX 1


 


STANDARD TERMS AND
CONDITIONS FOR

ASSIGNMENT AND ACCEPTANCE


 


Representations
and Warranties and Agreements.


 


Assignor. The Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Acceptance and to
consummate the transactions contemplated hereby and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Credit Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any
Credit Document or (iv) the performance or observance by any of the
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated
in respect of any Credit Document of any of their respective obligations under
any Credit Document.


 


Assignee. The Assignee (a) represents and
warrants that (i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Acceptance and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it satisfies the requirements, if any,
specified in the Credit Agreement that are required to be satisfied by it in
order to acquire the Assigned Interest and become a Lender thereunder, (iii) from
and after the Effective Date, it shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender under the Credit Agreement, and (iv) it has
received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 9.1 of the Credit
Agreement, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender and (b) agrees that (i) it
will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Documents, and (ii) it
will perform in accordance with their terms all of the obligations which by the
terms of the Credit Documents are required to be performed by it as a Lender,
including, if it is a Non-U.S. Lender, its obligations pursuant to Section 5.4
of the Credit Agreement.


 


Payments: All
payments with respect to the Assigned Interest shall be made on the Effective
Date as follows:


 


With respect to Assigned Interest for Term Loans, unless notice to the
contrary is delivered to the Lender from the Administrative Agent, payments to
the Assignor by the Assignee in respect of the Assigned Interest shall include
such compensation to the Assignor as may be agreed upon by the Assignor and the
Assignee with respect to all unpaid interest which


 


A-20

















 


has accrued
on the Assigned Interest to but excluding the Effective Date. On and after the
Applicable Effective Date, the assignee shall be entitled to receive all
interest paid or payable with respect to the Assigned Interest, whether such
interest accrued before or after the Effective Date.


 


With respect to Assigned Interests for Revolving Loans, from and after
the Effective Date, the Administrative Agent shall make payments in respect of
the Assigned Interest (including payments of principal, interest, fees and
other amounts) to the Assignor for amounts which have accrued to but excluding
the Effective Date and to the Assignee for amounts which have accrued from and
after the Effective Date.


 


General
Provisions.


 


In accordance with Section 13.6 of the Credit Agreement, upon
execution, delivery, acceptance and recording of this Assignment and
Acceptance, from and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Lender under the Credit
Agreement with Commitments as set forth herein and (b) the Assignor shall,
to the extent of the Assigned Interest assigned pursuant to this Assignment and
Acceptance, be released from its obligations under the Credit Agreement (and if
this Assignment and Acceptance covers all of the Assignor’s rights and
obligations under the Credit Agreement, the Assignor shall cease to be a party
to the Credit Agreement but shall continue to be entitled to the benefits of
Sections 2.10, 2.11, 3.5, 5.4 and 13.5 thereof).


 


This Assignment and Acceptance shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. This
Assignment and Acceptance may be executed by one or more of the parties to this
Assignment and Acceptance on any number of separate counterparts (including by
facsimile or other electronic transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. This
Assignment and Acceptance and the rights and obligations of the parties
hereunder shall be construed in accordance with and governed by and interpreted
under the law of the state of New York.


 


A-21
















 


EXHIBIT B

TO THE CREDIT AGREEMENT


 


RESERVED


 


B-1

















 


EXHIBIT C

TO THE CREDIT AGREEMENT


 


FORM OF MORTGAGE


 


[On file with Administrative
Agent]


 


C-1

















 


EXHIBIT D

TO THE CREDIT AGREEMENT


RESERVED


 


D-1

















 


EXHIBIT
E


TO THE CREDIT AGREEMENT


 


RESERVED


 


E-1

















 


EXHIBIT F

TO THE CREDIT AGREEMENT


 


FORM OF LETTER CREDIT REQUEST


 


	
  No.                                               (4)

  	
  Dated
                                                (5)

  



 


To:                              MORGAN STANLEY SENIOR
FUNDING, INC., as Administrative Agent and
[                                ]
as the Letter of Credit Issuer, under the Third Amended and Restated Credit
Agreement, dated as of May [      ], 2010
(the “Credit Agreement”), among LPL Holdings, Inc., a Massachusetts
corporation (“the Borrower”), LPL Investment Holdings, Inc., a
Delaware corporation, the lending institutions from time to time parties
thereto, Morgan Stanley Senior Funding, Inc. as the Administrative Agent
and Morgan Stanley & Co., as Collateral Agent.


 


Ladies and Gentlemen:


 


The undersigned hereby
requests that the Letter of Credit Issuer issue a Letter of Credit on
                                                (6) (the
“Date of Issuance”) in the aggregate stated amount of
                                              (7) in
dollars.


 


For purposes of this Letter
of Credit Request, unless otherwise defined, all capitalized terms used herein
that are defined in the Credit Agreement shall have the respective meanings
provided therein.


 


The beneficiary of the
requested Letter of Credit will be
                                    (8),
and such Letter of Credit will be in support of
                                    (9)and
will have a stated termination date of
                                              (10)


 


The undersigned hereby
certifies that:


 


(a)  representations
and warranties made by any Credit Party contained in the Credit Agreement or in
the other Credit Documents shall be true and correct in all material respects
with the same effect as though such representations and warranties had been
made on and as of the Date of Issuance (except where such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties were true and correct in all material respects
as of such earlier date).


 


(b)  No Default or
Event of Default has occurred and is continuing as of the date hereof nor,
after giving effect to the issuance of the Letter of Credit requested hereby,
would such a Default or Event of Default occur.


 






(4)                        Letter of
Credit Request Number.


(5)                        Date of Letter
of Credit Request (at least five Business Days prior to the Date of Issuance or
such lesser number of Business Days as may be agreed by the Administrative
Agent and such Letter of Credit Issuer).


(6)                        Date of
Issuance.


(7)                        Aggregate
initial stated amount of Letter of Credit.


(8)                        Insert name and
address of beneficiary.


(9)                        Insert
description of supported obligations and name of agreement to which it relates,
if any.


(10)                  Insert last date upon which
drafts may be presented.


 


F-1

















 


	
   

  	
  LPL
  HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


F-2

















 


EXHIBIT G-1


TO THE CREDIT AGREEMENT


 


FORM OF LEGAL OPINION
OF SIMPSON THACHER & BARTLETT LLP


 


[On file with Administrative
Agent]


 


G-1-1

















 


EXHIBIT G-2

TO THE CREDIT AGREEMENT


 


FORM OF LEGAL OPINION
OF ROPES AND GRAY LLP


 


[On file with Administrative
Agent]


 


G-2-1

















 


EXHIBIT
G-3


TO THE CREDIT AGREEMENT


 


FORM OF LEGAL OPINION
OF BINGHAM MCCUTCHEN LLP


 


[On file with Administrative
Agent]


 


G-3-1
















 


EXHIBIT H

TO THE CREDIT AGREEMENT


FORM OF EFFECTIVE DATE
CERTIFICATE


 


Reference is made to the Third Amended and
Restated Credit Agreement, dated as of May [      ],
2010 (the “Credit Agreement”), among LPL Holdings, Inc., a Massachusetts
corporation (“the Borrower”), LPL Investment Holdings, Inc., a
Delaware corporation, the lending institutions from time to time parties
thereto, Morgan Stanley Senior Funding, Inc., as Administrative Agent and
Morgan Stanley & Co., as Collateral Agent. Capitalized terms used but
not defined herein have the meanings given to such terms in the Credit
Agreement.


