Exhibit 10.1


 


THE LOANS UNDER THIS
AGREEMENT HAVE BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”).  BEGINNING NO LATER THAN DECEMBER 1, 2009, A
LENDER MAY, UPON REQUEST, OBTAIN FROM COMPANY THE LOAN’S ISSUE PRICE, ISSUE
DATE, AMOUNT OF OID AND YIELD TO MATURITY BY CONTACTING THE CHIEF FINANCIAL
OFFICER OF COMPANY, 100 BAYVIEW CIRCLE, SUITE 400, NEWPORT BEACH, CA 92660


 


	
   

  	
   

  	
   

  



 


CREDIT AGREEMENT


 


dated as of December 1,
2009


 


among


 


ALLIANCE HEALTHCARE
SERVICES, INC.,


 


as Borrower,


 


THE LENDERS PARTY HERETO,


 


as Lenders,


 


and


 


DEUTSCHE BANK TRUST
COMPANY AMERICAS,


 


as Administrative Agent


	
   

  	
   

  	
   

  



 


DEUTSCHE BANK SECURITIES INC,


 


BARCLAYS CAPITAL, the investment banking division of BARCLAYS BANK PLC,


 


and


 


MORGAN STANLEY SENIOR
FUNDING, INC.,


 


as Lead Arrangers


 

















 


Table of Contents


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  DEFINITIONS

  	
  2

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Certain Defined Terms

  	
  2

  
	
  1.2

  	
  Accounting Terms; Utilization of GAAP for Purposes of
  Calculations Under Agreement

  	
  41

  
	
  1.3

  	
  Other Definitional Provisions and Rules of
  Construction

  	
  41

  
	
  1.4

  	
  Exchange Rates

  	
  41

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  AMOUNTS AND TERMS OF COMMITMENTS AND LOANS

  	
  42

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Commitments; Making of Loans; the Register; Notes

  	
  42

  
	
  2.2

  	
  Interest on the Loans

  	
  49

  
	
  2.3

  	
  Fees

  	
  53

  
	
  2.4

  	
  Repayments, Prepayments and Reductions in Revolving Loan
  Commitments; General Provisions Regarding Payments; Application of Proceeds
  of Collateral and Payments Under the Guaranties

  	
  55

  
	
  2.5

  	
  Use of Proceeds

  	
  63

  
	
  2.6

  	
  Special Provisions Governing LIBOR Loans

  	
  64

  
	
  2.7

  	
  Increased Costs; Capital Adequacy

  	
  66

  
	
  2.8

  	
  Notice of Certain Costs; Obligation of Lenders and Issuing
  Lenders to Mitigate

  	
  70

  
	
  2.9

  	
  Defaulting Lenders

  	
  70

  
	
  2.10

  	
  Removal or Replacement of a Lender

  	
  72

  
	
  2.11

  	
  Incremental Term Loan Commitments

  	
  75

  
	
  2.12

  	
  Incremental RL Commitments

  	
  78

  
	
  2.13

  	
  Company, Investor and Affiliate Term Loan Purchases

  	
  79

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  LETTERS OF CREDIT

  	
  82

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Issuance of Letters of Credit

  	
  82

  
	
  3.2

  	
  Maximum Letter of Credit Usage; Final Maturities

  	
  83

  
	
  3.3

  	
  Letter of Credit Requests; Minimum Stated Amount

  	
  83

  
	
  3.4

  	
  Letter of Credit Participations

  	
  84

  
	
  3.5

  	
  Agreement to Repay Letter of Credit Drawings

  	
  86

  
	
  3.6

  	
  Increased Costs

  	
  87

  
	
  3.7

  	
  Existing Letters of Credit

  	
  88

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  CONDITIONS TO LOANS AND LETTERS OF CREDIT

  	
  88

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Conditions to Initial Loans and Letters of Credit

  	
  88

  
	
  4.2

  	
  Conditions to All Loans

  	
  94

  
	
  4.3

  	
  Conditions to Letters of Credit

  	
  94

  
	
  4.4

  	
  Satisfaction of Conditions to Closing Date

  	
  95

  
	
  4.5

  	
  Company Representation and Warranty

  	
  95

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  COMPANY’S REPRESENTATIONS AND WARRANTIES

  	
  95

  



 


i

















 


Table of Contents


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Organization, Powers, Qualification, Good Standing,
  Business and Subsidiaries

  	
  95

  
	
  5.2

  	
  Authorization of Borrowing, etc.

  	
  96

  
	
  5.3

  	
  Financial Condition

  	
  97

  
	
  5.4

  	
  No Material Adverse Effect

  	
  97

  
	
  5.5

  	
  Title to Properties; Liens

  	
  97

  
	
  5.6

  	
  Intellectual Property

  	
  97

  
	
  5.7

  	
  Litigation; Adverse Facts

  	
  97

  
	
  5.8

  	
  Payment of Taxes

  	
  98

  
	
  5.9

  	
  Use of Proceeds; Governmental Regulation

  	
  98

  
	
  5.10

  	
  Employee Benefit Plans

  	
  98

  
	
  5.11

  	
  Environmental Protection

  	
  99

  
	
  5.12

  	
  Disclosure

  	
  100

  
	
  5.13

  	
  Compliance with Statutes, etc.

  	
  100

  
	
  5.14

  	
  Matters Relating to Collateral

  	
  100

  
	
  5.15

  	
  Insurance

  	
  101

  
	
  5.16

  	
  Indebtedness

  	
  101

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  AFFIRMATIVE COVENANTS

  	
  102

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Financial Statements and Other Reports

  	
  102

  
	
  6.2

  	
  Corporate Existence, etc.

  	
  106

  
	
  6.3

  	
  Payment of Taxes and Claims

  	
  107

  
	
  6.4

  	
  Maintenance of Properties; Insurance

  	
  107

  
	
  6.5

  	
  Books, Records, and Inspection Rights

  	
  107

  
	
  6.6

  	
  Compliance with Laws, etc.

  	
  108

  
	
  6.7

  	
  Execution of Loan Document by Future Domestic Subsidiaries;
  Additional Collateral

  	
  108

  
	
  6.8

  	
  Transactions with Affiliates

  	
  111

  
	
  6.9

  	
  Use of Proceeds; Conduct of Business

  	
  111

  
	
  6.10

  	
  Fiscal Year; Fiscal Quarter

  	
  111

  
	
  6.11

  	
  Maintenance of Company Separateness

  	
  112

  
	
  6.12

  	
  Interest Rate Protection

  	
  112

  
	
  6.13

  	
  Existing Senior Subordinated Notes

  	
  112

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  NEGATIVE COVENANTS

  	
  112

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Indebtedness

  	
  112

  
	
  7.2

  	
  Liens and Related Matters

  	
  114

  
	
  7.3

  	
  Investments; Joint Ventures

  	
  115

  
	
  7.4

  	
  Guarantee Obligations

  	
  116

  
	
  7.5

  	
  Restricted Junior Payments

  	
  117

  
	
  7.6

  	
  Financial Covenants

  	
  118

  
	
  7.7

  	
  Restrictions on Certain Fundamental Changes; Asset Sales
  and Acquisitions

  	
  118

  
	
  7.8

  	
  Consolidated
  Capital Expenditures

  	
  119

  



 


ii

















 


Table of Contents


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  7.9

  	
  Amendments of Documents Relating to other Indebtedness

  	
  120

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  EVENTS OF DEFAULT

  	
  121

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Failure to Make Payments When Due

  	
  121

  
	
  8.2

  	
  Default in Other Agreements

  	
  121

  
	
  8.3

  	
  Breach of Certain Covenants

  	
  121

  
	
  8.4

  	
  Breach of Warranty; etc.

  	
  121

  
	
  8.5

  	
  Other Defaults Under Loan Documents

  	
  121

  
	
  8.6

  	
  Bankruptcy; Appointment of Receiver, etc.

  	
  122

  
	
  8.7

  	
  Collateral Documents; Guaranties; Repudiation of
  Obligations, etc.

  	
  122

  
	
  8.8

  	
  Judgments and Attachments

  	
  123

  
	
  8.9

  	
  ERISA

  	
  123

  
	
  8.10

  	
  Change of Control

  	
  123

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  ADMINISTRATIVE AGENT

  	
  125

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Appointment

  	
  125

  
	
  9.2

  	
  Nature of Duties

  	
  125

  
	
  9.3

  	
  Lack of Reliance on Administrative Agent

  	
  125

  
	
  9.4

  	
  Certain Rights of Administrative Agent

  	
  126

  
	
  9.5

  	
  Reliance

  	
  126

  
	
  9.6

  	
  Right to Indemnity

  	
  126

  
	
  9.7

  	
  Administrative Agent in its Individual Capacity

  	
  127

  
	
  9.8

  	
  Holders

  	
  127

  
	
  9.9

  	
  Resignation by Administrative Agent; Replacement

  	
  127

  
	
  9.10

  	
  Collateral Matters

  	
  129

  
	
  9.11

  	
  Delivery of Information

  	
  129

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  MISCELLANEOUS

  	
  130

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Benefit of Agreement; Assignments; Participations

  	
  130

  
	
  10.2

  	
  Expenses; Indemnity

  	
  132

  
	
  10.3

  	
  Patriot Act

  	
  134

  
	
  10.4

  	
  Set-Off

  	
  134

  
	
  10.5

  	
  Ratable Sharing

  	
  135

  
	
  10.6

  	
  Amendments and Waivers

  	
  135

  
	
  10.7

  	
  Notices

  	
  138

  
	
  10.8

  	
  Survival of Representations, Warranties and Agreements

  	
  139

  
	
  10.9

  	
  Failure or Indulgence Not Waiver; Remedies Cumulative

  	
  139

  
	
  10.10

  	
  Marshalling; Payments Set Aside

  	
  139

  
	
  10.11

  	
  Severability

  	
  139

  
	
  10.12

  	
  Obligations Several; Independent Nature of Lenders’ Rights

  	
  140

  
	
  10.13

  	
  Headings

  	
  140

  
	
  10.14

  	
  GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
  JURY TRIAL

  	
  140

  
	
  10.15

  	
  Successors
  and Assigns

  	
  141

  



 


iii

















 


Table of Contents


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  10.16

  	
  Interest Rate Limitation

  	
  141

  
	
  10.17

  	
  Confidentiality

  	
  141

  
	
  10.18

  	
  Counterparts; Effectiveness

  	
  142

  
	
  10.19

  	
  Judgment Currency

  	
  142

  
	
  10.20

  	
  Domicile of Loans

  	
  143

  
	
  10.21

  	
  Post-Closing
  Actions

  	
  143

  



 


iv

















 


EXHIBITS


 


	
  I

  	
  —

  	
  FORM OF
  NOTICE OF BORROWING

  
	
  II

  	
  —

  	
  FORM OF
  NOTICE OF CONVERSION/CONTINUATION

  
	
  III

  	
  —

  	
  FORM OF
  REQUEST FOR ISSUANCE OF LETTER OF CREDIT

  
	
  IV

  	
  —

  	
  FORM OF
  TERM NOTE

  
	
  V

  	
  —

  	
  FORM OF
  REVOLVING NOTE

  
	
  VI

  	
  —

  	
  FORM OF
  SWING LINE NOTE

  
	
  VII

  	
  —

  	
  FORM OF
  INCREMENTAL TERM NOTE

  
	
  VIII

  	
  —

  	
  FORM OF
  COMPLIANCE CERTIFICATE

  
	
  IX

  	
  —

  	
  FORM OF
  OPINIONS OF COUNSEL TO THE LOAN PARTIES

  
	
  X

  	
  —

  	
  FORM OF
  ASSIGNMENT AGREEMENT

  
	
  XI

  	
  —

  	
  FORM OF
  CERTIFICATE RE NON-BANK STATUS

  
	
  XII

  	
  —

  	
  FORM OF
  FINANCIAL CONDITION CERTIFICATE

  
	
  XIII

  	
  —

  	
  FORM OF
  PLEDGE AGREEMENT

  
	
  XIV

  	
  —

  	
  FORM OF
  SUBSIDIARY GUARANTY

  
	
  XV

  	
  —

  	
  FORM OF
  COLLATERAL ACCOUNT AGREEMENT

  
	
  XVI

  	
  —

  	
  FORM OF
  SECURITY AGREEMENT

  
	
  XVII

  	
  —

  	
  FORM OF
  INCREMENTAL TERM LOAN COMMITMENT AGREEMENT

  
	
  XVIII

  	
  —

  	
  FORM OF
  INCREMENTAL RL COMMITMENT AGREEMENT

  



 


SCHEDULES


 


	
  2.1

  	
  —

  	
  LENDERS’
  COMMITMENTS, LENDING OFFICES AND PRO RATA SHARES

  
	
  3.7

  	
  —

  	
  EXISTING
  LETTERS OF CREDIT

  
	
  5.1

  	
  —

  	
  JURISDICTION
  OF ORGANIZATION, SUBSIDIARIES OF COMPANY

  
	
  5.6

  	
  —

  	
  LITIGATION

  
	
  5.10A

  	
  —

  	
  PLANS

  
	
  5.15

  	
  —

  	
  INSURANCE

  
	
  7.1

  	
  —

  	
  CERTAIN
  EXISTING INDEBTEDNESS

  
	
  7.3

  	
  —

  	
  CERTAIN
  EXISTING INVESTMENTS

  
	
  7.4

  	
  —

  	
  CERTAIN
  EXISTING GUARANTEE OBLIGATIONS

  
	
  10.21

  	
   

  	
  POST CLOSING ACTIONS

  



 


v

















 


CREDIT
AGREEMENT


 


This CREDIT AGREEMENT is dated as of December 1,
2009 and entered into by and among ALLIANCE HEALTHCARE SERVICES, INC., a
Delaware corporation (“Company”), THE FINANCIAL INSTITUTIONS LISTED ON
THE SIGNATURE PAGES HEREOF (together with their permitted assignees, each
individually referred to herein as a “Lender” and collectively as the “Lenders”),
and DEUTSCHE BANK TRUST COMPANY AMERICAS (“DB”), as administrative agent
for Lenders (in such capacity, “Administrative Agent”).  All capitalized terms used herein and defined
in Section 1.1 are used herein as therein defined.


 


R E C I T A L S


 


WHEREAS, Company, as borrower, certain lenders party
thereto and Administrative Agent are party to that certain Credit Agreement,
dated as of November 2, 1999 (as the same has been amended, modified
and/or supplemented to date, the “Existing Credit Agreement”);


 


WHEREAS, Company has issued $300,000,000 outstanding
principal amount of Existing Senior Subordinated Notes;


 


WHEREAS, on the Closing Date and in connection with
the proposed refinancing of Company’s indebtedness, Company intends to (i) refinance
all of the outstanding indebtedness (and terminate all commitments) under the
Existing Credit Agreement and (ii) repurchase all of its outstanding
Existing Senior Subordinated Notes that on the Closing Date have been tendered
pursuant to the Tender Offer (with any Existing Senior Subordinated Notes not
repurchased on the Closing Date pursuant to the Tender Offer to be repurchased
on the final closing of the Tender Offer or to be redeemed no later than February 24,
2010 pursuant to the terms of the Existing Senior Subordinated Note Indentures)
(the “Closing Date Refinancing”);


 


WHEREAS, on the Closing Date and in connection with
the Closing Date Refinancing, Company will issue and sell the New Senior Notes
in an aggregate principal amount equal to $190,000,000;


 


WHEREAS, the Lenders have agreed to extend certain
credit facilities to Company, the proceeds of which will be used, (i) together
with the proceeds of the issuance and sale of the New Senior Notes and cash on
hand of Company, to fund the Closing Date Refinancing Requirements, and (ii) to
provide financing for working capital and other general corporate purposes of
Company and its Subsidiaries;


 


WHEREAS, Company desires to secure all of the
Obligations hereunder and under the other Loan Documents by granting to
Administrative Agent, on behalf of Lenders, a first priority security interest
in (i) 100% of the capital stock of each of its direct Pledged
Subsidiaries, (ii) 65% of the Voting Stock and 100% of the non-voting
stock of each of its direct Material Foreign Subsidiaries and (iii) certain
other assets, in each case pursuant to and in accordance with the terms of the
Collateral Documents; and


 


1

















 


WHEREAS, Subsidiary Guarantors have agreed to
guarantee the Obligations of the Loan Parties hereunder and under the other
Loan Documents and to secure their guaranties by granting to Administrative
Agent, on behalf of Lenders, a first priority security interest in (i) 100%
of the capital stock of each of their respective direct Pledged Subsidiaries, (ii) 65%
of the Voting Stock and 100% of the non-voting stock of each of their
respective direct Material Foreign Subsidiaries and (iii) certain other
assets, in each case pursuant to and in accordance with the terms of the
Collateral Documents;


 


NOW, THEREFORE, in consideration of the premises and
the agreements, provisions and covenants herein contained, Company, Lenders and
Administrative Agent agree as follows:


 


SECTION 1.                                DEFINITIONS


 


1.1                                 Certain Defined Terms. 
The following terms used in this Agreement shall have the following
meanings:


 


“Acquisition” means the acquisition by Company
or any of its Subsidiaries (by purchase or otherwise) of all or substantially
all of the business, property or fixed assets of, or the stock or other
evidence of beneficial ownership of, any Person or any division, business unit
or line of business of any Person.


 


“Additional Collateral Documents” has the
meaning assigned to that term in Section 6.7B.


 


“Administrative Agent” has the meaning assigned
to such term in the introduction to this Agreement and also means and includes
any successor Administrative Agent appointed pursuant to Section 9.9.  In addition, for purposes of Sections 9,
10.2, 10.6, 10.7, 10.9 and 10.10, the reference to “Administrative Agent” shall
also be deemed to be a reference to “Collateral Agent,” and for purposes of
other provisions of this Agreement relating to Collateral Documents (other than
the Collateral Account Agreement), the Collateral covered thereby and the Liens
granted thereon, the reference to “Administrative Agent” shall be deemed to be
a reference to “Collateral Agent,” in each case as the context may appear.


 


“Affected Lender” has the meaning assigned to
that term in Section 2.6B.


 


“Affiliate”, as applied to any Person, means
any other Person directly or indirectly controlling, controlled by, or under
common control with, that Person.  For
the purposes of this definition, “control” (including, with correlative
meanings, the terms “controlling”, “controlled by” and “under common control
with”), as applied to any Person, means the possession, directly or indirectly,
of the power to (i) vote 10% or more of the Voting Stock of such Person or
(ii) direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities or by contract or
otherwise.


 


“Agents” means, collectively, Administrative
Agent and Collateral Agent.


 


“Agreement” means this Credit Agreement dated
as of December 1, 2009, as it may be amended, supplemented or otherwise
modified from time to time.


 


2

















 


“Applicable Commitment Fee Percentage” means,
as at any date of determination, a rate per annum equal to 0.50%.


 


“Applicable Increased Revolving Loan Spread”
means, at any time, with respect to all Revolving Loans following the date of
the addition of any Incremental RL Commitments pursuant to Section 2.12
which are subject to Applicable Margins that are greater than the Applicable
Margins applicable to the Revolving Loans prior to such Incremental RL
Commitments, the Applicable Margins applicable to all Revolving Loans shall be
increased to such greater Applicable Margins.


 


“Applicable Increased Term Loan Spread” means,
at any time, with respect to any then existing Tranche of Term Loans at the
time of the provision of any new Tranche of Incremental Term Loans pursuant to Section 2.11
which is subject to an “effective interest rate margin” that is less than the “effective
interest rate margin” applicable to such new Tranche of Incremental Term Loans
by more than 0.50%, the margin per annum (expressed as a percentage) determined
by Administrative Agent (and notified to the Lenders) as the margin per annum
required to cause the “effective interest rate margin” applicable to such then
existing Tranche of Term Loans to equal (i) the “effective interest rate
margin” applicable to such newly created Tranche of Incremental Term Loans
minus (ii) 0.50%.  Each
determination of the “Applicable Increased Term Loan Spread” shall be made by
Administrative Agent taking into account the relevant factors outlined in the
proviso to subclause (III) of clause (vii) of Section 2.11A and
shall be conclusive and binding on all Lenders absent manifest error.


 


“Applicable Leverage Ratio” means, with respect
to any date of determination, the Consolidated Leverage Ratio set forth in the
Pricing Certificate (as defined below) in effect for the Pricing Period (as
defined below) in which such date of determination occurs.  For purposes of this definition, (i) “Pricing
Certificate” means an Officer’s Certificate of Company certifying as to the
Consolidated Leverage Ratio as of the last day of any Fiscal Quarter and
setting forth the calculation of such Consolidated Leverage Ratio in reasonable
detail, which Officer’s Certificate may be delivered to Administrative Agent at
any time on or after the date of delivery by Company of the Compliance
Certificate (the “Related Compliance Certificate”) with respect to the
period ending on the last day of such Fiscal Quarter pursuant to Section 6.1(iii),
and (ii) “Pricing Period” means each period commencing on the first
Business Day after the delivery to Administrative Agent of a Pricing
Certificate and ending on the day immediately preceding the day on which the
next succeeding Pricing Period commences; provided that anything
contained in this definition to the contrary notwithstanding, (a) the
first Pricing Period shall commence no earlier than the date on which Company delivers
a Compliance Certificate in respect of the Fiscal Quarter ending June 30,
2010, and the Pricing Certificate in respect of the first Pricing Period may be
delivered at any time on or after such date and shall relate to the most recent
financial statements delivered by Company to Administrative Agent pursuant to Section 6.1(i),
(b) the Applicable Leverage Ratio for the period from the Closing Date to
but excluding the date of commencement of the first Pricing Period shall be
deemed to be greater than or equal to 2.75:1.00 and less than or equal to
4.25:1.00, and (c) in the event that, after the commencement of the first
Pricing Period, (X) Company fails to deliver a Pricing Certificate to
Administrative Agent setting forth the Consolidated Leverage Ratio as of the
last day of any Fiscal Quarter on or before the last day (the “Cutoff Date”)
on which Company is required to deliver the Related Compliance Certificate and (Y) Administrative
Agent determines (each such 


 


3

















 


determination being an “Agent
Determination”) on or after the Cutoff Date (on the basis of the Related
Compliance Certificate or a Pricing Certificate delivered after the Cutoff
Date) that the Applicable Leverage Ratio that would have been in effect if
Company had delivered a Pricing Certificate on the Cutoff Date is greater than
the Consolidated Leverage Ratio set forth in the most recent Pricing
Certificate actually delivered by Company, then (1) the Applicable
Leverage Ratio in effect for the period from the Cutoff Date to the date of
delivery by Company of the next Pricing Certificate (or, if earlier, the next
date on which an Agent Determination is made) shall be the Consolidated
Leverage Ratio determined pursuant to the Agent Determination and (2) on
the first Business Day after Administrative Agent delivers written notice to
Company of any Agent Determination, Company shall pay to Administrative Agent,
for distribution (as appropriate) to Lenders, an aggregate amount equal to the
additional interest and letter of credit fees Company would have been required
to pay in respect of all Loans or Letters of Credit in respect of which any
interest or Fees have been paid by Company during the period from the Cutoff
Date to the date such notice is given by Administrative Agent to Company if the
amount of such interest and fees had been calculated using the Applicable
Leverage Ratio based on such Agent Determination.


 


Notwithstanding anything to the contrary contained
above in this definition or elsewhere in this Agreement, if it is subsequently
determined that the Consolidated Leverage Ratio set forth in any Pricing
Certificate delivered for any period is inaccurate for any reason and the
result thereof is that the Lenders received interest for any period based on an
Applicable Revolving LIBOR Margin or an Applicable Revolving Base Rate Margin
that is less than that which would have been applicable had the Consolidated
Leverage Ratio been accurately determined, then, for all purposes of this
Agreement, the “Applicable Revolving LIBOR Margin” and the “Applicable
Revolving Base Rate Margin” for any day occurring within the period covered by
such Pricing Certificate shall retroactively be deemed to be the relevant
percentage as based upon the accurately determined Consolidated Leverage Ratio
for such period, and any shortfall in the interest theretofore paid by Company
for the relevant period pursuant to Sections 2.2A(ii)(a) and 2.2A(ii)(b) as
a result of the miscalculation of the Consolidated Leverage Ratio shall be
deemed to be (and shall be) due and payable under the relevant provisions of Section 2.2A(ii)(a) or
2.2A(ii)(b), as applicable, at the time the interest or fees for such period
were required to be paid pursuant to said Section on the same basis as if
the Consolidated Leverage Ratio had been accurately set forth in such Pricing
Certificate (and shall remain due and payable until paid in full, together with
all amounts owing under Section 2.2E, in accordance with the terms of this
Agreement).


 


“Applicable Margins” means the Applicable
Revolving Base Rate Margin, the Applicable Revolving LIBOR Margin, the
Applicable Term Loan Base Rate Margin and the Applicable Term Loan LIBOR
Margin.


 


“Applicable Revolving Base Rate Margin” means,
with respect to any date of determination, a rate per annum equal to the
percentage set forth below opposite the Applicable Leverage Ratio in effect as
of such date of determination, any change in any such Applicable Revolving Base
Rate Margin to be effective on the date of any corresponding change in the
Applicable Leverage Ratio:


 


	
  Applicable Leverage Ratio

  	
   

  	
  Applicable Revolving Base Rate 

  Margin

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  greater than 4.25:1.00

  	
   

  	
  2.75%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  greater than or equal to 2.75:1.00, but equal to
  or less than 4.25:1.00

  	
   

  	
  2.50%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  less than 2.75:1.00

  	
   

  	
  2.25%

  	
   

  



 


4
















 


Notwithstanding the foregoing, on and after the date
of the most recent creation of Incremental RL Commitments which gives rise to a
determination of a new Applicable Increased Revolving Loan Spread, the
Applicable Revolving Base Rate Margin shall be the higher of (I) the
Applicable Increased Revolving Loan Spread and (II) the Applicable
Revolving Base Rate Margin as otherwise determined above in the absence of this
sentence.


 


“Applicable Revolving
LIBOR Margin” means,
as at any date of determination, a rate per annum equal to the percentage set
forth below opposite the Applicable Leverage Ratio in effect as of such date of
determination, any change in any such Applicable Revolving LIBOR Margin to be
effective on the date of any corresponding change in the Applicable Leverage
Ratio:


 


	
  Applicable Leverage Ratio

  	
   

  	
  Applicable Revolving LIBOR Margin

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  greater than 4.25:1.00

  	
   

  	
  3.75%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  greater than or equal to 2.75:1.00, but equal to
  or less than 4.25:1.00

  	
   

  	
  3.50%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  less than 2.75:1.00

  	
   

  	
  3.25%

  	
   

  



 


Notwithstanding the foregoing, on and after the date
of the most recent creation of Incremental RL Commitments which gives rise to a
determination of a new Applicable Increased Revolving Loan Spread, the
Applicable Revolving LIBOR Margin shall be the higher of (I) the
Applicable Increased Revolving Loan Spread and (II) the Applicable
Revolving LIBOR Margin as otherwise determined above in the absence of this
sentence.


 


“Applicable Term Loan Base Rate Margin” means a
rate per annum equal to 2.50%.


 


Notwithstanding the foregoing, (a) in the case of
any Incremental Term Loan maintained as a Base Rate Loan of a given Tranche,
the Applicable Term Loan Base Rate Margin shall be that percentage per annum
set forth in, or calculated in accordance with, Section 2.11 and the
relevant Incremental Term Loan Commitment Agreement; and (b) on and after
the date of the most recent incurrence of any Tranche of Incremental Term Loans
which gives rise to a determination of a new Applicable Increased Term Loan
Spread, the Applicable Term Loan Base Rate Margins for any Tranche of Term
Loans (other than such new Tranche of Incremental Term Loans) shall be the
higher of (I) the Applicable Increased Term Loan Spread for such Tranche
of Term Loans and (II) the Applicable Term Loan Base Rate Margin for such
Tranche of Term Loans as otherwise determined above in the absence of this
clause (b).


 


5

















 


“Applicable Term Loan LIBOR Margin” means a
rate per annum equal to 3.50%.


 


Notwithstanding the foregoing, (a) in the case of
any Incremental Term Loan maintained as a LIBOR Loan of a given Tranche, the
Applicable Term Loan LIBOR Margin shall be that percentage per annum set forth
in, or calculated in accordance with, Section 2.11 and the relevant Incremental
Term Loan Commitment Agreement; and (b) on and after the date of the most
recent incurrence of any Tranche of Incremental Term Loans which gives rise to
a determination of a new Applicable Increased Term Loan Spread, the Applicable
Term Loan LIBOR Margin for any Tranche of Term Loans (other than such new
Tranche of Incremental Term Loans) shall be the higher of (I) the
Applicable Increased Term Loan Spread for such Tranche of Term Loans and (II) the
Applicable Term Loan LIBOR Margin for such Tranche of Term Loans as otherwise
determined above in the absence of this clause (b).


 


“Asset Sale” means the sale by Company or any
of its Subsidiaries (other than any Designated Non-Wholly Owned Subsidiary) to
any Third Party of (i) any of the stock or other ownership interests of
any of Company’s Subsidiaries, (ii) substantially all of the assets of any
division or line of business of Company or any of its Subsidiaries, or (iii) any
other assets (whether tangible or intangible) of Company or any of its Subsidiaries
outside of the ordinary course of business (other than any other such assets to
the extent that the aggregate value of such assets sold in any single
transaction or related series of transactions is equal to $2,500,000 or less).


 


“Assignment Agreement” means an Assignment
Agreement in substantially the form of Exhibit X annexed hereto.


 


“Available Amount” means, as of any date of
determination, an amount equal to (i) the aggregate amount of net cash
proceeds received by Company after the Closing Date in respect of any equity
contributions made to Company by, or any issuances of equity Securities by
Company to, any Third Party other than an Unrestricted Subsidiary (other than (x) proceeds
from purchases of capital stock of Company to the extent such purchases are
financed with the proceeds of Investments permitted under Section 7.3(ii) and
(y) proceeds from Cure Amounts) plus (ii) the aggregate amount
of Retained Excess Cash Flow (as defined in Section 2.4B(iii)(c)) as of
such date plus (iii) the aggregate amount of Retained Prepayments
(as defined in Section 2.4B(iv)(c)) as of such date plus (iv) $25,000,000
minus (v) any proceeds received by Company from the issuance of new
shares of its common stock to the extent such proceeds are used as provided in Section 7.5(c).  For purposes of clause (i) of the
definition of Available Amount Usage only, Available Amount shall also include
the attributable amount of any issuances of equity Securities by Company to any
Third Party other than an Unrestricted Subsidiary in respect of an Unrestricted
Investment acquired pursuant to Section 7.3(vi)(b).


 


“Available Amount Usage” means, as of any date
of determination, an amount equal to the sum of (i) the aggregate amount
of Investments made pursuant to Section 7.3(vi)(b) as of such date plus
(ii) the aggregate amount of Restricted Junior Payments made pursuant to Section 7.5(ii)(e) on
or prior to such date plus (iii) the aggregate amount of any
Refinancing Premiums paid by Company on or prior to such date plus (iv) the
aggregate amount of Consolidated Capital Expenditures incurred by Company and
its Subsidiaries pursuant to Section 7.8B. 
If (x) any Unrestricted Subsidiary becomes a Subsidiary in
accordance with the definition of “Subsidiary” or (y) any Designated
Non-Wholly-Owned Subsidiary ceases to be a Designated Non-Wholly-Owned
Subsidiary pursuant to the definition thereof, the original Investment (if any)
in such Unrestricted Subsidiary or such Designated Non-Wholly-Owned Subsidiary
made pursuant to Section 7.3(vi)(b) shall cease to be considered
Available Amount Usage.


 


6

















 


“Back-Stop Arrangements” shall mean,
collectively, Letter of Credit Back-Stop Arrangements and Swing Line Back-Stop
Arrangements.


 


“Bankruptcy Code” means Title 11 of the United
States Code entitled “Bankruptcy”, as now and hereafter in effect, or any
successor statute.


 


“Base Rate” means, at any time, the highest of (i) the
Prime Rate, (ii) the rate which is 1/2 of 1% in excess of the Federal
Funds Effective Rate or (iii) LIBOR for a LIBOR Loan with a one-month
interest period commencing on such day plus 1.00%.  For purposes of this definition, LIBOR shall
be determined using LIBOR as otherwise determined by Administrative Agent in
accordance with the definition of LIBOR, except that (x) if a given day is
a Business Day, such determination shall be made on such day (rather than two
Business Days prior to the commencement of an Interest Period) or (y) if a
given day is not a Business Day, LIBOR for such day shall be the rate
determined by Administrative Agent pursuant to preceding clause (x) for
the most recent Business Day preceding such day.  Any change in the Base Rate due to a change
in the Prime Rate, the Federal Funds Effective Rate or such LIBOR shall be
effective as of the opening of business on the day of such change in the Prime
Rate, the Federal Funds Effective Rate or such LIBOR, respectively.


 


“Base Rate Loans” means Loans bearing interest
at rates determined by reference to the Base Rate as provided in Section 2.2A.


 


“Business Day” means, for all purposes other
than as covered by clause (ii) below, (i) any day excluding Saturday,
Sunday and any day which is a legal holiday under the laws of the States of New
York or California or is a day on which banking institutions located in such
states are authorized or required by law or other governmental action to close
and, (ii) with respect to all notices, determinations, fundings and payments in
connection with LIBOR or any LIBOR Loans, any day that is a Business Day
described in clause (i) above and that is also a day for trading by and
between banks in Dollar deposits in the London interbank market.


 


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


 


“Cash” means money, currency or a credit
balance in a Deposit Account.


 


“Cash Equivalents” means (i) marketable
securities (a) issued or directly and unconditionally guaranteed as to
interest and principal by the United States government or (b) issued by
any agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within 24 months
after the date of acquisition thereof; (ii) marketable direct obligations
issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof, in each
case maturing within 24 months after the date of acquisition thereof and
having, at the time


 


7

















 


of the acquisition
thereof, an investment grade rating generally obtainable from either Standard &
Poor’s Ratings Group (“S&P”) or Moody’s Investors Service, Inc.
(“Moody’s”); (iii) commercial paper maturing no more than 12 months
from the date of creation thereof and having, at the time of the acquisition
thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s; (iv) domestic
and Eurodollar certificates of deposit or bankers’ acceptances maturing within
24 months after the date of acquisition thereof and issued or accepted by any
Lender or by any other commercial bank that has combined capital and surplus of
not less than $250,000,000; (v) repurchase agreements with a term of not
more than 30 days for underlying securities of the types described in clauses
(i), (ii) and (iv) above entered into with any commercial bank
meeting the requirements specified in clause (iv) above or with any
securities dealer of recognized national standing; (vi) shares of
investment companies registered under the Investment Company Act of 1940, as
amended, or money market funds that invest solely in one or more of the types
of investments referred to in clauses (i) through (v) above; and (vii) in
the case of any Foreign Subsidiary, high quality, short-term liquid Investments
made by such Foreign Subsidiary in the ordinary course of managing its surplus
cash position in a manner consistent with past practices.


 


“Certificate re Non-Bank Status” means a
certificate substantially in the form of Exhibit XI annexed hereto
delivered by a Lender to Administrative Agent pursuant to Section 2.7B(iii).


 


“Change of Control” means, and shall be deemed
to have occurred, if: (i) any person, entity or “group” (within the
meaning of Section 13(d) or 14(d) of the Exchange Act) (other
than the Investors, their Affiliates and Management Investors) shall at any
time have acquired direct or indirect beneficial ownership of 35% or more of
the outstanding Voting Stock of Company, unless the Investors, their
Affiliates and the Management Investors shall, at the relevant time, have the
collective right or ability, either by contract or pursuant to a written proxy
or other written evidence of voting power, to elect or designate for election a
majority of the Board of Directors of Company; and/or (ii) a “change of
control” or similar event shall occur as provided in any New Senior Notes
Documents or the documents governing any Refinancing Debt.


 


“Class” means, as applied to Lenders, each of
the following two classes of Lenders:  (i) Lenders
having Revolving Loan Exposure and (ii) Lenders having Term Loan Exposure.


 


“Closing Date” means the date on or before December 1,
2009, on which the initial Loans are made.


 


“Closing Date Refinancing” has the meaning
assigned to that term in the recitals to this Agreement.


 


“Closing Date Refinancing Requirements” means
the aggregate of all amounts necessary (i) to repurchase or redeem all
Existing Senior Subordinated Notes and to pay tender premiums in connection
therewith, plus any accrued and unpaid interest thereon (but excluding any
Existing Senior Subordinated Notes not tendered pursuant to the Tender Offer as
of the Closing Date), (ii) to repay all Indebtedness outstanding under the
Existing Credit Agreement and (iii) to pay Transaction Costs.


 


8

















 


“Collateral” means all of the property
(including capital stock) in which Liens are purported to be granted pursuant
to the Collateral Documents as security for the obligations.


 


“Collateral Account” has the meaning assigned
to that term in the Collateral Account Agreement.


 


“Collateral Account Agreement” means the
Collateral Account Agreement executed and delivered by Company and
Administrative Agent on the Closing Date, substantially in the form of Exhibit XV
annexed hereto, as such Collateral Account Agreement may hereafter be amended,
supplemented or otherwise modified from time to time.


 


“Collateral Agent” means Deutsche Bank Trust
Company Americas, in its capacity as Collateral Agent for the benefit of the
Secured Parties under the Collateral Documents (other than the Collateral
Account Agreement) and shall include any successor Collateral Agent.


 


“Collateral Documents” means, and includes each
of, the Pledge Agreement, the Collateral Account Agreement, the Security
Agreement and any Additional Collateral Document that may be entered into from
time to time after the Closing Date by Company or any Subsidiary of Company
pursuant to Section 6.7B; provided that any cash collateral or
other agreements entered into pursuant to the Back-Stop Arrangements shall
constitute “Collateral Documents” solely for purposes of (x) Sections 5.2B
and 7.2(iii) and (y) the term “Loan Documents” as used in Sections 7.1(i), 7.2C
and 10.2.


 


“Commitment Fee” has the meaning assigned to
that term in Section 2.3A.


 


“Commitments” means the commitments of Lenders
to make Loans as set forth in Section 2.1A, i.e., whether an
Initial Term Loan Commitment, a Revolving Loan Commitment or an Incremental
Loan Commitment.


 


“Company” has the meaning assigned to that term
in the introduction to this Agreement.


 


“Compliance Certificate” means a certificate
substantially in the form of Exhibit VIII annexed hereto delivered
to Administrative Agent and Lenders by Company pursuant to Section 6.1(iii).


 


“Confidential Information Memorandum” means
that certain Confidential Information Memorandum relating to Company dated November 2009.


 


“Consent Solicitation” means the solicitation
by Company from the holders of outstanding Existing Senior Subordinated Notes
of consents to certain amendments to the Existing Senior Subordinated Note
Indentures in accordance with the terms of the Tender Offer Materials.


 


9

















 


“Consolidated Adjusted EBITDA” means, with
respect to any Person for any period, an amount equal to (i) Consolidated Net
Income plus (ii) to the extent the following items are deducted in
calculating such Consolidated Net Income, the sum, without duplication, of the
amounts for such period of (a) Consolidated Interest Expense, (b) taxes
computed on the basis of income, (c) total depreciation expense, (d) total
amortization expense (including amortization of deferred financing fees and
other original issue discount and banking fees, charges and commissions (e.g.,
letter of credit fees and commitment fees) of such Person determined on a
consolidated basis for such period), (e) any expenses or charges incurred in
connection with any issuance of debt or equity Securities (including upfront
fees payable in respect of bank facilities), (f) any restructuring charges
or reserves, (g) any fees and expenses related to Acquisitions and Investments
permitted hereunder or acquisitions consummated prior to the date hereof, (h) any
other non-cash charges, (i) any deduction for minority interest expense, (j) severance
charges for such period, not to exceed $1,500,000 for any one Fiscal Year and (k) any
other non-recurring charges minus (iii) to the extent the following
items are added in calculating such Consolidated Net Income, the sum, without
duplication, of the amounts for such period of (a) any non-recurring
gains, (b) any non-cash gains and (c) any gains arising as a result
of the repurchase or assignment of Term Loans at a discount pursuant to Section 2.13,
all of the foregoing as determined on a consolidated basis for such Person and
its Subsidiaries in conformity with GAAP; provided that, for purposes of
Sections 2.11, 2.12, 7.6 and 7.7(ii) only, (X) Consolidated Adjusted
EBITDA of any Included Pro Forma Entity (other than any
Unrestricted Subsidiary redesignated as a Subsidiary of Company) shall be
increased (if positive) or decreased (if negative) by any Pro Forma
Adjustment applicable thereto and (Y) Consolidated Adjusted EBITDA of
Company and its Subsidiaries shall be increased (if positive) or decreased (if
negative) by the Net EBITDA Adjustment.


 


“Consolidated Capital Expenditures” means, for
any period, the aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a liability and including that portion of Capital
Leases which is capitalized as principal on the consolidated balance sheet of
Company and its Subsidiaries) by Company and its Subsidiaries during that
period that, in conformity with GAAP, are included in “additions to property,
plant or equipment” or comparable items reflected in the consolidated statement
of cash flows of Company and its Subsidiaries; provided that
Consolidated Capital Expenditures shall not include (i) any such
expenditures constituting all or a portion of the purchase price in connection
with any Acquisition, (ii) any such expenditures made in connection with
the replacement, substitution, repair or restoration of any assets to the
extent financed (a) with insurance proceeds received by Company or any of
its Subsidiaries on account of the loss of, or any damage to, the assets being
replaced, substituted for, repaired or restored or (b) with the proceeds
of any compensation awarded to Company or any of its Subsidiaries as a result
of the taking, by eminent domain or condemnation, of the assets being replaced
or substituted for, (iii) the purchase price of any equipment that is purchased
simultaneously with the trade-in of any existing equipment by Company or any of
its Subsidiaries to the extent that the gross amount of such purchase price is
reduced by any credit granted by the seller of such equipment for such
equipment being traded in, or (iv) the purchase price of any property,
plant or equipment purchased within one year of the consummation of any Asset
Sale or any other sale by Company or any of its Subsidiaries of any other
property, plant or equipment to the extent purchased with the Net Asset Sale
Proceeds of such Asset Sale or the proceeds of such other sale.


 


10

















 


“Consolidated Current Assets” means, as at any
date of determination, the total assets of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current assets in
conformity with GAAP, excluding Cash and Cash Equivalents.


 


“Consolidated Current Liabilities” means, as at
any date of determination, the total liabilities of Company and its
Subsidiaries on a consolidated basis which may properly be classified as
current liabilities in conformity with GAAP, excluding the current
portions of Funded Debt.


 


“Consolidated Excess Cash Flow” means, for any
Fiscal Year, an amount (if positive) equal to (i) the sum, without
duplication, of the amounts for such Fiscal Year of (a) Consolidated Net
Income, (b) the amount of all non-cash charges to the extent deducted in
arriving at such Consolidated Net Income, (c) any net decrease in
Consolidated Working Capital since the end of the preceding Fiscal Year, and (d) the
aggregate net non-cash loss realized by Company and its Subsidiaries in
connection with the sale, lease, transfer or other disposition of assets by
Company and its Subsidiaries during such Fiscal Year (other than sales in the
ordinary course of business), to the extent deducted in arriving at such
Consolidated Net Income, minus (ii) the sum, without duplication,
of the amounts for such Fiscal Year of (a) the amount of all non-cash
credits to the extent added in arriving at such Consolidated Net Income, (b) Consolidated
Capital Expenditures actually paid in Cash during such Fiscal Year (net of the
principal amount of any Indebtedness (other than the Revolving Loans) incurred
to finance such Consolidated Capital Expenditures, whether incurred in such
Fiscal Year or in the immediately succeeding Fiscal Year), provided that
the amount deducted pursuant to this clause (b) in respect of any Fiscal
Year shall not exceed the amount permitted to be spent under Section 7.8A
during such Fiscal Year, (c) the aggregate amount of all prepayments of
Revolving Loans and Swing Line Loans to the extent accompanied by permanent
reductions in the Revolving Loan Commitments, (d) the aggregate amount of
all principal payments in respect of any Indebtedness of Company or any of its
Subsidiaries (including the Term Loans, the principal component of any payments
in respect of Capital Leases and principal payments on Equipment Notes), other
than (1) any mandatory prepayments of the Term Loans pursuant to Section 2.4B(iii),
(2) any repurchases of Term Loans pursuant to Section 2.13A, (3) any
voluntary prepayments of Term Loans deducted pursuant to Section 2.4B(iii)(c)(II),
(4) any prepayments of Indebtedness with the proceeds of other
Indebtedness, or (5) repayments in respect of any revolving credit
facility except to the extent there is a permanent reduction in commitments
thereunder in connection with such repayments, (e) any net increase in
Consolidated Working Capital since the end of the preceding Fiscal Year, (f) the
aggregate net non-cash gain realized by Company and its Subsidiaries in
connection with the sale, lease, transfer or other disposition of assets by
Company and its Subsidiaries during such Fiscal Year (other than sales in the
ordinary course of business), (g) the aggregate amount of all Cash
payments made by Company and its Subsidiaries in respect of long-term
liabilities of Company or any of its Subsidiaries other than Indebtedness, (h) the
aggregate amount of new Investments made in Cash in accordance with Section 7.3(vi),
(i) the aggregate amount of Cash consideration paid in connection with any
Acquisitions (net of any such consideration paid out of any Net Asset Sale
Proceeds), (j) the aggregate amount of Restricted Junior Payments made in
accordance with Section 7.5(a) (to the extent such Restricted Junior
Payments are required by the terms of the applicable management and/or employee
stock plan, stock subscription agreement or shareholder agreement), (k) the
aggregate amount of any expenditures actually made in Cash by Company and its
Subsidiaries during such Fiscal Year (including expenditures for the payment of
financing fees) to the extent such expenditures are not expensed during such
Fiscal Year, (l) the aggregate amount of any net currency gains realized
by Company and its Subsidiaries during such Fiscal Year that are prohibited
from being repatriated to the United States, and (m) the aggregate amount
of any premium, make-whole or penalty payments actually paid in cash during
such Fiscal Year that are required in connection with any prepayment of
Indebtedness and that are accounted for by Company as extraordinary items, all
of the foregoing as determined on a consolidated basis for Company and its
Subsidiaries in accordance with GAAP.


 


11

















 


“Consolidated Interest Expense” means, with
respect to any Person for any period, an amount equal to, without duplication, (i) total
interest expense (including that portion attributable to Capital Leases in
accordance with GAAP, capitalized interest and any administrative agency or
commitment or other similar fees payable in respect of bank facilities) of such
Person and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP, with respect to all outstanding Indebtedness of such Person and its
Subsidiaries, including all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers’ acceptance financings and
net costs under Interest Rate Agreements, but excluding, however, any amounts
referred to in Section 2.3 payable to Administrative Agent, Syndication
Agents and Lenders on or before the Closing Date minus (ii) total
interest income of such Person and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, but excluding, however, any
interest income not received in Cash during such period; provided, that,
for purposes of Sections 7.6 and 7.7(ii) only, Consolidated Interest
Expense of Company and its Subsidiaries shall be increased (if positive) or
decreased (if negative) by the Net Interest Adjustment.


 


“Consolidated Leverage Ratio” means, as of the
last day of any Fiscal Quarter, the ratio of (i) Consolidated Total Debt
as of such date to (ii) Consolidated Adjusted EBITDA of Company and its
Subsidiaries for the four Fiscal Quarter period ending on such date; provided
that for purposes of any calculation of the Consolidated Leverage Ratio for
purposes of Sections 2.11, 2.12, 7.6 and 7.7(ii) only, Consolidated
Total Debt shall be determined in accordance with the requirements of the
definition of “Pro Forma Basis” contained herein.


 


“Consolidated Net Income” means, with respect
to any Person (the “Subject Person”) for any period, the net income (or
loss) of the Subject Person and its Subsidiaries on a consolidated basis for
such period taken as a single accounting period determined in conformity with
GAAP; provided that there shall be excluded (i) the income (or
loss) of any Person in which any other Person (other than the Subject Person or
any of its wholly-owned Subsidiaries) has a joint interest to the extent of
such interest held by Persons other than the Subject Person or any of its
wholly-owned Subsidiaries and to the extent that the payment of dividends or
other similar distributions by such Person is prohibited or restricted directly
or indirectly by the terms of its organizational documents or any agreement,
governmental order or regulation, contract or otherwise, (ii) the income (or
loss) of any Person accrued prior to the date it becomes a Subsidiary of the
Subject Person or is merged into or consolidated with the Subject Person or any
of its Subsidiaries or that Person’s assets are acquired by the Subject Person
or any of its Subsidiaries, (iii) any after-tax gains or losses, and any
related fees and expenses, in each case to the extent attributable to Asset
Sales or returned surplus assets of any Pension Plan, (iv) any translation
currency gains and losses, and (v) (to the extent not included in clauses (i) through
(iv) above) any net extraordinary gains or net extraordinary losses.


 


12

















 


“Consolidated Senior Secured Debt” means
Consolidated Total Debt minus (i) the aggregate principal amount of
Subordinated Indebtedness of Company and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, (ii) any other Indebtedness of
Company and its Subsidiaries incurred from time to time and subordinated in
right of payment to the Obligations and (iii) any Indebtedness of Company
and its Subsidiaries which is not secured by a Lien on assets of Company or its
Subsidiaries.


 


“Consolidated Senior Secured Leverage Ratio”
means, as of the last day of any Fiscal Quarter, the ratio of (i) Consolidated
Senior Secured Debt as of such date to (ii) Consolidated Adjusted EBITDA
of Company and its Subsidiaries for the four Fiscal Quarter period ending on
such date; provided that for purposes of Sections 2.11 and 2.12
only, Consolidated Senior Secured Debt shall be determined in accordance with
the requirements of the definition of “Pro Forma Basis”
contained herein.


 


“Consolidated Total Debt” means, as at any date
of determination, the aggregate stated balance sheet amount of all Indebtedness
of Company and its Subsidiaries under clauses (i), (ii) and (iii) of
the definition of “Indebtedness” (but only to the extent, in the case of said
clause (iii), of any drawings honored under letters of credit and not yet
reimbursed by Company or any of its Subsidiaries), as determined on a
consolidated basis in accordance with GAAP.


 


“Consolidated Working Capital” means, as at any
date of determination, the excess (or deficit) of Consolidated Current Assets
over Consolidated Current Liabilities.


 


“Contractual Obligation”, as applied to any
Person, means any provision of any Security issued by that Person or of any
indenture, mortgage, deed of trust, loan agreement or any other material
contract, undertaking, agreement or other instrument to which that Person is a
party or by which it or any of its properties is bound or to which it or any of
its properties is subject.


 


“Cure Amount” has the meaning assigned to that
term in the last paragraph of Section 8.


 


“Cure Right” has the meaning assigned to that
term in the last paragraph of Section 8.


 


“Currency Agreement” means any foreign exchange
contract, currency swap agreement, currency futures contract, currency option
contract, synthetic currency exchange rate cap, commodity agreement or other
similar agreement or arrangement to which Company or any of its Subsidiaries is
a party.


 


“DB” means Deutsche Bank Trust Company
Americas.


 


“Default Period” has the meaning assigned to
that term in Section 2.9.


 


“Defaulting Lender” has the meaning assigned to
that term in Section 2.9.


 


13

















 


“Deposit Account” means a demand, time,
savings, passbook or like account with a bank, savings and loan association,
credit union or like organization, other than an account evidenced by a negotiable
certificate of deposit.


 


“Designated Non-Wholly-Owned Subsidiaries”
means Subsidiaries of Company which are (a) not wholly-owned by Company or
another wholly-owned Subsidiary of Company and (b) either (i) listed
on Schedule 5.1 annexed hereto or (ii) formed or acquired after the
Closing Date and designated by Company as a “Designated Non-Wholly-Owned
Subsidiary” in a written notice to Administrative Agent, with Investments in
Designated Non-Wholly-Owned Subsidiaries being subject to the limitations of Section 7.3(vi).  A Subsidiary of Company may cease to be a
Designated Non-Wholly-Owned Subsidiary if (i) Company shall have notified
Administrative Agent in writing that such Subsidiary shall no longer constitute
a Designated Non-Wholly-Owned Subsidiary and (ii) the provisions of Section 6.7
shall have been complied with in respect of such Subsidiary.


 


“Dollars” and the sign “$” mean the
lawful money of the United States of America.


 


“Domestic Subsidiary” means a Subsidiary of
Company organized under the laws of the United States or any state thereof.


 


“Drawing” has the meaning assigned to that term
in Section 3.5B.


 


“Eligible Assignee” means (A) (i) a
commercial bank organized under the laws of the United States or any state
thereof; (ii) a savings and loan association or savings bank organized
under the laws of the United States or any state thereof; (iii) a
commercial bank organized under the laws of any other country or a political
subdivision thereof; provided that (x) such bank is acting through a
branch or agency located in the United States or (y) such bank is
organized under the laws of a country that is a member of the Organization for
Economic Cooperation and Development or a political subdivision of such
country; and (iv) any other entity which is an “accredited investor” (as
defined in Regulation D under the Securities Act) which extends credit or buys
loans as one of its businesses including insurance companies, mutual funds and
lease financing companies; and (B) any Lender, any Affiliate of any Lender
and, with respect to any Lender that is an investment fund that invests in
commercial loans, any other investment fund that invests in commercial loans
and that is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor; provided that neither Company nor
any Affiliate of Company shall be an Eligible Assignee, in each case except to
the extent permitted by Section 2.13.


 


“Environmental Claims” means 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 Company or any of its Subsidiaries (i) in
the ordinary course of such Person’s business or (ii) 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 (for
purposes of this definition, “Claims”), including (a) 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 (b) any and all Claims by any Third Party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.


 


14
















 


“Environmental Laws” means any and all present
and future laws, statutes, ordinances, rules, regulations, requirements,
restrictions, permits, orders, and determinations of any governmental authority
that have the force and effect of law, and that pertain to pollution (including
hazardous, toxic or dangerous substances), natural resources or the
environment, whether federal, state, or local, domestic or foreign including
environmental response laws such as the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986 and as the same may be further amended
(hereinafter collectively called “CERCLA”).


 


“Equipment Notes” means one or more promissory
notes evidencing Indebtedness incurred by Company or any of its Subsidiaries in
connection with the purchase of equipment, which Indebtedness is secured solely
by such equipment and the proceeds thereof and which Indebtedness and Liens are
permitted under Sections 7.1 and 7.2, respectively.


 


“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended, and any regulations promulgated thereunder.


