Exhibit 10.1


 


CREDIT AGREEMENT


 


dated as of June 6, 2002,


 


as Amended and Restated as of August 2, 2006,


 


as Further Amended and Restated as of December December 16,
2009,


 


among


 


TRIMAS CORPORATION,


 


TRIMAS COMPANY LLC,


 


The Subsidiary Term Borrowers Party Hereto,


 


The Foreign Subsidiary Borrowers Party Hereto,


 


The Lenders Party Hereto,


 


 


JPMORGAN CHASE BANK, N.A.,


as Administrative Agent and Collateral Agent


 


 


and


 


 


COMERICA BANK,

as Syndication Agent


 






 


J.P. MORGAN SECURITIES INC.,

as Lead Arranger and Bookrunner


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I

  	
   

  
	
   

  	
   

  
	
  Definitions

  	
   

  
	
   

  	
   

  
	
  SECTION 1.01. 
  Defined Terms

  	
  1

  
	
  SECTION 1.02. 
  Classification of Loans and Borrowings

  	
  45

  
	
  SECTION 1.03. 
  Terms Generally

  	
  46

  
	
  SECTION 1.04. 
  Accounting Terms; GAAP

  	
  46

  
	
  SECTION 1.05. 
  Exchange Rates

  	
  46

  
	
  SECTION 1.06. 
  Redenomination of Certain Foreign Currencies

  	
  47

  
	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
   

  	
   

  
	
  The Credits

  	
   

  
	
   

  	
   

  
	
  SECTION 2.01. 
  Commitments; Deposit Account

  	
  47

  
	
  SECTION 2.02. 
  Loans and Borrowings

  	
  52

  
	
  SECTION 2.03. 
  Requests for Borrowings

  	
  54

  
	
  SECTION 2.04. 
  Swingline Loans

  	
  55

  
	
  SECTION 2.05. 
  Letters of Credit

  	
  56

  
	
  SECTION 2.06. 
  Funding of Borrowings

  	
  64

  
	
  SECTION 2.07. 
  Interest Elections

  	
  65

  
	
  SECTION 2.08. 
  Termination and Reduction of Commitments

  	
  66

  
	
  SECTION 2.09. 
  Repayment of Loans; Evidence of Debt

  	
  67

  
	
  SECTION 2.10. 
  Amortization of Tranche B Term Loans

  	
  68

  
	
  SECTION 2.11. 
  Prepayment of Loans

  	
  70

  
	
  SECTION 2.12. 
  Fees

  	
  73

  
	
  SECTION 2.13. 
  Interest

  	
  75

  
	
  SECTION 2.14. 
  Alternate Rate of Interest

  	
  76

  
	
  SECTION 2.15. 
  Increased Costs

  	
  77

  
	
  SECTION 2.16. 
  Break Funding Payments

  	
  78

  
	
  SECTION 2.17. 
  Taxes

  	
  79

  
	
  SECTION 2.18. 
  Payments Generally; Pro Rata Treatment; Sharing of Set-offs

  	
  81

  
	
  SECTION 2.19. 
  Mitigation Obligations; Replacement of Lenders

  	
  83

  
	
  SECTION 2.20. 
  Additional Reserve Costs

  	
  84

  
	
  SECTION 2.21. 
  Designation of Foreign Subsidiary Borrowers

  	
  84

  
	
  SECTION 2.22. 
  Foreign Subsidiary Borrower Costs

  	
  85

  
	
  SECTION 2.23. 
  Increase or Conversion of Commitments

  	
  85

  
	
  SECTION 2.24. 
  Defaulting Lenders

  	
  87

  



 

















 


	
  ARTICLE III

  	
   

  
	
   

  	
   

  
	
  Representations and Warranties

  	
   

  
	
   

  	
   

  
	
  SECTION 3.01. 
  Organization; Powers

  	
  90

  
	
  SECTION 3.02. 
  Authorization; Enforceability

  	
  90

  
	
  SECTION 3.03. 
  Governmental Approvals; No Conflicts

  	
  90

  
	
  SECTION 3.04. 
  Financial Condition; No Material Adverse Change

  	
  91

  
	