 


The
undersigned [President or Vice President] of
[                              ]
(the “Certifying Credit Party”) hereby certifies as follows:


 


(a) (i) The
representations and warranties made by the Certifying Credit Party in each of
the Credit Documents, in each case as they relate to the Credit Parties on the
date hereof, are true and correct in all material respects on and as of the
date hereof and (ii) no Default or Event of Default has occurred and is
continuing as of the date hereof;


 


(b) [                                  ]
is the duly elected and qualified [Assistant] Secretary of the Certifying
Credit Party and the signature set forth on the signature line for such officer
below is such officer’s true and genuine signature, and such officer is duly
authorized to execute and deliver on behalf of the Certifying Credit Party each
Credit Document to which it is a party and any certificate or other document to
be delivered by the Certifying Credit Party pursuant to such Credit Documents.


 


The undersigned [Assistant] Secretary of the
Certifying Credit Party hereby certifies as follows:


 


(a)   There are no liquidation or
dissolution proceedings pending or to my knowledge threatened against the
Certifying Credit Party, nor to my knowledge has any other event occurred
affecting or threatening the corporate existence of the Certifying Credit
Party;


 


H-1

















 


(b)   The Certifying Credit Party
is a [corporation] [limited] [general] partnership] [limited liability company]
duly organized, validly existing and in good standing under the laws of
[jurisdiction];


 


(c)   Attached hereto as Exhibit A
is a complete and correct copy of resolutions duly adopted by the Board of
Directors (or a duly authorized committee thereof) of the Certifying Credit
Party on [    ], 2005 authorizing [(a)] the execution,
delivery and performance of the Credit Documents (and any agreements relating
thereto) to which it is a party [and (b) the extensions of credit
contemplated by the Credit Agreement]; such resolutions have not in any way
been amended, modified, revoked or rescinded and have been in full force and
effect since their adoption to and including the date hereof and are now in
full force and effect; and such resolutions are the only corporate proceedings
of the Certifying Credit Party now in force relating to or affecting the
matters referred to therein;


 


(d)   Attached hereto as Exhibit B
is a true and complete copy of the certificate of [incorporation] [formation]
of the Certifying Credit Party as in effect at all times since
[                                ],
to and including the date hereof, certified by the [Secretary of State of the
State of Delaware or appropriate Governmental Authority in the jurisdiction of
organization] as of a recent date;


 


(e)   Attached hereto as Exhibit C
is a true and complete copy of the [by-laws] [partnership agreement] [limited
liability company agreement] of the Certifying Credit Party as in effect at all
times since
[                            ],
to and including the date hereof; and


 


(f)    The following persons are
now duly elected and qualified officers of the Certifying Credit Party holding
the offices indicated next to their respective names below, and such officers
have held such offices with the Certifying Credit Party at all times since the
date 


 


H-2

















 


appearing opposite their
respective names below, to and including the date hereof, and the signatures
appearing opposite their respective names below are the true and genuine
signatures of such officers, and each of such officers is duly authorized to
execute and deliver on behalf of the Certifying Credit Party each Credit Document
to which it is a party and any certificate or other document to be delivered by
the Certifying Credit Party pursuant to such Credit Documents:


 


	
  Name

  	
   

  	
  Office

  	
   

  	
  Date

  	
   

  	
  Signature

  	
   

  
	
   

  	
   

  	
  [                    ]

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Assistant] Secretary

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


IN WITNESS WHEREOF, the
undersigned have hereto set our names as of December [ ], 2005.


 


	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  
	
  Title:  [                                      ]

  	
   

  	
  Title:
   [Assistant] Secretary

  
				



 


H-3

















 


EXHIBIT A

TO THE EFFECTIVE DATE CERTIFICATE


 


[Board Resolutions]


 


H-A-1

















 


EXHIBIT
B


TO THE EFFECTIVE DATE
CERTIFICATE


 


[Certificate of Incorporation/Formation]


 


H-B-1

















 


EXHIBIT
C

TO THE EFFECTIVE DATE CERTIFICATE


 


 [Bylaws/Partnership Agreement/Limited
Liability Company Agreement]


 


H-C-1

















 


FORM OF PROMISSORY NOTE


 


2013 TERM LOANS


 


	
  $

  	
   

  	
  New York

  
	
   

  	
   

  	
  [                            ]
  20[ ]

  



 


FOR VALUE RECEIVED, the
undersigned, LPL HOLDINGS, INC., a Massachusetts corporation (the “Borrower”),
hereby unconditionally promises to pay to the order of [Lender] or its
registered assigns (the “Lender”), at the Administrative Agent’s Office or such
other place as MORGAN STANLEY SENIOR FUNDING, INC. (the “Administrative Agent”)
shall have specified, in Dollars and in immediately available funds, in
accordance with Section  2.5 of the Credit Agreement (as defined below;
capitalized terms used and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement) on the 2013 Term Loan Maturity
Date, the principal amount of [        ]
US Dollars ($[               ])
or, if less, the aggregate unpaid principal amount of all 2013 Term Loans, if
any, made by the Lender to the Borrower pursuant to the Credit Agreement. The
Borrower further unconditionally promises to pay interest in like money at such
office on the unpaid principal amount hereof from time to time outstanding at
the rates per annum and on the dates specified in Section 2.8 of the
Credit Agreement.


 


This Promissory Note is one
of the promissory notes referred to in Section 13.6 of the Third Amended
and Restated Credit Agreement, dated as of May [      ],
2010 (the “Credit Agreement”), among the Borrower, LPL Investment Holdings
Inc., the lending institutions from time to time parties thereto, Morgan
Stanley Senior Funding, Inc., as Administrative Agent and Morgan Stanley &
Co., as Collateral Agent. This Promissory Note is subject to, and the Lender is
entitled to the benefits of, the provisions of the Credit Agreement, and the 


 


I-I-3

















 


2013 Term Loans evidenced
hereby are guaranteed and secured as provided therein and in the other Credit
Documents. The 2013 Term Loans evidenced hereby are subject to prepayment prior
to the 2013 Term Loan Maturity Date, in whole or in part, as provided in the
Credit Agreement.


 


All parties now and
hereafter liable with respect to this Promissory Note, whether maker,
principal, surety, guarantor, endorser or otherwise, hereby waive diligence,
presentment, demand, protest and notice of any kind whatsoever in connection
with this Promissory Note. No failure to exercise and no delay in exercising,
on the part of the Administrative Agent or the Lender, any right, remedy, power
or privilege hereunder or under the Credit Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder or thereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. A
waiver by the Administrative Agent or the Lender of any right, remedy, power or
privilege hereunder or under any Credit Document on any one occasion shall not
be construed as a bar to any right or remedy that the Administrative Agent or
the Lender would otherwise have on any future occasion. The rights, remedies,
powers and privileges herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any rights, remedies, powers and
privileges provided by law.