 


“ERISA Affiliate” means any trade or business
(whether or not incorporated) under common control with Company or any of its
Subsidiaries within the meaning of Section 414(b) or (c) of the
Internal Revenue Code, and for the purpose of Section 302 of ERISA and/or Section 412,
4971, 4977 and/or each “applicable section” under Section 414(t)(2) of
the Internal Revenue Code, within the meaning of Section 414(b), (c), (m) or
(o) of the Internal Revenue Code.


 


“ERISA Event” means any of the following events
or occurrences:


 


(i)                                     any reportable event, as defined in Section 4043
of ERISA, with respect to a Pension Plan, as to which the PBGC has not waived
under subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043
the requirement of Section 4043(a) of ERISA that it be notified of such
event;


 


(ii)                                  the filing under Section 4041(c) of
ERISA of a notice of intent to terminate any Pension Plan or the termination of
any Pension Plan under Section 4041(c) of ERISA;


 


(iii)                               the filing of a notice under Section 4041(b) of
ERISA of intent to terminate any Pension Plan if such termination would require
additional contributions in order to be considered a standard termination
within the meaning of Section 4041(b) of ERISA; provided, however,
solely for purposes of Section 6.1(viii), the filing of a notice of intent
to terminate any Pension Plan pursuant to this clause (iii) shall constitute
an ERISA Event only if the additional contributions are in excess of
$20,000,000;


 


(iv)                              the institution of proceedings, or the
occurrence of an event or condition which would reasonably be expected to
constitute grounds for the institution of proceedings, in either case, by the
PBGC under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan;


 


15

















 


(v)                                 the failure by Company, any of its Subsidiaries
or any ERISA Affiliate to make a required contribution to any Pension Plan or
Multiemployer Plan that would reasonably be expected to result in the
imposition of a Lien under Section 430 of the Internal Revenue Code or Section 303
or 4068 of ERISA, in any case, on any assets of Company or its Subsidiaries, or
the arising of such a Lien; there being or arising any “unpaid minimum required
contribution” or “accumulated funding deficiency” (as defined or otherwise set
forth in Section 4971 of the Internal Revenue Code or Part 3 of
Subtitle B of Title I of ERISA) with respect to any Pension Plan or
Multiemployer Plan; or the filing or any request for or receipt of a minimum
funding waiver under Section 412 of the Internal Revenue Code with respect
to any Pension Plan or Multiemployer Plan; or a determination that any Pension
Plan is in at-risk status under Section 303(i) of ERISA;


 


(vi)                              Company or any Subsidiary has engaged or
is engaging in a non-exempt prohibited transaction within the meaning of Section 4975
of the Internal Revenue Code or Section 406 of ERISA;


 


(vii)                           the complete or partial withdrawal of Company, any of
its Subsidiaries or any ERISA Affiliate from a Multiemployer Plan, the
reorganization or insolvency under Title IV of ERISA of any Multiemployer
Plan; or the receipt by Company, any of its Subsidiaries or any ERISA Affiliate
of any notice that a Multiemployer Plan is in endangered or critical status
under Section 305 of ERISA;


 


(viii)                        a withdrawal by Company, any of its Subsidiaries or any
ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA), or a cessation of operation by Company, any of its Subsidiaries or any
ERISA Affiliate which is treated as such a withdrawal under Section 4062(e) of
ERISA;


 


(ix)                                Company, any of its Subsidiaries or any
ERISA Affiliate incurring any liability to the PBGC under Title IV of ERISA
with respect to any Pension Plan (other than premiums under Section 4007
of ERISA); or


 


(x)                                   receipt by Company, any of its
Subsidiaries or any ERISA Affiliate from the Internal Revenue Service of notice
of the failure of any Pension Plan (or any other Plan intended to qualify under
Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of
the Internal Revenue Code, or the failure of any trust forming part of any
Pension Plan to qualify for exemption from taxation under Section 501(a) of
the Internal Revenue Code.


 


“Event of Default” means each of the events set
forth in Section 8.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended from time to time, and any successor statute.


 


“Exchange Rate” means, on any date when an
amount expressed in a currency other than Dollars is to be determined with
respect to any Letter of Credit, the spot rate of exchange quoted by
Administrative Agent in the New York foreign exchange market for the sale of
such currency on such date.


 


16

















 


“Excluded Pro
Forma Entity” means, for any
period, (i) any Person, property, business or asset (other than an
Unrestricted Subsidiary) that is sold, transferred or otherwise disposed of by
Company or any of its Subsidiaries to a Third Party during such period; provided
that for purposes of calculating any consolidated financial information for any
Excluded Pro Forma Entity to be used in determining the Net
EBITDA Adjustment or Net Interest Adjustment for such period, financial
information pertaining to any Person, property, business or asset that was
related to such Excluded Pro Forma Entity but that was not
disposed of by Company or such Subsidiary shall not be consolidated with the
relevant financial information of the Excluded Pro Forma
Entity and (ii) any Subsidiary of Company that is redesignated as an
Unrestricted Subsidiary during such period.


 


“Existing Credit Agreement” means that certain
Credit Agreement dated as of November 2, 1999 among Company, the lenders
parties thereto and Deutsche Bank Trust Company Americas, as agent (as the same
has been amended, modified and/or supplemented to but excluding the Closing
Date).


 


“Existing Letters of Credit” means the Letters
of Credit listed on Schedule 3.7 annexed hereto.


 


“Existing Senior Subordinated Note Indentures”
means (a) the Indenture, dated December 29, 2004, between Company and
the Existing Senior Subordinated Note Trustee and (b) the Indenture, dated
December 4, 2007, between Company and the Existing Senior Subordinated
Note Trustee.


 


“Existing Senior Subordinated Note Trustee”
means The Bank of New York Mellon Trust Company (f/k/a The Bank of New York
Trust Company).


 


“Existing Senior Subordinated Notes” means
Company’s $300,000,000 aggregate principal amount of 7-1⁄4% Senior Subordinated
Notes due 2012, issued pursuant to the Existing Senior Subordinated Note
Indentures.


 


“Facing Fee” has the meaning assigned to that
term in Section 2.3C.


 


“Federal Funds Effective Rate” means, for any
period, a fluctuating interest rate equal for each day during such period to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by Administrative
Agent from three Federal funds brokers of recognized standing selected by
Administrative Agent.


 


“Fees” means, collectively, the Commitment Fee,
the Letter of Credit Fee, the Facing Fee and such other fees from time to time
payable under or in connection with this Agreement and the other Loan
Documents.


 


17

















 


“Financial Plan” has the meaning assigned to
that term in Section 6.1(ix).


 


“First Priority” means, with respect to any
Lien purported to be created in any Collateral pursuant to any Collateral
Document, that (i) such Lien has priority over any other Lien on such
Collateral and (ii) such Lien is the only Lien (other than Permitted
Encumbrances and Liens permitted pursuant to Section 7.2) to which such
Collateral is subject.


 


“Fiscal Quarter” means a fiscal quarter of any
Fiscal Year.


 


“Fiscal Year” means the fiscal year of Company
and its Subsidiaries ending on December 31 of each calendar year (or any
other date to which such Fiscal Year-end is changed pursuant to Section 6.10).


 


“Foreign Subsidiary” means a Subsidiary that is
not a Domestic Subsidiary.


 


“Funded Debt”, as applied to any Person, means
all Indebtedness for borrowed money of that Person (including any current
portions thereof) which by its terms or by the terms of any instrument or
agreement relating thereto matures more than one year from, or is directly
renewable or extendable at the option of that Person to a date more than one
year from (including an option of that Person under a revolving credit or
similar agreement obligating the lender or lenders to extend credit over a
period of one year or more from), the date of the creation thereof.


 


“Funding and Payment Office” means (i) the
office of Administrative Agent and Swing Line Lender located at 60 Wall Street,
New York, New York 10005, or (ii) such other office of Administrative
Agent and/or Swing Line Lender as may from time to time hereafter be designated
as such in a written notice delivered by Administrative Agent and/or Swing Line
Lender to Company and each Lender.


 


“Funding Date” means the making of any Loan or
the issuance, amendment, extension or renewal of any Letter of Credit (other
than any amendment, extension or renewal that does not increase the maximum
Stated Amount of such Letter of Credit).


 


“Funding Default” shall have the meaning
provided in Section 2.9.


 


“GAAP” means generally accepted accounting
principles, subject to the limitations on the application thereof set forth in Section 1.2
with respect to determinations in accordance with GAAP for purposes of the
Applicable Margins, Consolidated Excess Cash Flow and Section 7, including
defined terms as used therein, and for purposes of determining the Applicable
Leverage Ratio.


 


“Guarantee Obligations” means, 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, without limitation, any obligation
of such Person, whether or not contingent, (i) to purchase any such
Indebtedness or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (a) for the purchase or payment of
any such Indebtedness or (b) to maintain working capital or equity capital
of the Primary Obligor or otherwise to maintain the net worth or solvency of
the Primary Obligor, (iii) to purchase property, Securities or services
primarily for the purpose of


 


18

















 


assuring the owner of any
such Indebtedness of the ability of the Primary Obligor to make payment of such
Indebtedness or (iv) 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.  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.


 


“Guaranties” means the Subsidiary Guaranty and
any guaranty entered into by any Subsidiary of Company pursuant to Section 6.7B.


 


“Hazardous Materials” means any substance that
is defined or listed as a hazardous, toxic or dangerous substance under any
present or future Environmental Law or that is otherwise regulated or
prohibited or subject to investigation or remediation under any present or
future Environmental Law because of its hazardous, toxic, or dangerous
properties, including (i) any substance that is a “hazardous substance”
under CERCLA (as defined in the definition of “Environmental Laws”) and (ii) petroleum
wastes or products.


 


“Hedge Agreement” means any (i) Interest
Rate Agreement designed to hedge against fluctuations in interest rates, (ii) Currency
Agreement designed to hedge against fluctuations in currency values and (iii) commodity
swap, commodity hedging agreement or similar agreement designed to hedge
against fluctuations in commodity prices.


 


“Included Pro
Forma Entity” means, for any
period, (i) any Person, property, business or asset (other than an
Unrestricted Subsidiary) that is acquired by Company or any of its Subsidiaries
from a Third Party during such period and not subsequently sold, transferred or
otherwise disposed of by Company or such Subsidiary to a Third Party during
such period; provided that for purposes of calculating any consolidated
financial information for any Included Pro Forma Entity to
be used in determining the Net EBITDA Adjustment or Net Interest Adjustment for
such period, financial information pertaining to any Person, property, business
or asset that was related to such Included Pro Forma Entity
but that was not acquired by Company or such Subsidiary shall not be
consolidated with the relevant financial information of the Included Pro Forma
Entity and (ii) any Unrestricted Subsidiary that is redesignated as a
Subsidiary of Company during such period.


 


“Increased-Cost Lender” has the meaning
assigned to that term in Section 2.10A(i).


 


“Incremental Loan Commitment” means any
Incremental Term Loan Commitment and/or any Incremental RL Commitment, as the
context may require.


 


“Incremental Loan Commitment Agreement” means
any Incremental Term Loan Commitment Agreement and/or any Incremental RL
Commitment Agreement, as the context may require.


 


19

















 


“Incremental Loan Commitment Date” means any
Incremental Term Loan Funding Date or any Incremental RL Commitment Date, as
the context may require.


 


“Incremental Loan Commitment Request Requirements”
means, with respect to any request for an Incremental Loan Commitment made
pursuant to Section 2.11 or 2.12, the satisfaction of each of the
following conditions on the date of such request: (i) no Potential Event
of Default or Event of Default then exists or would result therefrom (for
purposes of such determination, assuming the relevant Loans in an aggregate
principal amount equal to the full amount of Incremental Loan Commitments then
requested had been incurred on such date of request) and all of the
representations and warranties contained herein and in the other Loan Documents
are true and correct in all material respects at such time (unless stated to
relate to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such
earlier date); (ii) Company shall be in compliance with the covenants
contained in Section 7.6  for the
four-Fiscal Quarter period most recently ended prior to the date of the request
for Incremental Loan Commitments, on a Pro Forma Basis, as
if the relevant Loans to be made pursuant to such Incremental Loan Commitments
(assuming the full utilization thereof) had been incurred on the first day of
such four-Fiscal Quarter period; (iii) the Consolidated Senior Secured
Leverage Ratio as of the last day of the four-Fiscal Quarter period most
recently ended prior to the date of the request for Incremental Loan
Commitments, on a Pro Forma Basis, as if the relevant Loans
to be made pursuant to such Incremental Loan Commitments (assuming the full
utilization thereof) had been incurred on the first day of such four-Fiscal
Quarter period, is less than or equal to 3.00:1.00; and (iv) no unfunded
Incremental Term Loan Commitments are then outstanding, unless the full amount
of such Incremental Term Loan Commitments will be utilized on the date of the
effectiveness of the Incremental Term Loan Commitment Agreement to be entered
into in connection with the Incremental Term Loan Commitments of the new
Tranche then being requested.


 


“Incremental Loan Commitment Requirements”
means, with respect to any provision of an Incremental Loan Commitment on a
given Incremental Loan Commitment Date, the satisfaction of each of the
following conditions on the effective date of the respective Incremental Loan
Commitment Agreement:  (i) no
Potential Event of Default or Event of Default then exists or would result
therefrom (for purposes of such determination, assuming the relevant Loans in
an aggregate principal amount equal to the full amount of Incremental Loan
Commitments then provided had been incurred on such date of effectiveness) and
all of the representations and warranties contained herein and in the other
Loan Documents are true and correct in all material respects at such time
(unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date); (ii) calculations are made by Company
demonstrating compliance with the covenants contained in Section 7.6 for
the for the four-Fiscal Quarter period most recently ended prior to such date
of effectiveness, on a Pro Forma Basis, as if the relevant
Incremental Loans to be made pursuant to such Incremental Loan Commitments
(assuming the full utilization thereof) had been incurred on the first day of
such four-Fiscal Quarter period; (iii) the Consolidated Senior Secured
Leverage Ratio as of the last day of the four-Fiscal Quarter period most
recently ended prior to the date of the request for Incremental Term Loan
Commitments, on a Pro Forma Basis, as if the relevant Loans
to be made pursuant to such Incremental Term Loan Commitments (assuming the
full utilization thereof) had been incurred on the first day of such
four-Fiscal Quarter period, is less than or equal to 3.00:1.00; (iv) the
delivery by Company to 


 


20

















 


Administrative Agent of
an officer’s certificate executed by a Responsible Officer of Company and
certifying as to compliance with preceding clauses (i), (ii) and (iii) and
containing the calculations (in reasonable detail) required by preceding
clauses (ii) and (iii); (v) the delivery by Company to Administrative
Agent of an acknowledgement in form and substance reasonably satisfactory to
Administrative Agent and executed by each Subsidiary Guarantor, acknowledging
that such Incremental Loan Commitment and all Incremental Loans and other
Obligations subsequently incurred pursuant to such Incremental Loan Commitment
shall constitute (and be included in the definition of) “Guarantee Obligations”
under the Subsidiary Guaranty; (vi) the delivery by Company and its
Subsidiaries of such technical amendments, modifications and/or supplements to
the respective Collateral Documents as are reasonably requested by
Administrative Agent to ensure that the additional Obligations to be incurred
pursuant to the Incremental Loan Commitments are secured by, and entitled to
the benefits of, the relevant Collateral Documents, and each of the Lenders
hereby agrees to, and authorizes Collateral Agent to enter into, any such
technical amendments, modifications and/or supplements; (vii) the delivery
by Company to Administrative Agent of an opinion or opinions, in form and
substance reasonably satisfactory to Administrative Agent, from counsel to the
Loan Parties dated such date, covering such of the matters set forth in the
opinions of counsel delivered to Administrative Agent on the Closing Date
pursuant to Section 4.1L as may be reasonably requested by Administrative
Agent; (viii) the delivery by Company and the other Loan Parties to
Administrative Agent of such other officers’ certificates, board of director
resolutions and evidence of good standing as Administrative Agent shall
reasonably request; and (ix) Company shall have demonstrated to Administrative
Agent’s reasonable satisfaction that the full amount of the relevant Loans to
be made pursuant to such Incremental Loan Commitments (assuming the full
utilization thereof) may be incurred without violating the terms of material
Indebtedness of Company and its Subsidiaries (including, without limitation,
the New Senior Notes).


 


“Incremental RL Commitment” means, for any
Lender, any commitment by such Lender to make Revolving Loans pursuant to Section 2.1A(ii) as
agreed to by such Lender in the respective Incremental RL Commitment Agreement
delivered pursuant to Section 2.12; it being understood, however,
that on each date upon which an Incremental RL Commitment of any Lender becomes
effective, such Incremental RL Commitment of such Lender shall be added to (and
thereafter become a part of) the Revolving Loan Commitment of such Lender for
all purposes of this Agreement as contemplated by Section 2.12.


 


“Incremental RL Commitment Agreement” means
each Incremental RL Commitment Agreement in the form of Exhibit XVIII
(appropriately completed) executed in accordance with Section 2.12.


 


“Incremental RL Commitment Date” means each
date upon which an Incremental RL Commitment under an Incremental RL Commitment
Agreement becomes effective as provided in Section 2.12B.


 


“Incremental RL Lender” has the meaning
assigned to that term in Section 2.12B.


 


“Incremental Term Loan” has the meaning
assigned to that term in Section 2.1A(iv).


 


21

















 


“Incremental Term Loan Commitment” means, for
each Lender, any commitment to make Incremental Term Loans provided by such
Lender pursuant to Section 2.11, in such amount as agreed to by such
Lender in the respective Incremental Term Loan Commitment Agreement and as set
forth opposite such Lender’s name in Schedule 2.1 (as modified in
accordance with Section 2.11) directly below the column entitled “Incremental
Term Loan Commitment”, as the same may be terminated pursuant to Section 2.4B
or Section 8.


 


“Incremental Term Loan Commitment Agreement”
means each Incremental Term Loan Commitment Agreement in the form of Exhibit XVII
(appropriately completed) executed in accordance with Section 2.11.


 


“Incremental Term Loan Funding Date” means,
with respect to each Tranche of Incremental Term Loans, each date on which
Incremental Term Loans of such Tranche are incurred pursuant to Section 2.1A(iv) and
as otherwise permitted by Section 2.11.


 


“Incremental Term Loan Lender” shall have the
meaning provided in Section 2.11B.


 


“Incremental Term Loan Maturity Date” means,
for any Tranche of Incremental Term Loans, the final maturity date set forth
for such Tranche of Incremental Term Loans in the respective Incremental Term
Loan Commitment Agreement relating thereto, provided that the final
maturity date for all Incremental Term Loans of a given Tranche shall be the
same date.


 


“Incremental Term Notes” means any promissory
notes of Company issued pursuant to Section 2.1E to evidence the
Incremental Term Loans of any Lenders, substantially in the form of Exhibit VII
annexed hereto, as they may be amended, supplemented or otherwise modified from
time to time.


 


“Indebtedness”, as applied to any Person, means
(i) all indebtedness of such Person for borrowed money and all obligations
of such Person evidenced by notes, bonds, debentures or other similar
instruments, (ii) that portion of obligations with respect to Capital
Leases that is properly classified as a liability on a balance sheet of such
Person in conformity with GAAP, (iii) any obligation incurred by such
Person in connection with banker’s acceptances and the maximum aggregate amount
from time to time available for drawing under all outstanding letters of credit
issued for the account of such Person together, without duplication, with the
amount of all honored but unpaid drawings and/or unreimbursed payments
thereunder, (iv) any obligation owed for all or any part of the deferred
purchase price of property or services (excluding any such obligations incurred
under ERISA), which purchase price (a) is due more than six months from
the date of incurrence of the obligation in respect thereof and (b) would
be shown on the liability side of the balance sheet of such Person in
accordance with GAAP, (v) all monetary obligations of such Person under
Hedge Agreements (it being understood that monetary obligations under Interest
Rate Agreements and Currency Agreements other than Hedge Agreements constitute
Investments and not Indebtedness), and (vi) all indebtedness referred to
in clauses (i) through (iv) above secured by any Lien on any property
or asset owned or held by that Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is nonrecourse to the
credit of that Person; provided that the term “Indebtedness” shall in no
event include any trade payables or accrued expenses arising in the ordinary
course of business.


 


22

















 


“Indemnified Person” has the meaning assigned
to that term in Section 10.2.


 


“Initial Term Loan Commitment” means, at any
time, the commitment of a Lender to make an Initial Term Loan to Company
pursuant to Section 2.1A(i), and “Initial Term Loan Commitments”
means such commitments of all Lenders in the aggregate.


 


“Initial Term Loan Maturity Date” means June 1,
2016.


 


“Initial Term Loans” means the Loans made by
Lenders to Company pursuant to Section 2.1A(i).


 


“Initial Term Notes” means any promissory notes
of Company issued pursuant to Section 2.1E to evidence the Initial Term
Loans of any Lenders, substantially in the form of Exhibit IV
annexed hereto, as they may be amended, supplemented or otherwise modified from
time to time.


 


“Intellectual Property” means all of the
following in any jurisdiction that are owned, licensed, used or otherwise
controlled by Company or any of its Subsidiaries: (i) patents, patent
applications and patent disclosures as well as any reissues, continuations,
continuation in part, division, revisions, extensions or reexaminations
thereof; (ii) trademarks, services marks, certification marks, trade
dress, design rights, trade names, brand names, slogans, logos and other
indicia of origin, Internet domain names, and corporate names (and all
translations, adaptations, derivations, and combinations of the foregoing),
together with all of the goodwill associated therewith; (iii) copyrights
and copyrightable works; (iv) registrations, applications for registration
and any renewals or extensions for any of the assets set forth in (i) through
(iii) above, (v) computer software (including source code and object
code), data, databases and documentation thereof; (vi) trade secrets and
other confidential information (including ideas, formulas, compositions,
inventions (whether patentable or unpatentable) and whether or not reduced to
practice), know how, manufacturing, production, design, and merchandising
processes and techniques, research and development information, industry
analyses, drawings, specifications, designs, plans, proposals, technical data,
financial and accounting data, business and marketing plans and customer and
supplier lists and related information; all other writings, compilations and
other works, whether copyrightable or not; (vii) all other intellectual
property and industrial property rights recognized under applicable law; (viii) all
rights to sue for past, present and future infringement or misappropriation of
any of the foregoing; (ix) contractual obligations, whether written or
oral, granting any right title and interest in or relating to any other
Intellectual Property; and (x) all proceeds of any of the foregoing,
including license royalties and other income and damages and other proceeds of
suit.


 


“Interest Payment Date” means (i) with
respect to any Base Rate Loan, each March 15, June 15, September 15
and December 15 of each year, commencing on the first such date to occur
after the Closing Date, and (ii) with respect to any LIBOR Loan, the last
day of each Interest Period applicable to such Loan; provided that in
the case of each Interest Period of longer than three months, “Interest Payment
Date” shall also include each date that is three months, or an integral
multiple thereof, after the commencement of such Interest Period.


 


23

















 


“Interest Period” has the meaning assigned to
that term in Section 2.2B.


 


“Interest Rate Agreement” means any interest
rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedging agreement or other similar agreement or
arrangement to which Company or any of its Subsidiaries is a party.


 


“Interest Rate Determination Date” means with
respect to any Interest Period, the second Business Day prior to the first day
of such Interest Period.


 


“Internal Revenue Code” means the Internal
Revenue Code of 1986, as amended to the date hereof and from time to time
hereafter, and any successor statute.


 


“Investment” means (i) any purchase or
other acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, any Securities of, any other Person (other than a Person that
prior to such purchase or acquisition was a Subsidiary of Company), (ii) any
loan, advance (other than advances to employees for moving, entertainment and
travel expenses, drawing accounts and similar expenditures in the ordinary course
of business) or capital contribution by Company or any of its Subsidiaries to
any Third Party, including all indebtedness and accounts receivable from that
Third Party that are not current assets or did not arise from sales to that
Third Party in the ordinary course of business, (iii) the designation of
any Person as an Unrestricted Subsidiary, or (iv) any monetary obligations
under Interest Rate Agreements or Currency Agreements not constituting Hedge
Agreements.  The amount of any Investment
shall be (A) the original cost of such Investment (determined, in the case
of an Investment described in clause (iii) above, as provided in the
definition of “Subsidiary”, without any adjustments for increases or decreases
in value, or write-ups, write-downs or write-offs with respect to such
Investment, minus (B) the lesser of (1) the aggregate amount
of any repayments, redemptions, dividends or distributions thereon or proceeds
from the sale thereof, in each case to the extent of Cash payments (including
any Cash received by way of deferred payment pursuant to, or monetization of, a
note receivable or otherwise, but only as and when so received) actually
received by Company or the applicable Subsidiary of Company, and (2) the
aggregate amount described in the immediately preceding clause (A).


 


“Investors” means Oaktree Capital Management,
L.P. and MTS Health Investors LLC.


 


“IP Collateral” means the intellectual property
Collateral under the Security Agreement.


 


“Issuing Lender” means, with respect to any
Letter of Credit, DB or such other Lender which agrees to issue such Letter of
Credit hereunder; provided that any Issuing Lender may, in its
discretion, arrange for one or more Letters of Credit to be issued by one or
more Affiliates of such Issuing Lender (and such Affiliate shall be deemed to
be an “Issuing Lender” for all purposes of the Loan Documents).


 


24
















 


“Joint Venture” means a joint venture,
partnership or other similar arrangement, whether in corporate, partnership or
other legal form; provided that in no event shall any Subsidiary of any
Person be considered to be a Joint Venture to which such Person is a party.


 


“L/C Supportable Obligations” means (i) obligations
of Company or any of its Subsidiaries with respect to workers compensation,
surety bonds and other similar statutory obligations and (ii) other
obligations of Company or any of its Subsidiaries not prohibited by the terms
of this Agreement (other than obligations in respect of (x) the New Senior
Notes, (y) any Indebtedness or other obligations that are subordinated in
right of payment to the Obligations and (z) any equity interests).


 


“Lead Arranger” and “Lead Arrangers”
means each of Deutsche Bank Securities Inc., Barclays Capital, the investment
banking division of Barclays Bank PLC and Morgan Stanley Senior Funding, Inc.,
in their capacities as Lead Arrangers in connection with this Agreement.


 


“Lender” and “Lenders” means the persons
identified as “Lenders” and listed on the signature pages of this
Agreement, together with their successors and permitted assigns pursuant to Section 10.1,
and the term “Lenders” shall include Swing Line Lender unless the context
otherwise requires; provided that the term “Lenders”, when used in the
context of a particular Commitment, shall mean Lenders having that Commitment.


 


“Lender Counterparties” means and includes any
Lender and any Affiliate thereof party to a Hedge Agreement (notwithstanding
the respective Lender subsequently ceases at any time to be a Lender under this
Agreement for any reason), together with such Lender’s or Affiliate’s
successors and assigns (if any).


 


“Lending Office” means, as to any Lender, the
offices of such Lender on Schedule 2.1 annexed hereto, or such other
office or offices as such Lender may from time to time hereafter designate as
such in a written notice delivered by such Lender to Company and Administrative
Agent.


 


“Letter of Credit” or “Letters of Credit”
has the meaning assigned to that term in Section 3.1A.


 


“Letter of Credit Back-Stop Arrangements” has
the meaning assigned to that term in Section 3.3B.


 


“Letter of Credit Fee” has the meaning assigned
to that term in Section 2.3B.


 


“Letter of Credit Usage” means, at any time,
the sum of (i) the Stated Amount of all outstanding Letters of Credit at
such time and (ii) the aggregate amount of all Unpaid Drawings in respect
of all Letters of Credit at such time.


 


“LIBOR” means, for each Interest Period, the
offered rate per annum for deposits of Dollars for the applicable Interest
Period that appears on Reuters Screen LIBOR01 Page as of 11:00 A.M.
(London, England time) on the applicable Interest Rate Determination Date. If
no such offered rate exists, such rate will be the rate of interest per annum,
as determined by the Administrative Agent, at which deposits of Dollars in
immediately available funds are offered at 11:00 A.M. (London, England
time) on the applicable Interest Rate Determination Date to first-class banks
in the London interbank Eurodollar market for such Interest Period for the
applicable principal amount on such date of determination.  Notwithstanding any of the foregoing, LIBOR
shall not at any time be less than 2.00% per annum.


 


25

















 


“LIBOR Loans” means Loans bearing interest at
rates determined by reference to LIBOR as provided in Section 2.2A.


 


“Lien” means any lien, mortgage, pledge,
assignment, security interest, charge or other similar encumbrance of any kind
(including any conditional sale or other title retention agreement, any lease
in the nature thereof, and any agreement to give any security interest) and any
other similar preferential arrangement having the practical effect of any of
the foregoing.


 


“Loan” or “Loans” means one or more of
the Term Loans, Revolving Loans or Swing Line Loans or any combination thereof.


 


“Loan Documents” means this Agreement, the
Notes, the Letters of Credit (and any applications for Letters of Credit), the
Guaranties, the Collateral Documents and any Incremental Loan Commitment
Agreement.


 


“Loan Party” means Company, each Subsidiary
Guarantor and each Subsidiary executing and delivering a Loan Document after
the Closing Date pursuant to Section 6.7B, and “Loan Parties” means all
such Persons, collectively.


 


“Management Investors” means members of Company’s
management, including, without limitation, Paul Viviano, Howard Aihara, Michael
Frisch, Richard Hall, Christopher Joyce, Eli Glovinsky and Nicholas Poan.


 


“Margin Stock” has the meaning assigned to that
term in Regulation U of the Board of Governors of the Federal Reserve System as
in effect from time to time.


 


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


 


“Material Foreign Subsidiary” means a Material
Subsidiary that is not a Domestic Subsidiary.


 


“Material Subsidiary” means each Subsidiary of
Company now existing or hereafter acquired or formed by Company which, on a
consolidated basis for such Subsidiary and its Subsidiaries, (i) for the
most recent Fiscal Year accounted for more than 5% of the consolidated gross
revenues of Company and its Subsidiaries or (ii) as at the end of such
Fiscal Year, was the owner of more than 5% of the consolidated total assets of
Company and its Subsidiaries.


 


26

















 


“Maximum Incremental Commitment Amount” shall
mean $150,000,000.


 


“Maximum Rate” shall have the meaning provided
in Section 10.16.


 


“Minimum Interest Coverage Ratio” means, for
any period, the ratio of (i) Consolidated Adjusted EBITDA for such period
to (ii) Consolidated Interest Expense for such period; provided
that, for purposes of Sections 2.11, 2.12, 7.6 and 7.7(ii) only, (x) Consolidated
Adjusted EBITDA shall be determined on a Pro Forma Basis in
accordance with the requirements of the definition of “Pro Forma
Basis” contained herein and (y) Consolidated Interest Expense shall be
determined on a Pro Forma Basis in accordance with the
requirements of the definition of “Pro Forma Basis” contained
herein.


 


“Mortgage” means a mortgage, deed of trust,
deed to secure debt or similar security instrument.


 


“Mortgage Policy” means a Lender’s title
insurance policy (Form 1992).


 


“Mortgaged Property” means any Real Property
having a fair market value of $3,500,000 or more and which is owned by Company
or any other Loan Party and required to be subject to a Mortgage pursuant to Section 6.7B.


 


“Multiemployer Plan” means a “multiemployer
plan”, within the meaning of Section 4001(a)(3) of ERISA, with respect
to which Company, any of its Subsidiaries or any ERISA Affiliate has any
liability, whether actual or contingent.


 


“NAIC” means the National Association of
Insurance Commissioners.


 


“Net Asset Sale Proceeds” means, with respect
to any Asset Sale,
the gross Cash proceeds (including any Cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received from such Asset Sale, net of (i) transaction costs
(including, without limitation, any underwriting, brokerage or other customary
selling commissions, legal, advisory and other fees and expenses (including
title and recording expenses), associated therewith and sales, VAT and transfer
taxes arising therefrom), (ii) payments of unassumed liabilities relating
to the assets sold or otherwise disposed of at the time of, or within 30 days
after, the date of such Asset Sale, (iii) the amount of such gross Cash
proceeds required to be used to permanently repay any Indebtedness (other than
Indebtedness of the Lenders pursuant to this Agreement) which is secured by the
respective assets which were sold or otherwise disposed of, and (iv) any
net incremental Taxes that are or will be payable by Company, Company’s
consolidated group or any Subsidiary of Company as a result of such Asset Sale;
provided, however, that such gross proceeds shall not
include any portion of such gross Cash proceeds which Company determines in
good faith should be reserved for post-closing adjustments, it being understood
and agreed that on the day that all such post-closing adjustments have been
determined (which shall not be later than six months following the date of the
respective Asset Sale), the amount (if any) by which the reserved amount in
respect of such Asset Sale exceeds the actual post-closing adjustments payable
by Company or any of its Subsidiaries shall constitute Net Asset Sale Proceeds
on such date received by Company and/or any of its Subsidiaries from such Asset
Sale.


 


27

















 


“Net
Cash Proceeds” means for any event requiring a repayment of Term Loans
pursuant to Section 2.4B(iii)(d) or (e), the gross Cash proceeds
(including any Cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received)
received from such event, net of transaction costs (including, as applicable,
any underwriting, brokerage or other customary commissions and legal, advisory
and other fees and expenses associated therewith) received from any such event.


 


“Net EBITDA Adjustment” means, for any period,
an amount equal to (i) the sum of the aggregate of the amounts of
Consolidated Adjusted EBITDA for any Included Pro Forma
Entities (calculated for the entire such period for each such Included Pro Forma
Entity as if such Included Pro Forma Entity had become an
Included Pro Forma Entity on the first day of such period) minus
(ii) the sum of the aggregate of the amounts of Consolidated Adjusted
EBITDA for any Excluded Pro Forma Entities (calculated for
the entire such period for each such Excluded Pro Forma
Entity, including any portion thereof prior to the date on which it became an
Excluded Pro Forma Entity).


 


“Net Interest Adjustment” means, for any
period, an amount equal to (i) the sum of the aggregate of the amounts of
Consolidated Interest Expense for any Included Pro Forma
Entities (calculated for the entire such period for each such Included Pro Forma
Entity, including any portion thereof prior to the date on which it became an
Included Pro Forma Entity, in each case on a Pro Forma
Basis as if any Indebtedness of such Included Pro Forma
Entity that was incurred, assumed or prepaid in connection with the transaction
pursuant to which it became an Included Pro Forma Entity had
been incurred, assumed or prepaid on the first day of such period) minus
(ii) the sum of the aggregate of the amounts of Consolidated Interest
Expense for any Excluded Pro Forma Entities (calculated for
the entire such period for each such Excluded Pro Forma
Entity, including any portion thereof prior to the date on which it became an
Excluded Pro Forma Entity).


 


“New Senior Notes” means the $190,000,000
aggregate principal amount of unsecured senior notes issued by Company on the
Closing Date.


 


“New Senior Notes Documents” means the New
Senior Notes, the New Senior Notes Indenture and all other documents executed
and delivered with respect to the New Senior Notes or New Senior Notes
Indenture, as in effect on the Closing Date and as the same may be amended,
modified and/or supplemented from time to time in accordance with the terms
hereof and thereof.


 


“New Senior Notes Indenture” means the
indenture pursuant to which the New Senior Notes are issued, as such indenture
may be amended from time to time to the extent permitted under Section 7.9.


 


“Non-Defaulting Lender” means and includes each
Lender other than a Defaulting Lender.


 


“Non-Excluded Tax” has the meaning assigned to
that term in Section 2.7B.


 


28

















 


“Notes” means one or more of the Initial Term
Notes, Revolving Notes, Swing Line Notes or Incremental Term Loan Notes or any
combination thereof.


 


“Notice of Borrowing” means a notice
substantially in the form of Exhibit I annexed hereto delivered by
Company to Administrative Agent pursuant to Section 2.1B with respect to a
proposed borrowing.


 


“Notice of Conversion/Continuation” means a
notice substantially in the form of Exhibit II annexed hereto
delivered by Company to Administrative Agent pursuant to Section 2.2D with
respect to a proposed conversion or continuation of the applicable basis for
determining the interest rate with respect to the Loans specified therein.


 


“Notice of Intent to Cure” has the meaning
assigned to that term in the last paragraph of Section 8.


 


“Notice Office” means the office of
Administrative Agent located at 60 Wall Street, New York, New York, 10005,
Attention: Commercial Loan Department or such other office or person as
Administrative Agent may hereafter designate in writing as such to the other
parties hereto.


 


“Obligations” means all amounts owing to
Administrative Agent, Collateral Agent, any Issuing Lender, the Swing Line
Lender or any Lender pursuant to the terms of, or which may arise under, this
Agreement, any other Loan Document, any Letter of Credit or any other document
delivered or given in connection herewith or therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs and
expenses, whether direct or indirect, absolute or contingent, due or to become
due and whether now existing or hereafter incurred or created (including all
interest which accrues after the commencement of any case or proceeding in
bankruptcy after the insolvency of, or for the reorganization of Company or any
of its Subsidiaries, whether or not allowed in such case or proceeding).


 


“Offer” has the meaning assigned to that term
in Section 2.13A.


 


“Offer Loans” has the meaning assigned to that
term in Section 2.13A.


 


“Officer’s Certificate” means, as applied to
any corporation, a certificate executed on behalf of such corporation by its
chairman of the board (if an officer), its president, one of its vice
presidents, its chief financial officer, or its treasurer.


 


“Participant” has the meaning provided in Section 3.4A.


 


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


 


“Pension Plan” means a pension plan as defined
in Section 3(2) of ERISA (other than a Multiemployer Plan) that is
subject to Section 302 or Title IV of ERISA or Section 412 of the
Internal Revenue Code and, in any case, with respect to which Company, any of
its Subsidiaries or any ERISA Affiliate has any liability, whether actual or
contingent.


 


29

















 


“Permitted Encumbrances” means the following
types of Liens:


 


(i)            Liens
for taxes, fees, assessments or other governmental charges which are not
delinquent or remain payable without penalty, or to the extent that payment
thereof is otherwise not, at the time, required by Section 6.3;


 


(ii)           Liens
in respect of property or assets imposed by law, such as carriers’,
warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other
similar Liens arising in the ordinary course of business, in each case so long
as such Liens do not, individually or in the aggregate, have a Material Adverse
Effect;


 


(iii)          Liens
(other than any Lien imposed pursuant to Section 430 of the Internal
Revenue Code or by ERISA) incurred or deposits made in the ordinary course of
business in connection with workers’ compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations
incurred in the ordinary course of business (exclusive of obligations in
respect of payments for borrowed money);


 


(iv)          Liens
incurred in the ordinary course of business on securities to secure repurchase
and reverse repurchase obligations in respect of such securities;


 


(v)           Liens
consisting of judgment or judicial attachment liens in circumstances not
constituting an Event of Default under Section 8.8;


 


(vi)          easements,
rights-of-way, restrictions, minor defects or irregularities of title and other
similar encumbrances not interfering in any material respect with the business
of Company and its Subsidiaries, taken as a whole;


 


(vii)         Liens
securing obligations in respect of Capital Leases or Equipment Notes on the
assets subject to such Capital Leases or Equipment Notes, as the case may be; provided
that such Capital Leases and Equipment Notes are otherwise permitted hereunder;


 


(viii)        Liens
arising solely by virtue of any statutory or common law provision relating to
bankers’ liens, rights of set-off or similar rights and remedies with respect
to deposit accounts or other funds maintained with a creditor depository
institution; provided that applicable deposit account is not a cash
collateral account;


 


(ix)           any
interest or title of a lessor, or secured by a lessor’s interest under, any
lease permitted by this Agreement;


 


(x)            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;


 


(xi)           Liens
on goods the purchase price of which is financed by a trade Letter of Credit
issued for the account of Company or any of its Subsidiaries; provided
that such Lien secures only the obligations of Company or such Subsidiary in
respect of such trade Letter of Credit to the extent permitted under this
Agreement;


 


30

















 


(xii)          leases
or subleases granted to others not interfering in any material respect with the
business of Company and its Subsidiaries, taken as a whole; and


 


(xiii)         with respect to any Mortgaged Property, such
exceptions to title as are set forth in the Mortgage Policy delivered with
respect thereto, all of which exceptions must be acceptable to Administrative
Agent in its reasonable discretion.


 


“Person” means and includes natural persons,
corporations, limited partnerships, general partnerships, limited liability
companies, limited liability partnerships, joint stock companies, Joint
Ventures, associations, companies, trusts, banks, trust companies, land trusts,
business trusts or other organizations, whether or not legal entities, and
governments (whether federal, state or local, domestic or foreign, and
including political subdivisions thereof) and agencies or other administrative
or regulatory bodies thereof.


 


“Plan” means an employee benefit plan (as
defined in Section 3(3) of ERISA) which Company or any of its
Subsidiaries sponsors or maintains, or to which Company or any of its
Subsidiaries makes, is making or is obligated to make contributions, or to
which Company or any of its Subsidiaries has any liability, whether actual or
contingent, and includes any Pension Plan.


 


“Pledge Agreement” means the Pledge Agreement,
dated as of the date hereof, executed and delivered by Company, existing
Subsidiary Guarantors (and by any additional Subsidiary Guarantor from time to
time thereafter in accordance with Section 6.7), and Collateral Agent,
substantially in the form of Exhibit XIII attached hereto, as such
Pledge Agreement may thereafter be amended, supplemented or otherwise modified
from time to time.


 


“Pledged Collateral” means the “Pledged
Collateral” as defined in the Pledge Agreement.


 


“Pledged Subsidiary” means any direct or
indirect Domestic Subsidiary of Company other than any such Domestic
Subsidiaries which own assets or have annual revenues of less than $100,000
individually and $1,000,000 collectively.


 


“Potential Event of Default” means a condition
or event that, after notice or lapse of time or both, would constitute an Event
of Default.


 


“Prime Rate” means the rate that DB announces
from time to time as its prime lending rate, as in effect from time to
time.  The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate actually charged to
any customer.  DB or any other Lender may
make commercial loans or other loans at rates of interest at, above or below
the Prime Rate.


 


“Pro  Forma Adjustment” means, for any period
with respect to any Included Pro Forma Entity (other than an
Unrestricted Subsidiary redesignated as a Subsidiary of Company, for which
there shall be no Pro Forma Adjustment), the pro forma
increase or decrease in the Consolidated Adjusted EBITDA of such Included Pro Forma
Entity that Company in good faith predicts will occur as a result of reasonably
identifiable and supportable net cost savings or additional net costs or a
reasonably identifiable and supportable increase in sales volume, as the 


 


31

















 


case may be, that will be
realizable during such period by combining the operations of such Included Pro Forma
Entity with the operations of Company and its Subsidiaries; provided
that (i) so long as such net cost savings or additional net costs or
increase in sales volume will be realizable at any time during such period it
shall be assumed, for purposes of projecting such pro forma
increase or decrease in such Consolidated Adjusted EBITDA, that such net cost
savings or additional net costs or increase in sales volume will be realizable
during the entire such period, (ii) any such pro forma
increase or decrease in such Consolidated Adjusted EBITDA shall be without
duplication of any net cost savings or additional net costs or increase in
sales volume actually realized during such period and already included in such
Consolidated Adjusted EBITDA and (iii) if the aggregate acquisition
consideration in respect of any single Included Pro Forma
Entity or group of related Included Pro Forma Entities
exceeds 6% of the total assets of Company and its Subsidiaries determined on a Pro Forma
Basis after giving effect to the acquisition of such Included Pro Forma
Entity or Entities, then all pro forma increases in
Consolidated Adjusted EBITDA attributable to such Included Pro Forma
Entity or Entities on account of net cost savings or increases in sales volume,
in the aggregate, will not exceed the greater of (x) an amount equal to 4%
of Consolidated Adjusted EBITDA determined on a Pro Forma
Basis after giving effect to the acquisition of such Included Pro Forma
Entity or Entities and (y) an amount that would be allowed to be accounted
for as an adjustment pursuant to Article II of Regulation S-X under the
Securities Act in respect of such Included Pro Forma Entity
or Entities.


 


“Pro  Forma Adjustment Certificate” means a
certificate of a Responsible Officer of Company delivered pursuant to Section 6.1(xii)
or setting forth the information described in clause (d) of Section 6.1(iii).


 


“Pro Forma Basis” means, in connection with any
calculation of compliance with any financial covenant or financial term, the
calculation thereof after giving effect on a pro forma basis
to (x) the incurrence of any Indebtedness (other than revolving
Indebtedness, except to the extent same is incurred to refinance other
outstanding Indebtedness or to finance an Acquisition) after the first day of
the relevant calculation period, as if such Indebtedness had been incurred (and
the proceeds thereof applied) on the first day of such calculation period, (y) the
permanent repayment of any Indebtedness (other than revolving Indebtedness,
except (I) to the extent accompanied by a corresponding permanent
commitment reduction or (II) consisting of revolving Indebtedness incurred
to finance an Acquisition which is subsequently refinanced by Indebtedness
included in clause (x) above) after the first day of the relevant
calculation period, as the case may be, as if such Indebtedness had been
retired or repaid on the first day of such calculation period, as the case may
be, and (z) any Acquisition or any Asset Sale then being consummated as
well as any other Acquisition or any other Asset Sale if consummated after the
first day of the relevant calculation period, and on or prior to the date of
the respective Acquisition or Asset Sale, as the case may be, then being
effected, with the following rules to apply in connection therewith:


 


(i)            all Indebtedness (x) (other
than revolving Indebtedness, except to the extent same is incurred to refinance
other outstanding Indebtedness or to finance Acquisitions) incurred or issued
after the first day of the relevant calculation period (whether incurred to
finance an Acquisition, to refinance Indebtedness or otherwise) shall be deemed
to have been incurred or issued (and the proceeds thereof applied) on the first
day of such calculation period and remain outstanding through the date of
determination and (y) (other than revolving Indebtedness, except (I) to
the extent accompanied by a corresponding permanent commitment reduction or (II) consisting
of revolving Indebtedness incurred to finance an Acquisition which is
subsequently refinanced by Indebtedness included in clause (x) above)
permanently retired or redeemed or refinanced, in the case of revolving
Indebtedness incurred to finance an Acquisition, after the first day of the
relevant calculation period, shall be deemed to have been retired or redeemed
on the first day of such calculation period, as the case may be, and remain
retired through the date of determination;


 


32

















 


(ii)           all Indebtedness
assumed to be outstanding pursuant to preceding clause (i) shall be deemed
to have borne interest at (x) the rate applicable thereto, in the case of
fixed rate indebtedness, or (y) the rates which would have been applicable
thereto during the respective period when same was deemed outstanding, in the
case of floating rate Indebtedness (although interest expense with respect to
any Indebtedness for periods while same was actually outstanding during the respective
period shall be calculated using the actual rates applicable thereto while same
was actually outstanding); provided that all Indebtedness (whether
actually outstanding or deemed outstanding) bearing interest at a floating rate
of interest shall be tested on the basis of the rates applicable at the time
the determination is made pursuant to said provisions; and


 


(iii)          in making any
determination of Consolidated Adjusted EBITDA on a Pro Forma
Basis in respect of any Included Pro Forma Entity, Pro Forma
Adjustments shall be made.


 


“Pro Rata Share” means (i) with respect to
all payments, computations and other matters relating to any designated Tranche
of Term Loan Commitment or Tranche of Term Loan of any Lender, the percentage
obtained by dividing (x) the Term Loan Exposure of that Lender under that
Tranche by (y) the aggregate Term Loan Exposure of all Lenders
under that Tranche, (ii) with respect to all payments, computations and
other matters relating to the Revolving Loan Commitment or the Revolving Loans
of any Lender or any Letters of Credit issued or participations therein
purchased by any Lender or any participations in any Swing Line Loans purchased
by any Lender, the percentage obtained by dividing (x) the
Revolving Loan Exposure of that Lender by (y) the aggregate
Revolving Loan Exposure of all Lenders, and (iii) for all other purposes
with respect to each Lender, the percentage obtained by dividing (x) the
sum of the aggregate Term Loan Exposure of that Lender plus the
Revolving Loan Exposure of that Lender by (y) the sum of the
aggregate Term Loan Exposure of all Lenders plus the aggregate Revolving
Loan Exposure of all Lenders, in any such case as the applicable percentage may
be adjusted by assignments permitted pursuant to Section 10.1.  The initial Pro Rata Share
of each Lender for purposes of each of clauses (i), (ii), and (iii) of the
preceding sentence is set forth opposite the name of that Lender in Schedule
2.1 annexed hereto.


 


“PTO” means the United States Patent and
Trademark Office or any successor or substitute office in which filings are
necessary or, in the opinion of Collateral Agent, desirable in order to create
or perfect Liens on any IP Collateral.


 


33

















 


“Real Property” of any Person means all the
right, title and interest of such Person in and to land, improvements and
fixtures, including leaseholds.


 


“Recovery
Event” means the receipt by Company or any of its Subsidiaries (other than
any Designated Non-Wholly-Owned Subsidiary) of any cash insurance proceeds or
condemnation awards payable (i) by reason of theft, loss, physical
destruction, damage, taking or any other similar event with respect to any
property or assets of Company or any of its Subsidiaries and (ii) under
any policy of insurance required to be maintained under Section 6.4.


 


“Refinanced Term Loans” has the meaning
assigned to that term in Section 10.6D.


 


“Refinancing” has the meaning assigned to that
term in Section 7.1(vi).


 


“Refinancing Debt” has the meaning assigned to
such term, and meeting the requirements set forth, in Section 7.1(vi).


 


“Refinancing Debt Indenture” means the
Indenture pursuant to which any Refinancing Debt is issued, together with any
exhibits thereto (including any guaranties relating thereto), as such indenture
may be amended from time to time to the extent permitted under Section 7.9.


 


“Refinancing Premium” has the meaning assigned
to that term in Section 7.1(vi).


 


“Refunded Swing Line Loans” has the meaning
assigned to that term in Section 2.1A(iii).


 


“Register” has the meaning assigned to that
term in Section 2.1D.


 


“Regulation D” means Regulation D of the Board
of Governors of the Federal Reserve System, as in effect from time to time.


 


“Related Agreements” means, collectively, the
New Senior Notes, the New Senior Notes Documents, the Tender Offer Materials,
any Refinancing Debt and Refinancing Debt Indenture.


 


“Replacement Term Loan” has the meaning
assigned to that term in Section 10.6D.


 


“Request for Issuance of Letter of Credit”
means a request substantially in the form of Exhibit III annexed
hereto delivered by Company to Administrative Agent pursuant to Section 3.3
with respect to the proposed issuance of a Letter of Credit.


 


“Requisite Class Lenders” means, at any
time of determination (i) for the Class of Non-Defaulting Lenders
having Revolving Loan Exposure, Lenders having or holding at least a majority
of the aggregate Revolving Loan Exposure of all Lenders and (ii) for the Class of
Non-Defaulting Lenders having Term Loan Exposure, Lenders having or holding at
least a majority of the aggregate Term Loan Exposure of all Lenders.


 


34
















 


“Requisite Lenders” means Non-Defaulting
Lenders having or holding at least a majority of the sum of (i) the
aggregate Term Loan Exposure of all Lenders plus (ii) the aggregate
Revolving Loan Exposure of all Lenders. 
This definition and other voting-related provisions of this Agreement
and the other Loan Documents are subject to the terms of Section 2.13B.


 


“Responsible Officer” means, with respect to
any Person, its chief executive officer, president, or any vice president,
managing director, treasurer, controller or other officer of such Person having
substantially the same authority and responsibility; provided that, with
respect to compliance with financial covenants, “Responsible Officer”
means the chief financial officer, treasurer or controller of Company, or any
other officer of Company having substantially the same authority and
responsibility.


 


“Restricted Junior Payment” means (i) any
dividend or other distribution, direct or indirect, on account of any shares of
any class of stock of Company now or hereafter outstanding, except a dividend
payable solely in shares of common stock of Company or payable solely in shares
of that class of stock to the holders of that class, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of stock of Company now
or hereafter outstanding, (iii) any payment made to retire, or to obtain
the surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of stock of Company now or hereafter outstanding, and (iv) any
payment or prepayment of principal of, or redemption, purchase, retirement,
defeasance (including in-substance or legal defeasance), sinking fund or
similar payment with respect to, the New Senior Notes or any Subordinated
Indebtedness.


 


“Revolving Loan Commitment” means the
commitment of a Lender to make Revolving Loans to Company pursuant to Section 2.1A(ii),
as the same may be (x) reduced from time to time pursuant to Sections
2.4B(ii), 2.4B(v) and/or Section 8, (y) increased by the amount
of any Incremental RL Commitment of such Lender pursuant to Section 2.12
or (z) adjusted from to time as a result of assignments to or from such
Lender pursuant to Section 2.10 or 10.1B, and “Revolving Loan
Commitments” means such commitments of all Lenders in the aggregate.


 


“Revolving Loan Exposure” means, with respect
to any Lender as of any date of determination (i) prior to the termination
of the Revolving Loan Commitments, that Lender’s Revolving Loan Commitment and (ii) after
the termination of the Revolving Loan Commitments, the sum, without
duplication, of (a) the aggregate outstanding principal amount of the
Revolving Loans of that Lender plus (b) in the event that Lender is
an Issuing Lender, the aggregate Letter of Credit Usage in respect of all
Letters of Credit issued by that Lender (in each case net of any participations
purchased by other Lenders in such Letters of Credit or any unreimbursed
drawings thereunder) plus (c) the aggregate amount of all
participations purchased by that Lender in any outstanding Letters of Credit or
any unreimbursed drawings under any Letters of Credit plus (d) in
the case of Swing Line Lender, the aggregate outstanding principal amount of
all Swing Line Loans (net of any participations therein purchased by other
Lenders) plus (e) the aggregate amount of all participations
purchased by that Lender in any outstanding Swing Line Loans, in each case
without duplication.


 


35

















 


“Revolving Loan Maturity Date” means December 1,
2014 or such earlier date on which the Revolving Loan Commitments may be
terminated pursuant to Section 2.4B or Section 8.


 


“Revolving Loans” means the Loans made by
Lenders to Company pursuant to Section 2.1A(ii).


 


“Revolving Notes” means (i) any promissory
notes of Company issued pursuant to Section 2.1E to evidence the Revolving
Loans of any Lenders and (ii) any promissory notes issued by Company
pursuant to the last sentence of Section 10.1B(y)(ii) in connection
with assignments of the Revolving Loan Commitments and Revolving Loans of any
Lenders, in each case substantially in the form of Exhibit V
annexed hereto, as they may be amended, supplemented or otherwise modified from
time to time.


 


“Scheduled Incremental Term Loan Repayment”
shall have the meaning provided in Section 2.4A(ii).


 


“Scheduled Incremental Term Loan Repayment Date”
shall have the meaning provided in Section 2.4A(ii).