  SECTION 3.05. 
  Properties

  	
  91

  
	
  SECTION 3.06. 
  Litigation and Environmental Matters

  	
  92

  
	
  SECTION 3.07. 
  Compliance with Laws and Agreements

  	
  92

  
	
  SECTION 3.08. 
  Investment Company Status

  	
  92

  
	
  SECTION 3.09. 
  Taxes

  	
  93

  
	
  SECTION 3.10. 
  ERISA

  	
  93

  
	
  SECTION 3.11. 
  Disclosure

  	
  93

  
	
  SECTION 3.12. 
  Subsidiaries

  	
  93

  
	
  SECTION 3.13. 
  Insurance

  	
  93

  
	
  SECTION 3.14. 
  Labor Matters

  	
  94

  
	
  SECTION 3.15. 
  Solvency

  	
  94

  
	
  SECTION 3.16. 
  Senior Indebtedness

  	
  94

  
	
  SECTION 3.17. 
  Security Documents

  	
  94

  
	
  SECTION 3.18. 
  Federal Reserve Regulations

  	
  95

  
	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
   

  	
   

  
	
  Conditions

  	
   

  
	
   

  	
   

  
	
  SECTION 4.01. 
  [Intentionally Omitted.]

  	
  96

  
	
  SECTION 4.02. 
  Each Credit Event

  	
  96

  
	
  SECTION 4.03. 
  Credit Events Relating to Foreign Subsidiary Borrowers

  	
  96

  
	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
   

  	
   

  
	
  Affirmative Covenants

  	
   

  
	
   

  	
   

  
	
  SECTION 5.01. 
  Financial Statements and Other Information

  	
  97

  
	
  SECTION 5.02. 
  Notices of Material Events

  	
  99

  
	
  SECTION 5.03. 
  Information Regarding Collateral

  	
  99

  
	
  SECTION 5.04. 
  Existence; Conduct of Business; Asset Dropdown

  	
  100

  
	
  SECTION 5.05. 
  Payment of Obligations

  	
  100

  
	
  SECTION 5.06. 
  Maintenance of Properties

  	
  101

  
	
  SECTION 5.07. 
  Insurance

  	
  101

  
	
  SECTION 5.08. 
  Casualty and Condemnation

  	
  101

  
	
  SECTION 5.09. 
  Books and Records; Inspection and Audit Rights

  	
  102

  
	
  SECTION 5.10. 
  Compliance with Laws

  	
  102

  
	
  SECTION 5.11. 
  Use of Proceeds and Letters of Credit

  	
  102

  



 


ii

















 


	
  SECTION 5.12. 
  Additional Subsidiaries

  	
  102

  
	
  SECTION 5.13. 
  Further Assurances

  	
  102

  
	
  SECTION 5.14. 
  Interest Rate Protection

  	
  103

  
	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
   

  	
   

  
	
  Negative Covenants

  	
   

  
	
   

  	
   

  
	
  SECTION 6.01. 
  Indebtedness; Certain Equity Securities

  	
  104

  
	
  SECTION 6.02. 
  Liens

  	
  107

  
	
  SECTION 6.03. 
  Fundamental Changes

  	
  109

  
	
  SECTION 6.04. 
  Investments, Loans, Advances, Guarantees and Acquisitions

  	
  110

  
	
  SECTION 6.05. 
  Asset Sales

  	
  111

  
	
  SECTION 6.06. 
  Sale and Leaseback Transactions

  	
  113

  
	
  SECTION 6.07. 
  Hedging Agreements

  	
  113

  
	
  SECTION 6.08. 
  Restricted Payments; Certain Payments of Indebtedness

  	
  113

  
	
  SECTION 6.09. 
  Transactions with Affiliates

  	
  115

  
	
  SECTION 6.10. 
  Restrictive Agreements

  	
  116

  
	
  SECTION 6.11. 
  Amendment of Material Documents

  	
  117

  
	
  SECTION 6.12. 
  Interest Expense Coverage Ratio

  	
  117

  
	
  SECTION 6.13. 
  Leverage Ratio

  	
  118

  
	
  SECTION 6.14. 
  Capital Expenditures

  	
  118

  
	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
   

  	
   