 


All payments in respect of
the principal of and interest on this Promissory Note shall be made to the
Person recorded in the Register as the holder of this Promissory Note, as
described more fully in Section 2.5(f) of the Credit Agreement, and
such Person shall be treated as the Lender hereunder for all purposes of the
Credit Agreement.


 


I-I-4

















 


THIS PROMISSORY NOTE SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.


 


	
   

  	
  LPL
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


I-I-5
















 


FORM OF PROMISSORY NOTE


 


2015 TERM LOANS


 


	
  $

  	
   

  	
  New York

  
	
   

  	
   

  	
  [                            ]
  20[ ]

  



 


FOR VALUE RECEIVED, the
undersigned, LPL HOLDINGS, INC., a Massachusetts corporation (the “Borrower”),
hereby unconditionally promises to pay to the order of [Lender] or its
registered assigns (the “Lender”), at the Administrative Agent’s Office
or such other place as MORGAN STANLEY SENIOR FUNDING, INC. (the “Administrative
Agent”) shall have specified, in Dollars and in immediately available
funds, in accordance with Section 2.5 of the Credit Agreement (as
defined below; capitalized terms used and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement) on the 2015
Term Loan Maturity Date, the principal amount of [      ]
US Dollars ($[     ]) or, if less, the aggregate
unpaid principal amount of all 2015 Term Loans, if any, made by the Lender to
the Borrower pursuant to the Credit Agreement. The Borrower further
unconditionally promises to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the rates per
annum and on the dates specified in Section 2.8 of the Credit Agreement.


 


This Promissory Note is one
of the promissory notes referred to in Section 13.6 of the Third Amended
and Restated Credit Agreement, dated as of May [      ],
2010 (the “Credit Agreement”), among the Borrower, LPL Investment Holdings
Inc., the lending institutions from time to time parties thereto, Morgan
Stanley Senior Funding, Inc., as Administrative Agent and Morgan Stanley &
Co., as Collateral Agent. This Promissory Note is subject to, and the Lender is
entitled to the benefits of, the provisions of the Credit Agreement, and the
2015 Term Loans evidenced hereby are guaranteed and secured as provided therein
and in 


 


I-2-6

















 


the other Credit Documents.
The 2015 Term Loans evidenced hereby are subject to prepayment prior to the
2015 Term Loan Maturity Date, in whole or in part, as provided in the Credit
Agreement.


 


All parties now and
hereafter liable with respect to this Promissory Note, whether maker,
principal, surety, guarantor, endorser or otherwise, hereby waive diligence,
presentment, demand, protest and notice of any kind whatsoever in connection
with this Promissory Note. No failure to exercise and no delay in exercising,
on the part of the Administrative Agent or the Lender, any right, remedy, power
or privilege hereunder or under the Credit Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder or thereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. A
waiver by the Administrative Agent or the Lender of any right, remedy, power or
privilege hereunder or under any Credit Document on any one occasion shall not
be construed as a bar to any right or remedy that the Administrative Agent or
the Lender would otherwise have on any future occasion. The rights, remedies,
powers and privileges herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any rights, remedies, powers and
privileges provided by law.


 


All payments in respect of
the principal of and interest on this Promissory Note shall be made to the
Person recorded in the Register as the holder of this Promissory Note, as
described more fully in Section 2.5(f) of the Credit Agreement, and
such Person shall be treated as the Lender hereunder for all purposes of the
Credit Agreement.


 


THIS PROMISSORY NOTE SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.


 


I-3-7

















 


	
   

  	
  LPL
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


I-3-8

















 


FORM OF PROMISSORY NOTE


 


2017 TERM LOANS


 


	
  $

  	
   

  	
  New York

  
	
   

  	
   

  	
  [                            ]
  20[ ]

  



 


FOR VALUE RECEIVED, the
undersigned, LPL HOLDINGS, INC., a Massachusetts corporation (the “Borrower”),
hereby unconditionally promises to pay to the order of [Lender] or its
registered assigns (the “Lender”), at the Administrative Agent’s Office
or such other place as MORGAN STANLEY SENIOR FUNDING, INC. (the “Administrative
Agent”) shall have specified, in Dollars and in immediately available
funds, in accordance with Section 2.5 of the Credit Agreement (as
defined below; capitalized terms used and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement) on the 2017
Term Loan Maturity Date, the principal amount of [     ]
US Dollars ($[     ]) or, if less, the aggregate
unpaid principal amount of all 2017 Term Loans, if any, made by the Lender to
the Borrower pursuant to the Credit Agreement. The Borrower further
unconditionally promises to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the rates per
annum and on the dates specified in Section 2.8 of the Credit Agreement.


 


This Promissory Note is one
of the promissory notes referred to in Section 13.6 of the Third Amended
and Restated Credit Agreement, dated as of May [      ],
2010 (the “Credit Agreement”), among the Borrower, LPL Investment Holdings
Inc., the lending institutions from time to time parties thereto, Morgan
Stanley Senior Funding, Inc., as Administrative Agent and Morgan Stanley &
Co., as Collateral Agent. This Promissory Note is subject to, and the Lender is
entitled to the benefits of, the provisions of the Credit Agreement, and the
2017 Term Loans evidenced hereby are guaranteed and secured as provided therein
and in 


 


I-3-9

















 


the other Credit Documents.
The 2017 Term Loans evidenced hereby are subject to prepayment prior to the
2017 Term Loan Maturity Date, in whole or in part, as provided in the Credit
Agreement.


 


All parties now and
hereafter liable with respect to this Promissory Note, whether maker,
principal, surety, guarantor, endorser or otherwise, hereby waive diligence,
presentment, demand, protest and notice of any kind whatsoever in connection
with this Promissory Note. No failure to exercise and no delay in exercising,
on the part of the Administrative Agent or the Lender, any right, remedy, power
or privilege hereunder or under the Credit Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder or thereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. A
waiver by the Administrative Agent or the Lender of any right, remedy, power or
privilege hereunder or under any Credit Document on any one occasion shall not
be construed as a bar to any right or remedy that the Administrative Agent or
the Lender would otherwise have on any future occasion. The rights, remedies,
powers and privileges herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any rights, remedies, powers and
privileges provided by law.


 


All payments in respect of
the principal of and interest on this Promissory Note shall be made to the
Person recorded in the Register as the holder of this Promissory Note, as
described more fully in Section 2.5(f) of the Credit Agreement, and
such Person shall be treated as the Lender hereunder for all purposes of the
Credit Agreement.


 


THIS PROMISSORY NOTE SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.