 


“Scheduled Initial Term Loan Repayment” shall have the meaning
provided in Section 2.4A(i).


 


“Scheduled Initial Term Loan Repayment Date” shall have the
meaning provided in Section 2.4A(i).


 


“Scheduled Repayment” shall mean each Scheduled
Initial Term Loan Repayment and each Scheduled Incremental Term Loan Repayment.


 


“Scheduled Repayment Date” shall mean each Scheduled Initial
Term Loan Repayment Date and each Scheduled Incremental Term Loan Repayment
Date.


 


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


 


“Secured Obligations” has the meaning assigned
to such term in the Security Agreement or the Pledge Agreement, as the case may
be, unless otherwise expressly stated herein.


 


“Secured Parties” means, collectively, each of (i) the
Lenders, (ii) Administrative Agent, (iii) Collateral Agent and (iv) the
Lender Counterparties.


 


“Securities” means any stock, shares,
partnership interests, voting trust certificates, certificates of interest or
participation in any profit-sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of indebtedness, secured
or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as “securities” or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of
the foregoing.


 


36

















 


“Securities Act” means the Securities Act of
1933, as amended from time to time, and any successor statute.


 


“Security Agreement” means the Security
Agreement, dated as of the date hereof, executed and delivered by Company and
existing Subsidiary Guarantors and to be executed and delivered by additional
Subsidiaries of Company from time to time thereafter in accordance with Section 6.7,
substantially in the form of Exhibit XVI hereto, as such Security
Agreement may thereafter be amended, supplemented or otherwise modified from
time to time.


 


“Significant Subsidiary” means each Subsidiary
of Company now existing or hereafter acquired or formed by Company which, on a
consolidated basis for such Subsidiary and its Subsidiaries, (i) for the
most recent Fiscal Year accounted for more than 3% of the consolidated gross
revenues of Company and its Subsidiaries or (ii) as at the end of such
Fiscal Year, was the owner of more than 3% of the consolidated total assets of
Company and its Subsidiaries.


 


“Stated Amount” of each Letter of Credit means,
at any time, the maximum amount available to be drawn thereunder, in each case
determined (x) as if any future automatic increases in the maximum amount
available that are provided for in any such Letter of Credit had in fact
occurred at such time and (y) without regard to whether any conditions to
drawing could then be met but after giving effect to all previous drawings made
thereunder.


 


“Subordinated
Indebtedness” means any Indebtedness of Company which is subordinated in
right of payment to the Obligations.


 


“Subsidiary” means, with respect to any Person,
(i) any corporation of which more than 50% of the total voting power of
shares of stock of any class or classes entitled (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) to vote
in the election of the Person or Persons (whether directors, managers, trustees
or other Persons performing similar functions) having the power to direct or
cause the direction of the management and policies thereof is at the time owned
or controlled, directly or indirectly, by that Person and/or one or more of the
other Subsidiaries of that Person or a combination thereof and (ii) any
partnership, limited liability company, association, joint venture or other
business entity (x) of which more than 50% of the total equity interests
is at the time owned or controlled, directly or indirectly, by that Person
and/or one or more of the other Subsidiaries of that Person or a combination
thereof or (y) the management of which is otherwise controlled, directly
or indirectly, by such Person; provided that, with respect to Company or
any of its Subsidiaries, the term “Subsidiary” shall not include any
Unrestricted Subsidiary; and provided, further that Company
shall be permitted from time to time to (i) designate any Unrestricted
Subsidiary as a “Subsidiary” of Company hereunder by written notice to
Administrative Agent, so long as (a) no Event of Default or Potential
Event of Default shall have occurred and be continuing or shall be caused
thereby and (b) the provisions of Section 6.7 shall have been
complied with in respect of such newly-designated Subsidiary, or (ii) designate
any Subsidiary of Company that is formed or acquired after the Closing Date, or
any Person that, as a result of an acquisition after the Closing Date by
Company or any of its Subsidiaries of any equity Securities of such Person,
would otherwise be a Subsidiary of Company hereunder, to be an “Unrestricted
Subsidiary” by written 


 


37

















 


notice to Administrative
Agent so long as (1) after giving effect to such designation as an
Investment in such Unrestricted Subsidiary (calculated as an amount equal to
the sum of (X) the net worth of the Subsidiary or other Person so
designated (the “Designated Person”) immediately prior to such
designation (such net worth to be calculated, in the case of a Designated
Person that is currently a Subsidiary of Company, without regard to any
Obligations of such Subsidiary under the Subsidiary Guaranty) and (Y) the
aggregate principal amount of any Indebtedness owed by the Designated Person to
Company or any of its Subsidiaries immediately prior to such designation, all
calculated, except as set forth in the parenthetical to clause (X) above,
on a consolidated basis in accordance with GAAP), Company shall be in
compliance with the provisions of Section 7.3(vi), (2) no Subsidiary
is a Subsidiary of such Unrestricted Subsidiary, (3) if requested by
Administrative Agent, on or promptly after the date of designation of such
Person as such Unrestricted Subsidiary, such Unrestricted Subsidiary shall
enter into a tax sharing agreement with Company that provides (as determined by
Company in good faith) for an appropriate allocation of tax liabilities and
benefits, and (4) no recourse whatsoever (whether by contract or by
operation of law or otherwise) may be had to Company or any of its Subsidiaries
or any of their respective properties or assets for any obligations of such
Unrestricted Subsidiary except to the extent that the aggregate maximum amount
of such recourse constitutes (X) an Investment permitted under Section 7.3(vi) or
(Y) a Guarantee Obligation permitted under Section 7.4(ix).


 


“Subsidiary Guarantor” means any Pledged Subsidiary
(a) listed on Schedule 5.1 annexed hereto that executes and
delivers a counterpart of the Subsidiary Guaranty on the Closing Date and (b) that
executes and delivers a counterpart of the Subsidiary Guaranty after the
Closing Date pursuant to Section 6.7.


 


“Subsidiary Guaranty” means the Subsidiary
Guaranty executed and delivered by existing Pledged Subsidiaries on the Closing
Date and to be executed and delivered by additional Pledged Subsidiaries from
time to time thereafter in accordance with Section 6.7A, substantially in
the form of Exhibit XV annexed hereto, as such Subsidiary Guaranty
may thereafter be amended, supplemented or otherwise modified from time to
time.


 


“Swing Line Back-Stop Arrangements” shall have
the meaning provided in Section 2.1A(iii).


 


“Swing Line Lender” means DB, or any Person
serving as a successor Administrative Agent hereunder, in its capacity as Swing
Line Lender hereunder.


 


“Swing Line Loan Commitment” means the
commitment of Swing Line Lender to make Swing Line Loans to Company pursuant to
Section 2.1A(iii).


 


“Swing Line Loans” means the Loans made by
Swing Line Lender to Company pursuant to Section 2.1A(iii).


 


“Swing Line Note” means any promissory note of
Company issued pursuant to Section 2.1E to evidence the Swing Line Loans
of Swing Line Lender substantially in the form of Exhibit VI
annexed hereto, as it may be amended, supplemented or otherwise modified from
time to time.


 


38

















 


“Syndication Agents” means Barclays Bank plc
and Morgan Stanley Senior Funding, Inc. in their capacity as Syndication
Agents.


 


“Syndication
Date” means the earlier of (i) the 90th day following the Closing Date
and (ii) that date upon which Administrative Agent determines in its sole
discretion (and notifies Company) that the primary syndication (and resultant
addition of Persons as Lenders pursuant to Section 10. 1B) has been
completed.


 


“Tax” or “Taxes” means any present or
future tax, levy, impost, duty, charge, fee, deduction or withholding imposed,
levied, collected, withheld or assessed by any governmental authority.


 


“Tender Offer” means the offer by Company to
repurchase up to 100% of the outstanding Existing Senior Subordinated Notes
pursuant to the Tender Offer Materials.


 


“Tender Offer Materials” means the Offer to
Purchase and Consent Solicitation Statement dated November 12, 2009
relating to the Tender Offer and the accompanying Consent and Letter of
Transmittal.


 


“Term Loan Commitment” means, at any time, with
respect to any Lender the sum of the Initial Term Loan Commitment and the
Incremental Term Loan Commitment of that Lender at such time.


 


“Term Loan Exposure” means, with respect to any
Lender as of any date of determination (i) prior to the funding of the
Term Loans, that Lender’s Term Loan Commitment and (ii) after the funding
of the Term Loans, the outstanding principal amount of the Term Loan of that
Lender.


 


“Term Loans” means the Initial Term Loans and
the Incremental Term Loans.


 


“Terminated Lender” shall have the meaning provided
in Section 2.10A.


 


“Third Party” means any Person other than
Company or any of its Subsidiaries.


 


“Total Utilization of Revolving Loan Commitments”
means, as at any date of determination, the sum of (i) the aggregate
principal amount of all outstanding Revolving Loans (other than Revolving Loans
made for the purpose of repaying any Refunded Swing Line Loans or reimbursing
the applicable Issuing Lender for any amount drawn under any Letter of Credit
but not yet so applied) plus (ii) the aggregate principal amount of
all outstanding Swing Line Loans plus (iii) the Letter of Credit
Usage.


 


“Tranche” means the respective facilities and
commitments utilized in making Loans hereunder (i.e., whether Initial
Term Loans, Revolving Loans, Swing Line Loans or Incremental Term Loans made
pursuant to one or more tranches designated pursuant to the respective
Incremental Term Loan Commitment Agreements in accordance with the relevant
requirements specified in Section 2.11); provided that in the
circumstances contemplated by Section 2.11C, Incremental Term Loans may be
made part of a then existing Tranche of Term Loans.


 


39

















 


“Transaction” means, collectively, (i) the
consummation of the Closing Date Refinancing, (ii) the execution, delivery
and performance by each Loan Party of the New Senior Notes Documents to which
it is a party, the issuance of the New Senior Notes and the use of proceeds
thereof, (iii) the execution, delivery and performance by each Loan Party
of the Loan Documents to which it is a party, the incurrence of Loans on the
Closing Date and the use of proceeds thereof and (iv) the payment of all
Transaction Costs in connection with the foregoing.


 


“Transaction Costs” means the fees, costs and
expenses payable by Company in connection with the transactions contemplated by
the Loan Documents and the Related Agreements on or before the Closing Date.


 


“UCC” means the Uniform Commercial Code (or any
similar or equivalent legislation) as in effect in any applicable jurisdiction.


 


“Unfunded Pension Liability” means the excess
(if any) of a Pension Plan’s “funding target” (as such term is defined in Section 430
of the Internal Revenue Code), over such Pension Plan’s “value of plan assets”
(as such term is defined in Section 430 of the Internal Revenue Code),
determined as of the valuation date of the most recent actuarial valuation of
such Pension Plan in accordance with the assumptions used for funding the
Pension Plan pursuant to Section 412 of the Internal Revenue Code.


 


“Unpaid Drawing” has the meaning assigned to
that term in Section 3.5A.


 


“Unreinvested Asset Sale Proceeds” means that
portion, if any, of any Net Asset Sale Proceeds that shall not have been
reinvested by Company and its Subsidiaries in the business of Company and its
Subsidiaries within one year after the receipt by Company or any of its
Subsidiaries of such Net Asset Sale Proceeds.


 


“Unrestricted Subsidiary” means (i) the
entities listed on Schedule 5.1 annexed hereto (and identified on such
Schedule as an “Unrestricted Subsidiary”) and (ii) any Subsidiary of
Company (determined without giving effect to the provisos set forth in the
definition of “Subsidiary”) that is formed or acquired after the Closing Date
and that is designated by Company as an “Unrestricted Subsidiary” as provided
in the definition of “Subsidiary”; provided that an Unrestricted
Subsidiary shall cease to be an Unrestricted Subsidiary if converted to a
Subsidiary in accordance with the definition of “Subsidiary”.


 


“Voting Stock” means, with respect to any
Person, Securities of such Person having ordinary voting power (without regard
to the occurrence of any contingency) to vote in the election of directors of
such Person.


 


“Weighted Average Life to Maturity” means, when
applied to any Indebtedness at any date, the quotient obtained by dividing:


 


(a)           the sum of the products of
the number of years from the date of determination to the date of each
successive scheduled principal payment of such Indebtedness multiplied by the
amount of such payment; by


 


(b)           the sum of all
such payments.


 


40

















 


1.2           Accounting Terms; Utilization of GAAP for
Purposes of Calculations Under Agreement.  Except as
otherwise expressly provided in this Agreement, all accounting terms not
otherwise defined herein shall have the meanings assigned to them in conformity
with GAAP.  The financial statements to
be furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by Company to the Lenders); provided that (A) except as otherwise
specifically provided herein, all computations of Consolidated Excess Cash Flow,
Senior Secured Leverage Ratio and all computations and all definitions
(including accounting terms) used in determining compliance with any of the
provisions of Section 7, shall utilize GAAP and policies in conformity
with those used to prepare the historical financial statements of Company and
its Subsidiaries referred to in Section 5.3; (B) notwithstanding
anything to the contrary contained herein, all such financial statements shall
be prepared, and all financial covenants contained herein or in any other Loan
Document shall be calculated, in each case, without giving effect to any
election under Statement of Financial Accounting Standards 159 (or any similar
accounting principle) permitting a Person to value its financial liabilities at
the fair value thereof; and (C) to the extent expressly provided herein,
certain calculations shall be made on a Pro Forma Basis or
with Pro Forma Adjustments.


 


1.3           Other Definitional Provisions and Rules of
Construction.


 


A.            Any of the terms defined
herein may, unless the context otherwise requires, be used in the singular or
the plural, depending on the reference.


 


B.            References to “Sections” and
“Sections” shall be to Sections and Sections, respectively, of this Agreement
unless otherwise specifically provided.


 


C.            The use in any of the Loan
Documents of the word “include” or “including”, when following any general
statement, term or matter, shall not be construed to limit such statement, term
or matter to the specific items or matters set forth immediately following such
word or to similar items or matters, whether or not nonlimiting language (such
as “without limitation” or “but not limited to” or words of similar import) is
used with reference thereto, but rather shall be deemed to refer to all other
items or matters that fall within the broadest possible scope of such general
statement, term or matter.


 


1.4           Exchange Rates. 
For purposes of this Agreement, the Exchange Rates in effect in respect
of each Letter of Credit denominated in a currency other than Dollars shall be
calculated on the date when any such Letter of Credit is issued, on the first
Business Day of each month and at such other times as designated by
Administrative Agent at any time when a Potential Event of Default or an Event
of Default exists.  Such Exchange Rate
shall remain in effect until the same is recalculated by Administrative Agent
as provided above and notice of such recalculation is received by Company, it
being understood that until such notice is received, the Exchange Rate shall be
that Exchange Rate as last reported to Company by Administrative Agent.  Administrative Agent shall promptly notify
Company and the Lenders of each such determination of the Exchange Rate.


 


41

















 


SECTION 2.         AMOUNTS
AND TERMS OF COMMITMENTS AND LOANS


 


2.1           Commitments; Making of Loans; the
Register; Notes.


 


A.            Commitments.  Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Company
herein set forth, each Lender hereby severally agrees to make the Loans
described in Sections 2.1A(i), 2.1A(ii) and 2.1(A)(iv), and the Swing Line
Lender hereby agrees to make the Loans described in Section 2.1A(iii).


 


(i)            Initial Term Loans.  Each Lender severally agrees to lend to
Company on the Closing Date an amount not exceeding its Pro Rata
Share of the aggregate amount of the Initial Term Loan Commitments to be used
for the purposes identified in Section 2.5A.  The original amount of each Lender’s Initial
Term Loan Commitment is set forth opposite its name on Schedule 2.1
annexed hereto and the aggregate amount of the Initial Term Loan Commitments is
$460,000,000; provided that each Initial Term Loan made by a Lender
hereunder shall be subject to an original issue discount such that such Initial
Term Loan will result in aggregate proceeds to Company in an amount equal to
98.0% of such Lender’s Initial Term Loan Commitment, which amount shall
represent the amount of such Initial Term Loans to be made available by such
Lender pursuant to Section 2.1C. 
Except as specified in the proviso to the immediately preceding
sentence, all references herein to an “Initial Term Loan” or “Initial Term
Loans”, to “principal”, the “principal amount” or the “outstanding principal
amount” of any Initial Term Loan or Initial Term Loans and other terms of like
import shall mean 100% of the Initial Term Loan Commitments (immediately prior
to the incurrence of Initial Term Loans on the Closing Date).  Company may make only a single drawing on the
Closing Date under the Initial Term Loan Commitments and the Initial Term Loan Commitments (and the
Initial Term Loan Commitment of each Lender) shall terminate in its entirety on
the Closing Date (after giving effect to the making of the Initial Term Loans
on such date).  Amounts
borrowed under this Section 2.1A(i) and subsequently repaid or
prepaid may not be reborrowed.


 


(ii)           Revolving Loans.  Each Lender severally agrees, subject to the
limitations set forth below with respect to the maximum amount of Revolving
Loans permitted to be outstanding from time to time, to lend to Company from
time to time during the period on and after the Closing Date to but excluding
the Revolving Loan Maturity Date an aggregate amount not exceeding its Pro Rata
Share of the aggregate amount of the Revolving Loan Commitments to be used for
the purposes identified in Section 2.5B. 
The original amount of each Lender’s Revolving Loan Commitment is set
forth opposite its name on Schedule 2.1 annexed hereto and the aggregate
original amount of the Revolving Loan Commitments is $120,000,000; provided
that the Revolving Loan Commitments of Lenders shall be adjusted to give effect
to any assignments of the Revolving Loan Commitments pursuant to Section 10.1B;
and provided, further that the amount of the Revolving Loan
Commitments shall be reduced from time to time by the amount of any reductions
thereto made pursuant to Section 2.4B(ii) and Section 2.4B(v).  Each Lender’s Revolving Loan Commitment shall
expire on the Revolving Loan Maturity Date and all Revolving Loans and all
other amounts owed hereunder with respect to the Revolving Loans and the
Revolving Loan Commitments shall be paid in full no later than that date.  Amounts borrowed under this Section 2.1A(ii) may
be repaid and reborrowed to but excluding the Revolving Loan Maturity Date.


 


42

















 


Anything contained in this Agreement to the contrary
notwithstanding, the Revolving Loans and the Revolving Loan Commitments shall
be subject to the limitation that in no event shall the Total Utilization of
Revolving Loan Commitments at any time exceed the Revolving Loan Commitments
then in effect.


 


(iii)          Swing Line Loans.  Swing Line Lender hereby agrees, subject to
the limitations set forth below with respect to the maximum amount of Swing
Line Loans permitted to be outstanding from time to time, to make a portion of
the Revolving Loan Commitments available to Company from time to time during
the period on and after the Closing Date to but excluding the Revolving Loan
Maturity Date by making Swing Line Loans to Company in an aggregate amount not
exceeding the amount of the Swing Line Loan Commitment to be used for the
purposes identified in Section 2.5B, notwithstanding the fact that such
Swing Line Loans, when aggregated with Swing Line Lender’s outstanding
Revolving Loans and Swing Line Lender’s Pro Rata Share of
the Letter of Credit Usage then in effect, may exceed Swing Line Lender’s
Revolving Loan Commitment.  The original
amount of the Swing Line Loan Commitment is $10,000,000; provided that
any reduction of the Revolving Loan Commitments made pursuant to Section 2.4B(ii) or
2.4B(v) which reduces the aggregate Revolving Loan Commitments to an
amount less than the then current amount of the Swing Line Loan Commitment
shall result in an automatic corresponding reduction of the Swing Line Loan
Commitment to the amount of the Revolving Loan Commitments, as so reduced,
without any further action on the part of Company, Administrative Agent or
Swing Line Lender.  The Swing Line Loan
Commitment shall expire on the Revolving Loan Maturity Date and all Swing Line
Loans and all other amounts owed hereunder with respect to the Swing Line Loans
shall be paid in full no later than that date. 
Amounts borrowed under this Section 2.1A(iii) may be repaid
and reborrowed to but excluding the Revolving Loan Maturity Date.


 


Anything contained in this Agreement to the contrary
notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall
be subject to the limitation that in no event shall the Total Utilization of
Revolving Loan Commitments at any time exceed the Revolving Loan Commitments
then in effect.


 


43

















 


With respect to any Swing Line Loans which have not
been voluntarily prepaid by Company pursuant to Section 2.4B(i), Swing
Line Lender may, at any time in its sole and absolute discretion, deliver to
Administrative Agent at the Notice Office (with a copy to Company), no later
than 11:00 A.M. (New York City time) on the first Business Day in advance
of the proposed Funding Date, a notice (which shall be deemed to be a Notice of
Borrowing given by Company and shall be deemed given on Friday of each week
regardless of whether an actual Notice of Borrowing is so delivered) requesting
Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date
in an amount equal to the amount of such Swing Line Loans (the “Refunded
Swing Line Loans”) outstanding on the date such notice is given which Swing
Line Lender requests Lenders to prepay. 
Anything contained in this Agreement to the contrary notwithstanding, (i) the
proceeds of such Revolving Loans made by Lenders other than Swing Line Lender
shall be immediately delivered by Administrative Agent to Swing Line Lender
(and not to Company) and applied to repay a corresponding portion of the
Refunded Swing Line Loans and (ii) on the day such Revolving Loans are
made, Swing Line Lender’s Pro Rata Share of the Refunded
Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving
Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed
to be so paid shall no longer be outstanding as Swing Line Loans and shall no
longer be due under the Swing Line Note, if any, of Swing Line Lender but shall
instead constitute part of Swing Line Lender’s outstanding Revolving Loans and
shall be due under the Revolving Note, if any, of Swing Line Lender.  If any portion of any such amount paid (or
deemed to be paid) to Swing Line Lender should be recovered by or on behalf of
Company from Swing Line Lender in bankruptcy, by assignment for the benefit of
creditors or otherwise, the loss of the amount so recovered shall be ratably
shared among all Lenders in the manner contemplated by Section 10.5.


 


If for any reason the Revolving Loan Commitments are
terminated at a time when any Swing Line Loans are outstanding, each Lender
shall be deemed to, and hereby agrees to, have purchased a participation in
such outstanding Swing Line Loans in an amount equal to its Pro Rata
Share (calculated immediately prior to such termination of the Revolving Loan
Commitments) of the unpaid amount of such Swing Line Loans together with
accrued interest thereon.  Upon one
Business Day’s notice from Swing Line Lender, each Lender shall deliver to
Swing Line Lender an amount equal to its respective participation in same day
funds at the Funding and Payment Office. 
In order to further evidence such participation (and without prejudice
to the effectiveness of the participation provisions set forth above), each
Lender agrees to enter into a separate participation agreement at the request
of Swing Line Lender in form and substance reasonably satisfactory to such
Lender and Swing Line Lender.  In the
event any Lender fails to make available to Swing Line Lender the amount of
such Lender’s participation as provided in this paragraph, Swing Line Lender
shall be entitled to recover such amount on demand from such Lender together
with interest thereon at the Federal Funds Effective Rate for three Business
Days and thereafter at the Base Rate.  In
the event Swing Line Lender receives a payment of any amount in which other
Lenders have purchased participations as provided in this paragraph, Swing Line
Lender shall promptly distribute to each such other Lender its Pro Rata
Share of such payment.


 


Anything contained herein to the contrary
notwithstanding, each Lender’s obligation to make Revolving Loans for the
purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding
paragraph and each Lender’s obligation to purchase a participation in any
unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall
be absolute and unconditional and shall not be affected by any circumstance,
including (a) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against Swing Line Lender, Company or any
other Person for any reason whatsoever; (b) the occurrence or continuation
of an Event of Default or a Potential Event of Default; (c) any adverse
change in the business, operations, properties, assets, condition (financial or
otherwise) or prospects of Company or any of its Subsidiaries; (d) any
breach of this Agreement or any other Loan Document by any party thereto; or (e) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.


 


44
















 


Notwithstanding anything to the contrary contained in
this Section 2.1A(iii), (a) Swing Line Lender shall not be obligated
to make any Swing Line Loans at a time when a Funding Default exists with
respect to Lender having a Revolving Loan Commitment unless Swing Line Lender
has entered into arrangements satisfactory to it and Company to eliminate the
Swing Line Lender’s risk with respect to each Defaulting Lender’s participation
in such Swing Line Loans (which arrangements are hereby consented to by the Lenders),
including by cash collateralizing such Defaulting Lender’s respective Pro Rata
Share of the outstanding Swing Line Loans (such arrangements, the “Swing
Line Back-Stop Arrangements”), and (b) Swing Line Lender shall not
make any Swing Line Loan after it has received written notice from Company, any
other Loan Party or the Requisite Lenders stating that a Potential Event of
Default or an Event of Default exists and is continuing until such time as the
Swing Line Lender shall have received written notice (X) of rescission of
all such notices from the party or parties originally delivering such notice or
notices or (Y) of the waiver of such Potential Event of Default or Event
of Default by the Requisite Lenders.


 


(iv)          Incremental Term Loans.  Subject to and upon the terms and conditions
set forth herein, each Lender with an Incremental Term Loan Commitment for a
given Tranche of Incremental Term Loans severally agrees to make a term loan or
term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental
Term Loans”) to Company, which Incremental Term Loans (i) shall be
incurred pursuant to a single drawing on the respective Incremental Term Loan
Funding Date, (ii) shall be denominated in Dollars, (iii) except as
hereinafter provided, shall, at the option of Company, be incurred and
maintained as, and/or converted into, Base Rate Loans or LIBOR Loans, and (iv) shall
not exceed for any such Incremental Term Loan Lender at any time of any
incurrence thereof, the Incremental Term Loan Commitment of such Incremental
Term Loan Lender for such Tranche on the respective Incremental Term Loan
Funding Date.  Once repaid, Incremental
Term Loans may not be reborrowed. The Incremental Term Loan Commitments under a given Tranche (and the
Incremental Term Loan Commitment of each Lender in respect of such Tranche)
shall terminate in its entirety on the Incremental Term Loan Funding Date for
such Tranche of Incremental Term Loans (after giving effect to the incurrence
of the Incremental Term Loans of such Tranche on such date).


 


45

















 


B.            Borrowing Mechanics.  Term Loans under a respective Tranche made on
any Funding Date as Base Rate Loans or as LIBOR Loans with a particular
Interest Period shall be in an aggregate minimum amount of $5,000,000 and
integral multiples of $500,000 in excess of that amount.  Revolving Loans (other than Revolving Loans
made pursuant to a request by Swing Line Lender pursuant to Section 2.1A(iii) for
the purpose of repaying any Refunded Swing Line Loans) made on any Funding Date
shall be in an aggregate minimum amount of $1,000,000 and integral multiples of
$100,000 in excess of that amount.  Swing
Line Loans made on any Funding Date shall be in an aggregate minimum amount of
$500,000 and integral multiples of $100,000 in excess of that amount.  Whenever Company desires that Lenders make
Term Loans (whether Initial Term Loans or Incremental Term Loans) or Revolving
Loans (excluding Refunded Swing Line Loans) to Company it shall deliver to
Administrative Agent at the Notice Office a Notice of Borrowing no later than
11:00 A.M. (New York City time) at least three Business Days in advance of
the proposed Funding Date (in the case of a LIBOR Loan) or at least one
Business Day in advance of the proposed Funding Date (in the case of a Base
Rate Loan).  Whenever Company desires
that Swing Line Lender make a Swing Line Loan, it shall deliver to
Administrative Agent at the Notice Office a Notice of Borrowing no later than
1:00 P.M. (New York City time) on the proposed Funding Date.  The Notice of Borrowing shall specify (i) the
proposed Funding Date (which shall be a Business Day), (ii) the amount of
such borrowing requested and whether the respective borrowing shall consist of
Initial Term Loans, Revolving Loans, Swing Line Loans or Incremental Term
Loans, and if Incremental Term Loans, the specific Tranche thereof, (iii) in
the case of Swing Line Loans and any Loans made on the Closing Date, that such
Loans shall be Base Rate Loans, (iv) in the case of Revolving Loans not
made on the Closing Date, whether such Loans shall be Base Rate Loans or LIBOR
Loans, and (v) in the case of any Loans requested to be made as LIBOR
Loans, the initial Interest Period requested therefor.  Term Loans and Revolving Loans may be
continued as or converted into Base Rate Loans and LIBOR Loans in the manner
provided in Section 2.2D; provided that unless Administrative Agent has otherwise agreed
or has determined that the Syndication Date has occurred (at which time this proviso
shall no longer be applicable), LIBOR Loans may only have an Interest Period of
one month, and the first Funding Date with respect to Loans maintained as LIBOR
Loans may occur no earlier than three Business Days following the Closing Date,
with all subsequent Funding Dates with respect to Loans maintained as LIBOR
Loans to occur on the last day of the preceding one month Interest Period
theretofore in effect.  In
lieu of delivering the above-described Notice of Borrowing, Company may give
Administrative Agent telephonic notice of the required time of any borrowing
under this Section 2.1B; provided that such notice shall be
promptly confirmed in writing by delivery of a Notice of Borrowing to
Administrative Agent on or before the applicable Funding Date.  Administrative Agent shall promptly give each
Lender which is required to make Loans of the Tranche specified in the
respective Notice of Borrowing, written notice (or telephonic notice promptly
confirmed in writing) of each proposed borrowing, of such Lender’s
proportionate share thereof and of the other matters required by this Section 2.1B
to be specified in the Notice of Borrowing.


 


Neither Administrative Agent nor any Lender shall
incur any liability to Company in acting upon any telephonic notice referred to
above that Administrative Agent believes in good faith to have been given by a
duly authorized officer or other person authorized to borrow on behalf of
Company or for otherwise acting in good faith under this Section 2.1B, and
upon funding of Loans by Lenders in accordance with this Agreement pursuant to
any such telephonic notice Company shall have effected Loans hereunder.


 


Company shall notify Administrative Agent prior to the
funding of any Loans in the event that any of the matters to which Company is
required to certify in the applicable Notice of Borrowing is no longer true and
correct as of the applicable Funding Date, and the acceptance by Company of the
proceeds of any Loans shall constitute a re-certification by Company, as of the
applicable Funding Date, as to matters to which Company is required to certify
in the applicable Notice of Borrowing.


 


46

















 


C.            Disbursement of Funds.  All Term Loans, Revolving Loans and
Incremental Term Loans under this Agreement shall be made by Lenders with a
Commitment under the respective Tranche of Loan simultaneously and
proportionately to their respective Pro Rata Shares, it
being understood that no Lender shall be responsible for any default by any
other Lender in that other Lender’s obligation to make a Loan requested
hereunder nor shall the Commitment of any Lender to make the particular Tranche
of Loan requested be increased or decreased as a result of a default by any
other Lender in that other Lender’s obligation to make a Loan requested
hereunder.  Promptly after receipt by
Administrative Agent of a Notice of Borrowing pursuant to Section 2.1B (or
telephonic notice in lieu thereof), Administrative Agent shall notify each
Lender or Swing Line Lender, as the case may be, of the proposed
borrowing.  Each Lender shall make the
amount of its Loan available to Administrative Agent in Dollars not later than
1:00 P.M. (New York City time) on the applicable Funding Date, and Swing
Line Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 2:00 P.M. (New York City time) on the
applicable Funding Date, in each case in same day funds in Dollars, at the
Funding and Payment Office for such Loans. 
Except as provided in Section 2.1A(iii) with respect to
Revolving Loans used to repay Refunded Swing Line Loans, upon satisfaction or
waiver of the conditions precedent specified in Sections 4.1 (in the case of
Loans made on the Closing Date) and 4.2 (in the case of all Loans),
Administrative Agent shall make the proceeds of such Loans available to Company
on the applicable Funding Date by causing an amount of same day funds in
Dollars equal to the proceeds of all such Loans received by Administrative
Agent from Lenders or Swing Line Lender, as the case may be, to be credited to
the account of Company at the Funding and Payment Office for such Loans; provided
that if, on any Funding Date of
Revolving Loans (other than a Refunded Swing Line Loans), there are Unpaid
Drawings or Swing Line Loans then outstanding, then the proceeds of such
Revolving Loans shall be applied, first, to the payment in full of any
such Unpaid Drawings with respect to Letters of Credit, second, to the
payment in full of any such Swing Line Loans, and third, to Company as
otherwise provided above.


 


Unless Administrative Agent shall have been notified
by any Lender prior to the Funding Date for any Loans that such Lender does not
intend to make available to Administrative Agent the amount of such Lender’s
Loan requested on such Funding Date, Administrative Agent may assume that such
Lender has made such amount available to Administrative Agent on such Funding
Date and Administrative Agent may, in its sole discretion, but shall not be
obligated to, make available to Company a corresponding amount in Dollars on
such Funding Date.  If such corresponding
amount is not in fact made available to Administrative Agent by such Lender,
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative Agent in
Dollars, at the Federal Funds Effective Rate for three Business Days and
thereafter at the Base Rate.  If such
Lender does not pay such corresponding amount forthwith upon Administrative
Agent’s demand therefor, Administrative Agent shall promptly notify Company,
and Company shall immediately pay such corresponding amount to Administrative
Agent together with interest thereon, all in Dollars, for each day from such
Funding Date until the date such amount is paid to Administrative Agent, at the
rate payable under this Agreement for Base Rate Loans.  Nothing in this Section 2.1C shall be
deemed to relieve any Lender from its obligation to fulfill its Commitments
hereunder or to prejudice any rights that Company may have against any Lender
as a result of any default by such Lender hereunder.


 


47

















 


D.            The Register.


 


(i)            Company hereby designates
Administrative Agent to serve as its agent, solely for the purposes of this Section 2.1D,
to maintain, at its address referred to in Section 10.7, a register for
the recordation of the names and addresses of Lenders and the Commitments and
Loans (whether or not separately evidenced by one or more Notes) of each Lender
from time to time (the “Register”). 
The Register shall be available for inspection by Company or any Lender
(in the case of any such Lender, only in respect of its Commitments and
Obligations) at any reasonable time and from time to time upon reasonable prior
notice.


 


(ii)           Administrative Agent shall
record in the Register the Initial Term Loan Commitment and Revolving Loan
Commitment and the Initial Term Loans and Revolving Loans from time to time of
each Lender, the Swing Line Loan Commitment and the Swing Line Loans from time
to time of Swing Line Lender, the Incremental Term Loan Commitment and
Incremental Term Loans from time to time of each Incremental Term Loan Lender,
and each repayment or prepayment in respect of the principal amount of the Term
Loans or Revolving Loans of each Lender, the Swing Line Loans of Swing Line
Lender or the Incremental Term Loans of each Incremental Term Loan Lender.  Any such recordation shall be conclusive and
binding on Company and each Lender, absent clearly demonstrable error; provided
that failure to make any such recordation, or any error in such recordation,
shall not affect any Lender’s Commitments or Company’s Obligations in respect
of any applicable Loans.


 


(iii)          Each Lender shall record on
its internal records (including any Notes held by such Lender) the amount of
each Term Loan, Revolving Loan and Incremental Term Loan (if any) made by it
and each payment in respect thereof.  Any
such recordation shall be conclusive and binding on Company, absent clearly
demonstrable error; provided that failure to make any such recordation,
or any error in such recordation, shall not affect any Lender’s Commitments or
Company’s Obligations in respect of any applicable Loans; and provided, further
that in the event of any inconsistency between the Register and any Lender’s
records, the recordations in the Register shall govern.


 


(iv)          Company, Administrative
Agent and Lenders shall deem and treat the Persons listed as Lenders in the
Register as the holders and owners of the corresponding Commitments and Loans
listed therein for all purposes hereof, and no assignment or transfer of any
such Commitment or the rights to the principal of, and interest on, any Loan
shall be effective, in each case unless and until an Assignment Agreement
effecting the assignment or transfer thereof shall have


 


48

















 


been accepted by Administrative Agent and
recorded in the Register as provided in Section 10.1B.  Prior to such recordation, all amounts owed
with respect to the applicable Commitment or Loan shall be owed to the Lender
listed in the Register as the owner thereof, and any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be conclusive
and binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans. 
Coincident with the delivery of such an Assignment Agreement to
Administrative Agent for acceptance and registration of assignment or transfer
of all or part of a Loan, or as soon thereafter as practicable, the assigning
or transferor Lender shall surrender the Note (if any) evidencing such Loan,
and thereupon one or more new Notes in the same aggregate principal amount
shall be issued to the assigning or transferor Lender and/or the new Lender at
the request of any such Lender.


 


(v)           Company hereby designates
Administrative Agent to serve as its agent solely for purposes of maintaining
the Register as provided in this Section 2.1D, and Company hereby agrees
that, to the extent Administrative Agent serves in such capacity,
Administrative Agent and its officers, directors, employees, agents and
Affiliates shall constitute Indemnified Persons for all purposes under Section 10.2.


 


E.             Optional Notes.  Upon the request of any Lender made through
Administrative Agent at least two Business Days prior to the Closing Date or at
any time after the Closing Date, Company shall execute and deliver to such
Lender (and/or, if applicable and if so specified in such notice, to any Person
who is an assignee of such Lender pursuant to Section 10.1) on the Closing
Date (or, if such notice is delivered after the Closing Date, promptly after
Company’s receipt of such notice) a promissory note or promissory notes to
evidence such Lender’s Initial Term Loans, Revolving Loans, Swing Line Loans or
Incremental Term Loans, as the case may be, substantially in the form of Exhibit IV, Exhibit V, Exhibit VI or Exhibit VII annexed
hereto, respectively, with appropriate insertions.


 


2.2           Interest on the Loans.


 


A.            Rate of Interest.  Subject to the provisions of Sections 2.6 and
2.7, each Term Loan and each Revolving Loan shall bear interest on the unpaid
principal amount thereof from the date made to maturity (whether by
acceleration or otherwise) of such Loan at a rate determined by reference to
the Base Rate or LIBOR.  Subject to the
provisions of Section 2.7, each Swing Line Loan shall bear interest on the
unpaid principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Base
Rate.  The applicable basis for
determining the rate of interest with respect to any Initial Term Loan, any
Revolving Loan or any Incremental Term Loan shall be selected by Company
initially at the time a Notice of Borrowing is given with respect to such Loan
pursuant to Section 2.1B, and the basis for determining the interest rate
with respect to any Initial Term Loan, any Revolving Loan or any Incremental
Term Loan may be changed from time to time pursuant to Section 2.2D.  Subject to the last proviso to the first
paragraph of Section 2.2D, if on any day an Initial Term Loan, Revolving
Loan or Incremental Term Loan is outstanding with respect to which notice has
not been delivered to Administrative Agent in accordance with the terms of this
Agreement specifying the applicable basis for determining the rate of interest,
then for that day that Loan shall bear interest determined by reference to the
Base Rate.


 


49

















 


(i)            Subject to the provisions of
Sections 2.2E and 2.7, the Term Loans shall bear interest through maturity, as
follows:


 


(a)           if a Base Rate Loan, then at
a rate per annum which shall at all times be equal to the sum of the Base Rate plus
the relevant Applicable Term Loan Base Rate Margin for the relevant Tranche of
Term Loan, each as in effect from time to time; or


 


(b)           if a LIBOR Loan, then at a
rate per annum which shall at all times, during the Interest Period applicable
thereto, be equal to the sum of LIBOR applicable to such Interest Period plus
the relevant Applicable Term Loan LIBOR Margin for the relevant Tranche of Term
Loan.


 


(ii)           Subject to the provisions of
Sections 2.2E and 2.7, the Revolving Loans shall bear interest through maturity
as follows:


 


(a)           if a Base Rate Loan, then at
a rate per annum which shall at all times be equal to the sum of the Base Rate plus
the Applicable Revolving Base Rate Margin; or


 


(b)           if a LIBOR Loan, then at a
rate per annum which shall at all times, during the Interest Period applicable
thereto, be equal to the sum of LIBOR applicable to such Interest Period plus
the Applicable Revolving LIBOR Margin.


 


(iii)          Subject to the provisions of
Sections 2.2E and 2.7, the Swing Line Loans shall bear interest through
maturity (whether by acceleration or otherwise) at a rate per annum which shall
be equal to the sum of the Base Rate plus the Applicable Revolving Base
Rate Margin minus the Applicable Commitment Fee Percentage.


 


B.            Interest Periods.  In connection with each LIBOR Loan, Company
may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
“Interest Period”) to be applicable to such Loan, which Interest Period
shall be, at Company’s option, either a one, two, three or six month period or,
with respect to the Loans of any Tranche, to the extent approved by each Lender
with outstanding Loans and/or Commitments under such Tranche, a nine or twelve
month period (or such other periods less than one month agreed to by
Administrative Agent in its sole discretion); provided that:


 


(i)            the initial Interest Period
for any LIBOR Loan shall commence on the Funding Date in respect of such Loan,
in the case of a Loan initially made as a LIBOR Loan, or on the date specified
in the applicable Notice of Conversion/Continuation, in the case of a Loan converted
to a LIBOR Loan;


 


50

















 


(ii)           in the case of immediately
successive Interest Periods applicable to a LIBOR Loan continued as such
pursuant to a Notice of Conversion/Continuation, each successive Interest Period
shall commence on the day on which the next preceding Interest Period expires;


 


(iii)          if an 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 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;


 


(iv)          any Interest Period that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall, subject to clauses (v) and (vi) of this Section 2.2B,
end on the last Business Day of a calendar month;


 


(v)           no Interest Period with
respect to any portion of Initial Term Loans shall extend beyond the Initial
Term Loan Maturity Date, no Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the Revolving Loan Maturity Date, and no
Interest Period with respect to any portion of Incremental Term Loans shall
extend beyond the respective Incremental Term Loan Maturity Date;


 


(vi)          no Interest Period with
respect to any portion of any Tranche of Term Loans shall extend beyond a date
on which Company is required to make a Scheduled Repayment of principal of the
respective Tranche of Term Loans, unless the sum of (a) the aggregate
principal amount of such Tranche of Term Loans that are Base Rate Loans plus
(b) the aggregate principal amount of such Tranche of Term Loans that are
LIBOR Loans with Interest Periods expiring on or before such date equals or
exceeds the aggregate principal amount required to be paid in respect of such
Tranche of the Term Loans on such date;


 


(vii)         there shall be no more than
15 Interest Periods outstanding at any time (20 if any Incremental Term Loans
are outstanding at such time); and


 


(viii)        in the event Company fails
to specify an Interest Period for any LIBOR Loan in the applicable Notice of
Borrowing or Notice of Conversion/Continuation, Company shall be deemed to have
selected an Interest Period of one month.


 


C.            Interest Payments.  Subject to the provisions of Section 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity); provided that in the event any Swing Line Loans or any
Revolving Loans that are Base Rate Loans are prepaid pursuant to Section 2.4B,
interest accrued on such Swing Line Loans or Revolving Loans through the date
of such prepayment shall be payable on the next succeeding Interest Payment
Date applicable to Base Rate Loans (or, if earlier, at final maturity).


 


51

















 


D.            Conversion or Continuation.  Subject to the provisions of Section 2.6,
(i) Company shall have the option to convert on any Business Day all or
any part of its outstanding Term Loans or Revolving Loans under a single
Tranche equal to $5,000,000 and integral multiples of $500,000 in excess of
that amount from Loans bearing interest at a rate determined by reference to
one basis to Loans bearing interest at a rate determined by reference to an
alternative basis and (ii) upon the expiration of any Interest Period
applicable to a LIBOR Loan, Company shall have the option to continue as a
LIBOR Loan all or any portion of such Loan equal to $5,000,000 and integral
multiples of $500,000 in excess of that amount; provided, however,
that if, upon the expiration of any Interest Period applicable to any LIBOR
Loan, Company shall have failed to give a Notice of Conversion/Continuation
with respect to such LIBOR Loan in accordance with this Section 2.2D,
Company shall be deemed to have given a timely Notice of
Conversion/Continuation electing to continue such LIBOR Loan as a LIBOR Loan
with an Interest Period of one month; and provided, further,
no partial conversion of a borrowing of LIBOR Loans shall reduce the
outstanding principal amount of LIBOR Loans made pursuant to such borrowing to
less than $5,000,000.  Borrowings of
LIBOR Loans resulting from this Section 2.2D shall be limited in number as
provided in Section 2.1B.


 


Company shall deliver a Notice of
Conversion/Continuation to Administrative Agent at the Notice Office no later
than 11:00 A.M. (New York City time) at least one Business Day in advance
of the proposed conversion date (in the case of a conversion to a Base Rate
Loan) and at least three Business Days in advance of the proposed
conversion/continuation date (in the case of a conversion to, or a continuation
of, a LIBOR Loan).  A Notice of
Conversion/Continuation shall specify (i) the proposed conversion/continuation
date (which shall be a Business Day), (ii) the amount and type of the Loan
to be converted/continued, (iii) the nature of the proposed
conversion/continuation, (iv) in the case of a conversion to, or a
continuation of, a LIBOR Loan, the requested Interest Period, and (v) in
the case of a conversion to, or a continuation of, a LIBOR Loan, that no
Potential Event of Default or Event of Default has occurred and is
continuing.  In lieu of delivering the
above-described Notice of Conversion/Continuation, Company may give
Administrative Agent telephonic notice by the required time of any proposed
conversion/continuation under this Section 2.2D; provided that such
notice shall be promptly confirmed in writing by delivery of a Notice of
Conversion/Continuation to Administrative Agent on or before the proposed
conversion/continuation date.  Upon
receipt of written or telephonic notice of any proposed conversion/continuation
under this Section 2.2D, Administrative Agent shall promptly transmit such
notice by telefacsimile or telephone to each Lender.


 


Neither Administrative Agent nor any Lender shall
incur any liability to Company in acting upon any telephonic notice referred to
above that Administrative Agent believes in good faith to have been given by a
duly authorized officer or other person authorized to act on behalf of Company
or for otherwise acting in good faith under this Section 2.2D, and upon
conversion or continuation of the applicable basis for determining the interest
rate with respect to any Loans in accordance with this Agreement pursuant to
any such telephonic notice Company shall have effected a conversion or
continuation, as the case may be, hereunder.


 


52

















 


Except as otherwise provided in Sections 2.6B, 2.6C
and 2.6F, a Notice of Conversion/Continuation for conversion to, or
continuation of, a LIBOR Loan (or telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and
Company shall be bound to effect a conversion or continuation in accordance
therewith.


 


E.             Default Interest.  Any principal payments on the Loans not paid
when due and, to the extent permitted by applicable law, any interest payments
on the Loans, the Notes, the Unpaid Drawings, or any Fees or other amounts owed
hereunder not paid when due, in each case whether at stated maturity, by notice
of prepayment, by acceleration or otherwise, shall thereafter bear interest
(including post-petition interest in any proceeding under the Bankruptcy Code
or other applicable bankruptcy laws) payable on demand at a rate per annum
equal to the greater of (x) the
rate which is 2.00% in excess of the rate then borne by such Loans and (y) the
rate which is 2.00% in excess of the rate otherwise payable under this
Agreement for Base Rate Loans of the respective Tranche from time to time.  Interest that accrues under this Section 2.2E
shall be payable on demand.  Payment or acceptance of the increased rates
of interest provided for in this Section 2.2E is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of
Administrative Agent or any Lender.


 


F.             Computation of Interest.  Interest on the Loans shall be computed (i) in
the case of Base Rate Loans bearing interest at a rate determined by reference
to the Prime Rate, on the basis of a 365-day or 366-day year, as the case may
be, and (ii) in the case of LIBOR Loans and Base Rate Loans bearing
interest at a rate determined by reference to the Federal Funds Effective Rate
or LIBOR, on the basis of a 360-day year, in each case for the actual number of
days elapsed in the period during which it accrues.  In computing interest on any Loan, the date
of the making of such Loan or the first day of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted from a LIBOR
Loan, the date of conversion of such LIBOR Loan to such Base Rate Loan, as the
case may be, shall be included, and the date of payment of such Loan or the
expiration date of an Interest Period applicable to such Loan or, with respect
to a Base Rate Loan being converted to a LIBOR Loan, the date of conversion of
such Base Rate Loan to such LIBOR Loan, as the case may be, shall be excluded; provided
that if a Loan is repaid on the same day on which it is made, one day’s
interest shall be paid on that Loan.


 


2.3           Fees.


 


A.            Commitment Fees.  Company agrees to pay to Administrative
Agent, for distribution to each Non-Defaulting Lender having a Revolving Loan
Commitment in proportion to that Lender’s Pro Rata Share, a
commitment fee (the “Commitment Fee”) for the period from and including
the Closing Date to and excluding the Revolving Loan Maturity Date equal to the
daily excess of the Revolving Loan Commitments over the aggregate principal
amount of outstanding Revolving Loans and Letter of Credit Usage (but not any
outstanding Swing Line Loans) multiplied by the Applicable
Commitment Fee Percentage, such Commitment Fee to be payable quarterly in
arrears on March 15, June 15, September 15 and December 15
of each year, commencing on the first such date to occur after the Closing
Date, and on the Revolving Loan Maturity Date.


 


53

















 


B.            Company agrees
to pay to Administrative Agent for distribution to each Non-Defaulting Lender
having a Revolving Loan Commitment (based on each such Lender’s respective Pro Rata
Share) a fee in respect of each Letter of Credit (the “Letter of Credit Fee”)
for the period from and including the date of issuance of such Letter of Credit
to and including the date of termination or expiration of such Letter of
Credit, computed at a rate per annum equal to the Applicable Revolving LIBOR
Margin as in effect from time to time during such period on the daily Stated
Amount of each such Letter of Credit. 
Accrued Letter of Credit Fees shall be due and payable quarterly in
arrears on March 15, June 15, September 15 and December 15
of each year and on the first day on or after the termination of the Revolving
Loan Commitment upon which no Letters of Credit remain outstanding.


 


C.            Company agrees to pay to
each Issuing Lender, for its own account, a facing fee in respect of each
Letter of Credit issued by it (the “Facing Fee”) for the period from and
including the date of issuance of such Letter of Credit to and including the
date of termination or expiration of such Letter of Credit, computed at a rate
per annum equal to 1/4 of 1% on the daily Stated Amount of such Letter of
Credit, provided that in any event the minimum amount of Facing Fees
payable in any twelve-month period for each Letter of Credit shall be not less
than $500, it being agreed that, on the day of issuance of any Letter of Credit
and on each anniversary thereof prior to the termination or expiration of such
Letter of Credit, if $500 will exceed the amount of Facing Fees that will
accrue with respect to such Letter of Credit for the immediately succeeding
twelve-month period, the full $500 shall be payable on the date of issuance of
such Letter of Credit and on each such anniversary thereof.  Except as otherwise provided in the proviso
to the immediately preceding sentence, accrued Facing Fees shall be due and
payable quarterly in arrears on March 15, June 15, September 15
and December 15 of each year and upon the first day on or after the
termination of the Revolving Loan Commitments upon which no Letters of Credit
remain outstanding.


 


D.            Other Letter of Credit Fees.  Company agrees, with respect to the issuance,
amendment or transfer of each Letter of Credit and each payment of a drawing
made thereunder, to pay customary documentary and processing charges payable
directly to the applicable Issuing Lender for its own account in accordance with
such Issuing Lender’s standard schedule for such charges in effect at the time
of such issuance, amendment, transfer or payment, as the case may be.


 


E.             Other Fees.  Company agrees to pay to Administrative Agent
and Syndication Agents such other fees in the amounts and at the times
separately agreed upon between Company and Administrative Agent and Syndication
Agents, as the case may be.


 


F.             All computations of Fees
hereunder shall be made on the basis of a year of 360 days for the actual
number of days (including the first day but excluding the last day; except that
in the case of Letter of Credit Fees and Facing Fees, the last day shall be
included) occurring in the period for which such Fees are payable.


 


54
















 


2.4                                 Repayments, Prepayments and Reductions in
Revolving Loan Commitments; General Provisions Regarding Payments; Application
of Proceeds of Collateral and Payments Under the Guaranties.


 


A.                                   Scheduled
Payments of Term Loans.


 


(i)                                     Scheduled
Payments of Initial Term Loans.  In addition to any other mandatory repayments
pursuant to this Section 2.4, on each date set forth below (each, a “Scheduled
Initial Term Loan Repayment Date”), Company shall be required to repay the
principal amount of Initial Term Loans, to the extent then outstanding, until
the Initial Term Loans are paid in full, as set forth opposite each such date
below (each such repayment, a “Scheduled Initial Term Loan Repayment”):


 


	
  Scheduled Initial Term Loan
  Repayment Date

  	
   

  	
  Scheduled Initial Term Loan Repayment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 15, 2010

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  June 15, 2010

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  September, 15 2010

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  December, 15, 2010

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  March 15, 2011

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  June 15, 2011

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  September, 15 2011

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  December, 15, 2011

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  March 15, 2012

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  June 15, 2012

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  September, 15 2012

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  December, 15, 2012

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  March 15, 2013

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  June 15, 2013

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  September, 15 2013

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  December, 15, 2013

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  March 15, 2014

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  June 15, 2014

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  September, 15 2014

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  December, 15, 2014

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  March 15, 2015

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  June 15, 2015

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  September, 15 2015

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  December, 15, 2015

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  March 15, 2016

  	
   

  	
  $1,150,000

  	
   

  	
   

  
	
  Initial Term Loan Maturity Date

  	
   

  	
  $431,250,000

  	
   

  	
   

  



 


; provided that the Scheduled Initial Term Loan
Repayments set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Initial Term Loans in accordance with Section 2.4B(iv) and
provided, further, that the Initial Term Loans and all other
amounts owed hereunder with respect to the Initial Term Loans shall be paid in
full on the Initial Term Loan Maturity Date, and the final installment payable
by Company in respect of the Initial Term Loans on such date shall be in an
amount, if such amount is different from that specified above, sufficient to
repay all amounts owing by Company under this Agreement with respect to the
Initial Term Loans.


 


55

















 


(ii)                                  Scheduled
Payments of Incremental Term Loans.  In addition to any other mandatory repayments
pursuant to this Section 2.4, Company shall be required to make, with
respect to each Tranche of Incremental Term Loans, to the extent then
outstanding, scheduled amortization payments of such Tranche of Incremental
Term Loans on the dates and in the principal amounts set forth in the
respective Incremental Term Loan Commitment Agreement (each such date, a “Scheduled
Incremental Term Loan Repayment Date”, and each such repayment, as the same
may be (x) reduced as provided in Section 2.4B(iv) or (y) increased
as provided in Section 2.11C, a “Scheduled Incremental Term Loan
Repayment”); provided that the Incremental Term Loans and all other
amounts owed hereunder with respect to the Incremental Term Loans shall be paid
in full on the Incremental Term Loan Maturity Date, and the final installment
payable by Company in respect of the Incremental Term Loans on such date shall
be in an amount, if such amount is different from that specified above,
sufficient to repay all amounts owing by Company under this Agreement with
respect to the Incremental Term Loans.