  
	
  Events of Default

  	
   

  
	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
   

  	
   

  
	
  The Administrative Agent

  	
   

  
	
   

  	
   

  
	
  ARTICLE IX

  	
   

  
	
   

  	
   

  
	
  Collection Allocation Mechanism

  	
   

  
	
   

  	
   

  
	
  SECTION 9.01. 
  Implementation of CAM

  	
  124

  
	
  SECTION 9.02. 
  Letters of Credit

  	
  125

  
	
   

  	
   

  
	
  ARTICLE X

  	
   

  
	
   

  	
   

  
	
  Miscellaneous

  	
   

  
	
   

  	
   

  
	
  SECTION 10.01. 
  Notices

  	
  127

  
	
  SECTION 10.02. 
  Waivers; Amendments

  	
  128

  
	
  SECTION 10.03. 
  Expenses; Indemnity; Damage Waiver

  	
  130

  



 


iii

















 


	
  SECTION 10.04. 
  Successors and Assigns

  	
  132

  
	
  SECTION 10.05. 
  Survival

  	
  135

  
	
  SECTION 10.06. 
  Counterparts; Integration; Effectiveness

  	
  136

  
	
  SECTION 10.07. 
  Severability

  	
  136

  
	
  SECTION 10.08. 
  Right of Setoff

  	
  136

  
	
  SECTION 10.09. 
  Governing Law; Jurisdiction; Consent to Service of Process

  	
  137

  
	
  SECTION 10.10. 
  WAIVER OF JURY TRIAL

  	
  137

  
	
  SECTION 10.11. 
  Headings

  	
  138

  
	
  SECTION 10.12. 
  Confidentiality

  	
  138

  
	
  SECTION 10.13. 
  Interest Rate Limitation

  	
  139

  
	
  SECTION 10.14. 
  Judgment Currency

  	
  139

  
	
  SECTION 10.15. 
  Obligations Joint and Several

  	
  140

  



 


 


SCHEDULES:1


 


	
  Schedule 1.01(a)

  	
  —

  	
  Mortgaged
  Property

  
	
  Schedule 2.01

  	
  —

  	
  Commitments

  
	
  Schedule
  3.05

  	
  —

  	
  Real
  Property

  
	
  Schedule 3.06

  	
  —

  	
  Disclosed
  Matters

  
	
  Schedule
  3.12

  	
  —

  	
  Subsidiaries

  
	
  Schedule
  3.13

  	
  —

  	
  Insurance

  
	
  Schedule
  3.17(d)

  	
  —

  	
  Mortgage
  Filing Offices

  
	
  Schedule 6.01(a)(iii)

  	
  —

  	
  Existing
  Indebtedness

  
	
  Schedule 6.02

  	
  —

  	
  Existing
  Liens

  
	
  Schedule
  6.04

  	
  —

  	
  Existing
  Investments

  
	
  Schedule
  6.05

  	
  —

  	
  Asset
  Sales

  
	
  Schedule 6.09

  	
  —

  	
  Existing
  Affiliate Transactions

  
	
  Schedule 6.10

  	
  —

  	
  Existing
  Restrictions

  
	
   

  	
   

  	
   

  
	
  EXHIBITS2:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  —

  	
  Form of
  Assignment and Acceptance

  
	
  Exhibit B

  	
  —

  	
  Form of
  Opinion of Parent Borrower’s Counsel

  
	
  Exhibit C

  	
  —

  	
  Form of
  Foreign Subsidiary Borrowing Agreement

  
	
  Exhibit D

  	
  —

  	
  Form of
  Guarantee Agreement

  
	
  Exhibit E

  	
  —

  	
  [Intentionally
  Omitted]

  
	
  Exhibit F

  	
  —

  	
  Form of
  Indemnity, Subrogation and Contribution Agreement

  
	
  Exhibit G

  	
  —

  	
  Form of
  Mortgage

  
	
  Exhibit H

  	
  —

  	
  Form of
  Pledge Agreement

  
	
  Exhibit I

  	
  —

  	
  Form of
  Security Agreement

  



 






1 Schedules other than Schedule 2.01 are not
being restated.


 