 


I-3-10

















 


	
   

  	
  LPL
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


I-3-11

















 


FORM OF PROMISSORY NOTE


 


INCREMENTAL TERM LOANS


 


	
  $

  	
   

  	
  New York

  
	
   

  	
   

  	
  [                            ]
  20[ ]

  



 


FOR VALUE RECEIVED, the
undersigned, LPL HOLDINGS, INC., a Massachusetts corporation (the “Borrower”),
hereby unconditionally promises to pay to the order of [Lender] or its
registered assigns (the “Lender”), at the Administrative Agent’s Office
or such other place as MORGAN STANLEY SENIOR FUNDING, INC. (the “Administrative
Agent”) shall have specified, in Dollars and in immediately available
funds, in accordance with Section 2.5 of the Credit Agreement (as
defined below; capitalized terms used and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement) on the
relevant Incremental Term Loan Maturity Date, the principal amount of [     ]
US Dollars ($[    ]) or, if less, the aggregate unpaid
principal amount of all Incremental Term Loans, if any, made by the Lender to
the Borrower pursuant to the Credit Agreement. The Borrower further
unconditionally promises to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the rates per
annum and on the dates specified in Section 2.8 of the Credit Agreement.


 


This Promissory Note is one
of the promissory notes referred to in Section 13.6 of the Third
Amended and Restated Credit Agreement, dated as of May [      ],
2010 (the “Credit Agreement”), among the Borrower, LPL Investment Holdings, Inc.,
the lending institutions from time to time parties thereto, Morgan Stanley
Senior Funding, Inc., as Administrative Agent and Morgan Stanley &
Co., as Collateral Agent. This Promissory Note is subject to, and the Lender is
entitled to the benefits of, the provisions of the Credit Agreement, and the
Incremental Term Loans evidenced hereby are guaranteed and secured as provided
therein 


 


I-4-12

















 


and in the other Credit
Documents. Incremental Term Loans evidenced hereby are subject to prepayment
prior to the Incremental Term Loan Maturity Date, in whole or in part, as
provided in the Credit Agreement.


 


All parties now and
hereafter liable with respect to this Promissory Note, whether maker,
principal, surety, guarantor, endorser or otherwise, hereby waive diligence,
presentment, demand, protest and notice of any kind whatsoever in connection
with this Promissory Note. No failure to exercise and no delay in exercising,
on the part of the Administrative Agent or the Lender, any right, remedy, power
or privilege hereunder or under the Credit Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder or thereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. A
waiver by the Administrative Agent or the Lender of any right, remedy, power or
privilege hereunder or under any Credit Document on any one occasion shall not
be construed as a bar to any right or remedy that the Administrative Agent or
the Lender would otherwise have on any future occasion. The rights, remedies,
powers and privileges herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any rights, remedies, powers and
privileges provided by law.


 


All payments in respect of
the principal of and interest on this Promissory Note shall be made to the
Person recorded in the Register as the holder of this Promissory Note, as
described more fully in Section 2.5(f) of the Credit Agreement, and
such Person shall be treated as the Lender hereunder for all purposes of the
Credit Agreement.


 


THIS PROMISSORY NOTE SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.


 


I-4-13

















 


	
   

  	
  LPL
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


I-4-14
















 


EXHIBIT I-5

TO THE CREDIT AGREEMENT


 


FORM OF PROMISSORY NOTE


2011 REVOLVING CREDIT AND SWINGLINE LOANS


 




	
  $

  	
   

  	
  New York

  
	
   

  	
   

  	
  [                        ]
  20[ ]

  






 


 


FOR VALUE RECEIVED, the
undersigned, LPL HOLDINGS, INC., a Massachusetts corporation (the “Borrower”),
hereby unconditionally promises to pay to the order of [Lender] or its
registered assigns (the “Lender”), at the Administrative Agent’s Office
or such other place as MORGAN STANLEY SENIOR FUNDING, INC. (the “Administrative
Agent”) shall have specified, in Dollars and in immediately available
funds, in accordance with Section 2.5 of the Credit Agreement (as defined
below; capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement) on the [2011 Revolving
Credit] [Swingline] Maturity Date the principal amount of [         ]
US Dollars ($[              ])
or, if less, the aggregate unpaid principal amount of all advances made by the
Lender to the Borrower as [2011 Revolving Credit] [Swingline] Loans pursuant to
the Credit Agreement. The Borrower further unconditionally promises to pay
interest in like money at such office on the unpaid principal amount hereof
from time to time outstanding at the rates per annum and on the dates specified
in Section 2.8 of the Credit Agreement.


 


This Promissory Note is one
of the promissory notes referred to in Section 13.6 of the Third
Amended and Restated Credit Agreement, dated as of May [      ],
2010 (the “Credit Agreement”), among the Borrower, LPL Investment Holdings, Inc.,
the lending institutions from time to time parties thereto, Morgan Stanley
Senior Funding, Inc., as Administrative Agent and Morgan Stanley &
Co., as Collateral Agent. This Promissory Note is subject to, and the Lender is
entitled to the benefits of, the provisions of the Credit Agreement, and the


 


I-5-1

















 


[2011 Revolving Credit]
[Swingline] Loans evidenced hereby are guaranteed and secured as provided
therein and in the other Credit Documents. The [2011 Revolving Credit]
[Swingline] Loans evidenced hereby are subject to prepayment prior to the [2011
Revolving Credit] [Swingline] Maturity Date, in whole or in part, as provided
in the Credit Agreement.


 


All parties now and
hereafter liable with respect to this Promissory Note, whether maker,
principal, surety, guarantor, endorser or otherwise, hereby waive diligence,
presentment, demand, protest and notice of any kind whatsoever in connection
with this Promissory Note. No failure to exercise and no delay in exercising,
on the part of the Administrative Agent or the Lender, any right, remedy, power
or privilege hereunder or under the Credit Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder or thereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. A
waiver by the Administrative Agent or the Lender of any right, remedy, power or
privilege hereunder or under any Credit Document on any one occasion shall not
be construed as a bar to any right or remedy that the Administrative Agent or
the Lender would otherwise have on any future occasion. The rights, remedies,
powers and privileges herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any rights, remedies, powers and
privileges provided by law.


 


All payments in respect of
the principal of and interest on this Promissory Note shall be made to the
Person recorded in the Register as the holder of this Promissory Note, as
described more fully in Section 2.5(f) of the Credit Agreement, and
such Person shall be treated as the Lender hereunder for all purposes of the
Credit Agreement.


 


I-5-2

















 


THIS PROMISSORY NOTE SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.


 


I-5-3

















 


	
   

  	
  LPL
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


I-5-4

















 


TRANSACTIONS ON

[2011 REVOLVING CREDIT] [SWINGLINE] LOAN NOTE


 


	
  Date

  	
   

  	
  Amount of Loan

  Made This Date

  	
   

  	
  Amount of

  Principal Paid

  This Date

  	
   

  	
  Outstanding

  Principal

  Balance This Date

  	
   

  	
  Notation

  Made By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


I-5-5

















 


EXHIBIT
I-6

TO THE CREDIT AGREEMENT


 


FORM OF PROMISSORY NOTE


2013 REVOLVING CREDIT AND SWINGLINE LOANS


 




	
  $                       

  	
   

  	
  New York

  
	
   

  	
   

  	
  [                         ]
  20[ ]

  






 


 


FOR VALUE RECEIVED, the
undersigned, LPL HOLDINGS, INC., a Massachusetts corporation (the “Borrower”),
hereby unconditionally promises to pay to the order of [Lender] or its
registered assigns (the “Lender”), at the Administrative Agent’s Office
or such other place as MORGAN STANLEY SENIOR FUNDING, INC. (the “Administrative
Agent”) shall have specified, in Dollars and in immediately available
funds, in accordance with Section 2.5 of the Credit Agreement (as defined
below; capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement) on the [2013 Revolving
Credit] [Swingline] Maturity Date the principal amount of [               ]
US Dollars ($[             ])
or, if less, the aggregate unpaid principal amount of all advances made by the
Lender to the Borrower as [2013 Revolving Credit] [Swingline] Loans pursuant to
the Credit Agreement. The Borrower further unconditionally promises to pay
interest in like money at such office on the unpaid principal amount hereof
from time to time outstanding at the rates per annum and on the dates specified
in Section 2.8 of the Credit Agreement.