 


B.                                     Prepayments and
Reductions in Revolving Loan Commitments.


 


(i)                                     Voluntary
Prepayments.  Company
may, upon written or telephonic notice to Administrative Agent at the Notice
Office at or prior to 1:00 P.M. (New York City time) on the date of
prepayment, which notice, if telephonic, shall be promptly confirmed in
writing, at any time and from time to time prepay any Swing Line Loan on any
Business Day in whole or in part in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount.  Company may, upon not less than one Business
Day’s prior written or telephonic notice, in the case of Base Rate Loans, and
three Business Days’ prior written or telephonic notice, in the case of LIBOR
Loans, in each case given to Administrative Agent by 12:00 Noon (New York City
time) on the date required and, if given by telephone, promptly confirmed in
writing to Administrative Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by telefacsimile or telephone to
each Lender), at any time and from time to time prepay any Initial Term Loans,
Revolving Loans or Incremental Term Loans under a given Tranche on any Business
Day in whole or in part in an aggregate minimum amount of $5,000,000 and
integral multiples of $500,000 in excess of that amount (other than any such
prepayment with proceeds received by Company in connection with its exercise of
the Cure Right); provided that a LIBOR Loan may only be prepaid on the
expiration of the Interest Period applicable thereto unless Company pays all
amounts owing to Lenders under Section 2.6D.  Notice of prepayment having been given as
aforesaid, the principal amount of the Loans specified in such notice shall
become due and payable on the prepayment date specified therein; provided
that a notice of prepayment in respect of all outstanding Loans delivered by
Company may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by Company
(by notice to Administrative Agent on or prior to the specified effective date)
if such condition is not satisfied.  Any
such voluntary prepayment shall be applied as specified in Section 2.4B(iv).


 


56

















 


(ii)                                  Voluntary
Reductions of Revolving Loan Commitments.  Company may, upon not less than three
Business Days’ prior written or telephonic notice confirmed in writing to
Administrative Agent at the Notice Office (which notice Administrative Agent
will promptly transmit to each Lender), at any time and from time to time
terminate in whole or permanently reduce in part, without premium or penalty,
the Revolving Loan Commitments in an amount up to the amount by which the
Revolving Loan Commitments exceed the Total Utilization of Revolving Loan
Commitments at the time of such proposed termination or reduction; provided
that any such partial reduction of the Revolving Loan Commitments shall be in
an aggregate minimum amount of $1,000,000 and integral multiples of $500,000 in
excess of that amount.  Company’s notice
to Administrative Agent shall designate the date (which shall be a Business
Day) of such termination or reduction and the amount of any partial reduction,
and such termination or reduction of the Revolving Loan Commitments shall be
effective on the date specified in Company’s notice and shall reduce the
Revolving Loan Commitment of each Lender proportionately to its Pro  Rata
Share provided that a notice of reduction in respect of all outstanding
Revolving Loan Commitments delivered by Company may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by Company (by notice to Administrative Agent on or
prior to the specified effective date) if such condition is not satisfied.


 


(iii)                               Mandatory
Prepayments and Reductions in Commitments.  Subject to the provisions of Section 2.4B(iv)(d),
the Loans shall be prepaid in the amounts and under the circumstances set forth
below, all such prepayments to be applied as set forth below or as more
specifically provided in Section 2.4B(iv):


 


(a)                                  Commitment
Reductions.  In addition to any other
mandatory repayments or commitment reductions pursuant to this Section 2.4, the Revolving Loan Commitments (and the
Revolving Loan Commitment of each Lender) shall terminate in their entirety on
the Revolving Loan Maturity Date.


 


(b)                                 Prepayments
From Net Asset Sale Proceeds.  No later than the fifth Business Day
following the date on which any Net Asset Sale Proceeds become Unreinvested
Asset Sale Proceeds, Company shall prepay its outstanding Term Loans in an
aggregate amount equal to such Unreinvested Asset Sale Proceeds; provided
that Company may in its sole discretion elect, pursuant to a written notice
given by Company to Administrative Agent describing such election, to postpone
any mandatory prepayments otherwise required to be made by Company pursuant to
this Section 2.4B(iii)(b) (any such prepayment, until the time
actually made, being “Postponed Prepayments”) until such time as the
aggregate amount of Postponed Prepayments equals $10,000,000.


 


57

















 


(c)                                  Prepayments
from Consolidated Excess Cash Flow.  In the event that there shall be Consolidated
Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31,
2010), Company shall, no later than the date on which Company has delivered or
is required to deliver audited financial statements with respect to such Fiscal
Year pursuant to Section 6.1(ii), prepay its outstanding Term Loans in an
aggregate amount equal to (I) 50% of such Consolidated Excess Cash Flow; provided
that (x) if the Consolidated Leverage Ratio shall be less than 3.25:1.00
but equal to or greater than 2.75:1.00 as of the last day of any such Fiscal
Year, then the percentage referred to above shall be reduced to 25% and (y) if
the Consolidated Leverage Ratio shall be less than 2.75:1.00 as of the last day
of any such Fiscal Year, then the percentage referred to above shall be reduced
to 0%; minus (II) voluntary prepayments of Term Loans made during such
Fiscal Year or in the subsequent Fiscal Year prior to the date of any required
prepayment pursuant to this Section 2.4B(iii)(c), provided that if
an amount is deducted pursuant to this clause (II) in any Fiscal Year
the same amount may not be deducted in the subsequent Fiscal Year.  The portion of Consolidated Excess Cash Flow
in respect of any Fiscal Year not required to be applied to prepay the Term
Loans pursuant to this Section 2.4B(iii)(c) minus any amount deducted
pursuant to clause (II) above, shall be deemed to be “Retained
Excess Cash Flow”.


 


(d)                                 Prepayments
from Incurrences of Indebtedness.  In addition to any other mandatory repayments or commitment reductions
pursuant to this Section 2.4, on each date after the Closing Date upon
which Company or any of its Subsidiaries receives any cash proceeds from any
issuance or incurrence by Company or any of its Subsidiaries of Indebtedness
(other than Indebtedness permitted to be incurred pursuant to Section 7.1
as in effect on the Closing Date), an amount equal to 100% of the Net Cash
Proceeds of the respective incurrence of Indebtedness shall be applied on such
date as a mandatory repayment in accordance with the requirements of this Section 2.4B(iii).


 


(e)                                  Prepayments from
Recovery Events.  In addition
to any other mandatory repayments or commitment reductions pursuant to this Section 2.4,
on each date on or after the Closing Date upon which Company or any of its
Subsidiaries (other than any Designated Non-Wholly-Owned Subsidiaries) receives
any cash proceeds from any Recovery Event (other than Recovery Events where the
Net Cash Proceeds therefrom do not exceed $2,500,000), an amount equal to 100%
of the Net Cash Proceeds from such Recovery Event shall be applied on such date
as a mandatory repayment in accordance with the requirements of Section 2.4B(iv);
provided, however, that such Net Cash Proceeds shall not be
required to be so applied on such date so long as Company has delivered a
certificate to Administrative Agent on such date stating that such Net Cash
Proceeds shall be used to replace or restore any properties or assets in
respect of which such Net Cash Proceeds were paid within one year following the
date of the receipt of such Net Cash Proceeds (which certificate shall set
forth the estimates of the Net Cash Proceeds to be so expended), and provided,
further, that if all or any portion of such Net Cash Proceeds not
required to be so applied pursuant to the preceding proviso are not so used
within one year after the date of the receipt of such Net Cash Proceeds (or
such earlier date, if any, as Company or the relevant Subsidiary determines not
to reinvest the Net Cash Proceeds relating to such Recovery Event as set forth
above), such remaining portion shall be applied on the last day of such period
(or such earlier date, as the case may be) as provided above in this Section 2.4B(iii)(e) without
regard to the immediately preceding proviso.


 


58

















 


(f)                                    Mandatory
Prepayments Relating to Revolving Loan Commitments.  On any day on which the Total Utilization of
Revolving Loan Commitments exceeds the Revolving Loan Commitments then in
effect (whether as a result of a reduction of Revolving Loan Commitments, a
change in the applicable Exchange Rates pursuant to Section 1.4 or
otherwise), Company shall prepay on such day the principal of Swing Line Loans
and, after all Swing Line Loans have been repaid in full or if no Swing Line
Loans are outstanding, Revolving Loans in an amount equal to such excess.  If, after giving effect to the prepayment of
all outstanding Swing Line Loans and Revolving Loans, the aggregate amount of
the Letter of Credit Usage exceeds the Revolving Loan Commitments at such time,
Company shall pay to Administrative Agent at the Payment Office on such day an
amount of cash and/or Cash Equivalents equal to the amount of such excess (up
to a maximum amount equal to the Letter of Credit Usage at such time), such
cash and/or Cash Equivalents to be held as security for all Obligations of
Company to the Issuing Lenders and the Lenders hereunder in a cash collateral
account to be established by Administrative Agent.


 


(iv)                              Application of
Prepayments.


 


(a)                                  Application of
Voluntary Prepayments by Tranche of Loans and Order of Maturity.  Any voluntary prepayments pursuant to Section 2.4B(i) shall
be applied as specified by Company in the applicable notice of prepayment; provided
that in the event Company fails to specify the Loans of Company to which any
such prepayment shall be applied, such prepayment shall be applied first
to repay outstanding Swing Line Loans to the full extent thereof, second
to repay outstanding Revolving Loans to the full extent thereof, and third
to repay outstanding Term Loans, with such amount to be allocated (other than
in the case of and as provided in Section 2.4B(v)) among each of the
outstanding Tranches of Term Loans on a Pro Rata Basis
(based upon the Pro Rata Share of the then outstanding
principal amounts of the respective Tranches of Term Loans) to the full extent
thereof.  Any voluntary prepayment of any
Tranche of Term Loans pursuant to Section 2.4B(i) shall be applied to
prepay the Term Loans in the manner specified by Company and to reduce the
relevant Scheduled Repayments of principal of such Tranche of Term Loans set
forth in Section 2.4A(i) or 2.4A(ii), as applicable, in such order as
Company shall direct.


 


(b)                                 Application of
Mandatory Prepayments of Term Loans and the Scheduled Repayments of Principal
Thereof.  Any mandatory prepayments of
Term Loans pursuant to Section 2.4B(iii) shall be applied to prepay
the Term Loans on a pro  rata basis (in accordance with the
respective outstanding principal amounts thereof) and to reduce the relevant
Scheduled Repayments of such Tranche of the Term Loans as set forth in Section 2.4A(i) or
2.4A(ii), as applicable, on a pro  rata basis (based upon the then
remaining principal amount of each such Scheduled Repayment of the respective
Tranche after giving effect to all prior reductions thereto).


 


59

















 


(c)                                  Waiver of
Certain Mandatory Prepayments.  Anything contained herein to the contrary
notwithstanding, in the event Company is required to make any mandatory
prepayment (a “Waivable Mandatory Prepayment”) of the Term Loans
pursuant to Section 2.4B(iii)(b) through (e), (V) Company may,
by written or telephonic notice (promptly confirmed in writing) given to
Administrative Agent not less than three Business Days prior to the date (the “Required
Prepayment Date”) on which Company is required to make such Waivable
Mandatory Prepayment, elect to offer each Lender holding an outstanding Term
Loan the option to refuse such Lender’s Pro  Rata Share of such
Waivable Mandatory Prepayment, (W) in the event Company gives such notice
to Administrative Agent, Administrative Agent will promptly notify each such
Lender of the amount of such Lender’s Pro  Rata Share of such
Waivable Mandatory Prepayment and such Lender’s option to refuse such amount, (X) each
such Lender may exercise such option by giving written notice to Company and
Administrative Agent of its election to do so on or before the first Business
Day (the “Cutoff Date”) prior to the Required Prepayment Date, (Y) on
the Required Prepayment Date, Company shall pay to Administrative Agent an
amount equal to that portion of the Waivable Mandatory Prepayment payable to
those Lenders that have elected not to exercise such option (it being
understood that any Lender which does not notify Company and Administrative
Agent of its election to exercise such option on or before the Cutoff Date
shall be deemed to have elected, as of the Cutoff Date, not to exercise such
option), which amount shall be applied to prepay the Term Loans of such Lenders
in accordance with Section 2.4B(iv)(b), and (Z) Company shall be
entitled to retain that portion of the Waivable Mandatory Prepayment otherwise
payable to those Lenders that have elected to exercise such option (such amount
being a “Retained Prepayment”) to be used for general corporate
purposes.


 


(d)                                 Application of
Prepayments of Loans to Base Rate Loans and LIBOR Loans; Option to Defer
Certain Mandatory Prepayments of LIBOR Loans.  Considering Initial Term Loans, Revolving
Loans and Incremental Term Loans being prepaid separately, any prepayment
thereof shall be applied first to Base Rate Loans to the full extent thereof
before application to LIBOR Loans, in each case in a manner which minimizes the
amount of any payments required to be made by Company pursuant to Section 2.6D;
provided that anything contained in this Agreement to the contrary
notwithstanding, in the event that (1) the application of any mandatory
prepayment pursuant to Section 2.4B(iii) in accordance with the
foregoing provisions of this Section 2.4B(iv) would result in the
prepayment of all or any portion of a LIBOR Loan prior to the end of the
Interest Period applicable thereto, and (2) no Potential Event of Default
or Event of Default shall have occurred and be continuing, Company shall have
the option to, by giving written notice (or telephonic notice promptly
confirmed in writing) to Administrative Agent of its election to do so on or
before the first Business Day prior to the date on which such prepayment would
otherwise be required to be made, (x) if the remaining term of such
Interest Period is less than three months, defer the making of such prepayment
until the last day of such Interest Period or such earlier date as Company may
specify in such notice or (y) deposit the amount of such prepayment
otherwise required to be made hereunder into the Collateral Account until the
last day of such Interest Period at which time Administrative Agent shall,
subject to the provisions of Section 2.4B(iv)(c), be authorized (without
any further action by or notice to or from Company) to apply such amount to the
prepayment of the Loans in accordance with Section 2.4B(iii).


 


60

















 


(v)                                 Additional
Revolving Loan Commitment Reductions/Prepayments of Loans.  In the event of certain refusals by a Lender
to consent to certain proposed changes, waivers, discharges or terminations
with respect to this Agreement which have been approved by the Requisite
Lenders as (and to the extent) provided in Section 10.6B, Company shall
have the right, subject to obtaining the consents required by Section 10.6B,
upon five Business Days’ prior written notice to Administrative Agent at the
Notice Office (which notice Administrative Agent shall promptly transmit to
each of the Lenders), to (x) terminate the entire Revolving Loan
Commitment of such Lender, so long as all Loans, together with accrued and
unpaid interest, Fees and all other amounts, owing to such Lender (including
all amounts, if any, owing pursuant to Section 2.6D and Section 2.7
but excluding amounts owing in respect of any Tranche of Term Loans maintained
by such Lender, if such Tranche of Term Loans are not being repaid pursuant to Section 10.6B)
are repaid concurrently with the effectiveness of such termination (at which
time Schedule 2.1 shall be deemed modified to reflect such changed
amounts) and such Lender’s Pro  Rata Share of all outstanding
Letters of Credit is cash collateralized in a manner satisfactory to
Administrative Agent and the respective Issuing Lenders, and at such time,
unless the respective Lender continues to have outstanding Term Loans
hereunder, such Lender shall no longer constitute a “Lender” for purposes of
this Agreement, except with respect to indemnifications under this Agreement
(including, without limitation, Sections 2.6, 2.7, 3.5C, 3.6, 9.6, 10.2 and
10.5), which shall survive as to such repaid Lender and/or (y) repay all
Loans of such Lender (including all amounts, if any, owing pursuant to Section 2.6D
and Section 2.7), together with accrued and unpaid interest, Fees and all
other amounts then owing to such Lender (or owing to such Lender with respect
to each Loan which gave rise to the need to obtain such Lender’s individual
consent) in accordance with, and subject to the requirements of, said Section 10.6B,
so long as (A) in the case of the repayment of Revolving Loans of any
Lender pursuant to this clause (y), (i) the Revolving Loan Commitment of
such Lender is terminated concurrently with such repayment pursuant to clause (x) above
(at which time Schedule 2.1 shall be deemed modified to reflect the
changed Revolving Loan Commitments) and (ii) such Lender’s Pro  Rata
Share of all outstanding Letters of Credit is cash collateralized in a manner
satisfactory to Administrative Agent and the respective Issuing Lenders and (B) the
consents, if any, required by Section 10.6B in connection with the
repayment pursuant to this clause (y) shall have been obtained; provided
that each prepayment of any Tranche of Term Loans pursuant to this clause (y) shall
reduce the then remaining Scheduled Repayments of the respective Tranche of
Term Loans on a pro  rata basis (based upon the then remaining
principal amount of each such Scheduled Repayment of the respective Tranche
after giving effect to all prior reductions thereto).


 


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C.                                     General
Provisions Regarding Payments.


 


(i)                                     Manner and Time
of Payment.  All
payments by Company of principal, interest, Fees and other Obligations
hereunder and under the Notes shall be made in Dollars in same day funds
without defense, setoff or counterclaim, free of any restriction or condition,
and delivered to Administrative Agent not later than 3:00 P.M. (New York
City time) on the date due at the Funding and Payment Office for the account of
Lenders; funds received by Administrative Agent after that time on such due
date shall be deemed to have been paid by Company on the next succeeding
Business Day.


 


(ii)                                  Application of
Payments to Principal and Interest.  Except as provided in Section 2.2C, all
payments in respect of the principal amount of any Loan shall include payment
of accrued interest on the principal amount being repaid or prepaid, and all
such payments (and, in any event, any payments in respect of any Loan on a date
when interest is due and payable with respect to such Loan) shall be applied to
the payment of interest before application to principal.


 


(iii)                               Apportionment
of Payments.  Aggregate
principal and interest payments in respect of Initial Term Loans, Revolving
Loans and Incremental Term Loans shall be apportioned among all outstanding
Loans to which such payments relate, in each case proportionately to Lenders’
respective Pro  Rata Shares. 
Administrative Agent shall promptly distribute to each Lender, at its
applicable Lending Office or at such other address as such Lender may request,
its Pro  Rata Share of all such payments received by
Administrative Agent and the Commitment Fees of such Lender when received by
Administrative Agent pursuant to Section 2.3.  Notwithstanding the foregoing provisions of
this Section 2.4C(iii), if, pursuant to the provisions of Section 2.6B,
any Notice of Conversion/Continuation is withdrawn as to any Affected Lender or
if any Affected Lender makes Base Rate Loans in lieu of its Pro  Rata
Share of any LIBOR Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.


 


(iv)                              Payments on
Business Days.  Whenever
any payment to be made hereunder shall be stated to be due on a day that is not
a Business Day, such payment shall be made on the next succeeding Business Day
and such extension of time shall be included in the computation of the payment
of interest hereunder or of the Commitment Fees hereunder, as the case may be.


 


D.                                    Application of
Proceeds of Collateral and Payments Under the Guaranties.


 


(i)                                     Application of
Proceeds of Collateral.  All
proceeds received by Administrative Agent in respect of any sale of, collection
from, or other realization upon all or any part of the Collateral under any
Collateral Document may, in the discretion of Administrative Agent, be held by
Administrative Agent as Collateral for, and/or (then or at any time thereafter)
applied in full or in part by Administrative Agent against, the applicable
Secured Obligations (as defined in such Collateral Document) in the following
order of priority:


 


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(a)                                  To the payment
of all costs and expenses of such sale, collection or other realization,
including reasonable compensation to Administrative Agent and its agents and
counsel, and all other expenses, liabilities and advances made or incurred by
Administrative Agent in connection therewith, and all amounts for which
Administrative Agent is entitled to indemnification under such Collateral
Document and all advances made by Administrative Agent thereunder for the
account of the applicable Loan Party, and to the payment of all costs and
expenses paid or incurred by Administrative Agent in connection with the
exercise of any right or remedy under such Collateral Document, all in
accordance with the terms of this Agreement and such Collateral Document;


 


(b)                                 thereafter, to
the extent of any excess such proceeds, to the payment of all other such
Secured Obligations for the ratable benefit of the holders thereof; and


 


(c)                                  thereafter, to
the extent of any excess such proceeds, to the payment to or upon the order of
such Loan Party or to whosoever may be lawfully entitled to receive the same or
as a court of competent jurisdiction may direct.


 


(ii)                                  Application of
Payments Under the Guaranties.  All payments received by Administrative Agent
under the Guaranties shall be applied promptly from time to time by
Administrative Agent in the following order of priority:


 


(a)                                  To the payment
of the costs and expenses of any collection or other realization under the
Guaranties, including reasonable compensation to Administrative Agent and its
agents and counsel, and all expenses, liabilities and advances made or incurred
by Administrative Agent in connection therewith, all in accordance with the
terms of this Agreement and such Guaranty;


 


(b)                                 thereafter, to
the extent of any excess such payments, to the payment of all other Guarantied
Obligations (as defined in such Guaranty) for the ratable benefit of the
holders thereof; and


 


(c)                                  thereafter, to
the extent of any excess such payments, to the payment to the applicable
Guarantor or to whosoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct.


 


2.5                                 Use of Proceeds.


 


A.                                   Initial Term
Loans.  The proceeds of the Initial
Term Loans, together with the proceeds of the New Senior Notes and the cash on
hand of Company, shall be applied by Company to fund the Closing Date
Refinancing Requirements.


 


B.                                     Revolving
Loans; Swing Line Loans.  The
proceeds of the Revolving Loans and any Swing Line Loans shall be applied by
Company for the working capital requirements and general corporate purposes of
Company and its Subsidiaries.


 


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C.                                     Incremental
Term Loans.  The proceeds of
Incremental Term Loans shall be utilized for general corporate purposes of
Company and its Subsidiaries.


 


2.6                                 Special Provisions Governing LIBOR Loans. 
Notwithstanding any other provision of this Agreement to the contrary,
the following provisions shall govern with respect to LIBOR Loans as to the
matters covered:


 


A.                                   Determination
of Applicable Interest Rate.  As soon as practicable after 10:00 A.M.
(New York City time) on each Interest Rate Determination Date, Administrative
Agent shall determine (which determination shall, absent clearly demonstrable
error, be final, conclusive and binding upon all parties) the interest rate
that shall apply to LIBOR Loans for which an interest rate is then being
determined for the applicable Interest Period and shall promptly give notice
thereof (in writing or by telephone confirmed in writing) to Company and each
Lender.


 


B.                                     Inability to
Determine Applicable Interest Rate, Illegality, etc.  In the event that any Lender shall have
determined (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto but, with respect to clause (i) below,
may be made only by Administrative Agent):


 


(i)                                     on any Interest Rate
Determination Date that, by reason of any changes arising after the date of
this Agreement 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 LIBOR; 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 LIBOR Loan because of (x) any change since
the Closing Date in any applicable law or governmental rule, regulation, order,
guideline or request (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction of any
new law or governmental rule, regulation, order, guideline or request, such as,
but not limited to a change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D to the extent included
in the computation of LIBOR and/or (y) other circumstances arising since
the Closing Date affecting such Lender, the interbank Eurodollar market or the
position of such Lender in such market (including that LIBOR with respect to
such LIBOR Loan does not adequately and fairly reflect the cost to such Lender
of funding such LIBOR Loan), excluding in the case of both (x) and (y),
any such change in or new law or governmental rule, regulation, order,
guideline or request or any circumstances relating to Taxes); or


 


(iii)                               at any time, that the making
or continuance of any LIBOR Loan has been made (x) unlawful by any law or
governmental rule, regulation or order, (y) impossible by compliance by
any Lender in good faith with any governmental request (whether or not having
force of law) or (z) impracticable as a result of a contingency occurring
after the Closing Date which materially and adversely affects the interbank
Eurodollar market;


 


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then, and in any such event, such Lender (the
“Affected Lender”) (or Administrative Agent, in the case of clause (i) above)
shall promptly give notice (by telephone promptly confirmed in writing) to
Company and, except in the case of clause (i) above, to Administrative
Agent of such determination (which notice Administrative Agent shall promptly
transmit to each of the other Lenders). 
Thereafter (x) in the case of clause (i) above, LIBOR Loans
shall no longer be available until such time as Administrative Agent notifies
Company and the Lenders that the circumstances giving rise to such notice by
Administrative Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion/Continuation given by Company with respect to LIBOR Loans which have
not yet been incurred (including by way of conversion) shall be deemed
rescinded by Company, (y) in the case of clause (ii) above, Company
agrees to pay to such Affected Lender, upon such Affected Lender’s written
request therefor, such additional amounts (in the form of an increased rate of,
or a different method of calculating, interest or otherwise as such Affected
Lender in its sole discretion shall determine) as shall be required to
compensate such Affected Lender for such increased costs or reductions in amounts
received or receivable hereunder (a written notice as to the additional amounts
owed to such Affected Lender, showing in reasonable detail the basis for the
calculation thereof, submitted to Company by such Affected Lender shall, absent
manifest error, be final and conclusive and binding on all the parties hereto)
and (z) in the case of clause (ii) above, Company shall take one of
the actions specified in Section 2.6C as promptly as possible and, in any
event, within the time period required by law.


 


C.                                     Termination/Conversion
of Affected LIBOR Loans.  At
any time that any LIBOR Loan is affected by the circumstances described in Section 2.6B(ii),
Company may, and in the case of a LIBOR Loan affected by the circumstances
described in Section 2.6B(iii), Company shall, either (x) if the
affected LIBOR Loan is then being made initially or pursuant to a borrowing,
cancel such borrowing by giving Administrative Agent telephonic notice
(confirmed in writing) on the same date that Company was notified by the Affected
Lender or Administrative Agent pursuant to Section 2.6B(ii) or (iii) or
(y) if the affected LIBOR Loan is then outstanding, upon at least three
Business Days’ written notice to Administrative Agent, require the Affected
Lender to convert such LIBOR Loan into a Base Rate Loan, provided that
if more than one Lender is affected at any time, then all Affected Lenders must
be treated the same pursuant to this Section 2.6C.


 


D.                                    Compensation
For Breakage or Non-Commencement of Interest Periods.  Company agrees to compensate each Lender,
upon its written request (which request shall set forth in reasonable detail
the basis for requesting such compensation), for all reasonable losses,
expenses and liabilities (including, without limitation, any loss, expense or
liability incurred by reason of the liquidation or reemployment of deposits or
other funds required by such Lender to fund its LIBOR Loans but excluding loss
of anticipated profits) which such Lender may sustain:  (i) if for any reason (other than a default
by such Lender or Administrative Agent) a borrowing of, or conversion from or
into, LIBOR Loans does not occur on a date specified therefor in a Notice of
Borrowing or Notice of Conversion/Continuation (whether or not withdrawn by
Company or deemed withdrawn pursuant to Section 2.6B); (ii) if any
prepayment or repayment (including any prepayment or repayment made pursuant to
Section 2.4B(i) or as a result of an acceleration of the Loans
pursuant to Section 8) or conversion of any of its LIBOR Loans under Section 2.2D
occurs on a date which is not the last day of an Interest Period with respect
thereto; (iii) if any prepayment of any of its LIBOR Loans is not made on
any date specified in a notice of prepayment given by Company; or (iv) as
a consequence of (x) any other default by Company to repay LIBOR Loans
when required by the terms of this Agreement or any Note held by such Lender or
(y) any election made pursuant to Section 2.6C.


 


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E.                                      Booking of LIBOR
Loans.  Any Lender may make, carry or
transfer LIBOR Loans at, to, or for the account of any of its branch offices or
the office of an Affiliate of that Lender.


 


F.                                      LIBOR Loans
After Default.  If, after
the occurrence of and during the continuation of a Potential Event of Default
or an Event of Default, Administrative Agent or Requisite Lenders have
determined in its or their sole discretion not to permit the making or
continuation of any Loans as, or the conversion of any Loans to, LIBOR Loans
and Administrative Agent has so notified Company in writing (i) Company
may not elect to have any Loans be made as or converted to LIBOR Loans or elect
to have any outstanding LIBOR Loans continued as such after the expiration of
the Interest Periods then in effect for such LIBOR Loans, and (ii) subject
to the provisions of Section 2.6D, any Notice of Borrowing or Notice of
Conversion/Continuation given by Company with respect to a requested borrowing
or conversion/continuation in respect of LIBOR Loans that has not yet occurred
shall be deemed to be rescinded by Company.


 


2.7                               Increased Costs; Capital Adequacy.


 


A.                                   Compensation
for Increased Costs.  In the
event that any Lender shall reasonably determine (which determination shall,
absent clearly demonstrable error, be final and conclusive and binding upon all
parties hereto) that the introduction or adoption (after the date hereof) of
any law, treaty or governmental rule, regulation or order, or that any change
(after the date hereof) in any law, treaty or governmental rule, regulation or
order or in the interpretation, administration or application thereof, or that
any determination (after the date hereof) by a court or governmental authority,
or that compliance by such Lender with any guideline, request or directive
issued or made (after the date hereof) by any central bank or other
governmental or quasi-governmental authority (whether or not having the force
of law), in any such case:


 


(i)                                     imposes,
modifies or holds applicable any reserve (including any marginal, emergency,
supplemental, special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits or other
liabilities in or for the account of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of such Lender;
or


 


(ii)                                  imposes any
other condition (other than with respect to Taxes) on or affecting such Lender
(or its applicable Lending Office) or its obligations hereunder or the London
interbank market for Dollars;


 


and the result of any of the foregoing is to increase
the cost to such Lender of agreeing to make, making or maintaining Loans
hereunder or to reduce any amount received or receivable by such Lender (or its
applicable Lending Office) with respect thereto; then, in any such case,
Company shall pay to such Lender, promptly after receipt of the statement
referred to in the next sentence, such additional amount or 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 may
be necessary to compensate such Lender for any such increased cost or
reduction.  Such Lender shall deliver to
Company (with a copy to Administrative Agent) a written statement, setting
forth in reasonable detail the basis for calculating the additional amounts
owed to such Lender under this Section 2.7A, which statement shall be
conclusive and binding upon all parties hereto absent clearly demonstrable
error.


 


66

















 


B.                                     Withholding of Taxes.


 


(i)                                     Payments to Be
Free and Clear.  All sums
payable by Company under this Agreement and the other Loan Documents shall,
except to the extent required by law (including, for the avoidance of doubt,
any regulation, rule, treaty or other governmental requirement), be paid free
and clear of, and without any deduction or withholding on account of, any Tax.


 


(ii)                                  Payments
Subject to Taxes.  If Company
(or any other Person making a payment on behalf of Company) is required by law
to make any deduction or withholding on account of any Tax from any sum paid or
payable by Company to Administrative Agent or any Lender under any of the Loan
Documents:


 


(a)                                  Company shall
pay the amount of such Tax to the appropriate taxing or other authority;


 


(b)                                 to the extent
such Tax is a Non-Excluded Tax (as defined below), Company shall pay additional
amounts to Administrative Agent or such Lender so that, after the making of
such deduction or withholding, Administrative Agent or such Lender, as the case
may be, receives on the due date a net sum equal to what it would have received
had no such deduction or withholding been made;


 


(c)                                  to the extent
such Tax is a Non-Excluded Tax, Company shall indemnify each Lender against the
amount of any such Tax levied or imposed on and paid by such Lender; and


 


(d)                                 within 30 days
or as promptly as practicable after payment of any Excluded Tax pursuant to
clause (a) above, Company shall deliver to Administrative Agent a receipt
from the relevant taxing or other authority.


 


“Non-Excluded Tax” shall mean any Tax imposed
with respect to (i) the execution of this Agreement or (ii) on
payments by Company to Administrative Agent or a Lender other than (1) any
Tax imposed on or measured by the net income of Administrative Agent or a
Lender (including branch profits taxes) pursuant to the laws of the
jurisdiction in which it is organized, the jurisdiction in which the principal
office or applicable Lending Office of such Administrative Agent or Lender is
located or any subdivision thereof or therein; (2) any Tax imposed on
Administrative Agent or a Lender (A) as a result of a present connection
between the jurisdiction  imposing such Taxes and Administrative Agent or
such Lender or (B) by a jurisdiction which that Person (and/or, in the
case of a Lender, its applicable Lending Office) is deemed to be doing business
(with respect to (A) and (B), except as a result of a present connection
arising from Administrative Agent or such Lender having executed, delivered or
performed its obligations or 


 


67

















 


received a payment under, or enforced any Loan
Documents); and (3) (A) any U.S. federal withholding Tax that is in
effect and would apply to amounts payable hereunder at such time Lender or
Administrative Agent becomes a party to this Agreement; (B) any Tax
imposed solely by reason of any change in circumstances with respect to such
Administrative Agent or Lender that was not requested by Company (or Person
making payment on behalf of Company); or (C) any Tax imposed due to the
failure to comply with Section 2.7B(iii); provided, however, that a
Tax shall be a Non-Excluded Tax to the extent it arises as a result of any
change in applicable law, treaty, governmental rule, regulation, guideline or
order, or in the interpretation thereof, relating to such Tax occurring after
such Administrative Agent or Lender becomes a party to this Agreement.


 


(e)                                  If Company pays
any indemnity or additional amount under this Section 2.7B(ii) to
Administrative Agent or Lender and such Administrative Agent or Lender
determines in its sole discretion that it has actually received or realized in
connection therewith any refund of Non-Excluded Taxes for which it was indemnified
or received additional amounts, such Administrative Agent or Lender shall pay
to Company the amounts of such refund; provided, however, that (i) the
Administrative Agent or Lender may determine, in its sole discretion consistent
with the policies of such Administrative Agent or Lender, whether to seek such
refund; (ii) to the extent that any Taxes are imposed on Administrative
Agent or Lender as a result of a disallowance or reduction of such refund, such
Taxes shall be treated as a Tax for which Company is obligated to indemnify
such Administrative Agent or Lender pursuant to this Section 2.7B(ii); and
(iii) nothing in this Section 2.7B(ii) shall require
Administrative Agent or Lender to disclose any confidential information to
Company (including, without limitation, its tax returns).


 


(iii)                             Evidence of Exemption from Withholding
Tax.


 


(a)                                  Each Lender
that is organized under the laws of any jurisdiction other than the United
States or any state or other political subdivision thereof (for purposes of
this Section 2.7B(iii), a “Non-US Lender”), to the extent that it
is legally entitled and eligible to do so, shall deliver to Administrative
Agent for transmission to Company, on or prior to the Closing Date (in the case
of each Lender listed on the signature pages hereof), or on or prior to
the date on which it becomes a Lender (in the case of any other Lender), and at
such other times as may be reasonably requested by Company or Administrative
Agent, (1) two original copies of Internal Revenue Service Form W-8IMY,
W-8ECI or W-8BEN (or any successor forms), properly completed and duly executed
by such Lender, together with any other certificate or statement of exemption
required under the Internal Revenue Code or the regulations issued thereunder
(or the rules and regulations relating to any tax imposed by the relevant
subdivision of the United States) to establish that such Lender is not subject
to deduction (or is subject to a reduction in) or withholding of Tax with
respect to any payments to such Lender of amounts payable under any of the Loan
Documents or (2) if such Lender is not a “bank” or other Person described
in Section 881(c)(3) of the Internal Revenue Code and cannot deliver
either Internal Revenue Service Form W-8IMY, W-8ECI or W-8BEN pursuant to
clause (1) above, a Certificate re Non-Bank Status together with two
original copies of Internal Revenue Service Form W-8 (or any successor
form), properly completed and duly 


 


68

















 


executed by such Lender, together with any
other certificate or statement of exemption required under the Internal Revenue
Code or the regulations issued thereunder (or the rules and regulations
relating to any tax imposed by the relevant subdivision of the United States)
to establish that such Lender is not subject to deduction (or is subject to a
reduction in) or withholding of Tax with respect to any payments to such Lender
of interest payable under any of the Loan Documents.


 


(b)                                 Each Lender
required to deliver any forms, certificates or other evidence pursuant to Section 2.7B(iii)(a) hereby
agrees, from time to time after the initial delivery by such Lender of such
forms, certificates or other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or other evidence obsolete or
inaccurate in any material respect, that such Lender shall promptly (1) deliver
to Administrative Agent for transmission to Company two new original copies of
Internal Revenue Service Form W-8IMY, W-8ECI or W-8BEN, or a Certificate
re Non-Bank Status and two original copies of Internal Revenue Service Form W-8,
as the case may be, properly completed and duly executed by such Lender,
together with any other certificate or statement of exemption required in order
to confirm or establish that such Lender is entitled to a continued exemption
from or reduction in withholding of Tax with respect to payments to such Lender
under the Loan Documents or (2) notify Administrative Agent and Company of
its inability to deliver any such forms, certificates or other evidence.


 


(c)                                  To the extent
payment is made or to be made by or on behalf of Company from any non-U.S.
jurisdiction, each Lender that is organized outside such jurisdiction agrees to
use reasonable efforts (consistent with legal and regulatory restrictions and
reasonable overall policy considerations of the Lenders) to provide Company or
Administrative Agent with such forms, certificates or other evidence as may be
reasonably requested by the Company to establish the entitlement of such Lender
to any reduction in or exemption from any Tax that may be applicable to such
payments.


 


C.                                     Capital
Adequacy Adjustment.  If any
Lender determines that after the Closing Date the introduction of or any change
in any applicable law or governmental rule, regulation, order, guideline,
directive or request (whether or not having the force of law) concerning
capital adequacy, or any change in interpretation or administration thereof by
the NAIC or any governmental authority, central bank or comparable agency, will
have the effect of increasing the amount of capital required or expected to be
maintained by such Lender (or its applicable Lending Office) or any corporation
controlling such Lender based on the existence of such Lender’s Loans or
Commitments or Letters of Credit or participations therein or other obligations
hereunder, then Company agrees to pay to such Lender, upon its written demand
therefor, such additional amounts as shall be required to compensate such
Lender or such other corporation for the increased cost to such Lender or such
other corporation or the reduction in the rate of return to such Lender or such
other corporation as a result of such increase of capital.  In determining such additional amounts, each
Lender will act reasonably and in good faith and will use averaging and
attribution methods which are reasonable, provided that such Lender’s
determination of compensation owing under this Section 2.7C shall, absent
manifest error, be final and conclusive and binding on all the parties
hereto.  Each Lender, upon determining
that any additional amounts will be payable pursuant to this Section 2.7C,
will give prompt written notice thereof to Company, which notice shall show in
reasonable detail the basis for calculation of such additional amounts.


 


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2.8                                 Notice of Certain Costs; Obligation of
Lenders and Issuing Lenders to Mitigate.  A.
Notwithstanding anything in this Agreement to the contrary, to the extent Section 2.6,
2.7 or 3.6 requires any Lender or Issuing Lender to give notice to Company of
an event or a condition that would entitle such Lender or Issuing Lender to
receive payments under Section 2.6, 2.7 or 3.6, as the case may be, in the
event such notice is given by such Lender or Issuing Lender more than 180 days
after such Lender or Issuing Lender has knowledge of the occurrence or
existence of such event or circumstance, such Lender or Issuing Lender shall
not be entitled to receive any such payments under Section 2.6, 2.7 or
3.6, as the case may be, in respect of the period ending on the Business Day
immediately preceding the date on which such notice is given to Company.


 


B.                                     Each Lender and
Issuing Lender agrees that, if an event occurs or a condition arises that would
cause such Lender to become an Affected Lender or that would entitle such
Lender or Issuing Lender to receive payments under Section 2.7 or Section 3.6,
it will, if so requested by Company, use reasonable efforts (subject to overall
policy considerations of such Lender) to make, issue, fund or maintain the
Commitments of such Lender or the affected Loans or Letters of Credit (or
participations therein) of such Lender or Issuing Lender through another
lending or letter of credit office of such Lender or Issuing Lender, if as a
result thereof the circumstances which would cause such Lender to be an
Affected Lender would cease to exist or the additional amounts which would
otherwise be required to be paid to such Lender or Issuing Lender pursuant to Section 2.7
or Section 3.6 would be materially reduced and if the making, issuing,
funding or maintaining of such Commitments or Loans or Letters of Credit (or
participations therein) through such other lending or letter of credit office
would not otherwise materially adversely affect such Commitments or Loans or
Letters of Credit (or participations therein) or cause such Lender or Issuing
Lender to suffer any economic, legal or regulatory disadvantage, each as
determined in the Lender’s sole discretion; provided that nothing in
this Section 2.8 shall affect or postpone any of the Obligations of
Company or the rights of any Lender provided in Section 2.6C, 2.6F, 2.7 or
3.6.


 


2.9                                 Defaulting Lenders. 
Anything contained herein to the contrary notwithstanding, in the event
that any Lender (a “Defaulting Lender”) (A) defaults in (for a
period of three Business Days or more), or notifies Administrative Agent, the
Swing Line Lender, any Issuing Lender and/or any Loan Party that it does not
intend to comply with (in circumstances where such non-compliance would
constitute a breach of, and excluding a good faith dispute with respect to),
its obligation to fund (1) any Revolving Loan, including (without
limitation) any Refunded Swing Line Loan (a “Defaulted Revolving Loan”),
in accordance with Section 2.1, or (2) its portion of any
unreimbursed payment with respect to a Letter of Credit pursuant to Section 3.4C
or 3.5, or (B) becomes the subject of a bankruptcy or insolvency
proceeding or a takeover by a regulatory authority (the events described in
preceding clauses (A) and (B), a “Funding Default”), then (i) during
any Default Period (as defined below) with respect to such Defaulting Lender,
such Defaulting Lender shall be deemed not to be a “Lender” for purposes of
voting on any matters (including the granting of any consents or waivers) with
respect to any of the Loan Documents (other than for purposes of voting on
matters of the type described in clause (i) of the first proviso to Section 10.6A),
(ii) to the extent permitted by 


 


70

















 


applicable law, until
such time as the Default Excess (as defined below) with respect to such
Defaulting Lender shall have been reduced to zero, (a) any voluntary
prepayment of the Revolving Loans pursuant to Section 2.4B(i) shall,
if Company so directs at the time of making such voluntary prepayment, be
applied to the Revolving Loans of other Lenders as if such Defaulting Lender
had no Revolving Loans outstanding and the Revolving Loan Exposure of such
Defaulting Lender were zero, and (b) any mandatory prepayment of the
Revolving Loans pursuant to Section 2.4B(iii) shall, if Company so
directs at the time of making such mandatory prepayment, be applied to the
Revolving Loans of other Lenders (but not to the Revolving Loans of such
Defaulting Lender) as if such Defaulting Lender had funded all Defaulted
Revolving Loans of such Defaulting Lender, it being understood and agreed that
Company shall be entitled to retain any portion of any mandatory prepayment of
the Revolving Loans that is not paid to such Defaulting Lender solely as a
result of the operation of the provisions of this clause (b), (iii) such
Defaulting Lender’s Revolving Loan Commitment and outstanding Revolving Loans
and such Defaulting Lender’s Pro  Rata Share of the Letter of
Credit Usage shall be excluded for purposes of calculating the Commitment Fee
payable to Lenders pursuant to Section 2.3A in respect of any day during
any Default Period with respect to such Defaulting Lender, and such Defaulting
Lender shall not be entitled to receive any Commitment Fee pursuant to Section 2.3A
with respect to such Defaulting Lender’s Revolving Loan Commitment in respect
of any Default Period with respect to such Defaulting Lender, and (iv) the
Total Utilization of Revolving Loan Commitments as at any date of determination
shall be calculated as if such Defaulting Lender had funded all Defaulted
Revolving Loans of such Defaulting Lender; provided that, for purposes
of (and only for purposes of) the last paragraph of Section 2.1A(iii) and
Section 3.3B and any documentation entered into pursuant to the Back-Stop
Arrangements (and the term “Defaulting Lender” as used therein), the term “Funding
Default” shall also include, as to any Lender having a Revolving Loan
Commitment, (i) any Affiliate of such Lender that has “control” (within
the meaning provided in the definition of “Affiliate”) of such Lender having
become the subject of a bankruptcy or insolvency proceeding or a takeover by a
regulatory authority, (ii) any previously cured “Funding Default” of such
Lender under this Agreement, unless such Funding Default has ceased to exist
for a period of at least 90 consecutive days, (iii) any default by such
Lender with respect to its obligations under any other credit facility to which
it is a party and which the Swing Line Lender, any Issuing Lender or
Administrative Agent believes in good faith has occurred and is continuing, and
(iv) the failure of such Lender to make available its portion of any
borrowing of Revolving Loans or to fund its portion of any unreimbursed payment
with respect to a Letter of Credit pursuant to Section 3.4C or 3.5 within
one Business Day of the date (x) Administrative Agent (in its capacity as
a Lender) or (y) the Lenders constituting the Requisite Class Lenders
with Revolving Loan Commitments has or have, as applicable, funded its or their
portion thereof.


 


For purposes of this Agreement, (I) “Default
Period” means, with respect to any Defaulting Lender, the period commencing
on the date of the applicable Funding Default and ending on the earliest of the
following dates:  (A) the date on
which all Revolving Loan Commitments are cancelled or terminated and/or the
Obligations are declared or become immediately due and payable, (B) the
date on which (1) the Default Excess with respect to such Defaulting
Lender shall have been reduced to zero (whether by the funding by such
Defaulting Lender of any Defaulted Revolving Loans of such Defaulting Lender or
by the non-pro  rata application of any voluntary or mandatory
prepayments of the Revolving Loans in accordance with the terms of this Section 2.9
or by a combination thereof) and (2) such Defaulting Lender 


 


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shall have delivered to
Company and Administrative Agent a written reaffirmation of its intention to
honor its obligations under this Agreement with respect to its Revolving Loan
Commitment, and (C) the date on which Company, Administrative Agent and
Requisite Lenders waive all Funding Defaults of such Defaulting Lender in
writing, and (II) “Default Excess” means, with respect to any
Defaulting Lender, the excess, if any, of such Defaulting Lender’s Pro  Rata
Share of the aggregate outstanding principal amount of Revolving Loans of all
Lenders (calculated as if all Defaulting Lenders (other than such Defaulting
Lender) had funded all of their respective Defaulted Revolving Loans) over the
aggregate outstanding principal amount of Revolving Loans of such Defaulting
Lender.


 


No Commitment of any Lender shall be increased or
otherwise affected, and, except as otherwise expressly provided in this Section 2.9,
performance by Company of its obligations under this Agreement and the other
Loan Documents shall not be excused or otherwise modified, as a result of any
Funding Default or the operation of this Section 2.9.  The rights and remedies against a Defaulting
Lender under this Section 2.9 are in addition to other rights and remedies
which Company may have against such Defaulting Lender with respect to any
Funding Default and which Administrative Agent or any Lender may have against
such Defaulting Lender with respect to any Funding Default.


 


2.10                         Removal or Replacement of a Lender.


 


A.                                   Anything
contained in this Agreement to the contrary notwithstanding, in the event that:


 


(i)                                     upon the
occurrence of any event giving rise to the operation of Section 2.6B(ii),
2.6B(iii), 2.7 or Section 3.6 with respect to any Lender (an “Increased-Cost
Lender”) which results in such Increased-Cost Lender charging to Company
increased costs in excess of those generally charged by other Lenders; or


 


(ii)                                  (a) any
Lender shall become a Defaulting Lender, (b) the Default Period for such
Defaulting Lender shall remain in effect, and (c) such Defaulting Lender
shall fail to cure the default as a result of which it has become a Defaulting
Lender within five Business Days after Company’s request that it cure such
default; or


 


(iii)                               in connection
with any proposed amendment, modification, termination, waiver or consent with
respect to any of the provisions of this Agreement which has been approved by
the Requisite Lenders as (and to the extent) provided in Section 10.6B but
the consent of one or more of such other Lenders (each a “Non-Consenting
Lender”) whose consent is required shall not have been obtained;


 


then, and in each such case, at its option, Company
may elect upon five Business Days’ prior written notice to Administrative Agent
at the Notice Office (which notice Administrative Agent shall promptly transmit
to each of the Increased-Cost Lender, Defaulting Lender and/or Non-Consenting
Lender, as the case may be), to remove or replace such Increased-Cost Lender,
Defaulting Lender or Non-Consenting Lender (the “Terminated Lender”) to
the extent permitted by Section 2.10B (and notwithstanding any provision
in this Agreement to the contrary).


 


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B.                                     Company may, by
giving five Business Days’ written notice to Administrative Agent and any
Terminated Lender of its election to do so:


 


(i)                                     so long as no
Potential Event of Default or Event of Default then exists or would exist after
giving effect to such removal, elect to (a) terminate the entire Revolving
Loan Commitment, if any, of such Terminated Lender and concurrently prepay on
the date of such termination any outstanding Loans made by such Terminated
Lender, and/or (b) repay all outstanding Loans of such Terminated Lender,
in each case (under both clauses (a) and (b) above) together with
accrued and unpaid interest thereon, Fees and all other amounts payable to such
Terminated Lender hereunder pursuant to Section 2.6, Section 2.7 or Section 3.6
or otherwise in accordance with Section 2.4B(v) hereof; provided
that in the event such Terminated Lender has any Loans outstanding at the time
of such termination, the written consent of Administrative Agent and Requisite
Lenders (which consent shall not be unreasonably withheld or delayed) shall be
required in order for Company to make the election set forth in this clause
(i); or


 


(ii)                                  elect to cause
such Terminated Lender (and such Terminated Lender hereby irrevocably agrees)
to assign its outstanding Loans and its Revolving Loan Commitment, if any, in
full to one or more Eligible Assignees, none of whom shall constitute an
Increased-Cost Lender or a Defaulting Lender at the time of such replacement (“Replacement
Lender”) and each of which shall be reasonably acceptable to Administrative
Agent or, in the case of a replacement as provided in Section 10.6B where
the consent of the respective Lender is required with respect to less than all
Tranches of its Loans or Commitments, to replace the Commitments and/or
outstanding Loans of such Lender in respect of each Tranche where the consent
of such Lender would otherwise be individually required, with identical
Commitments and/or Loans of the respective Tranche provided by the Replacement
Lender; provided that:


 


(a)                                  at the time of any
replacement pursuant to this Section 2.10B(ii), the Replacement Lender
shall enter into one or more Assignment Agreements pursuant to Section 10.1B
(and with all fees payable pursuant to said Section 10.1B to be paid by
the Replacement Lender and/or the Terminated Lender (as may be agreed to at
such time by and among Company, the Replacement Lender and the Terminated
Lender)), pursuant to which the Replacement Lender shall acquire all of the
Commitments and outstanding Loans (or, in the case of the replacement of only (A) the
Revolving Loan Commitment, the Revolving Loan Commitment and outstanding
Revolving Loans and participations in Letter of Credit Usage and/or (B) the
outstanding Term Loans, the outstanding Term Loans with respect to which such
Lender is being replaced) of, and in each case (except for the replacement of
only the outstanding Term Loans of the respective Lender) all participations in
Letters of Credit pursuant to the respective Tranche by, the 


 


73

















 


Terminated Lender and, in connection therewith, shall pay to (x) the
Terminated Lender in respect thereof an amount equal to the sum of (A) an
amount equal to the principal of, and all accrued interest on, all outstanding
Loans (or of the Loans of the respective Tranche being replaced) of the
respective Terminated Lender with respect to which such Terminated Lender is
being replaced, (B) an amount equal to all Unpaid Drawings (unless there
are no Unpaid Drawings with respect to the Tranche being replaced) that have
been funded by (and not reimbursed to) such Terminated Lender, together with
all then unpaid interest with respect thereto at such time and (C) an
amount equal to all accrued, but theretofore unpaid, Fees owing to the
Terminated Lender (but only with respect to the relevant Tranche, in the case
of the replacement of less than all Tranches of Loans then held by the
respective Terminated Lender) pursuant to Section 2.3, (y) except in
the case of the replacement of only the outstanding Term Loans of a Terminated
Lender, each Issuing Lender an amount equal to such Terminated Lender’s Pro
Rata Share of any Unpaid Drawing relating to Letters of Credit issued by
such Issuing Lender (which at such time remains an Unpaid Drawing) to the
extent such amount was not theretofore funded by such Terminated Lender and (z) in
the case of any replacement of Revolving Loan Commitments, the Swing Line
Lender an amount equal to such Terminated Lender’s Pro  Rata Share
of any Refunded Swing Line Loans to the extent such amount was not theretofore
funded by such Replaced Lender to the Swing Line Lender; and


 


(b)                                 all obligations of Company
then owing to the Terminated Lender (other than those (a) specifically
described in clause (a) above in respect of which the assignment purchase
price has been, or is concurrently being, paid, but including all amounts, if
any, owing under Section 2.6D or (b) relating to any Tranche of Loans
and/or Commitments of the respective Terminated Lender which will remain
outstanding after giving effect to the respective replacement) shall be paid in
full to such Terminated Lender concurrently with such replacement; and (c) in
the event such Terminated Lender is a Non-Consenting Lender, each Replacement
Lender shall consent at the time of such replacement to each matter in respect
to which such Terminated Lender was a Non-Consenting Lender; and


 


provided that (X) Company may not make either of the
elections set forth in clauses (i) or (ii) above with respect to any
Non-Consenting Lender unless Company also makes one of such elections with
respect to each other Terminated Lender which is a Non-Consenting Lender and (Y) Company
may not make the elections set forth in clause (i) above with respect to (a) any
Terminated Lender that is an Issuing Lender unless, prior to the effectiveness
of such election, Company shall have caused each outstanding Letter of Credit
issued by such Issuing Lender to be cancelled and (b) in all other circumstances where
a Letter of Credit issued by any other Issuing Lender is outstanding, prior to
the effectiveness of such election, Company shall enter into the applicable
Letter of Credit Back-Stop Arrangements with such Issuing Lender.


 


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C.            Upon
receipt by the Terminated Lender of all amounts required to be paid to it
pursuant to this Section 2.10, Administrative Agent shall be entitled (but
not obligated) and authorized to execute an Assignment Agreement on behalf of
such Terminated Lender, and any such Assignment Agreement so executed by
Administrative Agent and the Replacement Lender shall be effective for purposes
of this Section 2.10 and Section 10.1.  Upon the execution of the respective
Assignment Agreement, the payment of amounts referred to in Section 2.10B
above, recordation of the assignment on the Register by Administrative Agent
pursuant to Section 2.1D and, if so requested by the Replacement Lender,
delivery to the Replacement Lender of the appropriate Note or Notes executed by
Company, (w) with respect to the Terminated Lender’s Revolving Loan
Commitment (if any), Schedule 2.1 shall be deemed modified to reflect
any corresponding changes in the Revolving Loan Commitments, (x) the
Replacement Lender shall become a Lender hereunder and, unless the respective
Terminated Lender continues to have outstanding Term Loans and/or a Revolving
Loan Commitment hereunder, the Terminated Lender shall cease to constitute a
Lender hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 2.6C, 2.6D, 2.7, 3.5C, 3.6,
9.6, 10.2 and 10.5), which shall survive as to such Terminated Lender (y) with
respect to the prepayment of any Tranche of Term Loans pursuant to this section
2.10C, such prepayment shall reduce the then remaining respective Scheduled
Repayments of such Tranche of Term Loans on a pro  rata basis
(based upon the then remaining principal amount of each such Scheduled Payment
of the respective Tranche after giving effect to all prior reductions thereto)
and (z) the Pro Rata Share of the Lenders shall be
automatically adjusted at such time to give effect to such replacement.