 


This Promissory Note is one
of the promissory notes referred to in Section 13.6 of the Third
Amended and Restated Credit Agreement, dated as of May [      ],
2010 (the “Credit Agreement”), among the Borrower, LPL Investment Holdings, Inc.,
the lending institutions from time to time parties thereto, Morgan Stanley
Senior Funding, Inc., as Administrative Agent and Morgan Stanley &
Co., as Collateral Agent. This Promissory Note is subject to, and the Lender is
entitled to the benefits of, the provisions of the Credit Agreement, and the 


 


I-6-1

















 


[2013 Revolving Credit]
[Swingline] Loans evidenced hereby are guaranteed and secured as provided
therein and in the other Credit Documents. The [2013 Revolving Credit]
[Swingline] Loans evidenced hereby are subject to prepayment prior to the [2013
Revolving Credit] [Swingline] Maturity Date, in whole or in part, as provided
in the Credit Agreement.


 


All parties now and
hereafter liable with respect to this Promissory Note, whether maker,
principal, surety, guarantor, endorser or otherwise, hereby waive diligence,
presentment, demand, protest and notice of any kind whatsoever in connection
with this Promissory Note. No failure to exercise and no delay in exercising,
on the part of the Administrative Agent or the Lender, any right, remedy, power
or privilege hereunder or under the Credit Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder or thereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. A
waiver by the Administrative Agent or the Lender of any right, remedy, power or
privilege hereunder or under any Credit Document on any one occasion shall not
be construed as a bar to any right or remedy that the Administrative Agent or
the Lender would otherwise have on any future occasion. The rights, remedies,
powers and privileges herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any rights, remedies, powers and
privileges provided by law.


 


All payments in respect of
the principal of and interest on this Promissory Note shall be made to the
Person recorded in the Register as the holder of this Promissory Note, as
described more fully in Section 2.5(f) of the Credit Agreement, and
such Person shall be treated as the Lender hereunder for all purposes of the
Credit Agreement.


 


I-6-2

















 


THIS PROMISSORY NOTE SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.


 


I-6-3

















 


	
   

  	
  LPL
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


I-6-4

















 


TRANSACTIONS ON

[2013 REVOLVING CREDIT] [SWINGLINE] LOAN NOTE


 


	
  Date

  	
   

  	
  Amount of Loan

  Made This Date

  	
   

  	
  Amount of

  Principal Paid

  This Date

  	
   

  	
  Outstanding

  Principal

  Balance This Date

  	
   

  	
  Notation

  Made By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


I-6-5
















 


FORM OF PROMISSORY NOTE


ADDITIONAL/REPLACEMENT REVOLVING CREDIT AND SWINGLINE LOANS


 




	
  $                             

  	
   

  	
  New York

  
	
   

  	
   

  	
  [                          ]
  20[ ]

  






 


FOR VALUE RECEIVED, the
undersigned, LPL HOLDINGS, INC., a Massachusetts corporation (the “Borrower”),
hereby unconditionally promises to pay to the order of [Lender] or its
registered assigns (the “Lender”), at the Administrative Agent’s Office
or such other place as MORGAN STANLEY SENIOR FUNDING, INC. (the “Administrative
Agent”) shall have specified, in Dollars and in immediately available
funds, in accordance with Section 2.5 of the Credit Agreement (as defined
below; capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement) on the
[Additional/Replacement Revolving Credit] [Swingline] Maturity Date the
principal amount of [         ] US
Dollars ($[                ])
or, if less, the aggregate unpaid principal amount of all advances made by the
Lender to the Borrower as [Additional/Replacement Revolving Credit] [Swingline]
Loans pursuant to the Credit Agreement. The Borrower further unconditionally
promises to pay interest in like money at such office on the unpaid principal
amount hereof from time to time outstanding at the rates per annum and on the
dates specified in Section 2.8 of the Credit Agreement.


 


This Promissory Note is one
of the promissory notes referred to in Section 13.6 of the Third
Amended and Restated Credit Agreement, dated as of May [      ],
2010 (the “Credit Agreement”), among the Borrower, LPL Investment Holdings, Inc.,
the lending institutions from time to time parties thereto, Morgan Stanley
Senior Funding, Inc., as Administrative Agent and Morgan Stanley &
Co., as Collateral Agent. This Promissory Note is subject to, and the Lender is
entitled to the benefits of, the provisions of the Credit Agreement, and the 


 


I-7-6

















 


[Additional/Replacement
Revolving Credit] [Swingline] Loans evidenced hereby are guaranteed and secured
as provided therein and in the other Credit Documents. The
[Additional/Replacement Revolving Credit] [Swingline] Loans evidenced hereby
are subject to prepayment prior to the [Additional/Replacement Revolving
Credit] [Swingline] Maturity Date, in whole or in part, as provided in the
Credit Agreement.


 


All parties now and
hereafter liable with respect to this Promissory Note, whether maker,
principal, surety, guarantor, endorser or otherwise, hereby waive diligence,
presentment, demand, protest and notice of any kind whatsoever in connection
with this Promissory Note. No failure to exercise and no delay in exercising,
on the part of the Administrative Agent or the Lender, any right, remedy, power
or privilege hereunder or under the Credit Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder or thereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. A
waiver by the Administrative Agent or the Lender of any right, remedy, power or
privilege hereunder or under any Credit Document on any one occasion shall not
be construed as a bar to any right or remedy that the Administrative Agent or
the Lender would otherwise have on any future occasion. The rights, remedies,
powers and privileges herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any rights, remedies, powers and
privileges provided by law.


 


All payments in respect of
the principal of and interest on this Promissory Note shall be made to the
Person recorded in the Register as the holder of this Promissory Note, as
described more fully in Section 2.5(f) of the Credit Agreement, and
such Person shall be treated as the Lender hereunder for all purposes of the
Credit Agreement.


 


I-7-7

















 


THIS PROMISSORY NOTE SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.


 


 


	
   

  	
  LPL
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


I-7-8

















 


TRANSACTIONS ON

[ADDITIONAL/REPLACEMENT REVOLVING CREDIT] [SWINGLINE] LOAN NOTE


 


	
  Date

  	
   

  	
  Amount of Loan

  Made This Date

  	
   

  	
  Amount of

  Principal Paid

  This Date

  	
   

  	
  Outstanding

  Principal

  Balance This Date

  	
   

  	
  Notation

  Made By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


I-7-9
















 


EXHIBIT J-1

TO THE CREDIT AGREEMENT


 


PARI PASSU INTERCREDITOR AGREEMENT TERM SHEET


 


Capitalized
terms not otherwise defined herein have the same meanings as specified therefor
in the Credit Agreement.