 


2.11         Incremental Term Loan
Commitments.


 


A.            So long as the Incremental
Loan Commitment Request Requirements are satisfied at the time of the delivery
of the request referred to below, Company shall have the right, with the
consent of, and in coordination with, Administrative Agent as to all of the
matters set forth below in this Section 2.11, but without requiring the
consent of any of the Lenders, to request at any time and from time to time
after the Closing Date and prior to the date which is 12 months prior to the
Term Loan Maturity Date, that one or more Lenders (and/or one or more other
Persons which are Eligible Assignees and which will become Lenders) provide
Incremental Term Loan Commitments to Company and, subject to the terms and
conditions contained in this Agreement and in the respective Incremental Term
Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it
being understood and agreed, however, that (i) no Lender shall be
obligated to provide an Incremental Term Loan Commitment as a result of any
such request by Company, and until such time, if any, as such Lender has agreed
in its sole discretion to provide an Incremental Term Loan Commitment and
executed and delivered to Administrative Agent and Company an Incremental Term
Loan Commitment Agreement as provided in Section 2.11B, such Lender shall
not be obligated to fund any Incremental Term Loans, (ii) any Lender
(including any Eligible Assignee which will become a Lender) may so provide an
Incremental Term Loan Commitment without the consent of any other Lender, (iii) each
Tranche of Incremental Term Loan Commitments shall be denominated in Dollars, (iv) the
amount of each Tranche of Incremental Term Loan Commitments shall be in a
minimum aggregate amount for all Lenders which provide an Incremental Term Loan
Commitment under such Tranche of Incremental Term Loans (including Eligible
Assignees which will become Lenders) of at least $25,000,000 and in integral
multiples of $5,000,000 in excess thereof, (v) the aggregate amount of all
Incremental Term Loan Commitments provided pursuant to this Section 2.11,
when combined with the aggregate amount of all Incremental RL Commitments
provided 


 


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pursuant to Section 2.12,
shall not exceed the Maximum Incremental Commitment Amount, (vi) the
up-front fees and, if applicable, any unutilized commitment fees and/or other
fees, payable to each Incremental Term Loan Lender in respect of each
Incremental Term Loan Commitment shall be separately agreed to by Company,
Administrative Agent and each such Incremental Term Loan Lender, (vii) each
Tranche of Incremental Term Loans shall (I) have an Incremental Term Loan
Maturity Date of no earlier than the Term Loan Maturity Date, (II) have a
Weighted Average Life to Maturity of no less than the Weighted Average Life to
Maturity as then in effect for the Initial Term Loans and (III) be subject
to the Applicable Margins as are set forth in the Incremental Term Loan
Commitment Agreement governing such Tranche of Incremental Term Loans, provided
however, that if the “effective interest rate margin” for such
Incremental Term Loans as of the date of incurrence of such Tranche of
Incremental Term Loans (which, for such purposes only, shall be determined by
Administrative Agent and deemed to include all upfront or similar fees or
original issue discount (amortized over the life of such Incremental Term
Loans) payable to all Lenders providing such Incremental Term Loans, but
exclusive of any arrangement, structuring or other fees payable in connection
therewith that are not shared with all Lenders providing such Incremental Term
Loans) exceeds the “effective interest rate margin” then applicable to any
Tranche of then outstanding Term Loans (determined on the same
basis as provided in the immediately preceding parenthetical) by more than
0.50% per annum, the Applicable Margins for all then outstanding Term Loans
shall be increased as of such date in accordance with the requirements of
the definitions of “Applicable Term Loan Base Rate Margin” and “Applicable Term
Loan LIBOR Margin”, (viii) the proceeds of all Incremental Term Loans
shall be used only for the purposes permitted by Section 5.9C, (ix) each
Incremental Term Loan Commitment Agreement shall specifically designate the
Tranche of the Incremental Term Loan Commitments being provided thereunder
(which Tranche shall be a new Tranche (i.e., not the same as any
existing Tranche of Incremental Term Loans or Initial Term Loans) unless the
requirements of Section 2.11C are satisfied), (x) all Incremental
Term Loans (and all interest, fees and other amounts payable thereon) shall be
Obligations under this Agreement and the other applicable Loan Documents and
shall be secured by the Collateral Documents, and guaranteed under the
Subsidiary Guaranty, on a pari  passu basis with all other
Obligations secured by the Collateral Documents and guaranteed under the
Subsidiary Guaranty, and (xi) each Lender (including any Eligible Assignee
which will become a Lender) agreeing to provide an Incremental Term Loan
Commitment pursuant to an Incremental Term Loan Commitment Agreement shall,
subject to the satisfaction of the relevant conditions set forth in this
Agreement, make Incremental Term Loans under the Tranche specified in such
Incremental Term Loan Commitment Agreement as provided in Section 2.1A(iv) and
such Loans shall thereafter be deemed to be Incremental Term Loans under such
Tranche for all purposes of this Agreement and the other applicable Loan
Documents.


 


B.            At the time of the provision
of Incremental Term Loan Commitments pursuant to this Section 2.11,
Company, Administrative Agent and each such Lender or other Eligible Assignee
which agrees to provide an Incremental Term Loan Commitment (each, an “Incremental
Term Loan Lender”) shall execute and deliver to Administrative Agent an
Incremental Term Loan Commitment Agreement, with the effectiveness of the
Incremental Term Loan Commitment provided therein to occur on the date set
forth in such Incremental Term Loan Commitment Agreement, which date in any
event shall be no earlier than the date on which (w) all fees required to
be paid in connection therewith at the time of such effectiveness shall have
been paid (including, without limitation, any agreed upon up-front or
arrangement fees owing to 


 


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Administrative Agent (or any
Affiliate thereof)), (x) all Incremental Loan Commitment Requirements are
satisfied, (y) all other conditions set forth in this Section 2.11
shall have been satisfied, and (z) all other conditions precedent that may
be set forth in such Incremental Term Loan Commitment Agreement shall have been
satisfied.  Administrative Agent shall
promptly notify each Lender as to the effectiveness of each Incremental Term
Loan Commitment Agreement, and at such time, (i) Schedule 2.1 shall
be deemed modified to reflect the revised Incremental Term Loan Commitments of
the affected Lenders and (ii) to the extent requested by any Incremental
Term Loan Lender, Incremental Term Notes will be issued, at Company’s expense,
to such Incremental Term Loan Lender in conformity with the requirements of Section 2.1E.


 


C.            Notwithstanding anything to
the contrary contained above in this Section 2.11, the Incremental Term
Loan Commitments provided by an Incremental Term Loan Lender or Incremental
Term Loan Lenders, as the case may be, pursuant to each Incremental Term Loan
Commitment Agreement shall constitute a new Tranche, which shall be separate
and distinct from the existing Tranches pursuant to this Agreement (with a
designation which may be made in letters (i.e., A, B, C, etc.), numbers
(1, 2, 3, etc.) or a combination thereof (i.e., A-1, A-2, A-3, B-1, B-2,
B-3, C-1, C-2, C-3, etc.), provided that with the consent of
Administrative Agent, the parties to a given Incremental Term Loan Commitment
Agreement may specify therein that the respective Incremental Term Loans made
pursuant thereto shall constitute part of, and be added to, an existing Tranche
of Incremental Term Loans or the outstanding Tranche of Initial Term Loans, in
either case so long as the following requirements are satisfied:


 


(i)            the Incremental Term Loans to be made
pursuant to such Incremental Term Loan Commitment Agreement shall have the same
Incremental Term Loan Maturity Date and shall have the same Applicable Margins
as the Tranche of Term Loans to which the new Incremental Term Loans are being
added;


 


(ii)           the new Incremental Term Loans shall have
the same Scheduled Repayment Dates as then remain with respect to the Tranche
to which such new Incremental Term Loans are being added (with the amount of
each Scheduled Repayment applicable to such new Incremental Term Loans to be
the same (on a proportionate basis) as is theretofore applicable to the Tranche
to which such new Incremental Term Loans are being added, thereby increasing
the amount of each then remaining Scheduled Repayment of the respective Tranche
proportionately); and


 


(iii)          on
the date of the making of such new Incremental Term Loans, and notwithstanding
anything to the contrary set forth in Section 2.2B, such new Incremental
Term Loans shall be added to (and form part of) each borrowing of outstanding
Term Loans of the respective Tranche on a pro  rata basis (based
on the relative sizes of the various outstanding borrowings), so that each
Lender will participate proportionately in each then outstanding borrowing (and
the related Interest Periods, if any) of Term Loans of the respective Tranche.


 


To the extent the
provisions of preceding clause (iii) require that Lenders making new
Incremental Term Loans add such Incremental Term Loans to the then outstanding
Interest Periods of LIBOR Loans of such Tranche, it is acknowledged that the
effect thereof may result in such new Incremental Term Loans having short
Interest Periods (i.e., an Interest Period that began during an Interest
Period then applicable to outstanding LIBOR Loans of such Tranche and which
will end on the last day of such Interest Period).  In connection therewith, Company hereby
agrees to compensate the Lenders making the new Incremental Term Loans of the
respective Tranche for funding LIBOR Loans during an existing Interest Period
on such basis as may be agreed by Company and the respective Lender or Lenders
as may be provided in the respective Incremental Term Loan Commitment
Agreement.


 


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2.12         Incremental RL Commitments.


 


A.            So long as the Incremental
Loan Commitment Request Requirements are satisfied at the time of the delivery
of the request referred to below, Company shall have the right, with the
consent of, and in coordination with, Administrative Agent as to all of the
matters set forth below in this Section 2.12, but without requiring the
consent of any of the Lenders, to request at any time and from time to time
after the Closing Date and prior to the date which is 12 months prior to the
Revolving Loan Maturity Date, that one or more Lenders (and/or one or more
other Persons which are Eligible Assignees and which will become Lenders as
provided below) provide Incremental RL Commitments and, subject to the
applicable terms and conditions contained in this Agreement, make Revolving
Loans and participate in Letters of Credit and Swing Line Loans pursuant
thereto; it being understood and agreed, however, that (i) no
Lender shall be obligated to provide an Incremental RL Commitment as a result
of any such request by Company, and until such time, if any, as such Lender has
agreed in its sole discretion to provide an Incremental RL Commitment and
executed and delivered to Administrative Agent an Incremental RL Commitment
Agreement in respect thereof as provided in Section 2.12B, such Lender
shall not be obligated to fund any Revolving Loans in excess of its Revolving
Loan Commitment as in effect prior to giving effect to such Incremental RL
Commitment provided pursuant to this Section 2.12, (ii) any Lender
(including any Eligible Assignee which will become a Lender) may so provide an
Incremental RL Commitment without the consent of any other Lender, (iii) each
provision of Incremental RL Commitments on a given date pursuant to this Section 2.12
shall be in a minimum aggregate amount (for all Lenders (including any Eligible
Assignee which will become a Lender)) of at least $25,000,000 and in integral
multiples of $5,000,000 in excess thereof, (iv) the aggregate amount of
all Incremental RL Commitments provided pursuant to this Section 2.12
shall not exceed $50,000,000, and when combined with the aggregate amount of
all Incremental Term Loan Commitments provided pursuant to Section 2.11,
shall not exceed the Maximum Incremental Commitment Amount, (v) the
Revolving Loans to be made pursuant to such Incremental RL Commitments shall be
subject to the Applicable Margins as are set forth in the Incremental RL
Commitment Agreement governing such Incremental RL Commitments, which
Applicable Margins shall be equal to or greater than the Applicable Margins in
effect for Revolving Loans at such time, provided, however, that
if the Applicable Margins for such Incremental RL Commitments exceed the
Applicable Margins for Revolving Loans then in effect, the Applicable Margins
for all then outstanding Revolving Loans shall be increased as of such date in
accordance with the requirements of the definitions of “Applicable Revolving
Loan Base Rate Margin” and “Applicable Revolving Loan LIBOR Margin”, (vi) in
the event that the upfront or similar fees payable to the Lenders providing
such Incremental RL Commitments (amortized over the life of such Incremental RL
Commitments) exceed the upfront or similar fees paid to the Lenders in
connection with the Revolving Loan Commitments previously in effect (amortized
over the life of such Revolving Loan 


 


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Commitments), Company shall
pay to the Lenders providing such existing Revolving Loan Commitments a fee
equal to such excess (to be shared by such Lenders ratably on the basis of
their Pro  Rata Shares of such existing Revolving Loan
Commitments), which fee shall be paid on the effective date of any such
Incremental RL Commitments as provided in Section 2.12B, and (vii) all
Incremental Revolving Loans (and all interest, fees and other amounts payable
thereon) shall be Obligations under this Agreement and the other applicable
Loan Documents and shall be secured by the Collateral Documents, and guaranteed
under the Subsidiary Guaranty, on a pari  passu basis with all
other Obligations secured by the Collateral Documents and guaranteed under the
Subsidiary Guaranty.


 


B.            At the time of the provision
of Incremental RL Commitments pursuant to this Section 2.12, Company,
Administrative Agent and each such Lender or other Eligible Assignee which
agrees to provide an Incremental RL Commitment (each, an “Incremental RL
Lender”) shall execute and deliver to Administrative Agent an Incremental
RL Commitment Agreement, with the effectiveness of such Incremental RL Lender’s
Incremental RL Commitment to occur on the date set forth in such Incremental RL
Commitment Agreement, which date in any event shall be no earlier than the date
on which (w) all fees required to be paid in connection therewith at the
time of such effectiveness shall have been paid (including, without limitation,
any agreed upon up-front or arrangement fees owing to Administrative Agent (or
any Affiliate thereof)), (x) all Incremental Loan Commitment Requirements
are satisfied, (y) all other conditions set forth in this Section 2.12
shall have been satisfied, and (z) all other conditions precedent that may
be set forth in such Incremental RL Commitment Agreement shall have been
satisfied.  Administrative Agent shall
promptly notify each Lender as to the effectiveness of each Incremental RL
Commitment Agreement, and at such time (i) the Revolving Loan Commitments
under, and for all purposes of, this Agreement shall be increased by the
aggregate amount of such Incremental RL Commitments, (ii) Schedule 2.1
shall be deemed modified to reflect the revised Revolving Loan Commitment of
the affected Lenders and (iii) to the extent requested by any Incremental
RL Lender, Revolving Notes will be issued, at Company’s expense, to such Incremental
RL Lender in conformity with the requirements of Section 2.1E.


 


C.            At the time of any provision
of Incremental RL Commitments pursuant to this Section 2.12, Company
shall, in coordination with Administrative Agent, repay outstanding Revolving
Loans of certain of the Lenders having a Revolving Loan Commitment, and incur
additional Revolving Loans from certain other Lenders having a Revolving Loan
Commitment (including the Incremental RL Lenders), in each case to the extent
necessary so that all of the Lenders having a Revolving Loan Commitment
participate in each outstanding borrowing of Revolving Loans (and the related
Interest Periods) pro  rata on the basis of their respective
Revolving Loan Commitment (after giving effect to any increase in the Revolving
Loan Commitments pursuant to this Section 2.12) and with Company being
obligated to pay to the respective Lenders having a Revolving Loan Commitment
any costs of the type referred to in Section 2.6D in connection with any
such repayment and/or borrowing.


 


2.13         Company, Investor and Affiliate Term Loan
Purchases.


 


A.            Company Purchases. 
Notwithstanding anything to the contrary contained in Section 2.4
or any other provision of this Agreement and without otherwise limiting the
rights in respect of prepayments of the Term Loans of Company, so long as no
Potential Event of Default or Event of Default has occurred and is continuing,
Company or any Subsidiary of Company may repurchase outstanding Term Loans
pursuant to this Section 2.13A on the following basis:


 


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(i)            Company or any Subsidiary of
Company may make one or more offers (each, an “Offer”) to repurchase all
or any portion of the Term Loans (such Term Loans, the “Offer Loans”) of
Lenders; provided that (i) Company or such Subsidiary delivers a
notice of such Offer to Administrative Agent and all Lenders holding Term Loans
no later than noon (New York City time) at least five Business Days in advance
of a proposed consummation date of such Offer indicating (a) the last date
on which such Offer may be accepted, (b) the maximum dollar amount of such
Offer, (c) the repurchase price per dollar of principal amount of such
Offer Loans at which Company or such Subsidiary is willing to repurchase such
Offer Loans (which repurchase price shall not exceed $0.95 per dollar) and (d) the
instructions, consistent with this Section 2.13A with respect to the
Offer, that a Term Lender must follow in order to have its Offer Loans
repurchased; (ii) the maximum dollar amount of each Offer shall be no less
than $10,000,000; (iii) Company or such Subsidiary shall hold such Offer
open for a minimum period of two Business Days; (iv) a Lender which elects
to participate in the Offer may choose to sell all or part of such Lender’s Offer
Loans; (v) such Offer shall be made to Lenders holding the Offer Loans on
a pro rata basis in accordance with the respective principal amounts of Term
Loans then due and owing to the Lenders; (vi) such Offer shall be made to
Lenders holding the Offer Loans either at a fixed price or on the basis of a
modified Dutch auction administered by Administrative Agent; (vii) no more
than ten Offers
may be made by Company and its Subsidiaries in the aggregate during the term of
this Agreement; and (viii) the aggregate principal amount of Term Loans
repurchased pursuant to this Section 2.13A (calculated based on the par
amount thereof) shall not exceed $110,000,000; provided, further
that, if any Lender elects not to participate in the Offer, either in whole or
in part, the amount of such Lender’s Offer Loans not being tendered shall be
excluded in calculating the pro rata amount applicable to the balance of such
Offer Loans;


 


(ii)           with respect to all
repurchases made by Company or a Subsidiary of Company, such repurchases shall
be deemed to be voluntary prepayments pursuant to Section 2.4B(i) in
an amount equal to the aggregate principal amount of such Term Loans, provided
that such repurchases shall not be subject to the provisions of Section 2.4
and Section 10.5;


 


(iii)          immediately upon repurchase
by Company or any Subsidiary of Company, (i) all principal and accrued and
unpaid interest on the Term Loans so repurchased shall be deemed to have been
paid for all purposes and no longer outstanding (and may not be resold by
Company or such Subsidiary), for all purposes of this Agreement and all other
Loan Documents and (ii) Company or any Subsidiary of Company, as the case
may be, will promptly advise Administrative Agent of the total amount of Offer
Loans that were repurchased from each Lender who elected to participate in the
Offer; and


 


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(iv)          failure by Company or a
Subsidiary of Company to make any payment to a Lender required by an agreement
permitted by this Section 2.13A shall not constitute an Event of Default
under Section 8.1.


 


In connection with any
optional prepayments by Company of the Term Loans pursuant to this Section 2.13,
such prepayments shall be applied on a pro rata basis to the then outstanding
Term Loans being prepaid irrespective of whether such outstanding Term Loans
are Base Rate Loans or LIBOR Loans; provided that if all Lenders elect
to participate in the Offer on a pro rata basis in accordance with their
respective principal amounts then due and owing, such prepayments shall be
applied first to Base Rate Loans to the full extent thereof before application
to LIBOR Loans.


 


B.            Investor and Affiliate Term Loan
Purchases.  Notwithstanding anything to the contrary in
the definition of Eligible Assignee or in Section 10.1, any Investor or
Affiliate of an Investor (other than Company or any Subsidiary or Unrestricted
Subsidiary of Company) may be an assignee in respect of Term Loans (and to such
extent shall constitute an “Eligible Assignee”); provided that:


 


(i)            at the time of (and after
giving effect to) any assignment the aggregate principal amount of Term Loans
held by Investors and Affiliates thereof at such time shall not exceed 30% of
the aggregate outstanding principal amount of the Term Loans;


 


(ii)           notwithstanding anything to
the contrary in the definition of “Requisite Lenders”, or in Section 10.6,
the Investor or Affiliate of an Investor holding any Term Loans acquired
pursuant to this Section 2.13B shall not be entitled to vote such Term Loans
held by such Investor or Affiliate in any vote pursuant to the terms of this
Agreement or any other Loan Document, and for purposes of any such vote such
Term Loans shall be deemed not to be outstanding; provided that (I) no
amendment, modification, waiver, consent or other action with respect to this
Agreement or any other Loan Document shall deprive such Investor  or Affiliate of its Pro Rata Share of any
payments to which such Investor or Affiliate is entitled under the Loan
Documents without such Investor’s or Affiliate’s prior written consent and (II) such
Investor or Affiliate shall have the right to approve any amendment,
modification, waiver, or consent of the type referred to in Section 10.6A(i),
(ii), (iii) or (iv) (in the case of clause 10.6A(i) to the
extent that such Investor or Affiliate is directly affected thereby);


 


(iii)          Investors and Affiliates
thereof shall not be entitled to exercise any right pursuant to Section 2.4B(iv)(c) hereof
if such exercise would result in the Investors and Affiliates thereof holding
in aggregate more than 30% of the aggregate outstanding principal amount of the
Term Loans;


 


(iv)          Investors and Affiliates
thereof shall be prohibited from being appointed as, or succeeding to the
rights and duties of, Administrative Agent or Collateral Agent under this
Agreement and the other Loan Documents; and


 


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(v)           by acquiring a Term Loan
hereunder, each Investor and Affiliate thereof shall be deemed to have (I) waived
its right to receive information prepared by Administrative Agent or any Lender
(or any advisor, agent or counsel thereof) under or in connection with the Loan
Documents (in each case to the extent not provided to Company) and attend any
meeting or conference call with Administrative Agent or any Lender (except to
the extent attended by Company), and (II) agreed that it is prohibited
from making or bringing any claim, solely in its capacity as a Lender, against
Administrative Agent with respect to the duties and obligations of
Administrative Agent under the Loan Documents (it being understood and agreed
that nothing in this subclause (II) shall prevent any such Investor or
Affiliate which becomes a Lender hereunder (1) from taking action to
enforce the contractual duties and obligations of Administrative Agent
hereunder or under the other Loan Documents, (2) from making or bringing
any claim based on gross negligence or willful misconduct or (3) from
making or bringing any claim against Administrative Agent or other Person in
any other capacity).


 


SECTION 3.           LETTERS
OF CREDIT


 


3.1           Issuance of Letters of Credit.


 


A.            In addition to Company
requesting that Lenders make Revolving Loans pursuant to Section 2.1A(ii) and
that Swing Line Lender make Swing Line Loans pursuant to Section 2.1A(iii),
subject to and upon the terms and conditions set forth herein, Company may
request that an Issuing Lender issue, at any time and from time to time on and
after the Closing Date and prior to the thirtieth (30th) day prior to the
Revolving Loan Maturity Date, for the account of Company and for the benefit of
(x) any holder (or any trustee, agent or other similar representative for
any such holders) of L/C Supportable Obligations, an irrevocable standby letter
of credit, in a form customarily used by such Issuing Lender or in such other
form as is reasonably acceptable to such Issuing Lender, and (y) sellers
of goods to Company or any of its Subsidiaries, an irrevocable trade letter of
credit, in a form customarily used by such Issuing Lender or in such other form
as has been approved by such Issuing Lender (each such letter of credit, a “Letter
of Credit” and, collectively, the “Letters of Credit”).  All Letters of Credit shall be issued on a
sight basis only and shall be denominated in Dollars or such other readily and
freely available foreign currency as shall be agreed by the Issuing Lender (any
amount which is denominated in a currency other than Dollars being determined
by reference to the applicable Exchange Rate for such currency as at any date
of determination).


 


B.            Subject to and upon the
terms and conditions set forth herein, each Issuing Lender agrees that it will,
at any time and from time to time on and after the Closing Date and prior to
the thirtieth (30th) day prior to the Revolving Loan Maturity Date, following
its receipt of the respective Request for Issuance of Letter of Credit in the
form of Exhibit III annexed hereto as provided in Section 3.3
below, issue for account of Company, one or more Letters of Credit as are permitted
to remain outstanding hereunder without giving rise to a Potential Event
Default or an Event of Default; provided that no Issuing Lender shall be
under any obligation to issue any Letter of Credit of the types described above
if at the time of such issuance:


 


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(i)            any order, judgment or
decree of any governmental authority or arbitrator shall purport by its terms
to enjoin or restrain such Issuing Lender from issuing such Letter of Credit or
any requirement of law applicable to such Issuing Lender or any request or
directive (whether or not having the force of law) from any governmental
authority with jurisdiction over such Issuing Lender shall prohibit, or request
that such Issuing Lender refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon such
Issuing Lender with respect to such Letter of Credit any restriction or reserve
or capital requirement (for which such Issuing Lender is not otherwise
compensated hereunder) not in effect with respect to such Issuing Lender on the
date hereof, or any unreimbursed loss, cost or expense which was not applicable
or in effect with respect to such Issuing Lender as of the date hereof and
which such Issuing Lender reasonably and in good faith deems material to it; or


 


(ii)           such Issuing Lender shall
have received from Company, any other Loan Party or the Requisite Lenders prior
to the issuance of such Letter of Credit notice of the type described in the second
sentence of Section 3.3B.


 


3.2           Maximum Letter of Credit Usage; Final
Maturities.  Notwithstanding anything to the contrary contained in this Agreement, (i) no
Letter of Credit shall be issued the Stated Amount of which, when added to the
Letter of Credit Usage (exclusive of Unpaid Drawings which are repaid on the
date of, and prior to the issuance of, the respective Letter of Credit) at such
time (calculating any Letter of Credit denominated in a currency other than
Dollars by reference to the applicable Exchange Rate for such currency as at
any date of determination) would exceed either (x) $20,000,000 or (y) when
added to the sum of (I) the aggregate principal amount of all Revolving
Loans then outstanding and (II) the aggregate principal amount of all
Swing Line Loans then outstanding, an amount equal to the Revolving Loan
Commitments at such time, and (ii) each Letter of Credit shall by its
terms terminate (x) in the case of standby Letters of Credit, on or before
the earlier of (A) the date which occurs 12 months after the date of the
issuance thereof (although any such standby Letter of Credit may be extendible
for successive periods of up to 12 months, but, in each case, not beyond the
tenth (10th) Business Day prior to the Revolving Loan Maturity Date, on terms
acceptable to the Issuing Lender) and (B) ten (10) Business Days
prior to the Revolving Loan Maturity Date, and (y) in the case of trade
Letters of Credit, on or before the earlier of (A) the date which occurs
180 days after the date of issuance thereof and (B) thirty (30) days prior
to the Revolving Loan Maturity Date.


 


3.3           Letter of Credit Requests; Minimum Stated Amount.


 


A.            Whenever Company desires
that a Letter of Credit be issued for its account, Company shall deliver to
Administrative Agent and the respective Issuing Lender a Request for Issuance
of Letter of Credit in the form of Exhibit III annexed hereto no
later than 12:00 Noon (New York City time) at least five Business Days’ (or
such shorter period as is acceptable to such Issuing Lender) prior to the
proposed date of issuance thereof (including by way of facsimile).


 


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B.            The making of each Request
for Issuance of Letter of Credit shall be deemed to be a representation and
warranty by Company to the Lenders that such Letter of Credit may be issued in
accordance with, and will not violate the requirements of, Section 3.2.  Unless the respective Issuing Lender has
received notice from Company, any other Loan Party or the Requisite Lenders
before it issues a Letter of Credit that one or more of the conditions
specified in Section 4 are not then satisfied, or that the issuance of
such Letter of Credit would violate Section 3.2, then such Issuing Lender
shall, subject to the terms and conditions of this Agreement, issue the
requested Letter of Credit for the account of Company in accordance with such
Issuing Lender’s usual and customary practices. 
Upon the issuance of or modification or amendment to any standby Letter
of Credit, each Issuing Lender shall promptly notify Company and Administrative
Agent, in writing, of such issuance, modification or amendment and such notice
shall be accompanied by a copy of such Letter of Credit or the respective
modification or amendment thereto, as the case may be.  Promptly after receipt of such notice
Administrative Agent shall notify the Participants, in writing, of such
issuance, modification or amendment.  On
the first Business Day of each week, each Issuing Lender shall furnish
Administrative Agent with a written (including via facsimile) report of the
daily aggregate outstandings of trade Letters of Credit issued by such Issuing
Lender for the immediately preceding week. 
Notwithstanding anything to the contrary contained in this Agreement, in
the event that a Funding Default exists with respect to any Lender having a
Revolving Loan Commitment, no Issuing Lender shall be required to issue, renew,
extend or amend any Letter of Credit, unless such Issuing Lender has entered
into arrangements satisfactory to it and Company to eliminate such Issuing
Lender’s risk with respect to each Defaulting Lender’s participation in Letters
of Credit issued by such Issuing Lender (which arrangements are hereby
consented to by the Lenders), including by cash collateralizing each Defaulting
Lender’s Pro Rata Share of the Letter of
Credit Usage with respect to such Letters of Credit (such arrangements, the “Letter
of Credit Back-Stop Arrangements”).


 


C.            The initial Stated Amount of
each Letter of Credit shall not be less than $100,000 or such lesser amount as
is acceptable to the respective Issuing Lender.


 


3.4           Letter of Credit Participations.


 


A.            Immediately upon the
issuance by an Issuing Lender of any Letter of Credit, such Issuing Lender
shall be deemed to have sold and transferred to each Lender having a Revolving
Loan Commitment, and each such Lender (in its capacity under this Section 3.4,
a “Participant”) shall be deemed irrevocably and unconditionally to have
purchased and received from such Issuing Lender, without recourse or warranty,
an undivided interest and participation, to the extent of such Participant’s Pro Rata Share of the aggregate
amount of the Revolving Loan Commitments, in such Letter of Credit, each
drawing or payment made thereunder and the obligations of Company under this
Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto.  Upon any change in
the Revolving Loan Commitments or Pro Rata Share of the Lenders pursuant to Section 2.10
or 10.1B, it is hereby agreed that, with respect to all outstanding Letters of
Credit and Unpaid Drawings relating thereto, there shall be an automatic
adjustment to the participations pursuant to this Section 3.4 to reflect
the new Pro Rata Share of the aggregate amount of the Revolving Loan Commitments
of the assignor and assignee Lender, as the case may be.


 


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B.            In determining whether to
pay under any Letter of Credit, no Issuing Lender shall have any obligation
relative to the other Lenders other than to confirm that any documents required
to be delivered under such Letter of Credit appear to have been delivered and
that they appear to substantially comply on their face with the requirements of
such Letter of Credit.  Any action taken
or omitted to be taken by an Issuing Lender under or in connection with any
Letter of Credit issued by it shall not create for such Issuing Lender any
resulting liability to Company, any other Loan Party, any Lender or any other
Person unless such action is taken or omitted to be taken with gross negligence
or willful misconduct on the part of such Issuing Lender (as determined by a
court of competent jurisdiction in a final and non-appealable decision).


 


C.            In the event that an Issuing
Lender makes any payment under any Letter of Credit issued by it and Company
shall not have reimbursed such amount in full to such Issuing Lender pursuant
to Section 3.5A, such Issuing Lender shall promptly notify Administrative
Agent, which shall promptly notify each Participant of such failure, and each
Participant shall promptly and unconditionally pay to such Issuing Lender the
amount of such Participant’s Pro Rata Share of such
unreimbursed payment in Dollars (which amount, in the case of a drawing under a
Letter of Credit which is denominated in a currency other than Dollars, shall
be calculated by reference to the applicable Exchange Rate) and in same day
funds.  If Administrative Agent so
notifies, prior to 12:00 Noon (New York City time) on any Business Day, any
Participant required to fund a payment under a Letter of Credit, such
Participant shall make available to the respective Issuing Lender in Dollars
(which amount, in the case of a drawing under a Letter of Credit which is
denominated in a currency other than Dollars, shall be calculated by reference
to the applicable Exchange Rate) such Participant’s Pro Rata
Share of the amount of such payment on such Business Day in same day
funds.  If and to the extent such
Participant shall not have so made its Pro Rata Share of the
amount of such payment available to the respective Issuing Lender, such
Participant agrees to pay to such Issuing Lender, forthwith on demand, such
amount, together with interest thereon, for each day from such date until the
date such amount is paid to such Issuing Lender at the overnight Federal Funds
Rate for the first three days and at the interest rate applicable to Revolving
Loans that are maintained as Base Rate Loans for each day thereafter.  The failure of any Participant to make
available to an Issuing Lender its Pro Rata Share of any
payment under any Letter of Credit issued by such Issuing Lender shall not
relieve any other Participant of its obligation hereunder to make available to
such Issuing Lender its Pro Rata Share of any payment under
any Letter of Credit on the date required, as specified above, but no
Participant shall be responsible for the failure of any other Participant to
make available to such Issuing Lender such other Participant’s Pro Rata
Share of any such payment.


 


D.            Whenever an Issuing Lender
receives a payment of a reimbursement obligation as to which it has received
any payments from the Participants pursuant to Section 3.4C above, such
Issuing Lender shall pay to each such Participant which has paid its Pro Rata
Share thereof, in Dollars and in same day funds, an amount equal to such
Participant’s share (based upon the proportionate aggregate amount originally
funded by such Participant to the aggregate amount funded by all Participants)
of the principal amount of such reimbursement obligation and interest thereon
accruing after the purchase of the respective participations.


 


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E.             Upon the request of any
Participant, each Issuing Lender shall furnish to such Participant copies of
any standby Letter of Credit issued by it and such other documentation as may
reasonably be requested by such Participant.


 


F.             The obligations of the
Participants to make payments to each Issuing Lender with respect to Letters of
Credit shall be irrevocable and not subject to any qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of
this Agreement under all circumstances, including, without limitation, any of
the following circumstances:


 


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


 


(ii)           the existence of any claim,
setoff, defense or other right which Company or any of its Subsidiaries 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), Administrative Agent, any Participant, or any 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 Company or any Subsidiary of Company 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 Loan Documents; or


 


(v)           the occurrence of any
Potential Event of Default or Event of Default.


 


3.5           Agreement to Repay Letter of Credit Drawings.


 


A.            Company agrees to reimburse
each Issuing Lender, by making payment to Administrative Agent in immediately
available funds at the Payment Office, for any payment or disbursement made by
such Issuing Lender under any Letter of Credit issued by it (each such amount,
so paid until reimbursed by Company, an “Unpaid Drawing”), not later
than one Business Day following receipt by Company of notice of such payment or
disbursement (provided that no such notice shall be required to be given
if a Potential Event of Default or an Event of Default under Section 8.6
shall have occurred and be continuing, in which case the Unpaid Drawing shall
be due and payable immediately without presentment, demand, protest or notice
of any kind (all of which are hereby waived by Company)), with interest on the
amount so paid or disbursed by such Issuing Lender, to the extent not
reimbursed prior to 12:00 Noon (New York City time) on the date of such payment
or disbursement, from and including the date paid or disbursed to but excluding
the date such Issuing Lender was reimbursed by Company therefor at a rate per
annum equal to the Base Rate as in effect from time to time plus the Applicable
Revolving Base Rate Margin as in effect from time to time; provided, however,
to the extent 


 


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such amounts are not
reimbursed prior to 12:00 Noon (New York City time) on the third Business Day
following the receipt by Company of notice of such payment or disbursement or
following the occurrence of a Potential Event of Default or an Event of Default
under Section 8.6, interest shall thereafter accrue on the amounts so paid
or disbursed by such Issuing Lender (and until reimbursed by Company) at a rate
per annum equal to the Base Rate as in effect from time to time plus the
Applicable Revolving Base Rate Margin as in effect from time to time plus
2.00%, with such interest to be payable on demand.  Company shall make all payments required
pursuant to this Section 3.5 in Dollars (which amount, in the case of a
drawing under a Letter of Credit which is denominated in a currency other than
Dollars, shall be calculated by reference to the applicable Exchange
Rate).  Each Issuing Lender shall give
Company prompt written notice of each Drawing under any Letter of Credit issued
by it, provided that the failure to give any such notice shall in no way
affect, impair or diminish Company’s obligations hereunder.


 


B.            The obligations of Company
under this Section 3.5 to reimburse each Issuing Lender with respect to
drafts, demands and other presentations for payment under Letters of Credit
issued by it (each, a “Drawing”) (including, in each case, interest
thereon) shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which
Company or any Subsidiary of Company may have or have had against any Lender
(including in its capacity as an Issuing Lender or as a Participant),
including, without limitation, any defense based upon the failure of any
drawing under a Letter of Credit to conform to the terms of the Letter of
Credit or any nonapplication or misapplication by the beneficiary of the
proceeds of such Drawing; provided, however, that Company shall
not be obligated to reimburse any Issuing Lender for any wrongful payment made
by such Issuing Lender under a Letter of Credit issued by it as a result of
acts or omissions constituting willful misconduct or gross negligence on the
part of such Issuing Lender (as determined by a court of competent jurisdiction
in a final and non-appealable decision).


 


C.            In addition to amounts
payable as provided in clauses (A) and (B) of this Section 3.5
and in Section 3.6, Company hereby agrees to protect, indemnify, pay and
save harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by such
Issuing Lender, other than as a result of (a) the gross negligence or
willful misconduct of such Issuing Lender (as determined by a court of
competent jurisdiction in a final and non-appealable decision) or (b) the
wrongful dishonor by such Issuing Lender of a proper demand for payment made
under any Letter of Credit issued by it or (ii) the failure of such
Issuing Lender to honor a drawing under any such Letter of Credit as a result
of any act or omission, whether rightful or wrongful, of any present or future
de jure or de facto government or governmental authority.


 


3.6           Increased Costs. 
If at any time after the Closing Date, the introduction of or any change
in any applicable law, rule, regulation, order, guideline or request or in the
interpretation or administration thereof by the NAIC or any governmental
authority charged with the interpretation or administration thereof, or
compliance by any Issuing Lender or any Participant with any request or
directive by the NAIC or by any such governmental authority (whether or not
having the force of law) shall either (i) impose, modify or make
applicable any reserve, deposit, capital adequacy or similar requirement
against letters of credit issued by any 


 


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Issuing Lender or
participated in by any Participant, or (ii) impose on any Issuing Lender
or any Participant any other conditions relating, directly or indirectly, to
this Agreement or any Letter of Credit; and the result of any of the foregoing
is to increase the cost to any Issuing Lender or any Participant of issuing,
maintaining or participating in any Letter of Credit, or reduce the amount of
any sum received or receivable by any Issuing Lender or any Participant
hereunder or reduce the rate of return on its capital with respect to Letters
of Credit (except for changes relating to Taxes), then, upon the delivery of
the certificate referred to below to Company by any Issuing Lender or any
Participant (a copy of which certificate shall be sent by such Issuing Lender
or such Participant to Administrative Agent), Company agrees to pay to such
Issuing Lender or such Participant such additional amount or amounts as will
compensate such Issuing Lender or such Participant for such increased cost or
reduction in the amount receivable or reduction on the rate of return on its
capital.  Any Issuing Lender or any
Participant, upon determining that any additional amounts will be payable to it
pursuant to this Section 3.6, will give prompt written notice thereof to
Company, which notice shall include a certificate submitted to Company by such
Issuing Lender or such Participant (a copy of which certificate shall be sent
by such Issuing Lender or such Participant to Administrative Agent), setting
forth in reasonable detail the basis for the calculation of such additional
amount or amounts necessary to compensate such Issuing Lender or such Participant.  The certificate required to be delivered
pursuant to this Section 3.6 shall, absent manifest error, be final and
conclusive and binding on Company.


 


3.7           Existing Letters of Credit.  Schedule
3.7 contains a description of letters of credit that were issued pursuant
to the Existing Credit Agreement and which remain outstanding on the Closing
Date (and setting forth, with respect to each such letter of credit, (i) the
name of the issuing lender, (ii) the letter of credit number, (iii) the
name(s) of the account party or account parties, (iv) the stated
amount, (v) the currency in which the letter of credit is denominated, (vi) the
name of the beneficiary, (vii) the expiry date, and (viii) whether
such letter of credit constitutes a standby letter of credit or a trade letter
of credit).  Each such letter of credit,
including any extension or renewal thereof in accordance with the terms thereof
and hereof (each, as amended from time to time in accordance with the terms
thereof and hereof, an “Existing Letter of Credit”) shall constitute a “Letter
of Credit” for all purposes of this Agreement and shall be deemed issued on the
Closing Date.


 


SECTION 4.           CONDITIONS TO LOANS AND LETTERS OF CREDIT. 
The obligations of Lenders to make Loans and the obligation of Issuing
Lenders to issue Letters of Credit hereunder are subject to the satisfaction of
the following conditions.


 


4.1           Conditions to Initial Loans and Letters
of Credit.  The obligations of Lenders to make the Loans
to be made on the Closing Date and the issuance of any Letters of Credit to be
issued on the Closing Date are, in addition to the conditions precedent
specified in Section 4.2 (in the case of any such Loans) or 4.3 (in the
case of any such Letters of Credit), subject to prior or concurrent satisfaction
of the following conditions:


 


A.            Loan Party Documents.  On or before the Closing Date, Company shall,
and shall cause each other Loan Party to, deliver to Lenders (or to
Administrative Agent for Lenders with sufficient originally executed copies,
where appropriate, for each Lender and its counsel) the following with respect
to Company or such Loan Party, as the case may be, each, unless otherwise
noted, dated the Closing Date:


 


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(i)            Certified copies of the
Certificate or Articles of Incorporation or other appropriate organizational
documents of such Person, together with a good standing certificate from the
Secretary of State of its jurisdiction of incorporation or formation and each
other state in which such Person is qualified as a foreign corporation,
partnership or limited liability company to do business and, to the extent
generally available, a certificate or other evidence of good standing as to
payment of any applicable franchise or similar taxes from the appropriate
taxing authority of each of such jurisdictions, each dated a recent date prior
to the Closing Date;


 


(ii)           Copies of the Bylaws or
similar organizational documents of such Person, certified as of the Closing
Date by such Person’s corporate secretary or an assistant secretary;


 


(iii)          Resolutions of the Board of
Directors or similar governing body of such Person approving and authorizing
the execution, delivery and performance of the Loan Documents and Related
Agreements to which it is a party, certified as of the Closing Date by the
corporate secretary or an assistant secretary of such Person as being in full
force and effect without modification or amendment;


 


(iv)          Signature and incumbency
certificates of the officers of such Person executing the Loan Documents to
which it is a party; and


 


(v)           Executed originals of the
Loan Documents to which such Person is a party including, without limitation,
for the account of each of the Lenders that has requested same, the appropriate
Term Note, Revolving Note or Swing Line Note executed by Company, in each case
in the amount, maturity and as otherwise provided herein.


 


B.            No Material Adverse Effect.  Since December 31, 2008, nothing shall
have occurred (and neither Administrative Agent nor any Lender shall have
become aware of any facts or conditions not previously known) which
Administrative Agent or the Requisite Lenders shall determine has had, or would
reasonably be expected to have (i) a Material Adverse Effect or (ii) a
material adverse effect on the Transaction.


 


C.            Consummation of New Senior
Note Issuance.


 


(i)            On or before the Closing Date, Company shall have
received cash proceeds of at least $190,000,000 (calculated before initial
purchasers’ discounts, original issue discount and commissions) from the
issuance by it of a like principal amount of New Senior Notes and Company shall
have utilized the full amount of the cash proceeds received by it to make
payments owing in connection with the Transaction prior to the utilization by Company
of any proceeds of Loans for such purpose.


 


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(ii)           On the Closing Date, the issuance of the New Senior
Notes shall have been consummated in accordance with the terms and conditions
of the applicable Related Agreements therefor and all applicable laws.  On the Closing Date, (x) Administrative
Agent shall have received true and correct copies of all New Senior Notes
Documents (together with the exhibits and schedules thereto) in the form so
executed, in each case certified as such by a Responsible Officer of Company, (y) all
such New Senior Notes Documents and all terms and conditions thereof
(including, without limitation, amortization, maturities, interest rates,
covenants, defaults, remedies, guaranties and guarantors) shall be in form and
substance reasonably satisfactory to Administrative Agent and (z) all such
New Senior Notes Documents shall be in full force and effect.


 


D.            Other Related Agreements in
Full Force and Effect. 
Administrative Agent shall have received a fully executed or conformed
copy of each of the other Related Agreements and any documents executed in
connection therewith.  Each such Related
Agreement shall be in full force and effect and no provision thereof shall have
been modified or waived in any respect determined by Administrative Agent to be
material.


 


E.             Approvals.  On or prior to the Closing Date, (i) all
necessary governmental (domestic and foreign) and material third party
approvals and/or consents in connection with the Transaction, the other
transactions contemplated hereby and the granting of Liens under the Loan
Documents shall have been obtained and remain in effect, and all applicable
waiting periods with respect thereto shall have expired without any action
being taken by any competent authority which restrains, prevents or imposes
materially adverse conditions upon the consummation of the Transaction or the
other transactions contemplated by the Loan Documents or Related Agreements or
otherwise referred to herein or therein, (ii) there shall not exist any
judgment, order, injunction or other restraint issued or filed or a hearing
seeking injunctive relief or other restraint pending or notified prohibiting or
imposing materially adverse conditions upon the Transaction or the other
transactions contemplated by the Loan Documents or the Related Agreements or
otherwise referred to herein or therein and (iii) there shall be no
actions, suits or proceedings pending or threatened (a) with respect to
the Transaction, this Agreement or any other Loan Document, or (b) which
Administrative Agent or the Requisite Lenders shall determine has had, or would
reasonably be expected to have, a Material Adverse Effect.


 


F.             Matters Relating to Existing
Indebtedness of Company and its Subsidiaries.


 


(i)            Termination of Existing
Credit Agreement and Related Liens; Existing Letters of Credit.  On the Closing Date, (a) Company and its
Subsidiaries shall have repaid in full all Indebtedness outstanding under the
Existing Credit Agreement, together with all accrued but unpaid interest, fees
and other amounts owing thereunder, (b) all commitments to lend or make
other extensions of credit thereunder shall have been terminated, (c) all
security interests in respect of, and Liens securing, the Indebtedness and
other obligations under the Existing Credit Agreement created pursuant to the
security documentation relating to the Existing Credit Agreement shall have
been terminated and released, and Administrative Agent shall have received all
such releases as may have been requested by Administrative Agent, which
releases shall be in form and substance satisfactory to Administrative Agent,
including, without limiting the foregoing, (I) proper termination
statements (Form UCC-3 or the appropriate equivalent) for filing 


 


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under the UCC or equivalent statute or
regulation of each jurisdiction where a financing statement or application for
registration (Form UCC-1 or the appropriate equivalent) was filed with respect
to Company or any of its Subsidiaries in connection with the security interests
created with respect to the Existing Credit Agreement, and (II) terminations
or reassignments of any security interest in, or Lien on, any patents,
trademarks, copyrights, or similar interests of Company or any of its
Subsidiaries on which filings have been made, and (d) other than with
respect to Existing Letters of Credit, Company and its Subsidiaries shall have
made arrangements with respect to the cancellation or transfer of any letters
of credit outstanding thereunder or the issuance of Letters of Credit to
support the obligations of Company and its Subsidiaries with respect thereto,
in each case in form and substance satisfactory to Agents and Lenders.  Company shall have delivered to
Administrative Agent an Officer’s Certificate, in form and substance
satisfactory to Administrative Agent, to the effect set forth in this Section 4.1F(i).


 


(ii)           Consent Solicitation
relating to the Existing Senior Subordinated Notes and Consummation of Tender
Offer.  On the Closing Date, pursuant
to the Consent Solicitation, Company shall have obtained all such consents and
amendments with respect to the Existing Senior Subordinated Note Indenture as
may be required to permit the consummation of the Closing Date Refinancing, the
related financings (including the incurrence of the Obligations hereunder and
issuance of the New Senior Notes) and the other transactions contemplated by
the Loan Documents, and Company shall have accepted for repurchase all of the
Existing Senior Subordinated Notes tendered as of the Consent Date (as defined
in the Tender Offer Materials).


 


(iii)          Existing Indebtedness to
Remain Outstanding. 
Administrative Agent shall have received an Officer’s Certificate of
Company stating that, after giving effect to the transactions described in this
Section 4.1F, the Indebtedness of Company and its Subsidiaries (other than
Indebtedness and unfunded credit facilities under the Loan Documents and the
New Senior Notes and the portion of the Existing Senior Subordinated Notes, if
any, not tendered as of the Consent Date (as defined in the Tender Offer
Materials)) shall consist of approximately $25,000,000 in Capital Lease
obligations and Equipment Notes described in Schedule 7.1 annexed
hereto.  On and as of the Closing Date,
other than Existing Senior Subordinated Notes tendered on and after the Closing
Date pursuant to the Tender Offer, all of the Indebtedness described in the
preceding sentence shall remain outstanding after giving effect to the
Transaction without any breach, required repayment, required offer to purchase,
default, event of default or termination rights existing thereunder or arising
as a result of the Transaction.


 


G.            Security Interests in Pledged Collateral. 
Administrative Agent shall have received evidence satisfactory to it
that Company and each other Loan Party shall have taken or caused to be taken
all such actions, executed and delivered or caused to be executed and delivered
all such agreements, documents and instruments, and made or caused to be made
all such registrations, filings and recordings (other than the filing or
recording of items described in clause (iii) below) that may be necessary
or, in the opinion of Administrative Agent, desirable in order to create in
favor of Administrative Agent, for the benefit of Lenders, a valid and (upon
such filing and recording) perfected First Priority security interest in the
entire Pledged Collateral.  Such actions
shall include the following:


 


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(i)            Schedules to Pledge
Agreement.  Delivery to
Administrative Agent of accurate and complete schedules to the Pledge
Agreement;


 


(ii)           Stock Certificates.  Delivery to Administrative Agent of
certificates to the extent applicable (which certificates shall be accompanied
by irrevocable undated stock powers, duly endorsed in blank and otherwise
satisfactory in form and substance to Administrative Agent) representing all
capital stock included in the Pledged Collateral; and


 


(iii)          UCC Financing Statements.  Delivery to Administrative Agent of a UCC
financing statement with respect to certain Collateral under the Pledge
Agreement, for filing in the jurisdiction of organization of the Loan Party.


 


H.            Security Interests under the
Security Agreement


 


On the Closing Date, each Loan Party shall have duly
authorized, executed and delivered the Security Agreement, together with:


 


(i)            proper financing statements
(Form UCC-1 or the equivalent) fully executed (as necessary) for filing
under the UCC or other appropriate filing offices of each jurisdiction as may
be necessary or, in the reasonable opinion of Collateral Agent, desirable, to
perfect the security interests purported to be created by the Security
Agreement;


 


(ii)           certified copies of requests
for information or copies (Form UCC-11), or equivalent reports as of a
recent date, listing all effective financing statements that name Company or
any other Loan Party as debtor and that are filed in the jurisdictions referred
to in clause (i) above and in such other jurisdictions in which Collateral
is located on the Closing Date, together with copies of such other financing
statements that name Company or any other Loan Party as debtor (none of which
shall cover any of the Collateral except (x) to the extent evidencing
Liens permitted by this Agreement or (y) those in respect of which
Collateral Agent shall have received termination statements (Form UCC-3)
or such other termination statements as shall be required by local law fully
executed for filing);


 


(iii)          evidence of the completion
of all other recordings and filings of, or with respect to, the Security
Agreement as may be necessary or, in the reasonable opinion of Collateral
Agent, desirable, to perfect the security interests intended to be created by
the Security Agreement; and


 


(iv)          evidence that all other
actions necessary or, in the reasonable opinion of Collateral Agent, desirable
to perfect and protect the security interests purported to be created by the
Security Agreement have been taken, and the Security Agreement shall be in full
force and effect.


 


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I.              Subsidiary Guaranty.  On or before the Closing Date, each Pledged
Subsidiary shall have duly authorized, executed and delivered the Subsidiary
Guaranty, and the Subsidiary Guaranty shall be in full force and effect.


 


J.             Pro
Forma Balance Sheet.  On or before the Closing Date, Lenders shall
have received from Company a pro  forma consolidated balance sheet
of Company and its Subsidiaries as of September 30, 2009, prepared in
accordance with GAAP and reflecting the consummation of the Closing Date
Refinancing, the related financings and the other transactions contemplated by
the Loan Documents and the Related Agreements, which pro  forma
financial statements shall be in form and substance reasonably satisfactory to
Lenders.


 


K.            Solvency Assurances.  On the Closing Date, Agents and Lenders shall
have received a Financial Condition Certificate dated the Closing Date,
substantially in the form of Exhibit XII annexed hereto and with
appropriate attachments and in any event in form and substance reasonably
satisfactory to Agents demonstrating that, after giving effect to the
consummation of the Closing Date Refinancing and the other transactions
contemplated by the Loan Documents and the Related Agreements, Company will be
solvent.


 


L.             Opinions of Counsel to Loan
Parties.  Lenders and their respective
counsel shall have received (a) original executed copies of one or more
favorable written opinions of (i) Eli Glovinsky, General Counsel for
Company and (ii) Latham & Watkins LLP, special counsel for Loan
Parties, each dated as of the Closing Date and setting forth substantially the
matters in the opinions designated in Exhibit IX annexed hereto and such
other matters as Administrative Agent may reasonably request, and Company
hereby requests such counsel for Loan Parties to deliver such opinions, in each
case addressed to Administrative Agent and Collateral Agent in their capacities
as such, and each of the Lenders, and (b) original executed copies of one
or more favorable written opinions of special counsel in Oregon, dated as of
the Closing Date and setting forth such matters under Oregon law related or
incidental to the transactions contemplated herein and under the Collateral
Documents as Administrative Agent may reasonably request.


 


M.           Fees.  Company shall have paid to Administrative
Agent, for distribution (as appropriate) to Agents and Lenders, the Fees
payable on the Closing Date referred to in Section 2.3.


 


N.            Representations and
Warranties.  Company
shall have delivered to Administrative Agent an Officer’s Certificate, in form
and substance satisfactory to Administrative Agent, to the effect that the
representations and warranties in Sections 5.1, 5.2, 5.4, 5.7, 5.9 and 5.12 are
true and correct in all material respects on and as of the Closing Date to the
same extent as though made on and as of that date (or, to the extent such
representations and warranties specifically relate to an earlier date, that
such representations and warranties were true, correct and complete in all
material respects on and as of such earlier date).