 


	
  PERMITTED
  OTHER PARI PASSU DEBT:

  	
   

  	
  Permitted
  Other Debt constituting First Lien Obligations.

  
	
   

  	
   

  	
   

  
	
  FINANCING
  DOCUMENTS:

  	
   

  	
  Definitive
  documentation in respect of the Credit Agreement Obligations (as defined
  below) (the “Credit Agreement Documents”) and
  definitive documentation in respect of the Pari Passu Permitted Other Debt
  Obligations (as defined below) (the “Pari Passu Permitted
  Other Debt Documents”).

  
	
   

  	
   

  	
   

  
	
  PARI
  PASSU SECURITY DOCUMENTS:

  	
   

  	
  Collateral
  documents in respect of the Pari Passu Permitted Other Debt Obligations
  substantially identical to the Security Documents, with a collateral trustee
  (the “Pari Passu Collateral Trustee”) appointed as the representative of the
  Pari Passu Permitted Other Debt Secured Parties.

  
	
   

  	
   

  	
   

  
	
  INTERCREDITOR
  AGREEMENT:

  	
   

  	
  The
  Intercreditor Agreement as referred to in clause (A) to the proviso to
  Section 10.2(a) of the Credit Agreement..

  
	
   

  	
   

  	
   

  
	
  PARI
  PASSU PERMITTED OTHER DEBT SECURED PARTIES:

  	
   

  	
  The
  Permitted Other Debt Secured Parties in respect of the Pari Passu Permitted
  Other Debt Obligations.

  
	
   

  	
   

  	
   

  
	
  FIRST
  LIEN SECURED PARTIES:

  	
   

  	
  The
  Secured Parties and the Pari Passu Permitted Other Debt Secured Parties
  (each, a “First Lien Secured Party”).

  
	
   

  	
   

  	
   

  
	
  FIRST
  LIEN OBLIGATIONS:

  	
   

  	
  The
  Credit Agreement Obligations and the Pari Passu Permitted Other Debt
  Obligations (together with any hedging, and cash management and contingent
  indemnification obligations relating thereto).

  
	
   

  	
   

  	
   

  
	
  FIRST
  LIEN COLLATERAL:

  	
   

  	
  All
  assets of the Credit Parties that constitute “Collateral” under the Credit
  Agreement Documents and any other assets that are required to be “Collateral”
  as defined under each of the Credit Agreement Documents and the Pari Passu
  Permitted Other Debt Documents.

  
	
   

  	
   

  	
   

  
	
  CREDIT
  AGREEMENT OBLIGATIONS:

  	
   

  	
  All
  “Obligations” as defined in the Credit Agreement.

  
	
   

  	
   

  	
   

  
	
  PARI
  PASSU PERMITTED OTHER DEBT 

  	
   

  	
  All
  “Permitted Other Debt Obligations” as defined in the Credit Agreement and
  that are secured by a Lien ranking pari passu with the Credit Agreement
  Obligations. (collectively, the “Pari
  Passu Permitted 

  



 


J-1-1

















 


	
  OBLIGATIONS:

  	
   

  	
  Other
  Debt Obligations”).

  
	
   

  	
   

  	
   

  
	
  PARI PASSU LIENS; REMEDIES:

  	
   

  	
  (a)        Liens securing the Pari Passu
  Permitted Other Debt Obligations shall be pari passu in
  all respects with Liens securing the Credit Agreement Obligations.

   

  (b)        At any time during which the aggregate
  outstanding principal amount of the Credit Agreement Obligations (other than
  hedging, cash management and contingent indemnification obligations) exceeds
  33.3% of the aggregate outstanding principal amount of the First Lien
  Obligations (other than hedging, cash management and contingent
  indemnification obligations), the Collateral Agent and the Pari Passu
  Collateral Trustee will take direction, on behalf of the Secured Parties and
  the Pari Passu Permitted Other Debt Secured Parties, from the Administrative
  Agent (which, for the avoidance of doubt and unless otherwise specified,
  shall take direction from the Required Lenders) with regards to the
  enforcement of rights and remedies in respect of the First Lien Collateral.
  Otherwise, the Collateral Agent and the Pari Passu Collateral Trustee shall
  take direction, on behalf of the Secured Parties and the Pari Passu Permitted
  Other Debt Secured Parties, from the representative
  of the Pari Passu Permitted Other Debt Secured Parties that constitute the largest outstanding
  principal amount of any then outstanding Pari Passu Permitted Other Debt
  Obligations with regards to the enforcement of rights and remedies in respect
  to the First Lien Collateral (such person with the power to direct the
  Collateral Agent and the Pari Passu Collateral Trustee at any time with
  regards to the enforcement of rights and remedies in respect to the First
  Lien Collateral, the “First Lien Controlling Representative”).

   

  (c)        The representative of the Pari Passu
  Permitted Other Debt Secured Parties may exercise rights and remedies on
  behalf of the Pari Passu Permitted Other Debt Secured Parties with respect to
  the First Lien Collateral only if (i) such representative has provided
  written notice to the Collateral Agent and the Administrative Agent of its
  intention to exercise its rights and remedies with respect to the First Lien
  Collateral, which notice may be delivered at any time following an event of
  default under the Pari Passu Permitted Other Debt Documents, and
  (ii) the Collateral Agent has not commenced the exercise of rights and
  remedies with respect to the First Lien Collateral within 180 days following
  the delivery of such notice, at the direction of the Administrative Agent.

  
	
   

  	
   

  	
   

  
	
  PROHIBITION ON CONTESTING LIENS:

  	
   

  	
  No First Lien Secured Party will contest, or support any other person
  in contesting the priority, validity or enforceability of a Lien held by or
  on behalf of any of the other First Lien Secured Parties.

  
	
   

  	
   

  	
   

  
	
  NO
  NEW 

  	
   

  	
  No
  Credit Party shall grant or permit any additional Liens on any asset to

  



 


J-1-2

















 


	
  LIENS/SIMILAR
  LIENS:

  	
   

  	
  secure
  the Credit Agreement Obligations unless it has granted a Lien on a pari passu basis on such assets to secure the Pari Passu
  Permitted Other Debt Obligations.

   

  No
  Credit Party shall grant or permit any additional Liens on any asset to
  secure the Pari Passu Permitted Other Debt Obligations unless it has granted
  a Lien on a pari passu basis on such assets
  to secure the Credit Agreement Obligations.

  
	
   

  	
   

  	
   

  
	
  APPLICATION
  OF PROCEEDS/TURN-OVER:

  	
   

  	
  The
  proceeds of any liquidation, foreclosure or similar action related to the
  First Lien Collateral will be applied in the following order of priority:

   

  First, on a pro rata basis (based on the aggregate of all expenses
  under the Credit Agreement Documents and the Pari Passu Permitted Other Debt
  Documents), to pay agent, trustee and issuing bank fees, expenses and
  indemnities under the Credit Agreement Documents and any fees, expenses and
  indemnities under the Pari Passu Permitted Other Debt Documents;

   

  Second, on a pro rata basis (based on the aggregate outstanding amount
  of First Lien Obligations), to pay the First Lien Obligations; and

   

  Third, to the
  Borrower or as a court of competent jurisdiction may direct.