 


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O.            Insurance.  Company shall have delivered to
Administrative Agent certificates of insurance evidencing the existence of all
insurance required to be maintained by Company pursuant to Section 6.4B
and the designation of Collateral Agent as the sole/first loss payee (with
respect to the Collateral) and Collateral Agent as additional insured as its
interests may appear, as the case may be, thereunder to the extent required by Section 6.4B,
such certificates to be in such form and contain such information as is
specified in Section 6.4B.  In
addition, Company shall have delivered a certificate of a Responsible Officer
of Company setting forth the insurance obtained by it in accordance with the
requirements of Section 6.4B and stating that such insurance is in full
force and effect and that all premiums then due and payable thereon have been
paid.


 


4.2           Conditions to All Loans. 
The obligation of each Lender to make Loans (including Loans to be made
on the Closing Date, but excluding Refunded Swing Line Loans made after the
Closing Date, which shall be made as provided in Section 2.1A(iii)) on
each Funding Date is subject to the following further conditions precedent:


 


A.            Administrative Agent shall
have received at the Notice Office on or before that Funding Date, in
accordance with the provisions of Section 2.1B, an executed Notice of
Borrowing, in each case signed by the chief executive officer, the chief
financial officer or the treasurer of Company or by any officer of Company
designated by any of the above-described officers on behalf of Company in a
writing delivered to Administrative Agent; and


 


B.            (i)  As of that Funding
Date, the representations and warranties contained herein and in the other Loan
Documents shall be true and correct in all material respects on and as of that
Funding Date to the same extent as though made on and as of that date, except
to the extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties shall have been
true and correct in all material respects on and as of such earlier date; and


 


(ii)           No event shall have occurred
and be continuing or would result from the consummation of the borrowing
contemplated by such Notice of Borrowing that would constitute a Potential
Event of Default or an Event of Default.


 


4.3           Conditions to Letters of Credit. 
The issuance of any Letter of Credit hereunder (whether or not the
applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:


 


A.            On or before the date of
issuance of such Letter of Credit, Administrative Agent shall have received at
the Notice Office, in accordance with the provisions of Section 3.1B and Section 3.3A,
an originally executed Request for Issuance of Letter of Credit, in each case
signed by the chief executive officer, the chief financial officer or the
treasurer of Company or by any officer of Company designated by any of the
above-described officers on behalf of Company in a writing delivered to
Administrative Agent, together with all other information specified in Section 3.3A;
and


 


B.            On the date of issuance of
such Letter of Credit, all conditions precedent described in Section 4.2B
shall be satisfied to the same extent as if the issuance of such Letter of
Credit were the making of a Loan and the date of issuance of such Letter of
Credit were a Funding Date.


 


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4.4           Satisfaction of Conditions to Closing
Date.  In determining the satisfaction of the
conditions specified in Section 4.1, (i) to the extent any item is
required to be satisfactory to any Lender, such item shall be deemed
satisfactory to each Lender which has not notified Administrative Agent in
writing prior to the occurrence of the Closing Date that the respective item or
matter does not meet its satisfaction and (y) in determining whether any
Lender is aware of any fact, condition or event that has occurred and which
would reasonably be expected to have a Material Adverse Effect or a material
adverse effect of the type described in Section 4.1B, each Lender which
has not notified Administrative Agent in writing prior to the occurrence of the
Closing Date of such fact, condition or event shall be deemed not to be aware
of any such fact, condition or event on the Closing Date.  Upon Administrative Agent’s good faith
determination that the conditions specified in Section 4.1 have been met
(after giving effect to the preceding sentence), then the Closing Date shall
have been deemed to have occurred, regardless of any subsequent determination
that one or more of the conditions thereto had not been met (although the
occurrence of the Closing Date shall not release Company from any liability for
failure to satisfy one or more of the applicable conditions contained in Section 4.1).


 


4.5           Company Representation and Warranty. 
The acceptance of the benefits of each Loan and Letter of Credit shall
constitute a representation and warranty by Company to Administrative Agent and
each of the Lenders that all the conditions specified in Section 4.1 (with
respect to Loans and Letters of Credit on the Closing Date), in Section 4.2
(with respect to all Loans) and in Section 4.3 (with respect to all
Letters of Credit) are satisfied as of that time.


 


SECTION 5.           COMPANY’S REPRESENTATIONS AND WARRANTIES. 
In order to induce Lenders to enter into this Agreement and to make the
Loans, to induce Issuing Lenders to issue Letters of Credit and to induce other
Lenders to purchase participations therein, Company represents and warrants to
each Lender, in each case after giving effect to the Transaction, all of which
shall survive the execution and delivery of this Agreement and the Notes and
the making of the Loans and the issuance of the Letters of Credit, on the date
of this Agreement, on each Funding Date and on the date of issuance of each
Letter of Credit, that the following statements are true, correct and complete
(it being understood and agreed that any representation or warranty which by
its terms is made as of a specified date shall be required to be true and
correct in all material respects only as of such specified date):


 


5.1           Organization, Powers, Qualification, Good
Standing, Business and Subsidiaries.


 


A.            Organization and Powers.  Company and each Material Subsidiary is an
entity duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization as specified in Schedule 5.1 annexed
hereto and has all requisite organizational power and authority to own and
operate its properties and assets and to carry on its business as now conducted
and as proposed to be conducted.  Each
Loan Party has all requisite organizational power and authority to enter into
the Loan Documents and Related Agreements to which it is a party and to carry
out the transactions contemplated thereby.


 


B.            Qualification and Good
Standing.  Company and
each Material Subsidiary is qualified to do business and in good standing in
every jurisdiction where its assets are located and wherever necessary to carry
out its business and operations, except to the extent that the failure to be so
qualified or in good standing has not had and will not have a Material Adverse
Effect.


 


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C.            Subsidiaries.  All of the Subsidiaries and Unrestricted
Subsidiaries of Company as of the Closing Date are identified in Schedule
5.1 annexed hereto and, to the best knowledge of Company, each Material Subsidiary
as of the Closing Date has been so designated on said Schedule 5.1.


 


5.2           Authorization
of Borrowing, etc.


 


A.            Authorization of Borrowing.  The execution, delivery and performance of
the Loan Documents and the Related Agreements have been duly authorized by all
necessary corporate or other action on the part of each Loan Party that is a
party thereto.


 


B.            No Conflict.  The execution, delivery and performance by
Loan Parties of the Loan Documents to which they are parties and the
consummation of the transactions contemplated by the Loan Documents and the
Related Agreements do not and will not (i) violate any provision of any
material law or any material governmental rule or regulation applicable to
Company or any of its Material Subsidiaries or any other Loan Party, the
Certificate or Articles of Incorporation or Bylaws (or equivalent
constitutional documents) of Company or any of its Subsidiaries, or any
material order, judgment or decree of any court or other agency of government
binding on Company or any of its Material Subsidiaries or any other Loan Party,
(ii) conflict with, result in a breach of or constitute (with due notice
or lapse of time or both) a default under any Contractual Obligation of Company
or any of its Material Subsidiaries or any other Loan Party, or (iii) result
in or require the creation or imposition of any Lien under any such Contractual
Obligation upon any of the properties or assets of Company or any of its
Subsidiaries (other than any Liens created under any of the Loan Documents in
favor of Administrative Agent on behalf of Secured Parties).


 


C.            Governmental Consents.  The execution, delivery and performance by
Loan Parties of the Loan Documents to which they are parties and the
consummation of the transactions contemplated by the Loan Documents and the
Related Agreements do not and will not require any recording or registration
with, order, consent, approval, license, authorization or validation of, or
notice to, or other action to, with or by, any federal, state or other governmental
authority or regulatory body except (i) any thereof that have been
obtained or made on or  prior to the
Closing Date and are in full force and effect, (ii) as of the Closing Date
with respect to the consummation of the Transaction, any thereof which the
failure to obtain or make could not reasonably be expected to have a Material
Adverse Effect and (iii) any filings which are necessary to perfect the
security interests created under the Collateral Documents, which filings will
be made within ten days following the Closing Date).


 


D.            Binding Obligation.  Each of the Loan Documents and Related
Agreements has been duly executed and delivered by each Loan Party that is a
party thereto and is the legally valid and binding obligation of such Loan
Party, enforceable against such Loan Party in accordance with its respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors’ rights generally
or by equitable principles relating to enforceability.


 


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5.3           Financial Condition. 
A.  Company has heretofore
delivered to Lenders, at Lenders’ request, the audited consolidated balance
sheet of Company and its Subsidiaries as at December 31, 2008 and the
related consolidated statements of income, stockholders’ equity and cash flows
of Company and its Subsidiaries for the Fiscal Year then ended.  All such statements present fairly in all
material respects the consolidated financial condition of Company and its
Subsidiaries at the date of said financial statements and the results for the
period covered thereby, and were prepared in conformity with GAAP consistently
applied except to the extent provided in the notes to said financial statements.


 


B.            Company has heretofore
delivered to Lenders, at Lenders’ request, the unaudited consolidated balance
sheet of Company and its Subsidiaries as at September 30, 2009, and the
related consolidated statements of income, stockholders’ equity and cash flows
of Company and its Subsidiaries for the Fiscal Quarter then ended.  All such statements present fairly in all
material respects the consolidated financial condition of Company and its
Subsidiaries at the date of said financial statements and the results for the
period covered thereby, and were prepared in conformity with GAAP consistently
applied except to the extent provided in the notes to said financial statements
and subject to normal year-end audit adjustments (all of which are of a
recurring nature and none of which, individually or in the aggregate, would be
material) and the absence of footnotes.


 


5.4           No Material Adverse Effect. 
Since December 31, 2008, no event or change has occurred that has
caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect.


 


5.5           Title to Properties; Liens. 
Neither Company nor any other Loan Party owns in fee simple any Real
Property as of the Closing Date.  Company
and each of its Subsidiaries have good title to, or valid leasehold interests
in, all properties that are necessary for the conduct of their respective
businesses as now conducted and as proposed to be conducted, free and clear of
all Liens (other than any Liens permitted by this Agreement), except where the
failure to have such good title or leasehold interests could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


5.6           Intellectual Property. 
Company and each of its Subsidiaries owns, or is licensed to use, all
Intellectual Property necessary for the conduct of their respective businesses
as now conducted and as proposed to be conducted, free and clear of all Liens,
except where the failure to so own or license could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


5.7           Litigation; Adverse Facts. 
Except as set forth in Schedule 5.6 annexed hereto, there are no
actions, suits, proceedings, arbitrations or governmental investigations
(whether or not purportedly on behalf of Company or any of its Subsidiaries) at
law or in equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign (including any Environmental Claims) that are pending or,
to the knowledge of Company, threatened against or affecting Company or any of
its Subsidiaries that, individually or in the aggregate (taking into
consideration, among other things, the ability of Company and its Subsidiaries
to obtain indemnification in respect thereof from Persons that are willing and
able to honor any existing indemnification obligations with respect thereto),
could reasonably be expected to result in, either individually or in the
aggregate, a Material Adverse Effect.


 


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5.8           Payment of Taxes. 
Each of Company, each of its Subsidiaries and each other corporation
(each a “Consolidated Corporation”) with whom Company or any of its
Subsidiaries joins in the filing of a consolidated return has filed all Federal
income tax returns and other material tax returns and reports, domestic and
foreign, required to be filed by it, and has paid all material taxes,
assessments, fees and other governmental charges levied or imposed upon it or
its respective properties, income or assets to the extent the same have become
due and payable, except those which are not yet delinquent or which are being
contested in good faith and with respect to which a reserve has been
established in accordance with GAAP.  There
is no proposed tax assessment action, suit, proceeding, investigation, audit or
claim now pending or, to the best knowledge of Company, threatened against
Company, any of its Subsidiaries or any Consolidated Corporation that could
reasonably be expected to have a Material Adverse Effect.


 


5.9           Use of Proceeds; Governmental Regulation.


 


A.            All proceeds of the Initial
Term Loans will be used by Company to finance the Closing Date Refinancing, to
repurchase or redeem all remaining Existing Senior Subordinated Notes not
repurchased on the Closing Date and to pay fees and expenses incurred in
connection with the Transaction.


 


B.            All proceeds of the
Revolving Loans and the Swing Line Loans will be used for the working capital
and general corporate purposes of Company and its Subsidiaries; provided
that (x) no proceeds from Revolving Loans and Swing Line Loans may be used
for the purposes described in Section 5.9A and (y) the proceeds of
Swing Line Loans shall not be used to refinance then outstanding Swing Line Loans.


 


C.            All proceeds of the
Incremental Term Loans shall be utilized for general corporate purposes of
Company and its Subsidiaries.


 


D.            No part of any funding of
Loans or issuance of Letters of Credit (or the proceeds thereof) will be used
to purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock, in violation of Regulation U.  Neither the making of any extension of credit
hereunder, nor use of any of the proceeds thereof, will violate or be inconsistent
with the provisions of Regulation T, U or X of the Board of Governors of the
Federal Reserve System.


 


E.             Neither Company nor any of
its Subsidiaries is an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.


 


5.10         Employee Benefit Plans.


 


A.            Schedule 5.10A set forth each
Pension Plan and Multiemployer Plan as of the Closing Date.  Company and each of its Subsidiaries are in
compliance with all applicable provisions of ERISA, the Internal Revenue Code
and other applicable federal, state or foreign law with respect to each Plan,
and have performed all of their obligations under each Plan, except to the
extent that failure to comply, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.  Company and each of its Subsidiaries have
made all required contributions to any Pension Plan, except to the extent that
a failure to do so would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412
of the Internal Revenue Code has been made with respect to any Pension Plan.


 


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B.            There are no pending or, to
the knowledge of Company, threatened claims, actions or lawsuits, or action by
any Governmental Authority, with respect to any Plan which, individually or in
the aggregate, have resulted or would reasonably be expected to result in a Material
Adverse Effect.


 


C.            (i) No ERISA Event has
occurred or is reasonably expected to occur except to the extent that any such
event, individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect; (ii) no Pension Plan has any Unfunded
Pension Liability in an amount which, individually or in the aggregate for all
Pension Plans (excluding for purposes of such computation any Pension Plans
with respect to which assets exceed benefit liabilities), would reasonably be expected
to have a Material Adverse Effect if such Pension Plan or Pension Plans were
then terminated; and (iii) neither Company nor any of its Subsidiaries has
engaged in a transaction described in Section 4069 or 4212(c) of
ERISA that, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect.


 


5.11         Environmental Protection. 
Company and each of its Subsidiaries is in compliance with all
applicable Environmental Laws in respect of the conduct of its business and the
ownership of its property, except such noncompliance as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect.  Without limiting the effect of
the preceding sentence:


 


(a)           neither Company nor any of
its Subsidiaries has received a complaint, order, citation, notice or other
written communication with respect to the existence or alleged existence of a
violation of, or liability arising under, any Environmental Law, the outcome of
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect; and


 


(b)           there are no environmental,
health or safety conditions existing or reasonably expected to exist at any
real property owned, operated, leased or used by Company or any of its existing
or former Subsidiaries or any of their respective predecessors, including
off-site treatment or disposal facilities used by Company or its existing or
former Subsidiaries for wastes treatment or disposal, which could reasonably be
expected to require any construction or other capital costs or any clean-up
obligations to be incurred prior to the Term Loan Maturity Date in order to
assure compliance with any Environmental Law, including provisions regarding
clean-up, to the extent that any of such conditions, construction or other
capital costs or clean-up obligations, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.


 


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5.12         Disclosure.  All factual
information (taken as a whole) furnished by or on behalf of Company or any of
its Subsidiaries to Administrative Agent or any Lender in writing on or before
the Closing Date (including any such information contained in the Confidential
Information Memorandum or in any Loan Document or Related Agreement or in any
other document, certificate or written statement furnished to Lenders by or on
behalf of Company or any of its Subsidiaries) for purposes of or use in
connection with the transactions contemplated by this Agreement, the other Loan
Documents or any transaction contemplated herein or therein is, and all other
such factual information (taken as a whole) hereafter furnished by or on behalf
of Company in writing to Administrative Agent or any Lender will be true and
correct in all material respects and not incomplete by omitting to state any
fact necessary in order to make the statements contained herein and therein,
taken as a whole, not materially misleading at such time in light of the
circumstances in which the same were made, it being understood that, for
purposes of this Section 5.12, such factual information does not include
projections and pro  forma financial information.  Any projections and pro  forma
financial information contained in such materials are based upon good faith
estimates and assumptions believed by Company to be reasonable at the time
made, it being recognized by 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.


 


5.13         Compliance with Statutes, etc. 
Each of Company and each of its Subsidiaries is in compliance with all
applicable statutes, regulations and orders of, and all applicable restrictions
imposed by, all governmental authorities in respect of the conduct of its
business and the ownership of its property (including, without limitation,
applicable statutes, regulations, orders and restrictions relating to
environmental standards and controls), except such non-compliances as could
not, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


5.14         Matters Relating to Collateral.


 


A.            Creation, Perfection and
Priority of Liens.  (i) The
execution and delivery of the Collateral Documents by the Loan Parties,
together with (a) the actions taken on or prior to the date hereof
pursuant to Sections 4.1G, 4.1H and 6.7 hereof and (b) the delivery to
Collateral Agent of any Pledged Collateral not delivered to Administrative
Agent or Collateral Agent at the time of execution and delivery of the
applicable Collateral Document (all of which Pledged Collateral has been so
delivered and, if such Pledged Collateral had been previously delivered to
Administrative Agent, such Pledged Collateral has been delivered by
Administrative Agent to Collateral Agent) are effective to create in favor of
Administrative Agent or Collateral Agent, as the case may be, for the benefit
of the appropriate Secured Parties (as defined in such Collateral Document), as
security for the respective Secured Obligations (as defined in the applicable
Collateral Document in respect of any Collateral), a valid and perfected First
Priority Lien on all of the Collateral, and all filings and other actions
necessary or desirable to perfect and maintain the perfection and First
Priority status of such Liens have been duly made or taken and remain in full
force and effect, other than the filing or recording of any UCC financing
statements or other Collateral Documents delivered to Administrative Agent or
Collateral Agent for filing or recordation (but not yet filed or recorded) and
the periodic filing of UCC continuation statements in respect of UCC financing
statements filed by or on behalf of Administrative Agent or Collateral Agent.


 


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(ii)           Once executed and delivered
pursuant to the terms of Section 6.7B, each Mortgage creates, as security
for the obligations purported to be secured thereby, a valid and enforceable
perfected security interest in and mortgage lien on the respective Mortgaged
Property in favor of Collateral Agent (or such other trustee as may be required
or desired under local law) for the benefit of the Secured Parties, superior and
prior to the rights of all third Persons (except that the security interest and
mortgage lien created on such Mortgaged Property may be subject to the
Permitted Encumbrances related thereto) and subject to no other Liens (other
than Permitted Encumbrances related thereto).


 


B.            Governmental Authorizations.  No authorization, approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body is required for either (i) the pledge or grant by any Loan Party of
the Liens purported to be created in favor of Administrative Agent or
Collateral Agent pursuant to any of the Collateral Documents or (ii) the
exercise by Administrative Agent or Collateral Agent of any rights or remedies
in respect of any Collateral (whether specifically granted or created pursuant
to any of the Collateral Documents or created or provided for by applicable
law), except for filings or recordings contemplated by Section 5.14A and
except as may be required, in connection with the disposition of any Pledged
Collateral, by laws generally affecting the offering and sale of securities.


 


C.            Absence of Third-Party
Filings.  Except such as may have been
filed in favor of Administrative Agent or Collateral Agent as contemplated by Section 5.14A
and filings for Liens permitted hereunder, (i) no effective UCC financing
statement, fixture filing or other instrument similar in effect covering all or
any part of the Collateral is on file in any filing or recording office (except
as may have been filed (a) to secure Indebtedness which is no longer
outstanding and (b) with respect to commitments to lend which have been
terminated) and (ii) no effective filing concerning a security interest or
other Lien covering all or any part of the IP Collateral material to the Company’s
business is on file in the PTO or the United States Copyright Office.


 


D.            Margin Regulations.  The pledge of the Pledged Collateral pursuant
to the Collateral Documents does not violate Regulation T, U or X of the Board
of Governors of the Federal Reserve System.


 


E.             Information Regarding
Collateral.  All
information supplied to Administrative Agent or Collateral Agent by or on
behalf of any Loan Party with respect to any of the Collateral (in each case
taken as a whole with respect to any particular Collateral) is accurate and
complete in all material respects.


 


5.15            Insurance.  Schedule
5.15 sets forth a listing of all insurance maintained by Company and its
Subsidiaries as of the Closing Date (other than local insurance policies
maintained by Foreign Subsidiaries of Company that are not material), with the
amounts insured (and any deductibles) set forth therein.


 


5.16         Indebtedness. 
Schedule 7.1 sets forth a list of all Indebtedness (including contingent
obligations) of Company and its Subsidiaries as of the Closing Date and which
is to remain outstanding after giving effect to the Transaction (excluding the
Loans, the Letters of Credit, the New Senior Notes and any remaining
outstanding Existing Senior Subordinated Notes), in each case showing the aggregate
principal amount (as applicable) thereof and the name of the respective
borrower and any Loan Party or any of its Subsidiaries which directly or
indirectly guarantees such debt.


 


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SECTION 6.           AFFIRMATIVE COVENANTS.  Company
covenants and agrees that, on and after the Closing Date and so long as any of
the Commitments hereunder shall remain in effect and until payment in full of
all of the Loans, Notes, Unpaid Drawings (in each case together with interest
thereon), Fees and all other Obligations and the cancellation or expiration of
all Letters of Credit, unless Requisite Lenders shall otherwise give prior
written consent, Company shall perform, and shall cause each of its
Subsidiaries to perform, all covenants in this Section 6.


 


6.1           Financial Statements and Other Reports. 
Company will deliver to Administrative Agent and Lenders:


 


(i)            Quarterly Financials:  (a) no later than 45 days after the
first three Fiscal Quarters of each Fiscal Year, the consolidated balance sheet
of Company, its Subsidiaries and its Unrestricted Subsidiaries as at the end of
the first three Fiscal Quarters of each Fiscal Year and the related
consolidated statements of income and cash flows of Company, its Subsidiaries
and its Unrestricted Subsidiaries for such Fiscal Quarter and for the period
from the beginning of the then current Fiscal Year to the end of such Fiscal
Quarter, and (b) promptly when available but in any event no later than 60
days after the end of the first three Fiscal Quarters of each Fiscal Year, the
consolidated balance sheet of Company and its Subsidiaries as at the end of
each Fiscal Quarter and the related consolidated statements of income and cash
flows of Company and its Subsidiaries for such Fiscal Quarter and for the
period from the beginning of the then current Fiscal Year to the end of such
Fiscal Quarter, setting forth in each case (under both clauses (a) and (b) above)
in comparative form the corresponding figures for the corresponding periods of
the previous Fiscal Year, all in reasonable detail and certified (in the case
of both clauses (a) and (b) above) by the chief financial officer of
Company that they fairly present, in all material respects in accordance with
GAAP, the financial condition of Company, its Subsidiaries and its Unrestricted
Subsidiaries or Company and its Subsidiaries, as the case may be, as at the
dates indicated and the results of their operations and their cash flows for
the periods indicated, subject to changes resulting from audit and normal
year-end adjustments.


 


(ii)           Year-End Financials:  (a) no later than 90 days after the end
of each Fiscal Year, the consolidated balance sheet of Company, its
Subsidiaries and its Unrestricted Subsidiaries as at the end of each Fiscal
Year and the related consolidated statements of income, stockholders’ equity
and cash flows of Company, its Subsidiaries and its Unrestricted Subsidiaries
for such Fiscal Year, (b) promptly when available but in any event no
later than 120 days after the end of each Fiscal Year, the consolidated balance
sheet of Company and its Subsidiaries as at the end of such Fiscal Year and the
related consolidated statements of income, stockholders’ equity and cash flows
of Company and its Subsidiaries for such Fiscal Year, setting forth in each
case (under both clauses (a) and (b) above) in comparative form the
corresponding figures for the previous Fiscal Year, all in reasonable detail
and certified (in the case of both clauses (a) and (b) above) by the 


 


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chief financial officer of Company that they fairly
present, in all material respects in accordance with GAAP, the financial
condition of Company and its Subsidiaries as at the end of such Fiscal Year and
the results of their operations and their cash flows for such Fiscal Year, and (c) in
the case of both clauses (a) and (b) above) (a) report thereon
of a firm of independent certified public accountants of recognized national
standing selected by Company, which report shall be unqualified as to the scope
of audit or as to the going concern status of Company, its Subsidiaries and its
Unrestricted Subsidiaries or Company and its Subsidiaries, as the case may be
(in either case taken as a whole), and shall state that such consolidated
financial statements fairly present, in all material respects in accordance
with GAAP, the consolidated financial condition of Company, its Subsidiaries
and its Unrestricted Subsidiaries or Company and its Subsidiaries, as the case
may be, as at the end of such Fiscal Year and the results of their operations
and their cash flows for such Fiscal Year in conformity with GAAP applied on a
basis consistent with prior years (except as otherwise disclosed in such
financial statements) and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards.


 


(iii)          Officers’ and Compliance
Certificates:  together
with each delivery of financial statements of Company and its Subsidiaries
pursuant to subdivisions (i) and (ii) above, (a) an Officer’s
Certificate of Company from a Responsible Officer of Company certifying on
behalf of Company that, to such Responsible Officer’s knowledge, as at the date
of such Officer’s Certificate, no condition or event has occurred or is
continuing that constitutes an Event of Default or Potential Event of Default,
or, if any such condition or event exists, specifying the nature and period of
existence thereof and what action Company has taken, is taking and proposes to
take with respect thereto; (b) a Compliance Certificate demonstrating in
reasonable detail compliance during and at the end of the applicable accounting
periods with the covenants set forth in Section 7.6 and with any specific
dollar amounts specified in respect of any restrictions contained in any other
provisions of Section 7; (c) in the event the identity of any of the
Subsidiaries or Unrestricted Subsidiaries of Company has changed since the
Closing Date (or, if applicable, since the date of the most recent Officer’s
Certificate delivered to Lenders in accordance with this clause (c)), an
Officer’s Certificate setting forth such change; (d) the amount of any Pro
Forma Adjustment not previously set forth in any 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, and (e) at the time of the delivery of the financial
statements pursuant to subdivision (ii) above, the Available Amount as at
the end of the Fiscal Year to which such statements relate;


 


(iv)          Accountants’ Certification:  together with each delivery of consolidated
financial statements of Company and its Subsidiaries pursuant to subdivision (ii) above,
a written statement by the independent certified public accountants giving the
report thereon stating whether, in connection with their audit examination, any
condition or event that constitutes a Potential Event of Default or an Event of
Default under Section 7.6 has come to their attention and, if such a
condition or event has come to their attention, specifying the nature thereof;
except to the extent that the delivery of such statement would be prohibited by
professional auditing standards applicable to such matters.


 


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(v)           SEC Filings:  promptly after the transmission thereof by
Company or any of its Subsidiaries to the SEC, copies of any filings on Form 10-K,
10-Q, or 8-K and any effective registration statements (and, upon the
effectiveness thereof, any material amendments thereto) filed with the SEC (but
not any exhibits to any such registration statement or amendment (except as
provided below) or any registration statement on Form S-8), and copies of
all financial statements, proxy statements, notices and reports that Company or
any of its Subsidiaries actually sends to the holders of any publicly-issued
debt Securities of Company or any of its Subsidiaries (including the New Senior
Notes and any Subordinated Indebtedness) in their capacity as such holders (in
each case to the extent not theretofore delivered to Lenders pursuant to this
Agreement and in each case including, to the extent requested by Administrative
Agent, any schedules and exhibits thereto), in each case as so transmitted to
the SEC;


 


(vi)          Events of Default, etc.:  promptly upon, and in any event within five
Business Days after, any Responsible Officer of Company obtaining actual
knowledge of (a) any condition or event that constitutes an Event of
Default or Potential Event of Default or (b) any acceleration, redemption
or purchase demands or notices provided by the trustee for, or any event of
default under the New Senior Notes or, any Subordinated Indebtedness, a notice
specifying the nature and period of existence of such condition or event or
specifying the notice given by such trustee or the nature of such event of
default, and what action Company has taken, is taking and proposes to take with
respect thereto;


 


(vii)         Litigation or Other
Proceedings:  promptly
upon, and in any event within five Business Days after, any Responsible Officer
of Company obtaining actual knowledge of (X) the institution of any
action, suit, proceeding (whether administrative, judicial or otherwise),
governmental investigation or arbitration against or affecting Company or any
of its Subsidiaries or any property of Company or any of its Subsidiaries
(collectively, “Proceedings”) not previously disclosed in writing by
Company to Lenders or (Y) any material development in any Proceeding that,
in any such case, could reasonably be expected to give rise to a Material
Adverse Effect, written notice thereof together with such other information as
may be reasonably available to Company to enable Lenders and their counsel to
evaluate such matters;


 


(viii)        ERISA Events:


 


(A)          as soon as possible and, in any event,
within ten days after any Responsible Officer of Company obtains knowledge of
the occurrence or forthcoming occurrence of any ERISA Event (1) a written
notice specifying the nature thereof and what action, if any, Company, any of
its Subsidiaries or any ERISA Affiliate has taken, is taking or proposes to
take with respect thereto, and (2) any notices required or proposed to be
given or filed by Company, any of its Subsidiaries or any ERISA Affiliate or
the administrator of the affected Plan to or with the Internal Revenue Service,
the Department of Labor, the PBGC, any other government agency, a Multiemployer
Plan sponsor or a Plan participant concerning any ERISA Event;


 


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(B)           as soon as possible and, in any event,
within ten days of receipt thereof, copies of any notice received by Company,
any of its Subsidiaries or any ERISA Affiliate from the Internal Revenue
Service, the Department of Labor, the PBGC, any other governmental agency or
from a Multiemployer Plan sponsor, in any case, concerning any ERISA Event; and


 


(C)           if, at any time after the Closing Date,
Company, any of its Subsidiaries or any ERISA Affiliate maintains, contributes
to (or incurs an obligation to contribute to), a Pension Plan or Multiemployer
Plan which is not set forth in Schedule 5.10A, as may be updated from
time to time, an updated Schedule 5.10A as soon as possible and, in any
event, within ten (10) days after Company, any of its Subsidiaries or any
ERISA Affiliate maintains or contributes to (or incurs an obligation to
contribute to), such Pension Plan, and such updated Schedule 5.10A shall
supersede and replace the existing Schedule 5.10A.


 


(ix)           Financial Plans:  as soon as practicable and in any event no
later than 60 days after the beginning of each Fiscal Year, consolidated
operating and related budgets for (a) Company, its Subsidiaries and its
Unrestricted Subsidiaries and (b) Company and its Subsidiaries for each
Fiscal Quarter of such Fiscal Year (the “Financial Plan” for such Fiscal
Year), in reasonable detail as customarily prepared by management of Company
for its internal use and setting forth an explanation of the principal
assumptions on which such budgets are based;


 


(x)            Environmental Audits and
Reports:  as soon as practicable
following receipt thereof, copies of all environmental audits, investigations,
analyses and reports of any kind or character, whether prepared by personnel of
Company or any of its Subsidiaries or by independent consultants, governmental
authorities or any other Persons, with respect to significant environmental
matters at any Real Estate (as defined in Section 6.1(xi)(1)) which,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect or with respect to any Environmental Claims which,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect;


 


(xi)           Notice of Certain
Environmental Matters: 
promptly upon any Responsible Officer of Company obtaining knowledge of
any one or more of the following environmental matters the existence of which,
either individually or when aggregated with all other such matters, would
reasonably be expected to result in a Material Adverse Effect, a written notice
specifying in reasonable detail the nature thereof and what action Company and
its Subsidiaries have taken, are taking or propose to take with respect
thereto:


 


(1)           any pending or threatened
Environmental Claim against Company or any of its Subsidiaries or any land,
buildings and improvements owned or leased by Company or any of its
Subsidiaries (but excluding all operating fixtures and equipment, whether or
not incorporated into improvements) (collectively, “Real Estate”);


 


105

















 


(2)           any condition or occurrence
that (x) results in noncompliance by Company 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 Company or any
of its Subsidiaries or any Real Estate;


 


(3)           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; or


 


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


 


(xii)          Pro  Forma Adjustment Certificate: not later
than the consummation of any Acquisition by Company or any of its Subsidiaries
for which there shall be a Pro Forma Adjustment, an Officer’s
Certificate of Company setting forth the amount of such Pro Forma
Adjustment and, in reasonable detail, the calculations and basis therefor;


 


(xiii)         Other Information:  with reasonable promptness, such other
information, data or documents (financial or otherwise) with respect to Company
or any of its Subsidiaries as from time to time may be reasonably requested by Administrative
Agent on its own behalf or on behalf of Requisite Lenders;


 


(xiv)        Insurance:  as soon as practicable and in any event by
the last day of each Fiscal Year, a report in form and substance reasonably
satisfactory to Collateral Agent outlining all material insurance coverage
maintained as of the date of such report by the Loan Parties and all material
insurance coverage planned to be maintained by the Loan Parties in the
immediately succeeding Fiscal Year; and


 


(xv)         Notice of Intent to Cure.  Within the time frame set forth in the last
paragraph of Section 8, on each occasion permitted therein, a Notice of
Intent to Cure if a Cure Right will be exercised thereunder.


 


Information required to be delivered pursuant
to this Section 6.1 shall be deemed to have been furnished and delivered
if such information, or one or more annual, quarterly or other reports or
filings containing such information, shall have been (a) delivered to the
Administrative Agent in electronic format or (b) electronically filed with
the SEC, and notice thereof shall have been provided to the Administrative
Agent.  Information required to be
delivered pursuant to this Section 6.1 may also be delivered by electronic
communications pursuant to procedures approved by the Administrative Agent.


 


6.2           Corporate Existence, etc. 
Except as permitted under Section 7.7, Company will, and will cause
each of its Subsidiaries to, at all times preserve and keep in full force and
effect (i) its corporate existence (except, in the case of a Subsidiary of
Company only, to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect) and (ii) all rights and
franchises material to its business (except, in any case, to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect).


 


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6.3           Payment of Taxes and Claims. 
Company will, and will cause each of its Subsidiaries to, pay all
material taxes, assessments and other governmental charges imposed upon it or
any of its properties or assets or in respect of any of its income, businesses
or franchises before any penalty accrues thereon, and all lawful material
claims (including claims for labor, services, materials and supplies) for sums
that have become due and payable and that by law have become or could
reasonably be expected to become a Lien upon any of the properties or assets of
Company or any of its Subsidiaries; provided that no such charge or
claim need be paid if it is being contested in good faith and by proper
proceedings, so long as it has maintained adequate reserves with respect
thereto in accordance with GAAP.


 


6.4           Maintenance of Properties; Insurance.


 


A.            Maintenance of Properties.  Company will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working
order and condition, ordinary wear and tear excepted, all material properties
used or useful in the business of Company and its Subsidiaries (including all
material Intellectual Property) and from time to time will make or cause to be
made all appropriate repairs, renewals and replacements thereof, in each case
except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.


 


B.            Insurance.  Company will maintain or cause to be
maintained, with financially sound and reputable insurers (in the good faith
judgment of Company’s management), such public liability insurance, third party
property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of the Loan Parties as may customarily be
carried or maintained under similar circumstances by corporations of
established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for
corporations similarly situated in the industry.  Each such policy of insurance shall (a) name
Collateral Agent for the benefit of Secured Parties as an additional insured
thereunder as its interests may appear and (b) in the case of each
business interruption and casualty insurance policy, contain a loss payable
clause or endorsement, satisfactory in form and substance to Collateral Agent,
that names Collateral Agent for the benefit of Secured Parties as the loss
payee thereunder for any covered loss and provides for at least 30 days prior
written notice to Collateral Agent of any modification or cancellation of such
policy.  The provisions of this Section 6.4B
shall be deemed supplemental to, but not duplicative of, the provisions of any
Collateral Documents that require the maintenance of insurance.


 


6.5           Books, Records, and Inspection Rights. 
Company shall, and shall cause each of its Subsidiaries to, keep proper
books of record and accounts in which full, true and correct entries in
conformity with GAAP and all material requirements of law shall be made of all
dealings and transactions in relation to its business and activities.  Company shall, and shall cause each of its
Material Subsidiaries to, permit any authorized representatives designated by
Administrative Agent or Requisite Lenders to visit and inspect any of the
properties of Company or of any of its Material Subsidiaries, to inspect, copy
and make abstracts from its and their financial and accounting records, and to
discuss its and their affairs, finances and accounts with its and their
officers and independent public accountants (provided that Company may,
if it so chooses, be present at or participate in any such discussion), all
upon reasonable notice and at such reasonable times during normal business
hours and as often as may reasonably be requested.


 


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6.6           Compliance with Laws, etc. 
Company shall comply, and shall cause each of its Subsidiaries to comply
with the requirements of all applicable laws, rules, regulations and orders (including
all Environmental Laws) of any governmental authority having jurisdiction over
it, except such as may be contested in good faith or as to which a bona fide
dispute may exist and except to the extent that noncompliance therewith could
not reasonably be expected to cause, individually or in the aggregate, a
Material Adverse Effect.


 


6.7           Execution of Loan Document by Future
Domestic Subsidiaries; Additional Collateral.


 


(i)            In the event that any
existing Domestic Subsidiary becomes a Pledged Subsidiary after the date hereof
or any Person becomes a Domestic Subsidiary after the date hereof and such
Domestic Subsidiary is a Pledged Subsidiary, in each case other than any
Designated Non-Wholly-Owned Subsidiary (each, a “New Domestic Subsidiary”),
Company will promptly notify Administrative Agent and Collateral Agent of such
fact and cause such New Domestic Subsidiary to (i) execute and deliver to
Administrative Agent and Collateral Agent a counterpart of the Subsidiary
Guaranty, the Pledge Agreement and the Security Agreement, (ii) cause the
capital stock owned by such New Domestic Subsidiary of any direct Domestic
Subsidiary (which is a Pledged Subsidiary) or direct any Material Foreign
Subsidiary of such New Domestic Subsidiary (or, if such New Domestic Subsidiary
owns 65% or more of the total combined voting power of all classes of Voting
Stock of any such direct Material Foreign Subsidiary, 65% of the Voting Stock
and 100% of the non-Voting Stock of such direct Material Foreign Subsidiary) to
be pledged under the Pledge Agreement and, in the case of any such direct
Material Foreign Subsidiary, also under any pledge agreements or instruments
that Collateral Agent deems necessary or advisable, or that Collateral Agent
may reasonably request, pursuant to the terms of the Pledge Agreement to
effectuate such pledge in the jurisdiction in which such Material Foreign
Subsidiary is organized, and (iii) take all such further actions and
execute all such further documents and instruments (including actions, documents
and instruments comparable to those described in Section 4.1G and H) as
may be necessary or, in the opinion of Collateral Agent, desirable to create in
favor of Collateral Agent, for the benefit of Secured Parties, a valid and
perfected First Priority Lien on all of the personal and mixed property assets
of such Subsidiary described in the applicable forms of Collateral
Documents.  In the event that any Person
becomes a direct Domestic Subsidiary (which is a Pledged Subsidiary) of a
direct Material Foreign Subsidiary after the date hereof, Company will promptly
notify Collateral Agent of that fact and cause the capital stock owned by
Company of such direct Domestic Subsidiary or such direct


 


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Material Foreign Subsidiary (or, if Company
owns 65% or more of the total combined voting power of all classes of Voting
Stock of any such direct Material Foreign Subsidiary, 65% of the Voting Stock
and 100% of the non-Voting Stock of such direct Material Foreign Subsidiary) to
be pledged under the Pledge Agreement and, in the case of any such direct
Material Foreign Subsidiary, also under any pledge agreements or instruments
that Collateral Agent deems necessary or advisable, or that Collateral Agent
may reasonably request, pursuant to the terms of the Pledge Agreement to
effectuate such pledge in the jurisdiction in which such Material Foreign
Subsidiary is organized.


 


B.            Company will, and will cause
each other Loan Party to, grant to Collateral Agent for the benefit of the
Secured Parties Mortgages on Real Property not subject to a Permitted Lien
(such Mortgages limited to unencumbered owned Real Property with a fair market
value in excess of $3,500,000) as may be requested from time to time by
Administrative Agent or the Requisite Lenders (collectively, the “Additional
Collateral Documents”). All such Mortgages shall be granted pursuant to
documentation reasonably satisfactory in form and substance to Collateral Agent
and shall constitute valid and enforceable First Priority Liens.  The Additional Collateral Documents or
instruments related thereto shall have been duly recorded or filed in such
manner and in such places as are required by law to establish, perfect,
preserve and protect the Liens in favor of Collateral Agent required to be
granted pursuant to the Additional Collateral Documents and all taxes, fees and
other charges payable in connection therewith shall have been paid in
full.  In the case of any Mortgages
pursuant to this Section 6.7B, Company or the respective Loan Party shall
deliver to Collateral Agent:


 


(i)            a fully executed counterpart
of such Mortgage and corresponding UCC Fixture Filings, in form and substance
reasonably satisfactory to Collateral Agent, which Mortgage and UCC Fixture
Filings shall cover such Mortgaged Property, together with evidence that
counterparts of such Mortgage and UCC Fixture Filings have been delivered to
the title insurance company insuring the Lien of such Mortgage for recording;


 


(ii)           a Mortgage Policy relating
to such Mortgage of the respective Mortgaged Property, issued by a title
insurer reasonably satisfactory to Collateral Agent, in an insured amount
satisfactory to Collateral Agent and insuring Collateral Agent that the
Mortgage on such Mortgaged Property is a valid and enforceable first priority
mortgage lien on such Mortgaged Property, free and clear of all defects and
encumbrances except Permitted Encumbrances, with such Mortgage Policy (1) to
be in form and substance reasonably satisfactory to Collateral Agent, (2) to
include, as requested by Collateral Agent, to the extent available in the
applicable jurisdiction, supplemental endorsements (including, without
limitation, endorsements relating to future advances under this Agreement and
the Loans, usury, first loss, last dollar, tax parcel, subdivision, zoning,
contiguity, variable rate, doing business, public road access, survey,
environmental lien, mortgage tax and so-called comprehensive coverage over
covenants and restrictions and for any other matters that Collateral Agent in
its discretion may reasonably request), (3) to not include the “standard”
title exceptions, a survey exception or an exception for mechanics’ liens, and (4) to
provide for affirmative insurance and such reinsurance as Collateral Agent in its
discretion may reasonably request;


 


109

















 


(iii)          to induce the title company
to issue the Mortgage Policy referred to in clause (ii) above, such
affidavits, certificates, information and instruments of indemnification
(including, without limitation, a so-called “gap” indemnification) as shall be
required by the title company, together with payment by Company of all Mortgage
Policy premiums, search and examination charges, mortgage recording taxes,
fees, charges, costs and expenses required for the recording of such Mortgage
and issuance of such Mortgage Policy;


 


(iv)          a survey of such Mortgaged
Property (and all improvements thereon) (1) prepared by a surveyor or
engineer licensed to perform surveys in the state where such Mortgaged Property
is located, (2) dated not earlier than six months prior to the date of
delivery thereof, (3) certified by the surveyor (in a manner reasonably
acceptable to Collateral Agent) to Collateral Agent in its capacity as such,
White & Case LLP and the title company, (4) complying in all
respects with the minimum detail requirements of the American Land Title
Association as such requirements are in effect on the date or preparation of
such survey, and (5) sufficient for the title company to remove all
standard survey exceptions from the Mortgage Policy relating to such Mortgaged
Property and issue the endorsements required pursuant to the provisions of
clause (ii) above;


 


(v)           to the extent requested by
Administrative Agent, copies of all leases in which Company or any other Loan
Party holds the lessor’s interest or other agreements relating to possessory
interests, if any; provided that, to the extent any of the foregoing
affect such Mortgaged Property, to the extent requested by Administrative
Agent, such agreements shall be subordinate to the Lien of the Mortgage to be
recorded against such Mortgaged Property, either expressly by its terms or
pursuant to a subordination, non-disturbance and attornment agreement (with any
such agreement being reasonably acceptable to Administrative Agent); and


 


(vi)          flood certificates covering
such Mortgaged Property in form and substance acceptable to Administrative
Agent, certified to Collateral Agent in its capacity as such and whether or not
such Mortgaged Property is located in a flood hazard area, as determined by
designation of each such Mortgaged Property in a specified flood hazard zone by
reference to the applicable FEMA map.


 


C.            Company will, and will cause
each of the other Loan Parties to, at the expense of Company, make, execute,
endorse, acknowledge, file and/or deliver to Collateral Agent from time to time
such schedules, confirmatory assignments, conveyances, financing statements,
transfer endorsements, powers of attorney, certificates, real property surveys,
reports, control agreements and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Collateral
Documents as Collateral Agent may reasonably require and are necessary for the
perfection or priority of the Liens intended to be granted by the Collateral
Documents. Furthermore, Company will, and will cause the other Loan Parties
that are Subsidiaries of Company to, deliver to Collateral Agent such opinions
of counsel, title insurance and other related documents as may be reasonably
requested by Administrative Agent to assure itself that this Section 6.7
has been complied with.


 


110

















 


D.            If Administrative Agent or
the Requisite Lenders reasonably determine that they are required by law or
regulation to have appraisals prepared in respect of any Real Property of
Company and the other Loan Parties constituting Collateral, Company will, at
its own expense, provide to Administrative Agent appraisals which satisfy the
applicable requirements of the Real Estate Appraisal Reform Amendments of the
Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended,
and which shall otherwise be in form and substance reasonably satisfactory to
Administrative Agent.


 


E.             Company agrees that each
action required by clauses (B) through (D) of this Section 6.7
shall be completed as soon as possible, but in no event later than 60 days
after such action is requested to be taken by Administrative Agent (unless
extended by Administrative Agent in its sole discretion); provided that
in no event will Company or any of its Subsidiaries be required to take any
action, other than using its best efforts, to obtain consents from third
parties with respect to its compliance with this Section 6.7.


 


6.8           Transactions with Affiliates. 
Company shall, and shall cause each of its Subsidiaries to, conduct all
transactions with any of its Affiliates (other than Company or any of its
Subsidiaries) upon terms that are substantially as favorable to Company or such
Subsidiary as it would obtain in a comparable arm’s-length transaction with a
Person not an Affiliate of Company or such Subsidiary; provided that the
foregoing restrictions shall not apply to (a) reasonable and customary
fees paid to members of the Board of Directors of Company and its Subsidiaries,
and (b) transactions otherwise expressly permitted hereunder between
Company or any of its Subsidiaries and any such Affiliate.


 


6.9           Use of Proceeds; Conduct of Business. 
Company shall use proceeds of the Loans only as provided in Section 5.9.  From and after the Closing Date, Company
shall, and shall cause its Subsidiaries (taken as a whole) to, engage primarily
in (i) the lines of business carried on by Company and its Subsidiaries on
the Closing Date and (ii) other businesses or activities that are
reasonably similar thereto or that constitute a reasonable extension,
development or expansion thereof or that are ancillary or reasonably related
thereto.


 


6.10         Fiscal Year; Fiscal Quarter. 
Company shall maintain (i) its and each of its Subsidiaries’ Fiscal
Year-end at December 31 of each year and (ii) its and each of its
Subsidiaries’ Fiscal Quarters to end on March 31, June 30, September 30
and December 31 of each year; provided that in the case of clause (i) above,
Company may, upon prior written notice to Administrative Agent, change such
Fiscal Year-end to any other date reasonably acceptable to Administrative
Agent, in which case Company and Administrative Agent shall, and are hereby
authorized by Lenders to, make any adjustments to this Agreement that are
necessary in order to reflect any corresponding changes in financial reporting.


 


111

















 


6.11         Maintenance of Company Separateness. 
Company shall, and shall cause each of its Significant Subsidiaries to,
satisfy customary corporate or other organizational formalities, including, as
applicable, (i) the holding of regular board of directors’ and
shareholders’ meetings or action by directors or shareholders without a
meeting, (ii) the maintenance of separate corporate or other
organizational records and (iii) the maintenance of separate bank accounts
(if any) in its own name.  Neither
Company nor any of its Significant Subsidiaries shall take any action, or
conduct its affairs in a manner, which would reasonably be expected to result
in the existence of Company or any of its Significant Subsidiaries being
ignored, or in the assets and liabilities of Company or any of its Significant
Subsidiaries being substantively consolidated with those of any other such
Person in a bankruptcy, reorganization or other insolvency proceeding.


 


6.12         Interest Rate Protection. 
No later than 180 days following the Closing Date, Company will enter
into (and thereafter maintain at least until the third anniversary of the
Closing Date) Interest Rate Agreements on terms mutually acceptable to Company
and Administrative Agent, after giving effect to which at least 50% of Company’s
Funded Debt will bear interest at a fixed or maximum rate.


 


6.13         Existing Senior Subordinated Notes. 
Company shall redeem in full all Existing Senior Subordinated Notes no
later than February 24, 2010.


 


SECTION 7.           NEGATIVE COVENANTS


 


Company covenants and agrees that, so long as any of
the Commitments hereunder shall remain in effect and until payment in full of
all of the Loans, Notes, Unpaid Drawings (in each case together with interest
thereon), Fees and all other Obligations and the cancellation or expiration of
all Letters of Credit, unless Requisite Lenders shall otherwise give prior
written consent, Company shall perform, and shall cause each of its
Subsidiaries to perform, all covenants in this Section 7.


 


7.1           Indebtedness. 
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become
or remain directly or indirectly liable with respect to, any Indebtedness,
except:


 


(i)            Company may become and
remain liable with respect to the Obligations;


 


(ii)           Company and its Subsidiaries
may become and remain liable with respect to Guarantee Obligations permitted
under Section 7.4 and, upon any matured obligations actually arising
pursuant thereto, the Indebtedness corresponding to the Guarantee Obligations
so extinguished;


 


(iii)          Company may become and
remain liable with respect to Indebtedness to any of its Subsidiaries, and any
Subsidiary of Company may become and remain liable with respect to Indebtedness
to Company or any other Subsidiary of Company;


 


(iv)          Company and its Subsidiaries
may remain liable with respect to Indebtedness described in Schedule 7.1
annexed hereto;


 


(v)           Company may remain liable
with respect to any portion of the Existing Senior Subordinated Notes not
tendered prior to the Closing Date pursuant to the Tender Offer until February 24,
2010;


 


112

















 


(vi)          Company may become and
remain liable with respect to (a) up to $190,000,000 aggregate principal
amount of New Senior Notes and (b) Indebtedness issued by Company in
exchange for, or the proceeds of which are used to repurchase, redeem, defease
or otherwise prepay or retire (collectively, to “Refinance” or a “Refinancing”),
the New Senior Notes (the “Replaced Debt”); provided that in the
case of (b) such Indebtedness is unsecured and pari passu with or
subordinated to the Obligations, such Indebtedness shall not mature prior to
six months after the stated final maturity of all Indebtedness under this
Agreement, after giving effect to the incurrence of such Indebtedness and the
payment of interest thereon, Company shall be in pro
forma compliance with Section 7.6 of this Agreement, and the other
terms of such Indebtedness (including amortization schedule, covenants,
defaults, remedies, and other material terms thereof) shall be on prevailing
market terms (in the good faith judgment of the Company), and the aggregate
principal amount of such Indebtedness shall not exceed the sum of (x) the
aggregate principal amount of the Replaced Debt thereby Refinanced plus (y) the
amount of any tender premium, call premium or similar premium (any such premium
being a “Refinancing Premium”) paid by Company in connection with such
Refinancing plus (z) the costs of issuance of such Indebtedness,
including placement agent fees or underwriting commissions (such Indebtedness
meeting the requirements set forth above being “Refinancing Debt”);


 


(vii)         Company and its Subsidiaries
may become and remain liable with respect to Indebtedness (a) incurred
within 270 days of the acquisition, construction or improvement of fixed or
capital assets to finance the acquisition, construction or improvement of such
fixed or capital assets or (b) otherwise incurred in respect of
Consolidated Capital Expenditures permitted under Section 7.8;


 


(viii)        Company and its Subsidiaries
may become and remain liable with respect to Indebtedness under Hedge
Agreements;


 


(ix)           Company and its Subsidiaries
may remain liable with respect to (X) in the case of a Subsidiary,
Indebtedness of such Subsidiary existing at the time of consummation of an
Acquisition pursuant to which such Person becomes a Subsidiary of Company or (Y) Indebtedness
secured by assets acquired by such Person in an Acquisition at the time of
consummation of such Acquisition; provided that such Indebtedness was
not incurred in contemplation of the Acquisition referred to in clause (X) or
the acquisition of such assets referred to in clause (Y), as the case may be,
and does not constitute Funded Debt;


 


(x)            Company and its Subsidiaries
may extend the maturity of, and may become and remain liable with respect to
Indebtedness incurred to refinance, any Indebtedness permitted under clauses
(ii), (iv), (vii) and (ix); provided that (a) the principal
amount of any such Indebtedness is not increased above the principal amount
thereof outstanding immediately prior to such extension or refinancing and (y) the
direct and contingent obligors with respect to such Indebtedness are not
increased as a result of such extension or refinancing;


 


113

















 


(xi)           Company and its Subsidiaries
may become and remain liable with respect to other Indebtedness in an aggregate
principal amount not to exceed $25,000,000 at any time outstanding; and


 


(xii)          additional unsecured
indebtedness so long as (a) no Potential Event of Default or Event of
Default has occurred and is continuing; (b) Company would be in compliance
on a Pro  Forma Basis after giving effect to the incurrence of
such Indebtedness with the covenants in Section 7.6 as of the most recent
Fiscal Quarter for which financial statements were delivered pursuant to
Sections 6.1(i) or (ii) or, if prior to the first delivery date for
such financial statements hereunder, as of the end of the period for which the
most recent financial statements of Company are available and if the last day
of any such period is prior to the first Fiscal Quarter for which the covenants
are tested, the levels for the first Fiscal Quarter for which the covenants are
tested shall be deemed to apply for such purpose; (c) the terms of such
Indebtedness do not provide for any scheduled repayment, mandatory redemption,
sinking fund obligation or maturity prior to the date occurring six months
after the Term Loan Maturity Date and (d) no Subsidiary of Company other
than Subsidiary Guarantors shall be an obligor in respect of such Indebtedness.


 


7.2           Liens and Related Matters. 
A. Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or permit to exist any Lien on or
with respect to any property or asset of any kind (real or personal, tangible
or intangible) (including any document or instrument in respect of goods or
accounts receivable) of Company or any of its Subsidiaries, whether now owned
or hereafter acquired, except:


 


(i)            Permitted Encumbrances;


 


(ii)           Liens existing on the
Closing Date securing Indebtedness and other obligations listed on Schedule
7.1;


 


(iii)          Liens granted pursuant to
this Agreement or the Collateral Documents;


 


(iv)          Liens placed on property,
plant or equipment and related assets used in the ordinary course of business
of Company or any of its Subsidiaries to secure Indebtedness incurred to pay
all or a portion of the purchase price thereof; provided that (a) the
Lien encumbering such property, plant or equipment and related assets does not
encumber any other asset of Company or any of its Subsidiaries other than
similar assets at the same location and (b) the Indebtedness secured
thereby is permitted under Section 7.1(vii);


 


(v)           Liens encumbering assets of
a Subsidiary of Company that are granted to secure Indebtedness permitted under
Section 7.1(ix) at the time such Indebtedness is originally incurred
(and not in contemplation of the Acquisition referred to in Section 7.1(ix));
and


 


(vi)          Other Liens securing
Indebtedness and other obligations in an aggregate amount not to exceed
$15,000,000 at any time outstanding.


 


114
















 


B.            No Further Negative Pledges.  Except with respect to (i) specific
property encumbered to secure payment of particular Indebtedness or to be sold
pursuant to an executed agreement with respect to an Asset Sale, (ii) provisions
in leases prohibiting assignment or encumbrance of the applicable leasehold
interest, (iii) agreements granting liens permitted by this Agreement, (iv) the
New Senior Notes Indenture or any Refinancing Debt Indenture, (v) agreements
in effect on the Closing Date, (vi) provisions in joint venture agreements
and other similar agreements entered into in the ordinary course of business, (vi) any
agreement in effect at the time the Person becomes a Subsidiary so long as such
agreement was not entered into in contemplation of the Person becoming a
Subsidiary, (viii) customary provisions restricting assignment of any
agreement entered into in the ordinary course of business, and (ix) any
agreement amending, refinancing or replacing any of the foregoing (so long as
any such restrictions are not materially more restrictive, taken as a whole,
than those contained in the agreement so amended, refinanced or replaced),
neither Company nor any of its Subsidiaries (other than Designated
Non-Wholly-Owned Subsidiaries) shall enter into any agreement prohibiting the
creation or assumption of any Lien upon any of its properties or assets,
whether now owned or hereafter acquired to secure the Obligations.


 


C.            No Restrictions on Subsidiary
Distributions to Company or Other Subsidiaries.  Except as provided herein, Company will not,
and will not permit any of its Subsidiaries (other than Designated
Non-Wholly-Owned Subsidiaries) to, create or otherwise cause or suffer to exist
or become effective any consensual encumbrance or restriction of any kind on
the ability of any such Subsidiary to (i) pay dividends or make any other
distributions on any of such Subsidiary’s capital stock or other equity
interests owned by Company or any other Subsidiary of Company, (ii) repay
or prepay any Indebtedness owed by such Subsidiary to Company or any other
Subsidiary of Company, (iii) make loans or advances to Company or any
other Subsidiary of Company, or (iv) transfer any of its property or
assets to Company or any other Subsidiary of Company, except for such
encumbrances or restrictions existing under or by reason of (a) applicable
law, (b) this Agreement and the other Loan Documents, (c) the New
Senior Notes Documents or any Refinancing Debt Indenture, (d) customary
provisions restricting subletting or assignment of any lease governing any
leasehold interest of Company or any of its Subsidiaries, (e) customary
provisions restricting assignment of any licensing agreement (in which Company
or any of its Subsidiaries is the licensee) or other contract entered into by
Company or any of its Subsidiaries in the ordinary course of business, (f) restrictions
on the transfer of any asset pending the close of the sale of such asset, (g) restrictions
on the transfer of any asset subject to a Lien permitted by Section 7.2A(ii) or
(iv), and (h) any agreement amending, refinancing or replacing any of the
foregoing (so long as any such restrictions are not materially more
restrictive, taken as a whole, than those contained in the agreement so
amended, refinanced or replaced).


 


7.3           Investments;
Joint Ventures.  Company shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly, make
or own any Investment in any Person, including any Joint Venture, except:


 


(i)            Company and its Subsidiaries may make and own Investments
in Cash Equivalents;


 


115

















 


(ii)           Company and its Subsidiaries may make loans and advances
to officers, directors and employees of Company or any of its Subsidiaries (a) to
finance the purchase of capital stock of Company and (b) in an aggregate
principal amount not to exceed $5,000,000 at any time outstanding for
additional purposes not contemplated by the foregoing clause (a);


 


(iii)          Company and its Subsidiaries may make and own Investments
consisting of any non-cash proceeds received by Company or any of its
Subsidiaries in connection with any Asset Sale permitted under Section 7.7(v);


 


(iv)          Company and its Subsidiaries may continue to own the
Investments owned by them and described in Schedule 7.3 annexed hereto
and Company and its Subsidiaries may make and own Investments purchased with
the proceeds of the sale of any Investments permitted under this Section 7.3(iv);


 


(v)           Company and its Subsidiaries may make and own Investments
in any Person in which Company or any of its Subsidiaries has an interest of
50% or less in an aggregate amount at any time not exceeding $50,000,000;


 


(vi)          Company and its Subsidiaries may make and own Investments
(collectively, “Unrestricted Investments”) in addition to those permitted
under clauses (i) through (v) above, including Investments in
Unrestricted Subsidiaries, as follows: (a) Unrestricted Investments in an
aggregate amount not to exceed at any time $45,000,000 for all such
Unrestricted Investments (including all such Unrestricted Investments in
Unrestricted Subsidiaries) and (b) Unrestricted Investments in addition to
the Unrestricted Investments permitted under the preceding clause (a), provided
that after giving effect to any such additional Unrestricted Investment pursuant
to this clause (b) the Available Amount Usage shall not exceed the
Available Amount; and provided  further, that Investments by
Company and its Subsidiaries in non-wholly-owned Subsidiaries which do not
become Loan Parties hereunder shall not exceed $15,000,000 in the aggregate;
and


 


(vii)         Any Acquisition permitted by Section 7.7.


 


7.4           Guarantee
Obligations.  Company shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, create or
become or remain liable with respect to any Guarantee Obligation, except:


 


(i)            Company
and its Subsidiaries may become and remain liable with respect to Guarantee
Obligations in respect of the Guaranties;


 


(ii)           Company
may become and remain liable with respect to Guarantee Obligations in respect
of Letters of Credit;


 


(iii)          Company
and its Subsidiaries may become and remain liable with respect to Guarantee
Obligations in respect of customary indemnification and purchase price
adjustment obligations incurred in connection with Asset Sales or other sales
of assets;


 


116

















 


(iv)          Company
and its Subsidiaries may become and remain liable with respect to Guarantee
Obligations under guarantees in the ordinary course of business of the
obligations of suppliers, customers, franchisees and licensees of Company and
its Subsidiaries;


 


(v)           Company
and its Subsidiaries may become and remain liable with respect to Guarantee
Obligations in respect of any Indebtedness of Company or any of its
Subsidiaries permitted by Section 7.1;


 


(vi)          Company
and its Subsidiaries, as applicable, may remain liable with respect to
Guarantee Obligations described in Schedule 7.4 annexed hereto; and


 


(vii)         Company
and its Subsidiaries may become and remain liable with respect to other Guarantee
Obligations; provided that the maximum aggregate liability, contingent
or otherwise, of Company and its Subsidiaries in respect of all such Guarantee
Obligations shall at no time exceed $15,000,000.


 


7.5           Restricted
Junior Payments.  Company shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly,
declare, order, pay, make or set apart any sum for any Restricted Junior
Payment; provided that (i) Company may repurchase or redeem its
Existing Senior Subordinated Notes not tendered prior to the Closing Date
pursuant to the Tender Offer in accordance with the Tender Offer or the terms
of the Existing Senior Subordinated Note Indentures, as the case may be and (ii) so
long as no Event of Default or Potential Event of Default has occurred and is
continuing or would be caused thereby, Company may:


 


(a)           repurchase shares of its capital
stock (together with options or warrants in respect of any thereof) held by
officers, directors and employees of Company so long as such repurchase is pursuant
to, and in accordance with the terms of, management and/or employee stock
plans, stock subscription agreements or shareholder agreements;


 


(b)           purchase, redeem or otherwise acquire
shares of common stock of Company or warrants or options to acquire any such
shares with proceeds received by Company from substantially concurrent equity
contributions or issuances of new shares of its common stock;


 


(c)           redeem or exchange, in whole or in
part, any capital stock of Company for shares of another class of capital stock
of Company or rights to acquire shares of such other class of capital stock; provided
that such other class of capital stock contains terms and provisions (taken as
a whole, and taking into account the relative amounts of the shares of each class
of capital stock involved in such redemption or exchange) that are at least as
advantageous to Lenders as those contained in the capital stock redeemed or
exchanged therefor;


 


(d)           redeem, repurchase or otherwise
prepay the Existing Senior Subordinated Notes pursuant to the Closing Date
Refinancing; and


 


(e)           make other Restricted Junior
Payments; provided that in each case, after giving effect thereto the
Available Amount Usage shall not exceed the Available Amount.


 


117

















 


7.6           Financial
Covenants.


 


A.            Minimum Interest Coverage Ratio.  Company shall not permit the Minimum Interest
Coverage Ratio for the four-Fiscal Quarter period ending on the last day of any
Fiscal Quarter (commencing with the Fiscal Quarter ending December 31,
2009) to be less than 2.75:1.00.


 


B.            Maximum Leverage Ratio.  Company shall not permit the Consolidated
Leverage Ratio as of the last day of any Fiscal Quarter set forth below to
exceed the correlative ratio indicated.


 


	
  Year

  	
   

  	
  Fiscal Quarter Ending

  	
   

  	
  Maximum Consolidated

  Leverage Ratio

  	
   

  
	
  2009

  	
   

  	
  Fourth

  	
   

  	
  4.75:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2010

  	
   

  	
  First

  	
   

  	
  4.75:1.00

  	
   

  
	
   

  	
   

  	
  Second

  	
   

  	
  4.75:1.00

  	
   

  
	
   

  	
   

  	
  Third

  	
   

  	
  4.75:1.00

  	
   

  
	
   

  	
   

  	
  Fourth

  	
   

  	
  4.75:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2011

  	
   

  	
  First

  	
   

  	
  4.75:1.00

  	
   

  
	
   

  	
   

  	
  Second

  	
   

  	
  4.50:1.00

  	
   

  
	
   

  	
   

  	
  Third

  	
   

  	
  4.50:1.00

  	
   

  
	
   

  	
   

  	
  Fourth

  	
   

  	
  4.50:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2012

  	
   

  	
  First

  	
   

  	
  4.50:1.00

  	
   

  
	
   

  	
   

  	
  Second

  	
   

  	
  4.25:1.00

  	
   

  
	
   

  	
   

  	
  Third

  	
   

  	
  4.25:1.00

  	
   

  
	
   

  	
   

  	
  Fourth

  	
   

  	
  4.25:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2013

  	
   

  	
  First

  	
   

  	
  4.25:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Thereafter

  	
   

  	
   

  	
   

  	
  4.00:1.00

  	
   

  



 


7.7           Restrictions
on Certain Fundamental Changes; Asset Sales and Acquisitions.  Company shall not, and shall not permit any
of its Subsidiaries to, enter into any transaction of merger or consolidation,
or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor),
transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or assets, whether now
owned or hereafter acquired, or make any Acquisition, except:


 


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(i)            any Subsidiary of Company may be merged with or into
Company or any other Subsidiary of Company, and any Subsidiary of Company may
be liquidated, wound up or dissolved, or all or any part of its business,
property or assets (including capital stock of any Subsidiary of Company) may
be conveyed, sold, leased, transferred or otherwise disposed of, in one
transaction or a series of transactions, to Company or any other Subsidiary of
Company; provided that (a) in the case of any such merger involving
Company, Company shall be the continuing or surviving corporation, (b) in
the case of any such merger involving a Subsidiary Guarantor and another
Subsidiary, such Subsidiary Guarantor shall be the continuing or surviving
corporation and (c) the aggregate fair market value of assets conveyed,
sold, leased, transferred or disposed of by Company or any Subsidiary Guarantor
to a Subsidiary which is not a Subsidiary Guarantor shall not exceed $5,000,000
in any Fiscal Year (other than assets conveyed, sold, leased, transferred or
disposed of for fair value and consideration consisting of at least 75% cash);


 


(ii)           Company and its Subsidiaries may make Acquisitions (by
merger or otherwise) so long as the requirements of Section 6.7 have been
satisfied and prior to the consummation of any such Acquisition, Company shall
have delivered to Administrative Agent (a) financial statements for
Company and its Subsidiaries for the four Fiscal-Quarter period most recently
ended (the “Pro Forma Test Period”), prepared on a Pro Forma
Basis as if such Acquisition had been consummated on the first day of the Pro Forma
Test Period and giving effect to Company’s good faith estimate of any
anticipated cost savings or increases as a result of the consummation thereof,
and (b) a pro forma Compliance Certificate
demonstrating that, on the basis of such pro forma financial
statements, Company would have been in compliance with all financial covenants
set forth in Section 7.6 on the last day of the Pro Forma
Test Period; provided that, for Acquisitions consummated prior to the
last day of the first Fiscal Quarter of 2010, the requirements of Section 7.6
in effect for the four Fiscal-Quarter period ending on such date shall be
deemed to be in effect for the Pro Forma Test Period;


 


(iii)          Company and its Subsidiaries may dispose of obsolete, worn
out or surplus property in the ordinary course of business and sell or discount
without recourse accounts receivable arising in the ordinary course of business
in connection with the compromise or collection thereof;


 


(iv)          Company and its Subsidiaries may sell or otherwise dispose
of other assets in transactions that do not constitute Asset Sales;


 


(v)           Company and its Subsidiaries may make Asset Sales of
assets having a fair value not in excess of $65,000,000 during the term of this
Agreement; provided that (w) the consideration received in each
such Asset Sale shall be in an amount at least equal to the fair value of the
assets being sold; (x) any non-cash consideration received by Company in
respect of any such Asset Sale in the form of Indebtedness of any Person in an
amount in excess of $5,000,000 shall be evidenced by a promissory note which
shall be pledged by Company to Administrative Agent pursuant to the Pledge
Agreement as security for the Obligations; and (y) the proceeds of such
Asset Sales shall be applied as required by Section 2.4B(iii)(b); and


 


(vi)          Investments permitted under Section 7.3.


 


7.8           Consolidated
Capital Expenditures.


 


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A.            Company shall not, and shall not
permit its Subsidiaries to, make or incur Consolidated Capital Expenditures in
any Fiscal Year in excess of (i) the amount set forth opposite such Fiscal
Year below plus (ii) commencing in 2011, the Carryover Amount in
effect for such Fiscal Year, provided that the maximum amount of
Carryover Amount permitted to be used in any Fiscal Year shall be $35,000,000.


 


	
  Fiscal Year

  	
   

  	
  Maximum Consolidated
  Capital Expenditures

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2010

  	
   

  	
  $90,000,000

  	
   

  
	
  2011

  	
   

  	
  $90,000,000

  	
   

  
	
  Thereafter

  	
   

  	
  $100,000,000

  	
   

  
	
  2017

  	
   

  	
   

  	
   

  



 


For purposes of this Section 7.8, “Carryover
Amount” means, in respect of any Fiscal Year, (i) the amount set forth
above for the immediately preceding Fiscal Year (or, commencing in Fiscal Year
2012, the sum of the amounts set forth above for the two immediately preceding
Fiscal Years) minus (ii) the aggregate amount of Consolidated
Capital Expenditures made pursuant to this Section 7.8A in such
immediately preceding Fiscal Year (or, commencing in Fiscal Year 2012, the aggregate
amount of Consolidated Capital Expenditures made pursuant to this Section 7.8A
in the two immediately preceding Fiscal Years).


 


B.            In addition to the foregoing,
Company may incur Consolidated Capital Expenditures in any Fiscal Year up to an
amount which will not cause the Available Amount Usage to exceed the Available
Amount.


 


7.9           Amendments
of Documents Relating to other Indebtedness.  Company shall not amend or otherwise change,
or consent to any amendment or change to, the terms of any New Senior Notes or
Subordinated Indebtedness, or make any payment 
consistent with an amendment thereof or change thereto, if the effect of
such amendment or change is to (i) increase the interest rate on such New
Senior Notes or Subordinated Indebtedness (other than with respect to interest
payable in kind so long as Company would be in compliance on a Pro  Forma
Basis after giving effect to the interest payable in kind with the covenants in
Section 7.1), (ii) change (to earlier dates) any dates upon which
payments of principal or interest are due thereon, (iii) change any event
of default or condition to an event of default with respect thereto (other than
the waiver of any such default by the holders of such New Senior Notes or
Subordinated Indebtedness, to eliminate any such event of default or increase
any grace period related thereto), (iv) change the redemption, prepayment
or defeasance provisions thereof, (v) change any subordination provisions
thereof (or of any guaranty thereof or guaranty requirements with respect
thereto other than to release such guaranty), (vi) change or add any
collateral therefor (other than to release such collateral), (vii) add any
financial maintenance covenant thereto, or (viii) together with all other
amendments or changes made, increase materially the obligations of the obligor
thereunder or confer any material additional rights on the holders of such New
Senior Notes or Subordinated Indebtedness (or a trustee or other representative
on their behalf) which would be adverse to Company or Lenders (as determined by
Administrative Agent  in its reasonable
judgment).


 


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SECTION 8.           EVENTS OF DEFAULT.  If any of the
following conditions or events (“Events of Default”) shall occur:


 


8.1           Failure
to Make Payments When Due.  (i) 
Failure by Company to pay any installment of principal of any Loan or any Note
when due, whether at stated maturity, by acceleration, by mandatory prepayment
or otherwise; or (ii) failure by Company to pay when due any amount
payable to an Issuing Lender in reimbursement of any drawing under a Letter of
Credit; or (iii) failure by Company to pay any interest on any Loan or
Note, any Fees or any other amounts owing hereunder or under any Loan Document,
which failure in the case of clause (iii) shall continue unremedied for
five or more days; or


 


8.2           Default
in Other Agreements.  (i) 
Failure of Company or any of its Subsidiaries to pay when due any principal of
or interest on or any other amount payable in respect of one or more items of
Indebtedness (other than Indebtedness referred to in Section 8.1) or
Guarantee Obligations with an aggregate principal amount of $20,000,000 or more
beyond the end of any grace or notice period provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligations was created;
or (ii) breach or default by Company or any of its Subsidiaries with
respect to any other material term of (a) one or more items of
Indebtedness or Guarantee Obligations in the aggregate principal amount
referred to in clause (i) above or (b) any loan agreement, mortgage,
indenture or other agreement evidencing, securing or relating to such item(s) of
Indebtedness or Guarantee Obligation(s), if such breach or default continues
after any applicable grace or notice period provided therefor, or any other
event or condition shall occur or exist, unless cured or waived, and the effect
of such breach or default or other event or condition is to cause, or to permit
the holder or holders of that Indebtedness or Guarantee Obligation(s) (or
a trustee on behalf of such holder or holders) to cause, that Indebtedness or
Guarantee Obligation(s) to become or be declared due and payable, or
required to be prepaid other than by a regularly scheduled prepayment, prior to
its stated maturity or the stated maturity of any underlying obligation, as the
case may be; or


 


8.3           Breach
of Certain Covenants.  Failure of
Company to perform, observe or comply with any term or condition contained in Section 6.1(vi)(a),
the first sentence of Section 6.9, Section 6.13 or Section 7; or


 


8.4           Breach
of Warranty; etc.  Any
representation, warranty, certification or other statement made or deemed to be
made by Company or any of its Subsidiaries in any Loan Document or in any
statement or certificate at any time delivered to Administrative Agent or any
Lender in writing pursuant hereto or in connection herewith shall prove to be
untrue in any material respect on the date as of which made or deemed to be
made; or


 


8.5           Other
Defaults Under Loan Documents.  Any
Loan Party shall default in the performance of or compliance with any term
contained in this Agreement or any of the other Loan Documents, other than any
such term referred to in any other Section of this Section 8, and
such default shall not have been remedied or waived within 30 days after
receipt by Company and such Loan Party of notice from Administrative Agent or
any Lender of such default; or


 


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8.6           Bankruptcy;
Appointment of Receiver, etc. 
Company  or any of its Material
Subsidiaries shall commence a voluntary case concerning itself under the
Bankruptcy Code; or an involuntary case is commenced against Company or any of
its Subsidiaries, and the petition is not controverted within 10 days, or is
not dismissed within 45 days after the filing thereof, provided, however,
that during the pendency of such period, each Lender shall be relieved of its
obligation to extend credit hereunder; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially all
of the property of Company or any of its Material Subsidiaries, to operate all
or any substantial portion of the business of Company or any of its Material
Subsidiaries, or Company or any of its Material Subsidiaries commences any
other proceeding 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 Company or any of
its Material Subsidiaries, or there is commenced against Company or any of its
Material Subsidiaries any such proceeding which remains undismissed for a
period of 60 days after the filing thereof, or Company or any of its Material
Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or Company or any
of its Material Subsidiaries makes a general assignment for the benefit of
creditors; or any action is taken by Company or any of its Material
Subsidiaries for the purpose of effecting any of the foregoing; or


 


8.7           Collateral
Documents; Guaranties; Repudiation of Obligations, etc.  At any time after the execution and delivery
thereof:


 


(i)            any of the Collateral Documents shall cease to be in full
force and effect, or shall cease to give Collateral Agent for the benefit of
the Secured Parties the Liens, rights, powers and privileges purported to be
created thereby (including, without limitation, a perfected security interest
in, and Lien on, all of the Collateral (other than with respect to Collateral
the aggregate value of which is less than $15,000,000), in favor of Collateral
Agent, superior to and prior to the rights of all Third Parties (except as
permitted by Section 7.2), and subject to no other Liens (except as
permitted by Section 7.2), or any Loan Party shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any such Collateral Document and such default
shall continue beyond the period of grace, if any, specifically applicable
thereto pursuant to the terms of such Collateral Document; or


 


(ii)           (a) any provision of the Subsidiary Guaranty or any
guaranty entered into by a Subsidiary of Company pursuant to Section 6.7
for any reason, other than the satisfaction in full of all Obligations, shall
cease to be in full force and effect (other than in accordance with its terms)
or shall be declared to be null and void, as to any material portion of
Subsidiary Guarantors and other Subsidiaries guaranteeing the Obligations, or (b) or
any Subsidiary Guarantor, or any Person acting for or on behalf of a Subsidiary
Guarantor, shall deny or disaffirm such Subsidiary Guarantor’s obligations
under any Subsidiary Guaranty or any guaranty entered into by a Subsidiary of
Company pursuant to Section 6.7 for any reason, or


 


(iii)          any Loan Party shall deny in writing its obligations under
any Loan Document to which it is a party; or


 


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8.8           Judgments
and Attachments.  Any money
judgments, decrees, writs or warrants of attachment or similar processes
involving in the aggregate at any time an amount in excess of $20,000,000 (to
the extent such amount is not adequately covered by insurance as to which the
insurance company has not disputed coverage in writing) shall be entered or
filed against Company or any of its Subsidiaries or any of their respective
assets and such judgments, decrees, writs or warrants of attachment or similar
process either shall be final and non-appealable or shall not be discharged,
vacated, bonded or stayed pending appeal for a period of 60 consecutive days;
or


 


8.9           ERISA.  An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan, except to extent that any such event,
individually or in the aggregate, would not reasonably by expected to have a
Material Adverse Effect; or


 


8.10         Change
of Control.  A Change of Control
shall occur;


 


THEN (i) upon the occurrence of any Event of
Default described in Section 8.6, each of (a) the unpaid principal
amount of and accrued interest on the Loans and the Notes, (b) an amount
equal to the maximum amount that may at any time be drawn under all Letters of
Credit then outstanding (whether or not any beneficiary under any such Letter
of Credit shall have presented, or shall be entitled at such time to present,
the drafts or other documents or certificates required to draw under such
Letter of Credit), and (c) all other Obligations owing hereunder or under
any Loan Document, shall automatically become immediately due and payable,
without presentment, demand, protest or other notice or requirements of any
kind, all of which are hereby expressly waived by Company, and (X) the
Commitment of each Lender, (Y) the obligation of any Issuing Lender to
issue any Letter of Credit and (Z) the right of any Lender to issue any
Letter of Credit hereunder shall thereupon terminate, and (ii) upon the
occurrence and during the continuation of any other Event of Default,
Administrative Agent shall, upon the written request or with the written
consent of Requisite Lenders, by written notice to Company, (I) declare
all or any portion of the amounts described in clauses (a) through (c) above
to be, and the same shall forthwith become, immediately due and payable, and
the Commitment of each Lender, the obligation of any Issuing Lender to issue
any Letter of Credit and the right of any Lender to issue any Letter of Credit
hereunder shall thereupon terminate; provided that the foregoing shall
not affect in any way the obligations of Lenders under Section 3.4C or the
obligations of Lenders to purchase participations in any unpaid Swing Line
Loans as provided in Section 2.1A(iii), (II) enforce, as Collateral Agent,
all of the Liens and security interests created pursuant to the Collateral
Documents, and/or (III) apply any cash collateral held by Administrative
Agent pursuant to this Agreement to the repayment of the Obligations.


 


Any amounts described in clause (b) above, when
received by Administrative Agent, shall be held by Administrative Agent
pursuant to the terms of the Collateral Account Agreement and shall be applied
as therein provided.


 


Notwithstanding anything contained in the second
preceding paragraph, if at any time within 60 days after an acceleration of the
Loans pursuant to clause (ii) of such paragraph Company shall pay all
arrears of interest and all payments on account of principal which shall have
become due otherwise than as a result of such acceleration (with interest on
principal and, to the extent permitted by law, on overdue interest, at the
rates specified in this Agreement) and all Events of Default and Potential
Events of Default (other than non-payment of the principal of and accrued
interest on the Loans, in each case which is due and payable solely by virtue
of 


 


123

















 


acceleration) shall be
remedied or waived pursuant to Section 10.6, then Requisite Lenders, by
written notice to Company, may at their option rescind and annul such
acceleration and its consequences; but such action shall not affect any
subsequent Event of Default or Potential Event of Default or impair any right
consequent thereon.  The provisions of
this paragraph are intended merely to bind Lenders to a decision which may be
made at the election of Requisite Lenders and are not intended, directly or
indirectly, to benefit Company, and such provisions shall not at any time be
construed so as to grant Company the right to require Lenders to rescind or
annul any acceleration hereunder or to preclude Administrative Agent or Lenders
from exercising any of the rights or remedies available to them under any of
the Loan Documents, even if the conditions set forth in this paragraph are met.


 


Notwithstanding anything to the contrary contained in
this Section 8, in the event that Company fails to comply with the
requirements of Section 7.6 as of the end of any relevant Fiscal Quarter,
Company shall have the right (the “Cure Right”) (at any time during such
Fiscal Quarter or thereafter until the date that is 10 days after the date the
Compliance Certificate is required to be delivered pursuant to Section 6.1(iii))
to receive cash contributions to its common equity or cash proceeds of common
equity issuances in an amount equal to no greater than that needed to cause
Company to be in compliance with the requirements of Section 7.6 (the “Cure
Amount”), and, provided 100% of such cash contribution has been
contributed, or such cash proceeds received, as common equity to Company as
common equity, thereupon Company’s compliance with Section 7.6 shall be
recalculated giving effect to the following pro forma adjustments:  (i) Consolidated Adjusted EBITDA shall
be increased, solely for the purposes of determining compliance with Section 7.6,
as of the end of such Fiscal Quarter and applicable subsequent periods that
include such Fiscal Quarter by an amount equal to the Cure Amount (provided
that, for such relevant Fiscal Quarter, Consolidated Total Debt shall not be
recalculated to give effect to any repayment of Indebtedness with the Cure
Amount) and (ii) if, after giving effect to the foregoing recalculations,
the requirements of Section 7.6 shall be satisfied, then the requirements
of Section 7.6 shall be deemed satisfied as of the end of the relevant
Fiscal Quarter with the same effect as though there had been no failure to
comply therewith at such date, and the applicable breach or default of Section 7.6
that had occurred shall be deemed cured for the purposes of this
Agreement.  Notwithstanding anything
herein to the contrary, (a) the Cure Amount shall be no greater than the
amount required for purposes of complying with Section 7.6, (b) Company
shall not be entitled to exercise the Cure Right more than two times during the
term of this Agreement, (c) all Cure Amounts shall be disregarded for
purposes of determining baskets with respect to the covenants contained in the
Loan Documents, for purposes of determining pricing and for any other purpose,
and may not be used to make a Restricted Junior Payment, and (d) upon
Administrative Agent’s receipt of a notice from Company that it intends to
exercise the Cure Right (a “Notice of Intent to Cure”), until the 10th
day following date of delivery of the Compliance Certificate under Section 6.1(iii) to
which such Notice of Intent to Cure relates, none of Administrative Agent nor
any Lender shall exercise the right to accelerate the Loans or terminate the
Commitments and none of Administrative Agent, Collateral Agent nor any other
Lender or Secured Parties shall (i) exercise any right to foreclose on or
take possession of the Collateral or (ii) exercise any other remedy
hereunder or applicable law solely on the basis of an Event of Default having
occurred and being continuing under Section 7.6.


 


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SECTION 9.           ADMINISTRATIVE AGENT


 


9.1           Appointment. 
The Lenders hereby irrevocably designate and appoint DB as
Administrative Agent (for purposes of this Section 9 and Section 10.2,
the term “Administrative Agent” also shall include DB in its capacity as Collateral
Agent pursuant to the Collateral Documents) to act as specified herein and in
the other Loan Documents.  Each Lender
hereby irrevocably authorizes, and each holder of any Note by the acceptance of
such Note shall be deemed irrevocably to authorize, Administrative Agent to
take such action on its behalf under the provisions of this Agreement, the
other Loan Documents and any other instruments and agreements referred to
herein or therein and to exercise such powers and to perform such duties hereunder
and thereunder as are specifically delegated to or required of Administrative
Agent by the terms hereof and thereof and such other powers as are reasonably
incidental thereto.  Administrative Agent
may perform any of its respective duties hereunder by or through its officers,
directors, agents, employees or Affiliates.


 


9.2           Nature of Duties.


 


A.            Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement
and in the other Loan Documents.  Neither
Administrative Agent nor any of its officers, directors, agents, employees or
Affiliates shall be liable for any action taken or omitted by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful misconduct
(as determined by a court of competent jurisdiction in a final and
non-appealable decision).  The duties of
Administrative Agent shall be mechanical and administrative in nature;
Administrative Agent shall not have by reason of this Agreement or any other
Loan Document a fiduciary relationship in respect of any Lender or the holder
of any Note; and nothing in this Agreement or in any other Loan Document,
expressed or implied, is intended to or shall be so construed as to impose upon
Administrative Agent any obligations in respect of this Agreement or any other
Loan Document except as expressly set forth herein or therein.


 


B.            Notwithstanding any other
provision of this Agreement or any provision of any other Loan Document, each
Lead Arranger is named as such for recognition purposes only, and in its
capacity as such shall have no powers, duties, responsibilities or liabilities
with respect to this Agreement or the other Loan Documents or the transactions
contemplated hereby and thereby; it being understood and agreed that each Lead
Arranger shall be entitled to all indemnification and reimbursement rights in
favor of Administrative Agent as, and to the extent, provided for under Section 10.2.  Without limitation of the foregoing, none of
Lead Arrangers shall, solely by reason of this Agreement or any other Loan
Documents, have any fiduciary relationship in respect of any Lender or any
other Person.


 


9.3           Lack of Reliance on Administrative Agent. 
Independently and without reliance upon Administrative Agent, each
Lender and the holder of each Note, to the extent it deems appropriate, has
made and shall continue to make (i) its own independent investigation of
the financial condition and affairs of Company and its Subsidiaries in
connection with the making and the continuance of the Loans and the taking or
not taking of any action in connection herewith and (ii) its own appraisal
of the creditworthiness of Company and its Subsidiaries and, except as
expressly provided in this Agreement, Administrative Agent shall not have any
duty or


 


125

















 


responsibility, either
initially or on a continuing basis, to provide any Lender or the holder of any
Note with any credit or other information with respect thereto, whether coming
into its possession before the making of the Loans or at any time or times
thereafter.  Administrative Agent shall
not be responsible to any Lender or the holder of any Note for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of this Agreement or any
other Loan Document or the financial condition of Company or any of its
Subsidiaries or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any other Loan Document, or the financial condition of Company or
any of its Subsidiaries or the existence or possible existence of any Potential
Event of Default or Event of Default.


 


9.4           Certain Rights of Administrative Agent. 
If Administrative Agent requests instructions from the Requisite Lenders
with respect to any act or action (including failure to act) in connection with
this Agreement or any other Loan Document, Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until
Administrative Agent shall have received instructions from the Requisite
Lenders; and Administrative Agent shall not incur liability to any Lender by
reason of so refraining.  Without
limiting the foregoing, neither any Lender nor the holder of any Note shall
have any right of action whatsoever against Administrative Agent as a result of
Administrative Agent acting or refraining from acting hereunder or under any
other Loan Document in accordance with the instructions of the Requisite Lenders.


 


9.5           Reliance. 
Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement,
certificate, telex, teletype or telecopier message, cablegram, radiogram, order
or other document or telephone message signed, sent or made by any Person that
Administrative Agent believed to be the proper Person, and, with respect to all
legal matters pertaining to this Agreement and any other Loan Document and its
duties hereunder and thereunder, upon advice of counsel selected by
Administrative Agent.


 


9.6           Right to Indemnity. 
To the extent Administrative Agent (or any Affiliate thereof) is not
reimbursed and indemnified by Company, the Lenders will reimburse and indemnify
Administrative Agent (and any Affiliate thereof) in proportion to their
respective “percentage” as used in determining the Requisite Lenders
(determined as if there were no Defaulting Lenders) for and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by Administrative Agent (or any
Affiliate thereof) in performing its duties hereunder or under any other Loan
Document or in any way relating to or arising out of this Agreement or any
other Loan Document; provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, claims,
actions, judgments, suits, costs, expenses or disbursements resulting from
Administrative Agent’s (or such Affiliate’s) gross negligence or willful
misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision).


 


126

















 


9.7           Administrative Agent in its Individual
Capacity.  With respect to its obligation to make Loans,
or issue or participate in Letters of Credit, under this Agreement,
Administrative Agent shall have the rights and powers specified herein for a “Lender”
and may exercise the same rights and powers as though it were not performing
the duties specified herein; and the term “Lender”, “Requisite Class Lenders”,
“Requisite Lenders”, or any similar terms shall, unless the context
clearly indicates otherwise, include Administrative Agent in its respective
individual capacities.  Administrative
Agent and its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of banking, investment banking, trust or other business with,
or provide debt financing, equity capital or other services (including
financial advisory services) to any Loan Party or any Affiliate of any Loan
Party (or any Person engaged in a similar business with any Loan Party or any
Affiliate thereof) as if they were not performing the duties specified herein,
and may accept fees and other consideration from any Loan Party or any
Affiliate of any Loan Party for services in connection with this Agreement and
otherwise without having to account for the same to the Lenders.


 


9.8           Holders. 
Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes hereof unless and until a written notice of the
assignment, transfer or endorsement thereof, as the case may be, shall have
been filed with Administrative Agent. 
Any request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is the holder of any
Note shall be conclusive and binding on any subsequent holder, transferee, assignee
or endorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.


 


9.9           Resignation by Administrative Agent;
Replacement.


 


A.            Administrative Agent may resign from the
performance of all its respective functions and duties hereunder and/or under
the other Loan Documents at any time by giving 15 Business Days’ prior written
notice to the Lenders and, unless a Potential Event of Default or an Event of
Default under Section 8.6 then exists, Company.  Any such resignation by an Administrative
Agent hereunder shall automatically, and with no further action required on the
part of Administrative Agent, also constitute its resignation as an Issuing
Lender and the Swing Line Lender, in which case the resigning Administrative Agent
(x) shall not be required to issue any further Letters of Credit or make
any additional Swing Line Loans hereunder and (y) shall maintain all of
its rights as Issuing Lender or Swing Line Lender, as the case may be, with
respect to any Letters of Credit issued by it, or Swing Line Loans made by it,
prior to the date of such resignation. 
Such resignation shall take effect upon the appointment of a successor
Administrative Agent pursuant to clauses (B) and (C) below or as
otherwise provided below.


 


B.            Upon any such notice of
resignation by Administrative Agent, the Requisite Lenders shall appoint a
successor Administrative Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to Company, which
acceptance shall not be unreasonably withheld or delayed (provided that
Company’s approval shall not be required if an Event of Default then exists).


 


C.            If a successor
Administrative Agent shall not have been so appointed within such 15 Business
Day period, Administrative Agent, with the consent of Company (which consent
shall not be unreasonably withheld or delayed, provided that Company’s
consent shall not be required if an Event of Default then exists), shall then
appoint a successor Administrative Agent who shall serve as Administrative
Agent hereunder or thereunder until such time, if any, as the Requisite Lenders
appoint a successor Administrative Agent as provided above.


 


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D.            If no successor
Administrative Agent has been appointed pursuant to clause (B) or (C) above
by the 20th Business Day after the date such notice of resignation was given by
Administrative Agent, Administrative Agent’s resignation shall become effective
and the Requisite Lenders shall thereafter perform all the duties of
Administrative Agent hereunder and/or under any other Loan Document until such
time, if any, as the Requisite Lenders appoint a successor Administrative Agent
as provided above.


 


E.             The Requisite Lenders may at
any time when Administrative Agent has become the subject of a proceeding under
any bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors’ rights generally, or had a receiver, conservator,
trustee or custodian appointed for it, upon no less than 15 Business Days’
prior notice, replace Administrative Agent. 
Any such replacement of Administrative Agent hereunder shall
automatically, and with no further action required on the part of
Administrative Agent, also constitute its resignation as an Issuing Lender and
the Swing Line Lender, in which case the replaced Administrative Agent (x) shall
not be required to issue any further Letters of Credit or make any additional
Swing Line Loans hereunder and (y) shall maintain all of its rights as
Issuing Lender or Swing Line Lender, as the case may be, with respect to any
Letters of Credit issued by it, or Swing Line Loans made by it, prior to the
date of such replacement.  Such
resignation shall take effect upon the appointment of a successor Administrative
Agent pursuant to clause (F) below or as otherwise provided below.


 


F.             If Administrative Agent is
replaced pursuant to the preceding clause (E), the Requisite Lenders shall have
the right to appoint a successor which successor Administrative Agent shall be
consented to by Company (which consent shall not be unreasonably withheld or
delayed, provided that Company’s consent shall not be required if an
Event of Default then exists); provided that the successor
Administrative Agent shall not be the subject of a proceeding under any  bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors’ rights generally,
or had a receiver, conservator, trustee or custodian appointed for it and shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the replaced Administrative Agent, and the replaced Administrative
Agent shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents.


 


G.            The fees payable by Company
to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between Company and such successor.


 


H.            Upon a resignation or
replacement of Administrative Agent pursuant to this Section 9.9,
Administrative Agent shall remain indemnified to the extent provided in this
Agreement and the other Loan Documents and the provisions of this Section 9
(and the analogous provisions of the other Loan Documents) shall continue in
effect for the benefit of Administrative Agent for all of its actions and
inactions while serving as Administrative Agent.


 


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9.10         Collateral Matters.


 


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


 


B.            The Lenders hereby authorize
Collateral Agent, at its option and in its discretion, to release any Lien
granted to or held by Collateral Agent upon any Collateral (i) upon
termination of the Commitments and payment and satisfaction of all of the
Obligations (other than inchoate indemnification obligations) at any time
arising under or in respect of this Agreement or the Loan Documents or the
transactions contemplated hereby or thereby, (ii) constituting property
being sold or otherwise disposed of (to Persons other than Company and its
Subsidiaries) upon the sale or other disposition thereof in compliance with Section 7.7,
(iii) if approved, authorized or ratified in writing by the Requisite
Lenders (or all of the Lenders hereunder, to the extent required by Section 10.6)
or (iv) as otherwise may be expressly provided in the relevant Collateral
Documents.  Upon request by
Administrative Agent at any time, the Lenders will confirm in writing
Collateral Agent’s authority to release particular types or items of Collateral
pursuant to this Section 9.10.


 


C.            Collateral Agent shall have
no obligation whatsoever to the Lenders or to any other Person to assure that
the Collateral exists or is owned by any Loan Party or is cared for, protected
or insured or that the Liens granted to Collateral Agent herein or pursuant
hereto have been properly or sufficiently or lawfully created, perfected,
protected or enforced or are entitled to any particular priority, or to
exercise or to continue exercising at all or in any manner or under any duty of
care, disclosure or fidelity any of the rights, authorities and powers granted
or available to Collateral Agent in this Section 9.10 or in any of the
Collateral Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, Collateral Agent may
act in any manner it may deem appropriate, in its sole discretion, given
Collateral Agent’s own interest in the Collateral as one of the Lenders and
that Collateral Agent shall have no duty or liability whatsoever to the
Lenders, except for its gross negligence or willful misconduct (as determined
by a court of competent jurisdiction in a final and non-appealable decision).


 


9.11         Delivery of Information. 
Administrative Agent shall not be required to deliver to any Lender
originals or copies of any documents, instruments, notices, communications or
other information received by Administrative Agent from any Loan Party, any
Subsidiary, the Requisite Lenders, any Lender or any other Person under or in
connection with this Agreement or any other Loan Document except (i) as
specifically provided in this Agreement or any other Loan Document and (ii) as
specifically requested from time to time in writing by any Lender with respect
to a specific document, instrument, notice or other written communication
received by and in the possession of Administrative Agent at the time of
receipt of such request and then only in accordance with such specific request.


 


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SECTION 10.         MISCELLANEOUS


 


10.1         Benefit of Agreement; Assignments;
Participations.


 


A.            This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, Company may not
assign or transfer any of its rights, obligations or interest hereunder without
the prior written consent of the Lenders (and any purported assignment or
transfer without such consent shall be null and void) and, provided further,
that, although any Lender may transfer, assign or grant participations in its
rights hereunder, such Lender shall remain a “Lender” for all purposes
hereunder (and may not transfer or assign all or any portion of its Commitments
hereunder except as provided in Sections 2.10 and 10.1B) and the transferee,
assignee or participant, as the case may be, shall not constitute a “Lender”
hereunder and, provided further, that no Lender shall transfer or grant
any participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Loan Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Revolving Loan Maturity Date) in which such participant
is participating, or reduce the rate or extend the time of payment of interest
or Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof
(it being understood that any amendment or modification to the financial
definitions in this Agreement or to Section 1.2 shall not constitute a
reduction in the rate of interest or Fees payable hereunder), or increase the
amount of the participant’s participation over the amount thereof then in
effect (it being understood that a waiver of any Potential Event of Default or
Event of Default or of a mandatory reduction in the Commitments shall not
constitute a change in the terms of such participation, and that an increase in
any Commitment (or the available portion thereof) or Loan shall be permitted
without the consent of any participant if the participant’s participation is
not increased as a result thereof), (ii) consent to the assignment or
transfer by Company of any of its rights and obligations under this Agreement
or (iii) release all or substantially all of the Collateral under all of
the Collateral Documents (except as expressly provided in the Loan Documents)
supporting the Loans or Letters of Credit hereunder in which such participant
is participating.  In the case of any
such participation, the participant shall not have any rights under this
Agreement or any of the other Loan Documents (the participant’s rights against
such Lender in respect of such participation to be those set forth in the
agreement executed by such Lender in favor of the participant relating thereto)
and all amounts payable by Company hereunder shall be determined as if such
Lender had not sold such participation.


 


B.            Notwithstanding
the foregoing, any Lender (or any Lender together with one or more other
Lenders) may (x) assign all or a portion of its Commitments and related
outstanding Obligations (or, if the Commitments with respect to the relevant
Tranche have terminated, outstanding Obligations) hereunder to (i)(a) its
parent company and/or any Affiliate of such Lender which is at least 50% owned
by such Lender or its parent company or (b) one or more other Lenders or
any Affiliate of any such other Lender which is at least 50% owned by such
other Lender or its parent company (provided that any fund that invests
in loans and is 


 


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managed
or advised by the same investment advisor of another fund which is a Lender (or
by an Affiliate of such investment advisor) shall be treated as an Affiliate of
such other Lender for the purposes of this sub-clause (x)(i)(b)), or
(ii) in the case of any Lender that is a fund that invests in loans, any
other fund that invests in loans and is managed or advised by the same
investment advisor of any Lender or by an Affiliate of such investment advisor
or (y) assign all, or if less than all, a portion equal to at least
$1,000,000 (in the case of Term Loans) or $2,000,000 (in the case of Revolving
Loan Commitments) in the aggregate for the assigning Lender or assigning
Lenders, of such Commitments and related outstanding Obligations (or, if the
Commitments with respect to the relevant Tranche have terminated, outstanding
Obligations) hereunder to one or more Eligible Assignees (treating any fund
that invests in loans and any other fund that invests in loans and is managed
or advised by the same investment advisor of such fund or by an Affiliate of
such investment advisor as a single Eligible Assignee), each of which assignees
shall become a party to this Agreement as a Lender by execution of an
Assignment Agreement, provided that (i) at such time, Schedule
2.1 shall be deemed modified to reflect the Commitments and/or outstanding
Loans, as the case may be, of such new Lender and of the existing Lenders, (ii) upon
the surrender of the relevant Notes by the assigning Lender (or, upon such
assigning Lender’s indemnifying Company for any lost Note pursuant to a
customary indemnification agreement) new Notes will be issued, at Company’s
expense, to such new Lender and to the assigning Lender upon the request of
such new Lender or assigning Lender, such new Notes to be in conformity with
the requirements of Section 2.1(E) (with appropriate modifications)
to the extent needed to reflect the revised Commitments and/or outstanding
Loans, as the case may be, (iii) the consent of Administrative Agent and,
so long as no Potential Event of Default under Section 8.6 or Event of
Default then exists and the Syndication Date has thereto occurred, Company,
shall be required in connection with any such assignment pursuant to clause (y) above
(such consent, in any case, not to be unreasonably withheld, delayed or
conditioned), provided that (I) Company shall be deemed to have
consented to any such assignment unless it shall object thereto by written
notice to Administrative Agent within five Business Days after having received
notice thereof and (II) the consent of Administrative Agent shall not be
required in connection with a repurchase or assignment pursuant to Section 2.13,
(iv) Administrative Agent shall receive at the time of each such
assignment, from the assigning or assignee Lender, the payment of a
non-refundable assignment fee of $3,500 and (v) no such transfer or
assignment will be effective until recorded by Administrative Agent on the
Register pursuant to Section 2.1D. 
To the extent of any assignment pursuant to this Section 10.1B, the
assigning Lender shall be relieved of its obligations hereunder with respect to
its assigned Commitments and outstanding Loans. 
At the time of each assignment pursuant to this Section 10.1B to a
Person which is not already a Lender hereunder and which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Internal
Revenue Code) for Federal income tax purposes, the respective assignee Lender
shall, to the extent legally entitled to do so, provide to Company the
appropriate Internal Revenue Service Forms (and, if applicable, a Certificate
re Non-Bank Status) described in Section 2.7B(iii) and, shall, for
the avoidance of doubt, comply with the provisions of Section 2.7B(iii) in
their entirety.  To the extent that an
assignment of all or any portion of a Lender’s Commitments and related
outstanding Obligations pursuant to Section 2.10 or this Section 10.1B
would, at the time of such assignment, result in increased costs under Sections
2.6, 2.7 or 3.6 from those being charged by the respective assigning Lender
prior to such assignment, then Company shall not be obligated to pay such
increased costs (although Company, in accordance with and pursuant to the other
provisions of this Agreement, shall be obligated to pay any other 


 


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increased
costs of the type described above resulting from changes after the date of the
respective assignment).  If an assigning
Lender is entitled (on the date of assignment) to additional amounts pursuant
to Section 2.7B(ii)(b) (or pursuant to this sentence) with respect to
a United States withholding tax as a result of a change in applicable law,
treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, after the Closing Date, an assignee Lender similarly
shall be entitled to such additional amounts (if not otherwise entitled to such
amounts pursuant to Section 2.7B(ii)(b)) to the extent such assigning
Lender was entitled to such additional amounts and such United States
withholding tax would have been a Non-Excluded Tax with respect to such
assignee Lender if such assignee Lender had been a party to this Agreement on
the Closing Date.


 


C.            Nothing in this
Agreement shall prevent or prohibit any Lender from pledging its Loans and
Notes hereunder to a Federal Reserve Bank in support of borrowings made by such
Lender from such Federal Reserve Bank and, with prior notification to
Administrative Agent (but without the consent of Administrative Agent or
Company), any Lender which is a fund may pledge all or any portion of its Loans
and Notes to its trustee or to a collateral agent providing credit or credit
support to such Lender in support of its obligations to such trustee, such
collateral agent or a holder of such obligations, as the case may be.  No pledge pursuant to this Section 10.1C
shall release the transferor Lender from any of its obligations hereunder.


 


D.            Any Lender
which assigns all of its Commitments and/or Loans hereunder in accordance with Section 10.1B
shall cease to constitute a “Lender” hereunder, except with respect to
indemnification provisions under this Agreement (including, without limitation,
Sections 2.6, 2.7, 3.5C, 3.6, 9.6, 10.2 and 10.5), which shall survive as to
such assigning Lender.


 


10.2         Expenses; Indemnity.


 


A.            Company hereby agrees to:  (i) whether
or not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of Administrative Agent (including, without
limitation, the reasonable fees and disbursements of White & Case LLP
and Administrative Agent’s other counsel and consultants) in connection with
the preparation, execution, delivery and administration of this Agreement and
the other Loan Documents and the documents and instruments referred to herein
and therein and any amendment, waiver or consent relating hereto or thereto, of
Administrative Agent and its Affiliates in connection with its or their
syndication efforts with respect to this Agreement and of Administrative Agent,
of each Issuing Lender and the Swing Line Lender in connection with the Back-Stop
Arrangements entered into by such Persons and, after the occurrence of an Event
of Default, each of the Issuing Lenders and Lenders in connection with the
enforcement of this Agreement and the other Loan Documents and the documents
and instruments referred to herein and therein or in connection with any
refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a “work-out” or pursuant to any insolvency or
bankruptcy proceedings (including, in each case without limitation, the
reasonable fees and disbursements of counsel and consultants for Administrative
Agent and, after the occurrence of an Event of Default, counsel for each of the
Issuing Lenders and Lenders); (ii) pay and hold Administrative Agent, each
of the Issuing Lenders and each of the Lenders harmless from and against any
and all present and future stamp, excise and other similar documentary taxes
with


 


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respect to the foregoing
matters and save Administrative Agent, each of the Issuing Lenders and each of
the Lenders harmless from and against any and all liabilities with respect to
or resulting from any delay or omission (other than to the extent attributable
to Administrative Agent, such Issuing Lender or such Lender) to pay such taxes;
and (iii) indemnify Administrative Agent, each Issuing Lender and each
Lender, and each of their respective officers, directors, employees,
representatives, agents, Affiliates, trustees and investment advisors (each, an
“Indemnified Person”) from and hold each of them harmless against any
and all liabilities, obligations (including removal or remedial actions),
losses, damages, penalties, claims, actions, judgments, suits, costs, expenses
and disbursements (including reasonable attorneys’ and consultants’ fees and
disbursements) incurred by, imposed on or assessed against any of them as a
result of, or arising out of, or in any way related to, or by reason of, (a) any
investigation, litigation or other proceeding (whether or not Administrative
Agent, any Issuing Lender or any Lender is a party thereto and whether or not
such investigation, litigation or other proceeding is brought by or on behalf
of any Loan Party) related to the entering into and/or performance of this
Agreement or any other Loan Document or the use of any Letter of Credit or the
proceeds of any Loans hereunder or the consummation of the Transaction or any
other transactions contemplated herein or in any other Loan Document or the
exercise of any of their rights or remedies provided herein or in the other
Loan Documents, or (b) the actual or alleged presence of Hazardous
Materials in the air, surface water or groundwater or on the surface or
subsurface of any Real Property at any time owned, leased or operated by
Company or any of its Subsidiaries, the generation, storage, transportation,
handling or disposal of Hazardous Materials by Company or any of its
Subsidiaries at any location, whether or not owned, leased or operated by
Company or any of its Subsidiaries, the non-compliance by Holdings or any of
its Subsidiaries with any Environmental Law (including applicable permits
thereunder) applicable to any Real Property, or any Environmental Claim
asserted against Company, any of its Subsidiaries or any Real Property at any
time owned, leased or operated by Company or any of its Subsidiaries,
including, in each case, without limitation, the reasonable fees and
disbursements of counsel and other consultants incurred in connection with any
such investigation, litigation or other proceeding (but excluding any losses,
liabilities, claims, damages or expenses to the extent incurred by reason of
the gross negligence or willful misconduct of the Indemnified Person to be
indemnified (as determined by a court of competent jurisdiction in a final and
non-appealable decision)).  To the extent
that the undertaking to indemnify, pay or hold harmless Administrative Agent,
any Issuing Lender or any Lender set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, Company
shall make the maximum contribution to the payment and satisfaction of each of
the indemnified liabilities which is permissible under applicable law.


 


B.            To the full extent permitted by
applicable law, Company shall not assert, and hereby waives, any claim against
any Indemnified Person, on any theory of liability, for special, indirect,
consequential or incidental damages (as opposed to direct or actual damages) arising
out of, in connection with, or as a result of, this Agreement or any agreement
or instrument contemplated hereby, the transactions contemplated hereby or
thereby, any Loan or the use of the proceeds thereof.  No Indemnified Person shall be liable for any
damages arising from the use by unintended recipients of any information or
other materials distributed by it through telecommunications, electronic or
other information transmission systems in connection with this Agreement or the
other Loan Documents or the transactions contemplated hereby or thereby, except
to the extent the liability of such Indemnified Person results from such Indemnified
Person’s gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non appealable decision).


 


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10.3         Patriot
Act.  Each Lender subject to the USA
PATRIOT ACT (Title 111 of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”) hereby notifies Company that pursuant to the
requirements of the Act, it is required to obtain, verify and record
information that identifies Company and the other Loan Parties and other
information that will allow such Lender to identify Company and the other Loan
Parties in accordance with the Act.