  
	
   

  	
   

  	
   

  
	
  RELEASES:

  	
   

  	
  Liens
  securing the Credit Agreement Obligations and the Pari Passu Permitted Other
  Debt Obligations will be released in connection with the enforcement of
  rights or remedies by the Collateral Agent as set forth above, and in the
  event the Liens on all or substantially all of the First Lien Collateral are
  being released, such release shall be consistent and in accordance with the
  Credit Agreement.

   

  Any
  additional release of First Lien Collateral will be permitted as long as such
  release is permitted by the Credit Agreement Documents and the Pari Passu
  Permitted Other Debt Documents.

  
	
   

  	
   

  	
   

  
	
  BANKRUPTCY:

  	
   

  	
  In
  connection with any bankruptcy, insolvency, liquidation or other debt relief
  proceeding initiated by or on behalf of any Credit Party:

   

  ·      DIP
  Financing: If the Collateral Agent (at the direction of the
  Administrative Agent) does not object to any Credit Party obtaining
  debtor-in-possession financing (a “DIP Financing”),
  then the Pari Passu Permitted Other Debt Secured Parties shall be deemed to
  have accepted such DIP Financing and will not object or support any objection
  to any such DIP Financing as long as the Pari Passu Permitted Other Debt
  Secured Parties receive adequate assurance or supplemental Liens granted to
  the First Lien Secured Parties.

   

  ·      Adequate
  Protection: No First Lien Secured Party shall contest
  (i) any request by the Collateral Agent, at the direction of the

  



 


J-1-3

















 


	
   

  	
   

  	
  Administrative
  Agent, for adequate protection; (ii) any objection by the Collateral
  Agent, at the direction of the Administrative Agent, to any motion, etc.
  based on the First Lien Secured Parties’ claiming a lack of adequate
  protection; or (iii) the payment of interest, fees, expenses or other
  amounts to the Collateral Agent or any other First Lien Secured Parties.
  However, (a) if any First Lien Secured Party is granted adequate
  protection in the form of additional collateral in connection with any DIP
  Financing, then the other First Lien Secured Parties may seek adequate
  protection in the form of a lien on such additional collateral (pari passu with the Liens securing the obligations of such
  First Lien Secured Parties and such DIP Financing), (b) in the event
  that any First Lien Secured Party is granted adequate protection in the form
  of additional collateral, then the other First Lien Secured Parties shall
  have a pari passu Lien and claim on such
  additional collateral and (c) in the event any First Lien Secured Party
  is granted adequate protection in the form of a superpriority claim, then the
  other First Lien Secured Parties may seek adequate protection in the form of
  a pari passu superpriority claim.

   

  ·      Avoidance
  Issues: If any First Lien Secured Party is required to
  disgorge or otherwise pay any amount to the bankruptcy estate of any Credit
  Party for any reason (a “Recovery”),
  then the obligations of such First Lien Secured Party shall be reinstated to
  the extent of such Recovery.

  
	
   

  	
   

  	
   

  
	
  GOVERNING
  LAW:

  	
   

  	
  The
  State of New York.

  



 


J-1-4
















 


FIRST LIEN/SECOND LIEN
INTERCREDITOR AGREEMENT TERM SHEET


 


Capitalized terms not otherwise defined herein have the same meanings
as specified therefor in the Credit Agreement.


 


	
  PERMITTED
  OTHER SECOND LIEN DEBT:

  	
   

  	
  Permitted
  Other Debt that is secured by a Lien on the Collateral, but that does not
  constitute First Lien Obligations.

  
	
   

  	
   

  	
   

  
	
  FINANCING
  DOCUMENTS:

  	
   

  	
  Definitive
  documentation in respect of the First Lien Obligations (as defined below)
  (the “First Lien Documents”) and definitive
  documentation in respect of the Second Lien Permitted Other Debt Obligations
  (as defined below) (the “Second Lien Permitted
  Other Debt Documents”).

  
	
   

  	
   

  	
   

  
	
  SECOND
  LIEN SECURITY DOCUMENTS:

  	
   

  	
  Collateral
  documents in respect of the Second Lien Permitted Other Debt Obligations
  substantially identical to the Security Documents, with a collateral trustee
  (the “Second Lien Collateral Trustee”)
  appointed as the representative of the Second Lien Permitted Other Debt
  Secured Parties.

  
	
   

  	
   

  	
   

  
	
  INTERCREDITOR
  AGREEMENT:

  	
   

  	
  The
  Intercreditor Agreement as referred to in clause (B) to the proviso to
  Section 10.2(a) of the Credit Agreement.

  
	
   

  	
   

  	
   

  
	
  FIRST
  LIEN OBLIGATIONS:

  	
   

  	
  Permitted
  Other Debt Obligations constituting First Lien Obligations (including any
  hedging, cash management and contingent indemnification obligations relating
  thereto), if any, together with the Credit Agreement Obligations.

  
	
   

  	
   

  	
   

  
	
  FIRST
  LIEN SECURED PARTIES:

  	
   

  	
  The
  Secured Parties together with the Permitted Other Debt Secured Parties with
  respect to Permitted Other Debt constituting First Lien Obligations, if any.

  
	
   

  	
   

  	
   

  
	
  FIRST
  LIEN CONTROLLING REPRESENTATIVE:

  	
   

  	
  The
  First Lien Controlling Representative, as defined in Exhibit A.

  
	
   

  	
   

  	
   

  
	
  SECOND
  LIEN PERMITTED OTHER DEBT SECURED PARTIES:

  	
   

  	
  The
  Permitted Other Debt Secured Parties in respect of the Second Lien Permitted
  Other Debt Obligations.

  
	
   

  	
   

  	
   

  
	
  FIRST
  LIEN/SECOND LIEN SECURED PARTIES:

  	
   

  	
  The
  First Lien Secured Parties and the Second Lien Permitted Other Debt Secured
  Parties (each, a “First Lien/Second Lien
  Secured Party”).

  



 

















 


	
  FIRST
  LIEN/SECOND LIEN COLLATERAL:

  	
   

  	
  All
  assets of the Credit Parties that constitute “Collateral” under the Credit
  Agreement Documents and any other assets that are required to be “Collateral”
  as defined under each of the First Lien Documents and the Second Lien
  Permitted Other Debt Documents.

  
	
   

  	
   

  	
   

  
	
  CREDIT
  AGREEMENT OBLIGATIONS:

  	
   

  	
  All
  “Obligations” as defined in the Credit Agreement.

  
	
   

  	
   

  	
   

  
	
  SECOND
  LIEN PERMITTED OTHER DEBT OBLIGATIONS:

  	
   

  	
  All
  “Permitted Other Debt Obligations” as defined in the Credit Agreement and
  that are secured by a Lien ranking junior to the First Lien Obligations, as
  permitted by the terms of the Credit Agreement (including any
  post-petition interest, whether or not allowed or allowable in (collectively,
  the “Second Lien Permitted Other Debt Obligations”).