 


10.4         Set-Off.  A.  In
addition to any rights now or hereafter granted under applicable law and not by
way of limitation of any such rights, upon the occurrence of any Event of
Default, Administrative Agent, each Issuing Lender and each Lender is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to any Loan Party or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate
and to apply any and all deposits (general or special, including Indebtedness
evidenced by certificates of deposit, whether matured or unmatured, but not
including trust accounts) and any other Indebtedness at any time held or owing
by Administrative Agent, such Issuing Lender or such Lender (including, without
limitation, by branches and agencies of Administrative Agent, such Issuing
Lender or such Lender wherever located) to or for the credit or the account of
Company against and on account of any Obligations and liabilities of the Loan
Parties then due and payable to Administrative Agent, such Issuing Lender or
such Lender under this Agreement, the Letters of Credit and participations
therein and the other Loan Documents, and all other claims of any nature or description
arising out of or connected with this Agreement or any other Loan Document,
irrespective of whether or not Administrative Agent, such Issuing Lender or
such Lender shall have made any demand for payment thereof and although said
Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured.


 


B.            NOTWITHSTANDING
THE FOREGOING SECTION 10.4A, AT ANY TIME THAT THE LOANS OR ANY OTHER
OBLIGATION SHALL BE SECURED BY REAL PROPERTY LOCATED IN CALIFORNIA, NO LENDER
SHALL EXERCISE A RIGHT OF SETOFF, LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR
ADMINISTRATIVE ACTION OR INSTITUTE ANY PROCEEDING TO ENFORCE ANY PROVISION OF
THIS AGREEMENT OR ANY NOTE UNLESS IT IS TAKEN WITH THE CONSENT OF THE REQUISITE
LENDERS OR APPROVED IN WRITING BY ADMINISTRATIVE AGENT, IF SUCH SETOFF OR
ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE OF CIVIL
PROCEDURE SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR
OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY OR ENFORCEABILITY OF THE
LIENS GRANTED TO COLLATERAL AGENT PURSUANT TO THE COLLATERAL DOCUMENTS OR THE
ENFORCEABILITY OF THE NOTES AND OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED
EXERCISE BY ANY LENDER OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE
REQUISITE LENDERS OR ADMINISTRATIVE AGENT SHALL BE NULL AND VOID.  THIS SECTION 10.4B SHALL BE SOLELY FOR
THE BENEFIT OF EACH OF THE LENDERS AND ADMINISTRATIVE AGENT HEREUNDER.


 


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10.5         Ratable
Sharing.


 


A.            Lenders
hereby agree among themselves that if any of them shall, whether by voluntary
payment (other than a voluntary prepayment of Loans made and applied in
accordance with the terms of this Agreement), by realization upon security,
through the exercise of any right of set-off or banker’s lien, by counterclaim
or cross action or by the enforcement of any right under the Loan Documents or
otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, amounts payable in respect of Loans,
Unpaid Drawings, Letters of Credit, Fees and other amounts then due and owing
to that Lender hereunder or under the other Loan Documents (collectively, the “Aggregate
Amounts Due” to such Lender) which is greater than the proportion received
by any other Lender in respect of the Aggregate Amounts Due to such other
Lender, then the Lender receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Lender of the receipt of such payment and (ii) apply
a portion of such payment to purchase participations (which it shall be deemed
to have purchased from each seller of a participation simultaneously upon the
receipt by such seller of its portion of such payment) in the Aggregate Amounts
Due to the other Lenders so that all such recoveries of Aggregate Amounts Due
shall be shared by all Lenders in proportion to the Aggregate Amounts Due to
them; provided that if all or part of such proportionately greater
payment received by such purchasing Lender is thereafter recovered from such
Lender upon the bankruptcy or reorganization of Company or otherwise, those
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender ratably to the
extent of such recovery, but without interest. 
Company expressly consents to the foregoing arrangement and agrees that any
holder of a participation so purchased may exercise any and all rights of
banker’s lien, set-off or counterclaim with respect to any and all monies owing
by Company to that holder with respect thereto as fully as if that holder were
owed the amount of the participation held by that holder.


 


B.            Except as otherwise
provided in this Agreement, Administrative Agent agrees that promptly after its
receipt of each payment from or on behalf of Company in respect of any
Obligations hereunder, Administrative Agent shall distribute such payment to
the Lenders entitled thereto (other than any Lender that has consented in
writing to waive its Pro  Rata Share of any such payment) pro
rata based upon their respective shares, if any, of the Obligations with
respect to which such payment was received.


 


C.            Notwithstanding
anything to the contrary contained herein, the provisions of the preceding
Sections 10.5A and B shall be subject to (i) Section 2.13 and (ii) the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.


 


10.6         Amendments
and Waivers.


 


A.            Neither
this Agreement nor any other Loan Document nor any terms hereof or thereof may
be changed, waived, discharged or terminated unless such change, waiver,
discharge or termination is in writing signed by the respective Loan Parties
party hereto or thereto and the Requisite Lenders (although additional parties
may be added to (and annexes may be modified to reflect such additions), and
Subsidiaries of Company may be released from, the 


 


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Subsidiary Guaranty and
the Collateral Documents in accordance with the provisions hereof and thereof
without the consent of the other Loan Parties party thereto or the Requisite
Lenders), provided that no such change, waiver, discharge or termination
shall, without the consent of each Lender (other than a Defaulting Lender,
except in the case of following clause (i) in connection with any extension
of final scheduled maturity or reduction (or forgiveness) of principal) (with
Obligations directly affected in the case of following clause (i)), (i) extend
the final scheduled maturity of any Loan or Note or extend the stated
expiration date of any Letter of Credit beyond the Revolving Loan Maturity
Date, or reduce the rate or extend the time of payment of interest or Fees
thereon (except in connection with the waiver of applicability of any
post-default increase in interest rates), or reduce (or forgive) the principal
amount thereof (it being understood that any amendment or modification to the
financial definitions in this Agreement or to Section 1.2 shall not
constitute a reduction in the rate of interest or Fees for the purposes of this
clause (i)), (ii) release all or substantially all of the Collateral
(except as expressly provided in the Loan Documents) under all the Collateral
Documents, (iii) amend, modify or waive any provision of this Section 10.6A
(except for technical amendments with respect to additional extensions of
credit pursuant to this Agreement which afford the protections to such
additional extensions of credit of the type provided to the Term Loans and the
Revolving Loan Commitments on the Closing Date), (iv) reduce the “majority”
voting threshold specified in the definition of “Requisite Lenders” (it being
understood that, with the consent of the Requisite Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of “Requisite Lenders” on substantially the same basis as the
extensions of Term Loans and Revolving Loan Commitments are included on the
Closing Date), or (v) consent to the assignment or transfer by Company of
any of its rights and obligations under this Agreement; provided further,
that no such change, waiver, discharge or termination shall (1) increase
the Commitments of any Lender over the amount thereof then in effect without
the consent of such Lender (it being understood that waivers or modifications
of conditions precedent, covenants, Potential Events of Default or Events of
Default or of a mandatory reduction in the Commitments shall not constitute an
increase of the Commitment of any Lender, and that an increase in the available
portion of any Commitment of any Lender shall not constitute an increase of the
Commitment of such Lender), (2) without the consent of each Issuing
Lender, amend, modify or waive any provision of Section 3 or alter its
rights or obligations with respect to Letters of Credit, (3) without the
consent of the Swing Line Lender, alter the Swing Line Lender’s rights or
obligations with respect to Swing Line Loans, (4) without the consent of
Administrative Agent, amend, modify or waive any provision of Section 9 or
any other provision as same relates to the rights or obligations of
Administrative Agent, (5) without the consent of Collateral Agent, amend,
modify or waive any provision relating to the rights or obligations of
Collateral Agent, (6) except in cases where additional extensions of term
loans and/or revolving loans are being afforded substantially the same
treatment afforded to the Term Loans and Revolving Loans pursuant to this
Agreement on the Closing Date, without the consent of the Requisite Class Lenders
of each Class which is being allocated a lesser prepayment, repayment or
commitment reduction as a result of the actions described below, alter the
required application of any prepayments or repayments (or commitment
reduction), as between the various Classes, pursuant to Section 2.4B(iv)(b) (it
being understood, however, that the Requisite Lenders may waive, in whole or in
part, any such prepayment, repayment or commitment reduction, so long as the
application, as amongst the various Classes, of any such prepayment, repayment
or commitment reduction which is still required to be made is not altered), (7) without
the consent 


 


136

















 


of the Requisite Class Lenders
of the respective Class affected thereby, amend the definition of
Requisite Class Lenders (it being understood that, with the consent of the
Requisite Lenders, additional extensions of credit pursuant to this Agreement
may be included in the determination of the Requisite Class Lenders on
substantially the same basis as the extensions of Loans and Commitments are
included on the Closing Date), or (8) without the written consent of the
Requisite Class Lenders of Revolving Loans and/or Revolving Loan
Commitments, amend, modify or waive any condition precedent set forth in Section 4
with respect to the making of Revolving Loans, Swing Line Loans or the issuance
of Letters of Credit.  This Section 10.6
and the other voting-related provisions in this Agreement and the other Loan
Documents are subject to the terms of Section 2.13B.


 


B.            If, in connection
with any proposed change, waiver, discharge or termination of or to any of the
provisions of this Agreement as contemplated by clauses (i) through (v),
inclusive, of the first proviso to Section 10.6A, the consent of the
Requisite Lenders is obtained but the consent of one or more of such other
Lenders whose consent is required is not obtained, then Company shall have the
right, so long as all non-consenting Lenders whose individual consent is
required are treated as described in either clause (a) or (b) below,
to either (a) replace each such non-consenting Lender or Lenders (or, at
the option of Company, if the respective Lender’s consent is required with
respect to less than all Loans (or related Commitments), to replace only the
Revolving Loan Commitments and/or Loans of the respective non-consenting Lender
which gave rise to the need to obtain such Lender’s individual consent) with
one or more Replacement Lenders pursuant to Section 2.10 so long as at the
time of such replacement, each such Replacement Lender consents to the proposed
change, waiver, discharge or termination or (b) terminate such
non-consenting Lender’s Revolving Loan Commitment (if such Lender’s consent is
required as a result of its Revolving Loan Commitment) and/or repay all outstanding
Loans of such Lender which gave rise to the need to obtain such Lender’s
consent and/or cash collateralize its applicable Pro  Rata Share
of the Letter of Credit Usage, in accordance with Section 2.4B(v), provided
that unless the Commitments which are terminated and Loans which are repaid
pursuant to preceding clause (b) are immediately replaced in full at such
time through the addition of new Lenders or the increase of the Commitments
and/or outstanding Loans of existing Lenders (who in each case must
specifically consent thereto), then in the case of any action pursuant to
preceding clause (b), the Requisite Lenders (determined after giving effect to
the proposed action) shall specifically consent thereto, provided further,
that Company shall not have the right to replace a Lender, terminate its
Commitment or repay its Loans solely as a result of the exercise of such Lender’s
rights (and the withholding of any required consent by such Lender) pursuant to
the second proviso to Section 10.6A.


 


C.            Notwithstanding the
foregoing, (x) any provision of this Agreement may be amended by an
agreement in writing entered into by Company, the Requisite Lenders and
Administrative Agent (and, if their rights or obligations are affected thereby,
each Issuing Lender and the Swing Line Lender) if (i) by the terms of such
agreement the Commitment of each Lender not consenting to the amendment
provided for therein shall terminate upon the effectiveness of such amendment
and (ii) at the time such amendment becomes effective, each Lender not
consenting thereto receives payment (including pursuant to an assignment to a
Replacement Lender in accordance with Section 10.1) in full of the
principal of and interest accrued on each Loan made by it and all other amounts
owing to it or accrued for its account 


 


137

















 


under
this Agreement and (y) this Agreement may be amended (or amended and
restated) with the written consent of the Requisite Lenders, Administrative
Agent and Company (a) to add one or more additional credit facilities to
this Agreement and to permit the extensions of credit from time to time
outstanding thereunder and the accrued interest and fees in respect thereof to
share ratably in the benefits of this Agreement and the other Loan Documents
with the Term Loans and the Revolving Loans and the accrued interest and fees
in respect thereof and (b) to include appropriately the Lenders holding
such credit facilities in any determination of the Requisite Lenders.


 


D.            In addition,
notwithstanding the foregoing, this Agreement may be amended with the written
consent of Administrative Agent, Company and the Lenders providing the relevant
Replacement Term Loans to permit the refinancing of all outstanding Term Loans
(the “Refinanced Term Loans”), with a replacement term loan tranche
denominated in Dollars (the “Replacement Term Loans”) respectively,
hereunder; provided that (a) the aggregate principal amount of such
Replacement Term Loans shall not exceed the aggregate principal amount of such
Refinanced Term Loans, (b) the Applicable Margins for such Replacement
Term Loans shall not be higher than the Applicable Margins 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 prepayment of the applicable Term Loans), and (d) all
other terms applicable to such Replacement Term Loans shall be substantially
identical to, or less favorable to the Lenders providing such Replacement Term
Loans than, those applicable to such Refinanced Term Loans, except to the extent
necessary to provide for covenants and other terms applicable to any period
after the latest final maturity of the Term Loans in effect immediately prior
to such refinancing.


 


E.             Notwithstanding
anything to the contrary contained in Section 10.1A, Company,
Administrative Agent and each Incremental Term Loan Lender and each Incremental
RL Lender may, in accordance with the provisions of Section 2.11 or 2.12,
as the case may be, enter into an Incremental Loan Commitment Agreement, provided
that after the execution and delivery by the respective Company, Administrative
Agent and each such Lender party to such Incremental Loan Commitment Agreement,
such Incremental Loan Commitment Agreement may thereafter only be modified in
accordance with the requirements this Section 10.6A.


 


10.7         Notices.  Unless otherwise specifically provided
herein, any notice or other communication herein required or permitted to be
given shall be in writing (including telecopier) and may be personally served,
telecopied or sent by United States mail or courier service and shall be deemed
to have been given when deposited in the mails, delivered in person or to the
courier or sent by telecopier; provided that notices and communications
to Administrative Agent and Company shall not be effective until received by
Administrative Agent or Company, as the case may be.  For the purposes hereof, the address of each
party hereto shall be as set forth under such party’s name on the signature pages hereof
or (i) as to Administrative Agent, at the Notice Office or at such other
address as shall be designated by Administrative Agent in a written notice
delivered to the other parties hereto and (ii) as to each other party,
such other address as shall be designated by such party in a written notice delivered
to Administrative Agent.


 


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10.8         Survival
of Representations, Warranties and Agreements.


 


A.            All
representations, warranties and agreements made herein shall survive the
execution and delivery of this Agreement and the making of the Loans and the
issuance of the Letters of Credit hereunder.


 


B.            Notwithstanding anything in this
Agreement or implied by law to the contrary, the agreements of Company set
forth in Sections 2.6D, 2.7, 3.5C, 3.6, 10.2 and 10.4 and the agreements of
Lenders set forth in Sections 9.2A, 9.6, 9.10 and 10.5 shall survive the
payment of the Loans, the cancellation or expiration of the Letters of Credit
and the reimbursement of any amounts drawn thereunder, and the execution, delivery
and termination of this Agreement.


 


10.9         Failure
or Indulgence Not Waiver; Remedies Cumulative.  No failure or delay on the part of
Administrative Agent, Collateral Agent, any Issuing Lender or any Lender in the
exercise of any power, right or privilege hereunder or under any other Loan
Document and no course of dealing between Company or any other Loan Party and
Administrative Agent, Collateral Agent, any Issuing Lender or any Lender shall
impair such power, right or privilege or be construed to be or operate as a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege.  All rights and remedies existing under this
Agreement and the other Loan Documents are cumulative to, and not exclusive of,
any rights or remedies which Administrative Agent, Collateral Agent, and
Issuing Lender or any Lender would otherwise have.  No notice to or demand on any Loan Party in
any case shall entitle any Loan Party to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of
Administrative Agent, Collateral Agent, any Issuing Lender or any Lender to any
other or further action in any circumstances without notice or demand.


 


10.10       Marshalling;
Payments Set Aside.  Neither
Administrative Agent nor any Lender shall be under any obligation to marshal
any assets in favor of Company or any other party or against or in payment of
any or all of the Obligations.  To the
extent that Company makes a payment or payments to Administrative Agent or
Lenders (or to Administrative Agent for the benefit of Lenders), or
Administrative Agent or Lenders enforce any security interests or exercise
their rights of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law, any
other state or federal law, common law or any equitable cause, then, to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, rights and remedies therefor or related thereto,
shall be revived and continued in full force and effect as if such payment or
payments had not been made or such enforcement or setoff had not occurred.


 


10.11       Severability.  In case any provision in or obligation under
this Agreement or the Notes shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.


 


139

















 


10.12       Obligations
Several; Independent Nature of Lenders’ Rights.  The obligations of Lenders hereunder are
several and no Lender shall be responsible for the obligations or Commitments
of any other Lender hereunder.  Nothing
contained herein or in any other Loan Document, and no action taken by Lenders
pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity.  The amounts payable at any time hereunder to
each Lender shall be a separate and independent debt, and each Lender shall be
entitled to protect and enforce its rights arising out of this Agreement and it
shall not be necessary for any other Lender to be joined as an additional party
in any proceeding for such purpose.


 


10.13       Headings.  Section and Section headings in
this Agreement are included herein for convenience of reference only and shall
not constitute a part of this Agreement for any other purpose or be given any
substantive effect.


 


10.14       GOVERNING
LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.  A. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL, EXCEPT AS OTHERWISE PROVIDED IN ANY MORTGAGE, BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES).  ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF
NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, COMPANY HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS.  COMPANY HEREBY FURTHER
IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION
OVER COMPANY, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT BROUGHT IN ANY OF THE
AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER COMPANY.  COMPANY FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO COMPANY AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE
BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.  COMPANY HEREBY IRREVOCABLY WAIVES ANY
OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES
NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER
ANY OTHER LOAN DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
INEFFECTIVE.  NOTHING HEREIN SHALL AFFECT
THE RIGHT OF ADMINISTRATIVE AGENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST COMPANY IN ANY OTHER JURISDICTION.


 


140
















 


B.            COMPANY
HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT BROUGHT
IN THE COURTS REFERRED TO IN SECTION 10.14A ABOVE AND HEREBY FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY
SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.


 


C.            EACH
OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.


 


10.15       Successors
and Assigns.  This Agreement shall be
binding upon the parties hereto and their respective successors and assigns and
shall inure to the benefit of the parties hereto and the successors and assigns
of Lenders (it being understood that Lenders’ rights of assignment are subject
to Section 10.1).  None of Company’s
rights or obligations hereunder or under the other Loan Documents nor any
interest therein may be assigned or delegated by Company without the prior
written consent of all Lenders.


 


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


 


10.17       Confidentiality.  Each Lender shall hold all non-public
information obtained pursuant to the requirements of this Agreement which has
been identified as confidential by Company in accordance with such Lender’s
customary procedures for handling confidential information of this nature and
in accordance with safe and sound banking practices, it being understood and
agreed by Company that in any event a Lender may make (i) disclosures to
Affiliates of such Lender and their respective employees, directors, agents,
attorneys, accountants and other professional advisors, (ii) disclosures
reasonably required by any bona fide assignee, transferee or participant and
their respective investment advisers in connection with the contemplated
assignment or transfer by such Lender of any Loans or any participations
therein, 


 


141

















 


(iii) disclosures
required or requested by any governmental agency or representative thereof, or
the NAIC, (iv) disclosures required to any direct or indirect contractual
counterparty in swap agreements or such contractual counterparty’s professional
advisor (so long as such contractual counterparty or professional advisor to
such contractual counterparty agrees to be bound by the provisions of this Section 10.17),
(v) disclosures pursuant to legal process or as required pursuant to
applicable law or (vi) disclosures to any other Person with the prior
written consent of Company and Administrative Agent in the exercise of their
respective sole discretion; provided that, unless specifically
prohibited by applicable law or court order, each Lender shall notify Company
of any request by any governmental agency or representative thereof or the NAIC
(other than any such request in connection with any examination of the
financial condition of such Lender by such governmental agency or the NAIC) for
disclosure of any such non-public information prior to disclosure of such
information; and provided, further that in no event shall any Lender be
obligated or required to return any materials furnished by Company or any of
its Subsidiaries.


 


10.18       Counterparts;
Effectiveness.  This Agreement and
any amendments, waivers, consents or supplements hereto or in connection
herewith may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument; signature pages may be detached
from multiple separate counterparts and attached to a single counterpart so
that all signature pages are physically attached to the same
document.  This Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto and receipt by Company and Administrative Agent of written or telephonic
notification of such execution and authorization of delivery thereof.


 


10.19       Judgment
Currency.


 


A.            Currency Conversion Rate.  If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due hereunder in any currency (the “Original
Currency”) into another currency (the “Other Currency”), the parties hereto
agree, to the fullest extent permitted by law, that the rate of exchange used
shall be that at which in accordance with normal banking procedures
Administrative Agent could purchase the Original Currency with the Other
Currency on the Business Day preceding that on which final judgment is given.


 


B.            Discharge of Judgment.  The obligations of Company in respect of any
sum due from it to Lenders hereunder shall, notwithstanding any judgment in
such Other Currency, be discharged only to the extent that, on the Business Day
following receipt by Administrative Agent of any sum adjudged to be so due in the
Other Currency, Administrative Agent may in accordance with normal banking
procedures purchase the Original Currency with the Other Currency; if the
Original Currency so purchased is less than the sum originally due to Lenders
in the Original Currency, Company agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify Lenders against such loss, and
if the amount of the Original Currency so purchased exceeds the sum originally
due to Lenders in the Original Currency, Lenders shall remit such excess to
Company.


 


142

















 


10.20       Domicile
of Loans.  Each Lender may transfer
and carry its Loans at, to or for the account of any office, Subsidiary or
Affiliate of such Lender. 
Notwithstanding anything to the contrary contained herein, to the extent
that a transfer of Loans pursuant to this Section 10.20 would, at the time
of such transfer, result in increased costs under Section 2.6, 2.7 or 3.6
from those being charged by the respective Lender prior to such transfer, then
Company shall not be obligated to pay such increased costs (although Company
shall be obligated to pay any other increased costs of the type described above
resulting from changes after the date of the respective transfer).


 


10.21       Post-Closing
Actions.  Notwithstanding anything to
the contrary contained in this Agreement or the other Loan Documents, the
parties hereto acknowledge and agree that:


 


A.            UCC Filings;
Filings with respect to Intellectual Property; etc.  (i)  Company and its Subsidiaries
are not required to have filed (or cause to have filed) on or prior to the
Closing Date Financing Statements (Form UCC-1) or any filings with the PTO
or the United States Copyright Office necessary to perfect the security
interest purported to be created by the Security Agreement or the Pledge
Agreement, as applicable.  Not later than
the 5th day after the Closing Date, Company and its Subsidiaries shall have
filed (or cause to have filed) all of such Financing Statements (Form UCC-1)
and any filings with the PTO or the United States Copyright Office necessary to
perfect the security interest purported to be created by the Security Agreement
or the Pledge Agreement, as the case may be.


 


B.            Foreign Good
Standing Qualifications; Stock Certificates.  (i) Not later than the 10th Business Day
after the Closing Date (or such longer period of time as may be agreed to by
Administrative Agent in its sole discretion), Administrative Agent shall have
received with respect to Company and each other Loan Party listed under the
heading “Foreign Good Standing Qualifications” on Schedule 10.21 a good
standing certificate from the Secretary of State of each jurisdiction set forth
opposite the name of such Person on such Schedule and, to the extent not already
delivered pursuant to this Agreement, to the extent generally available, other
evidence of good standing as to payment of any applicable franchise or similar
taxes from the appropriate taxing authority of each of such jurisdictions with
respect to such Person on Schedule 10.21, each dated a recent date on or prior
to the 10th Business Day after the Closing Date (or such later date as may be
agreed to by Administrative Agent in its sole discretion), and (ii) not
later than the 45th day after the Closing Date (or such longer period of time
as may be agreed to by Administrative Agent in its sole discretion),
Administrative Agent shall have received with respect to each Loan Party listed
under the heading “Shares Certificates” on Schedule 10.21, new certificates
(accompanied by irrevocable undated stock powers, duly endorsed in blank and
otherwise satisfactory in form and substance to Administrative Agent)
representing all equity interests owned or held by such Loan Party in the
Pledged Subsidiaries listed opposite the name of such Loan Party on such
Schedule.


 


C.            Opinion of Oregon
Special Counsel.  Not later than the
30th day after the Closing Date (or such longer period of time as may be agreed
to by Administrative Agent in its sole discretion), Administrative Agent and
its counsel shall have received from special counsel in Oregon, an opinion
dated on or before such date covering such matters under Oregon law related or
incidental to the transactions contemplated herein and under the Collateral
Documents as Administrative Agent may reasonably request, and other
documentation as Administrative Agent may reasonably require, in each case in
form and substance reasonably satisfactory to Administrative Agent.


 


143

















 


All conditions precedent
and representations contained in this Agreement and the other Loan Documents
shall be deemed modified to the extent necessary to effect the foregoing (and
to permit the taking of the actions described above within the time periods required
above, rather than as elsewhere provided in the Loan Documents), provided
that (x) to the extent any representation and warranty would not be true
because the foregoing actions were not taken on the Closing Date, the
respective representation and warranty shall be required to be true and correct
in all material respects at the time the respective action is taken (or was
required to be taken) in accordance with the foregoing provisions of this Section 10.21
and (y) all representations and warranties relating to the Collateral
Documents shall be required to be true immediately after the actions required
to be taken by this Section 10.21 have been taken (or were required to be
taken).  The acceptance of the benefits
of each Funding Date shall constitute a representation, warranty and covenant
by Company to each of the Lenders that the actions required pursuant to this Section 10.21
will be, or have been, taken within the relevant time periods referred to in
this Section 10.21 and that, at such time, all representations and
warranties contained in this Agreement and the other Loan Documents shall then
be true and correct without any modification pursuant to this Section 10.21,
and the parties hereto acknowledge and agree that the failure to take any of
the actions required above, within the relevant time periods required above,
shall give rise to an immediate Event of Default pursuant to this Agreement.


 


[Remainder
of page intentionally left blank]


 


144

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.


 


 


	
   

  	
  ALLIANCE
  HEALTHCARE SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Howard Aihara

  
	
   

  	
  Name:

  	
  Howard
  Aihara

  
	
   

  	
  Title:

  	
  Executive
  Vice President and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  100
  Bayview Circle, Suite 400

  
	
   

  	
  Newport
  Beach, CA 92660

  
	
   

  	
  Attention:
  Eli H. Glovinsky, Esq.

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.: (949) 242-5505

  
	
   

  	
  Facsimile
  No.: (949) 242-5377

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE
  BANK TRUST COMPANY AMERICAS, as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carin Keegan

  
	
   

  	
  Name:

  	
  Carin
  Keegan

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Enrique Landaeta

  
	
   

  	
  Name:

  	
  Enrique
  Landaeta

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  60
  Wall Street

  
	
   

  	
  New
  York, New York 10005

  
	
   

  	
  Attention:
  Carin M. Keegan

  
	
   

  	
   

  
	
   

  	
  Telephone
  No.: (212) 250-6083

  
	
   

  	
  Facsimile
  No.: (212) 797-5690

  



 

















 


	
   

  	
  SIGNATURE
  PAGE TO THE CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG
  ALLIANCE HEALTHCARE SERVICES, INC., THE LENDERS PARTY HERETO FROM TIME TO
  TIME AND DEUTSCHE BANK TRUST COMPANY AMERICAS, AS ADMINISTRATIVE AGENT

  
	
   

  	
   

  
	
   

  	
  Deutsche
  Bank Trust Company Americas

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Carin Keegan

  
	
   

  	
  Name:

  	
  Carin
  Keegan

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Enrique Landaeta

  
	
   

  	
  Name:

  	
  Enrique
  Landaeta

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  BARCLAYS
  BANK PLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Diane Rolfe

  
	
   

  	
  Name:

  	
  Diane
  Rolfe

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  MORGAN
  STANLEY BANK, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter Zippelius

  
	
   

  	
  Name:

  	
  Peter
  Zippelius

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  SUNTRUST
  BANK

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dana Dhaliwal

  
	
   

  	
  Name:

  	
  Dana
  Dhaliwal

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  UNION
  BANK, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sanjeev Narayan

  
	
   

  	
  Name:

  	
  Sanjeev
  Narayan

  
	
   

  	
  Title:

  	
  Vice President

  



 
















 


SCHEDULE 2.1


 


Lenders’ Commitments, Lending Offices and Pro Rata Shares


 


A.
Lenders’ Commitments and Pro Rata Shares


 


	
  Lender

  	
   

  	
  Initial Term

  Loan

  Commitment

  	
   

  	
  Revolving

  Loan

  Commitment

  	
   

  	
  Incremental

  Term Loan

  Commitment

  	
   

  	
  Pro Rata

  Share of

  Term

  Loan

  Exposure

  	
   

  	
  Pro Rata 

  Share of

  Revolving

  Loan

  Exposure

  	
   

  	
  Aggregate

  Pro Rata

  Share(1)

  	
   

  
	
  Deutsche Bank Trust Company Americas

  	
   

  	
  $

  	
  460,000,000

  	
   

  	
  $

  	
  43,000,000

  	
   

  	
  $

  	
  0

  	
   

  	
  100

  	
  %

  	
  35.833

  	
  %

  	
  86.724

  	
  %

  
	
  Morgan Stanley Bank, National Association

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  21,000,000

  	
   

  	
  $

  	
  0

  	
   

  	
  0

  	
  %

  	
  17.500

  	
  %

  	
  3.621

  	
  %

  
	
  Barclays Capital PLC

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  21,000,000

  	
   

  	
  $

  	
  0

  	
   

  	
  0

  	
  %

  	
  17.500

  	
  %

  	
  3.621

  	
  %

  
	
  SunTrust Bank

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
  $

  	
  0

  	
   

  	
  0

  	
  %

  	
  16.667

  	
  %

  	
  3.448

  	
  %

  
	
  Union Bank, NA

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  $

  	
  0

  	
   

  	
  0

  	
  %

  	
  12.500

  	
  %

  	
  2.586

  	
  %

  
	
  Total

  	
   

  	
  $

  	
  460,000,000

  	
   

  	
  $

  	
  120,000,000

  	
   

  	
  $

  	
  0

  	
   

  	
  100

  	
  %

  	
  100

  	
  %

  	
  100

  	
  %

  



 


B.
Lenders’ Lending Offices


 




	
  Lender

  	
   

  	
  Lending
  Office

  
	
  Deutsche Bank Trust Company Americas

  	
   

  	
  New York, New York

  
	
  Morgan Stanley Bank, National Association

  	
   

  	
  Salt Lake City, Utah

  
	
  Barclays Capital PLC

  	
   

  	
  New York, New York

  
	
  SunTrust Bank

  	
   

  	
  Atlanta, Georgia

  
	
  Union Bank, NA

  	
   

  	
  Los Angeles, California

  






 






(1) With respect to each Lender, the
percentage obtained by dividing (x) the sum of the aggregate Term
Loan Exposure of that Lender plus the
Revolving Loan Exposure of that Lender by (y) the sum of the
aggregate Term Loan Exposure of all Lenders plus the
aggregate Revolving Loan Exposure of all Lenders, in any such case as the
applicable percentage may be adjusted by assignments permitted pursuant to Section 10.1
of the Credit Agreement.


 

















 


SCHEDULE 3.7


 


Existing Letters of Credit


 


	
  Issuing 

  Lender

  	
   

  	
  L/C

  Number

  	
   

  	
  Account

  Party

  	
   

  	
  Amount

  and

  Currency

  	
   

  	
  Beneficiary

  	
   

  	
  Expiration

  Date

  	
   

  	
  Type of

  L/C

  (Standby

  or Trade)

  
	
  Deutsche
  Bank Trust Company Americas

  	
   

  	
  S-15628

  	
   

  	
  Alliance
  HealthCare Services, Inc.

  	
   

  	
  $4,205,000
  (USD)

  	
   

  	
  Travelers
  Property Casualty Company of America

  	
   

  	
  October 31,
  2010

  	
   

  	
  Standby

  
	
  Deutsche
  Bank Trust Company Americas

  	
   

  	
  S-14647

  	
   

  	
  Alliance
  HealthCare Services, Inc.

  	
   

  	
  $255,000
  (USD)

  	
   

  	
  Royal
  SunAlliance

  	
   

  	
  March 31,
  2010

  	
   

  	
  Standby

  



 
















 


SCHEDULE 5.1


 


Jurisdiction of Organization, Subsidiaries of Company


 


Unrestricted
Subsidiaries:


None


 


Subsidiaries:


 


	
  Name

  	
   

  	
  Jurisdiction

  
	
  Designated
  Non-Wholly-Owned Subsidiaries

  	
   

  	
   

  
	
  Advanced Imaging of Lafayette, LLC

  	
   

  	
  Delaware

  
	
  Alliance Diagnostics Venture, LLC

  	
   

  	
  Pennsylvania

  
	
  Alliance — HNV PET/CT Leasing Company LLC

  	
   

  	
  Michigan

  
	
  Alliance — HNV PET/CT Services, LLC

  	
   

  	
  Michigan

  
	
  Greater Springfield MRI Limited Partnership

  	
   

  	
  Massachusetts

  
	
  Los Alamitos Imaging Center LLC

  	
   

  	
  California

  
	
  MetroWest Imaging Center LLC

  	
   

  	
  Massachusetts

  
	
  Montvale PET/CT, LLC

  	
   

  	
  Delaware

  
	
  Rhode Island PET Services, LLC

  	
   

  	
  Rhode Island

  
	
  Southeastern Massachusetts PET/CT Imaging Center, LLC

  	
   

  	
  Delaware

  
	
  Tri-City PETCT, LLC

  	
   

  	
  California

  
	
  Western Massachusetts PET/CT Imaging Center, LLC

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Pledged
  Subsidiaries

  	
   

  	
   

  
	
  Ahoskie Imaging, L.L.C.

  	
   

  	
  North Carolina

  
	
  Alliance Imaging Centers, Inc.

  	
   

  	
  California

  
	
  Alliance Imaging Financial Services, Inc.

  	
   

  	
  Delaware

  
	
  Alliance Imaging Management, Inc.

  	
   

  	
  California

  
	
  Alliance Imaging NC, Inc.

  	
   

  	
  Delaware

  
	
  Alliance Imaging of Michigan, Inc.

  	
   

  	
  Delaware

  
	
  Alliance Imaging of Ohio, Inc.

  	
   

  	
  Delaware

  
	
  Alliance Medical Imaging Solutions, LLC

  	
   

  	
  North Carolina

  
	
  Alliance Oncology, LLC*

  	
   

  	
  Delaware

  
	
  Alliance Radiosurgery, LLC

  	
   

  	
  Delaware

  
	
  CuraCare, Inc.

  	
   

  	
  Delaware

  
	
  Long Beach PET Imaging Center LLC

  	
   

  	
  California

  
	
  MDI Finance & Leasing, Inc.

  	
   

  	
  Massachusetts

  
	
  Medical Diagnostics, Inc.

  	
   

  	
  Delaware

  
	
  Medical Outsourcing Services, LLC

  	
   

  	
  Delaware

  
	
  Meritus PLS, Inc.

  	
   

  	
  Virginia

  



 

















 


	
  Name

  	
   

  	
  Jurisdiction

  
	
  Mid-American Imaging Inc.

  	
   

  	
  Ohio

  
	
  NEHE — MRI, LLC

  	
   

  	
  Maine

  
	
  NEHE/WSIC II, LLC

  	
   

  	
  Massachusetts

  
	
  New England Health Enterprises Business Trust

  	
   

  	
  Massachusetts

  
	
  New England Health Enterprises, Inc.

  	
   

  	
  Massachusetts

  
	
  New England Health Imaging-Houlton, LLC

  	
   

  	
  Massachusetts

  
	
  New England Imaging Management, LLC

  	
   

  	
  Massachusetts

  
	
  New England Molecular Imaging LLC

  	
   

  	
  New Hampshire

  
	
  Pet Scans of America Corp.

  	
   

  	
  Delaware

  
	
  RAMIC Des Moines, LLC

  	
   

  	
  Delaware

  
	
  Radiation Services of North Carolina, LLC

  	
   

  	
  North Carolina

  
	
  SMT Health Services Inc.

  	
   

  	
  Delaware

  
	
  Shared P.E.T. Imaging, LLC*

  	
   

  	
  Ohio

  
	
  Shared P.E.T. Imaging of Florida, LLC

  	
   

  	
  Florida

  
	
  Three Rivers Holding Corp.

  	
   

  	
  Delaware

  
	
  West Coast PETCT, LLC

  	
   

  	
  California

  
	
  Western Massachusetts Magnetic Resonance Services, Inc.

  	
   

  	
  Massachusetts

  



 






*
- Material Subsidiary


 

















 


SCHEDULE 5.6


 


Litigation


 


None


 

















 


SCHEDULE 5.10A


 


Plans


 


None


 
















 


SCHEDULE 5.15


 


Insurance


 


Insurance
Policies for Alliance HealthCare Services and its subsidiaries


 


	
  Insurer

  	
   

  	
  Coverage

  	
   

  	
  Cap

  	
   

  	
  Deductible

  
	
  Darwin
  Select Insurance Co.

  	
   

  	
  General
  Liability

  	
   

  	
  $1,000,000
  / claim;

  $3,000,000 aggregate

  	
   

  	
  $100,000
  / claim

  
	
  Darwin
  Select Insurance Co.

  	
   

  	
  Professional
  Liability

  	
   

  	
  $1,000,000
  / claim;

  $3,000,000 aggregate

  	
   

  	
  $10,000
  / claim

  
	
  Darwin
  Select Insurance Co.

  	
   

  	
  Employee
  Benefits Liability

  	
   

  	
  $1,000,000
  / claim; $3,000,000 aggregate

  	
   

  	
  $5,000
  / claim

  
	
  Travelers
  Property Casualty Co. of America

  	
   

  	
  Automobile
  Liability

  	
   

  	
  $5,000,000
  (BI/PD);

  $5,000 (medical payments)

  	
   

  	
  $250,000
  / occurrence

  
	
  Travelers
  Property Casualty Co. of America

  	
   

  	
  Auto
  Physical Damage

  	
   

  	
  $50,000
  (Hired Care Physical Damage)

  	
   

  	
  $5,000
  (Private Passenger);

  $25,000 (Heavy / Extra Heavy)

  
	
  Travelers
  Property Casualty Co. of America

  	
   

  	
  Workers’
  Compensation

  	
   

  	
  $1,000,000
  / accident;

  $1,000,000 (policy limit by disease);

  $1,000,000 (each employee by disease);

  $1,000,000 (stop gap liability)

  	
   

  	
  $250,000
  / loss event

  
	
  Federal
  Insurance Co. (Chubb)

  	
   

  	
  Employment
  Practices Liability

  	
   

  	
  $10,000,000
  / claim;

  $10,000,000 / policy period

  	
   

  	
  $250,000
  (Single Claimant Retention);

  $500,000 (Multi-Claimant Retention)

  
	
  Arch
  Specialty Insurance Co.

  	
   

  	
  Umbrella

  	
   

  	
  $25,000,000
  / occurrence;

  $25,000,000 aggregate

  	
   

  	
  Excess
  of:

  ·  Professional
  Liability

  ·  General Liability

  ·  Automobile Liability

  ·  Employee Benefits Liability

  
	
  Federal
  Insurance Co.

  (Chubb)

  	
   

  	
  Crime
  Coverage

  	
   

  	
  $5,000,000
  for each of employee theft, premises, transit, forgery, computer fraud, funds
  transfer fraud, credit card fraud, money order counterfeit fraud and client)
  $100,000 (expense)

  	
   

  	
  $25,000
  (Retention)

  



 

















 


	
  Insurer

  	
   

  	
  Coverage

  	
   

  	
  Cap

  	
   

  	
  Deductible

  
	
  Federal
  Insurance Co. (Chubb)

  	
   

  	
  Property

  	
   

  	
  $184,001,621
  (blanket building and expense);

  $50,699,279 (blanket business income/extra expense);

  $10,000,000 (earthquake/flood, California excluded)

  	
   

  	
  $5,000
  / occurrence; $25,000 (earthquake/flood); 24 hours (business income);

  $100,000 (machinery breakdown)

  
	
  Pacific
  Insurance Co. Ltd.; National Fire & Marine; Empire Indemnity Ins.
  Co.;

  	
   

  	
  Difference
  in Conditions

  	
   

  	
  $30,000,000
  / occurrence; $30,000,000 aggregate

  	
   

  	
  $25,000
  / occurrence; 5% of values per unit (earthquake); 2% of values at time/place
  of loss (flood)

  
	
  Federal
  Insurance Co. (Chubb)

  	
   

  	
  Inland
  Marine

  	
   

  	
  $5,000,000
  / occurrence (medical equipment and electronic data processing);

  $750,000 (business income / extra expense);

  $5,000,000 (flood/ earthquake)

  	
   

  	
  $100,00
  / occurrence; 24 hours (business income & extra expenses);

  $500,000 (flood/earthquake)

  
	
  Travelers
  Property Casualty Co. of America

  	
   

  	
  ERISA

  	
   

  	
  $1,000,000
  (blanket bond liability)

  	
   

  	
  $0

  



 
















 


SCHEDULE 7.1


 


Certain Existing Indebtedness


 


	
  Borrower

  	
   

  	
  Aggregate

  Principal

  Amount

  	
   

  	
  Creditor

  	
   

  	
  Term

  	
   

  	
  Guarantor(s)

  
	
  Alliance
  Imaging, Inc.

  	
   

  	
  $

  	
  488,617.70

  	
   

  	
  GE
  Healthcare Financial Services

  	
   

  	
  September 2010

  	
   

  	
  N/A

  
	
  Medical
  Outsourcing Services, LLC

  	
   

  	
  $

  	
  171,937.28

  	
   

  	
  GE
  Healthcare Financial Services

  	
   

  	
  March 2010

  	
   

  	
  N/A

  
	
  Shared
  P.E.T. Imaging, LLC

  	
   

  	
  $

  	
  8,949.75

  	
   

  	
  GE
  Healthcare Financial Services

  	
   

  	
  January 2010

  	
   

  	
  N/A

  
	
  Shared
  P.E.T. Imaging, LLC

  	
   

  	
  $

  	
  31,041.43

  	
   

  	
  Siemens
  Financial Services

  	
   

  	
  June 2010

  	
   

  	
  N/A

  
	
  Shared
  P.E.T. Imaging, LLC

  	
   

  	
  $

  	
  336,156.95

  	
   

  	
  Huntington
  Bank

  	
   

  	
  November 2010

  	
   

  	
  N/A

  
	
  Shared
  P.E.T. Imaging, LLC

  	
   

  	
  $

  	
  395,836.14

  	
   

  	
  GE
  Healthcare Financial Services

  	
   

  	
  December 2010

  	
   

  	
  N/A

  
	
  Shared
  P.E.T. Imaging, LLC

  	
   

  	
  $

  	
  144,486.47

  	
   

  	
  Siemens
  Financial Services

  	
   

  	
  March 2012

  	
   

  	
  N/A

  
	
  Shared
  P.E.T. Imaging, LLC

  	
   

  	
  $

  	
  1,467,023.05

  	
   

  	
  Huntington
  Bank

  	
   

  	
  October 2011

  	
   

  	
  N/A

  
	
  Shared
  P.E.T. Imaging, LLC

  	
   

  	
  $

  	
  618,085.50

  	
   

  	
  GE
  Healthcare Financial Services

  	
   

  	
  February 2011

  	
   

  	
  N/A

  
	
  Shared
  P.E.T. Imaging, LLC

  	
   

  	
  $

  	
  51,165.27

  	
   

  	
  Siemens
  Financial Services

  	
   

  	
  January 2010

  	
   

  	
  N/A

  
	
  Shared
  P.E.T. Imaging, LLC

  	
   

  	
  $

  	
  138,085.50

  	
   

  	
  Siemens
  Financial Services

  	
   

  	
  June 2010

  	
   

  	
  N/A

  
	
  Greater
  Springfield MRI Limited Partnership

  	
   

  	
  $

  	
  1,102,877.74

  	
   

  	
  Siemens
  Financial Services

  	
   

  	
  February 2013

  	
   

  	
  N/A

  
	
  Advanced
  Imaging of Lafayette LLC

  	
   

  	
  $

  	
  316,803.04

  	
   

  	
  Phillips
  Medical

  	
   

  	
  September 2013

  	
   

  	
  N/A

  
	
  Advanced
  Imaging of Lafayette LLC

  	
   

  	
  $

  	
  598,739.23

  	
   

  	
  Phillips
  Medical

  	
   

  	
  June 2013

  	
   

  	
  N/A

  
	
  Long
  Beach PET Imaging Center LLC

  	
   

  	
  $

  	
  525,213.00

  	
   

  	
  Siemens
  Financial Services

  	
   

  	
  November 2014

  	
   

  	
  N/A

  
	
  Long
  Beach PET Imaging Center LLC

  	
   

  	
  $

  	
  1,553,246.27

  	
   

  	
  Siemens
  Financial Services

  	
   

  	
  August 2014

  	
   

  	
  N/A

  
	
  Long
  Beach PET Imaging Center LLC

  	
   

  	
  $

  	
  164,625.00

  	
   

  	
  Siemens
  Financial Services

  	
   

  	
  November 2014

  	
   

  	
  N/A

  
	
  Rhode
  Island PET Services, LLC

  	
   

  	
  $

  	
  591,037.19

  	
   

  	
  GE
  Healthcare Financial Services

  	
   

  	
  April 2011

  	
   

  	
  N/A

  
	
  Rhode
  Island PET Services, LLC

  	
   

  	
  $

  	
  647,608.17

  	
   

  	
  GE
  Healthcare Financial Services

  	
   

  	
  December 2011

  	
   

  	
  N/A

  



 

















 


	
  Borrower

  	
   

  	
  Aggregate

  Principal

  Amount

  	
   

  	
  Creditor

  	
   

  	
  Term

  	
   

  	
  Guarantor(s)

  
	
  Alliance
  Oncology, LLC

  	
   

  	
  $

  	
  2,747,080.22

  	
   

  	
  Banc
  of America Leasing

  	
   

  	
  September 2014

  	
   

  	
  N/A

  
	
  Alliance
  Oncology, LLC

  	
   

  	
  $

  	
  1,687,064.02

  	
   

  	
  Banc
  of America Leasing

  	
   

  	
  March 2015

  	
   

  	
  N/A

  
	
  Alliance
  Oncology, LLC

  	
   

  	
  $

  	
  1,659,856.85

  	
   

  	
  Phillips
  Medical

  	
   

  	
  April 2016

  	
   

  	
  N/A

  
	
  Alliance
  Oncology, LLC

  	
   

  	
  $

  	
  707,901.97

  	
   

  	
  Phillips
  Medical

  	
   

  	
  April 2016

  	
   

  	
  N/A

  
	
  Alliance
  Oncology, LLC

  	
   

  	
  $

  	
  1,737,864.05

  	
   

  	
  Phillips
  Medical

  	
   

  	
  April 2016

  	
   

  	
  N/A

  
	
  Alliance
  Oncology, LLC

  	
   

  	
  $

  	
  707,901.97

  	
   

  	
  Phillips
  Medical

  	
   

  	
  April 2016

  	
   

  	
  N/A

  
	
  Alliance
  Oncology, LLC

  	
   

  	
  $

  	
  275,405.46

  	
   

  	
  Phillips
  Medical

  	
   

  	
  June 2016

  	
   

  	
  N/A

  
	
  Alliance
  Oncology, LLC

  	
   

  	
  $

  	
  401,222.14

  	
   

  	
  Commonwealth
  Hematology-Oncology, PC

  	
   

  	
  March 2014

  	
   

  	
  N/A

  
	
  Alliance
  Oncology, LLC

  	
   

  	
  $

  	
  100,955.98

  	
   

  	
  Commonwealth
  Hematology-Oncology, PC

  	
   

  	
  March 2014

  	
   

  	
  N/A

  
	
  Alliance
  Oncology, LLC

  	
   

  	
  $

  	
  404,907.09

  	
   

  	
  Commonwealth
  Hematology-Oncology, PC

  	
   

  	
  December 2015

  	
   

  	
  N/A

  
	
  Tri-City
  PETCT, LLC

  	
   

  	
  $

  	
  386,562.02

  	
   

  	
  Phillips
  Medical

  	
   

  	
  May 2014

  	
   

  	
  Alliance
  HealthCare Services, Inc. (51%)

  
	
  Tri-City
  PETCT, LLC

  	
   

  	
  $

  	
  1,272,700.36

  	
   

  	
  Phillips
  Medical

  	
   

  	
  March 2014

  	
   

  	
  Alliance
  HealthCare Services, Inc. (51%)

  
	
  Western
  Massachusetts Imaging Center, LLC

  	
   

  	
  $

  	
  168,900.92

  	
   

  	
  GE
  Healthcare Financial Services

  	
   

  	
  December 2011

  	
   

  	
  N/A

  



 
















 


SCHEDULE 7.3


 


Certain Existing Investments


 


	
  Entity

  	
   

  	
  Investment

  	
   

  	
  % Interest

  
	
  Medical
  Consultants Imaging Co.

  	
   

  	
  Alliance-HNI,
  LLC

  	
   

  	
  50%

  
	
  Alliance
  HealthCare Services, Inc.

  	
   

  	
  Del
  Amo PET Imaging Center, LLC

  	
   

  	
  33.33%

  
	
  Alliance
  Oncology, LLC

  	
   

  	
  Santa
  Clarita Valley Cancer Center, LLC

  	
   

  	
  50%

  
	
  NEHE-MRI,
  LLC

  	
   

  	
  Aroostook
  MRI, LLC

  	
   

  	
  50%

  
	
  Alliance
  HealthCare Services, Inc.

  	
   

  	
  Mobile
  Interim Solutions, LLC

  	
   

  	
  50%

  
	
  Shared
  P.E.T. Imaging, LLC

  	
   

  	
  QPI,
  LLC

  	
   

  	
  50%

  
	
  Shared
  P.E.T. Imaging, LLC; Shared P.E.T. Imaging of Florida, LLC

  	
   

  	
  Quantum
  PET, L.P.

  	
   

  	
  50%

  
	
  Alliance
  — HNI LLC

  	
   

  	
  Diagnostics
  Imaging Associates-April, L.L.C.

  	
   

  	
  (28.56%)

  
	
  Alliance
  Imaging of Michigan, Inc.; Medical Consultants Imaging Co.

  	
   

  	
  Blue
  Grass HealthCare Services

  	
   

  	
  (50%)

  
	
  Alliance
  Imaging of Michigan, Inc.; Medical Consultants Imaging Co.

  	
   

  	
  Midwest
  Mobile PET Services, Ltd.

  	
   

  	
  (50%)

  
	
  Alliance
  Imaging of Michigan, Inc.; Medical Consultants Imaging Co.

  	
   

  	
  Radio
  Pharmaceutical Express Services

  	
   

  	
  (33%)

  
	
  Alliance
  Imaging NC, Inc.

  	
   

  	
  Mobile
  ESWL I

  	
   

  	
  (40%
  GP)

  
	
  Alliance
  Imaging NC, Inc.

  	
   

  	
  MEDPIC
  Laboratories Ltd.

  	
   

  	
  ($25,000
  partnership interest)

  
	
  Dimensions
  Medical Group, Inc.

  	
   

  	
  RIA,
  LLC

  	
   

  	
  (50%)

  
	
  Medical
  Diagnostics, Inc.

  	
   

  	
  Massachusetts
  Mobile Imaging Venture

  	
   

  	
  (49%
  GP)

  



 

















 


SCHEDULE 7.4


 


Certain Existing Guarantee Obligations


 


See Schedule 7.1


 

















 


SCHEDULE 10.21


 


Post Closing Actions


 


A.            Foreign
Good Standing Qualifications


 


	
  Loan Party

  	
   

  	
  Foreign Qualification Jurisdiction

  
	
  Alliance HealthCare Services, Inc.

  	
   

  	
  Nebraska

  
	
   

  	
   

  	
  Wisconsin

  
	
   

  	
   

  	
  Michigan

  
	
   

  	
   

  	
  Texas

  
	
   

  	
   

  	
   

  
	
  Alliance Imaging NC, Inc.

  	
   

  	
  California

  
	
   

  	
   

  	
  Georgia

  
	
   

  	
   

  	
  Louisiana

  
	
   

  	
   

  	
  New Hampshire

  
	
   

  	
   

  	
  New Jersey

  
	
   

  	
   

  	
  Pennsylvania

  
	
   

  	
   

  	
  South Carolina

  
	
   

  	
   

  	
  West Virginia

  
	
   

  	
   

  	
  Virginia

  
	
   

  	
   

  	
  Vermont

  
	
   

  	
   

  	
   

  
	
  Medical Outsourcing Services, LLC

  	
   

  	
  Indiana

  
	
   

  	
   

  	
  Missouri

  
	
   

  	
   

  	
   

  
	
  Shared P.E.T. Imaging, LLC

  	
   

  	
  Georgia

  
	
   

  	
   

  	
  Michigan

  



 


B.            Share
Certificates


 


	
  Loan Party

  	
   

  	
  Pledged Subsidiary

  
	
  Alliance HealthCare Services, Inc.

  	
   

  	
  Alliance Imaging Centers, Inc.

  
	
  Alliance HealthCare Services, Inc.

  	
   

  	
  Alliance Imaging Financial Services, Inc.

  
	
  Alliance HealthCare Services, Inc.

  	
   

  	
  Alliance Imaging Management, Inc.

  
	
  Alliance HealthCare Services, Inc.

  	
   

  	
  Alliance Imaging NC, Inc.

  
	
  Alliance HealthCare Services, Inc.

  	
   

  	
  Alliance Imaging of Michigan, Inc.

  
	
  Alliance HealthCare Services, Inc.

  	
   

  	
  Alliance Imaging of Ohio, Inc.

  
	
  Alliance HealthCare Services, Inc.

  	
   

  	
  CuraCare, Inc.

  
	
  Alliance HealthCare Services, Inc.

  	
   

  	
  Medical Diagnostics, Inc.

  
	
  Alliance HealthCare Services, Inc.

  	
   

  	
  New England Health Enterprises Business Trust

  
	
  Alliance HealthCare Services, Inc.

  	
   

  	
  Pet Scans of America Corp.

  
	
  Alliance HealthCare Services, Inc.

  	
   

  	
  Three Rivers Holding Corp.