  
	
   

  	
   

  	
   

  
	
  LIENS; REMEDIES:

  	
   

  	
  (a)        Liens securing the Second Lien
  Permitted Other Debt Obligations shall rank second in all respects to the
  Liens securing the Credit Agreement Obligations.

   

  (b)        At any time during which any First
  Lien Obligations remain outstanding, the Collateral Agent, the Pari Passu
  Collateral Trustee, if any, and the Second Lien Collateral Trustee will take
  direction, on behalf of the First Lien Secured Parties and the Second Lien
  Permitted Other Debt Secured Parties, from the First Lien Controlling Representative
  with regards to the enforcement of rights and remedies in respect of the
  First Lien/Second Lien Collateral.

   

  (c)        At any time after which the First Lien
  Controlling Representative has given written notice to the representative of
  the Second Lien Permitted Other Debt Secured Parties that the First Lien
  Obligations have been irrevocably satisfied in full in cash (other than
  hedging, cash management and contingent indemnification obligations), the
  representative of the Second Lien Permitted Other Debt Secured Parties that constitute the largest outstanding
  principal amount of any then outstanding Second Lien Permitted Other Debt Obligations
  may exercise enforcement rights and remedies on behalf of the Second Lien
  Permitted Other Debt Secured Parties with respect to the First Lien/Second
  Lien Collateral; provided that the representative of the Second Lien
  Permitted Other Debt Secured Parties may also exercise enforcement rights and
  remedies on behalf of the Second Lien Permitted Other Debt Secured Parties
  with respect to the First Lien/Second Lien Collateral only if (i) such
  representative has provided written notice to the Collateral Agent and the
  Administrative Agent of its intention to exercise its rights and remedies
  with respect to the First Lien/Second Lien Collateral, which notice may be
  delivered at any time following an event of default under the Second Lien
  Permitted Other Debt Documents, and (ii) the Collateral Agent and the
  Pari Passu Collateral Trustee, if any, has not commenced 

  



 


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  the
  exercise of rights and remedies with respect to the First Lien/Second Lien
  Collateral within 180 days following the delivery of such notice, at the
  direction of the First Lien Controlling Representative.

  
	
   

  	
   

  	
   

  
	
  PROHIBITION ON CONTESTING LIENS:

  	
   

  	
  No First Lien/Second Lien Secured Party will contest, or support any
  other person in contesting the priority, validity or enforceability of a Lien
  held by or on behalf of any of the other First Lien/Second Lien Secured
  Parties.

  
	
   

  	
   

  	
   

  
	
  NO
  NEW LIENS/SIMILAR LIENS:

  	
   

  	
  No
  Credit Party shall grant or permit any additional Liens on any asset to
  secure the First Lien Obligations unless it has granted a Lien on a second
  priority basis on such assets to secure the Second Lien Permitted Other Debt
  Obligations.

   

  No
  Credit Party shall grant or permit any additional Liens on any asset to
  secure the Second Lien Permitted Other Debt Obligations unless it has granted
  a Lien on a first priority basis on such assets to secure the First Lien Obligations.

  
	
   

  	
   

  	
   

  
	
  APPLICATION
  OF PROCEEDS/TURN-OVER:

  	
   

  	
  The
  proceeds of any liquidation, foreclosure or similar action related to the
  First Lien Collateral will be applied in the following order of priority:

   

  First, to pay
  agent, trustee and issuing bank fees, expenses and indemnities under the
  First Lien Documents;

   

  Second, to pay the
  First Lien Obligations;

   

  Third, to pay
  agent, trustee and issuing bank fees, expenses and indemnities under the
  Second Lien Permitted Other Debt Documents;

   

  Fourth, to pay the Second
  Lien Permitted Other Debt Obligations; and

   

  Fifth, to the
  Borrower or as a court of competent jurisdiction may direct.

  
	
   

  	
   

  	
   

  
	
  RELEASES:

  	
   

  	
  Liens
  securing the First Lien Obligations and the Second Lien Permitted Other Debt
  Obligations will be released in connection with the enforcement of rights or
  remedies by the Collateral Agent and the Pari Passu Collateral Trustee, if
  any, as set forth above, and in the event the Liens on all or substantially
  all of the First Lien/Second Lien Collateral are being released, such release
  shall be consistent and in accordance with the Credit Agreement.

   

  Any
  additional release of First Lien/Second Lien Collateral will be permitted as
  long as such release is permitted by the First Lien Documents.

  
	
   

  	
   

  	
   

  
	
  AMENDMENTS:

  	
   

  	
  Any
  amendment to a Financing Document will be permitted as long as such amendment
  is permitted by the First Lien Documents and the Second Lien Permitted Other
  Debt Documents and approved by the requisite vote, 

  



 


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  solely
  to the extent any vote is required under such documents.

  
	
   

  	
   

  	
   

  
	
  BANKRUPTCY:

  	
   

  	
  In
  connection with any bankruptcy, insolvency, liquidation or other debt relief
  proceeding initiated by or on behalf of any Credit Party:

   

  ·      DIP
  Financing: If the Collateral Agent and the Pari Passu
  Collateral Trustee, if any, (at the direction of the First Lien Controlling
  Representative) does not object to any Credit Party obtaining
  debtor-in-possession financing (a “DIP Financing”),
  then the Second Lien Permitted Other Debt Secured Parties shall be deemed to
  have accepted such DIP Financing and will not object or support any objection
  to any such DIP Financing.

   

  ·      Adequate
  Protection: No Second Lien Permitted Other Debt Secured
  Party shall contest (i) any request by the Collateral Agent or the Pari
  Passu Collateral Trustee, if any, at the direction of the First Lien
  Controlling Representative, for adequate protection; (ii) any objection
  by the Collateral Agent or the Pari Passu Collateral Trustee, if any, at the
  direction of the First Lien Controlling Representative, to any motion, etc.
  based on the First Lien Secured Parties’ claiming a lack of adequate
  protection; or (iii) the payment of interest, fees, expenses or other
  amounts to the Collateral Agent, the Pari Passu Collateral Trustee or any
  other First Lien Secured Party. However, if (a) the First Lien Secured
  Parties are granted adequate protection in the form of additional collateral
  or superpriority claims in connection with any DIP Financing, then the Second
  Lien Permitted Other Debt Secured Parties may seek adequate protection in the
  form of a lien on such additional collateral (on a second priority basis with
  respect to the Liens securing the obligations of such First Lien Secured Parties
  and such DIP Financing) or superpriority claims, respectively, and
  (b) in the event that the First Lien Secured Parties are granted
  adequate protection in the form of additional collateral, then the Second
  Lien Permitted Other Debt Secured Parties shall have a second priority Lien
  and claim on such additional collateral. 

   

  ·      Avoidance
  Issues: If any First Lien Secured Party is required to
  disgorge or otherwise pay any amount to the bankruptcy estate of any Credit
  Party for any reason (a “Recovery”),
  then the obligations of such First Lien Secured Party shall be reinstated to
  the extent of such Recovery.

  
	
   

  	
   

  	
   

  
	
  GOVERNING
  LAW:

  	
   

  	
  The
  State of New York.

  



 


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