2 Exhibits are not being restated.


 


iv

















 


	
  Exhibit J

  	
  —

  	
  Form of
  Subordination and Other Provisions

  
	
  Exhibit K

  	
  —

  	
  Mandatory
  Costs Rate

  
	
  Exhibit L

  	
  —

  	
  Description
  of Intercreditor Agreement

  



 


v
















 


CREDIT AGREEMENT dated as of June 6, 2002, as
amended and restated as of August 2, 2006, as further amended and restated
as of December 16, 2009, among TRIMAS COMPANY LLC, TRIMAS CORPORATION, the
SUBSIDIARY TERM BORROWERS party hereto, the FOREIGN SUBSIDIARY BORROWERS party
hereto, the LENDERS party hereto and JPMORGAN CHASE BANK, N.A., as
Administrative Agent and Collateral Agent, and COMERICA BANK, as Syndication
Agent.


 


The parties hereto agree as
follows:


 


ARTICLE I


 


Definitions


 


SECTION 1.01.  Defined Terms.  As used in this Agreement, the following
terms have the meanings specified below:


 


“ABR”, when used in
reference to any Loan or Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate determined by
reference to the Alternate Base Rate.


 


“Acquired Assets”
means (a) the consolidated tangible assets acquired pursuant to a
Permitted Acquisition during any fiscal year determined in accordance with GAAP
(the “Specified Amount”), provided that if such Permitted
Acquisition is not consummated during the first quarter of a fiscal year,
Acquired Assets for such fiscal year shall be determined by multiplying the
Specified Amount by (i) 0.75 if such Permitted Acquisition is consummated
during the second quarter of such fiscal year, (ii) 0.50 if such Permitted
Acquisition is consummated during the third quarter of such fiscal year and (iii) 0.25
if such Permitted Acquisition is consummated during the fourth quarter of such
fiscal year and (b) with respect to any fiscal year occurring after such
Permitted Acquisition, the Specified Amount.


 


“Acquisition Lease
Financing” means any sale or transfer by the Parent Borrower or any
Subsidiary of any property, real or personal, that is acquired pursuant to a
Permitted Acquisition, in an aggregate amount, not to exceed at any time
$50,000,000, after the Restatement Effective Date that is rented or leased by
the Parent Borrower or such Subsidiary so long as the proceeds from such
transaction consist solely of cash; provided that such amount shall
increase to $75,000,000 upon completion of the IPO Repayment Event.


 


“Adjusted LIBO Rate”
means, with respect to any Eurocurrency Borrowing for any Interest Period, an
interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%)
equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the
Statutory Reserve Rate.


 

















 


“Administrative Agent”
means JPMCB, in its capacity as administrative agent for the Lenders
hereunder.  With respect to Foreign
Currency Borrowings, the Administrative Agent may be an Affiliate of JPMCB for
purposes of administering such Borrowings, and all references herein to the
term “Administrative Agent” shall be deemed to refer to the Administrative
Agent in respect of the applicable Borrowing or to all Administrative Agents,
as the context requires.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by
the Administrative Agent.


 


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


 


“Agents” means,
collectively, the Administrative Agent, the Collateral Agent and Comerica Bank,
as syndication agent.


 


“Alternate Base Rate”
means, for any day, a rate per annum equal to (a) in the case of Class A
Revolving Loans, Class A Tranche B Term Loans and Class A Tranche B-1
Loans, the greatest of (i) the Prime Rate in effect on such day, (ii) the
Federal Funds Effective Rate in effect on such day plus 1⁄2 of 1% and (iii) the
Adjusted LIBO Rate (after giving effect to the 2.00% floor referred to in the
definition of “LIBO Rate”, for purposes of determining interest rates
applicable to Class A Tranche B Loans and Class A Tranche B-1 Loans)
on such day (or if such day is not a Business Day, the immediately preceding
Business Day) for a deposit in dollars with a maturity of one month plus 1% and
(b) in the case of Class B Revolving Loans, Class B Tranche B Term
Loans and Class B Tranche B-1 Loans, the greater of (i) the Prime
Rate in effect on such day and (ii) the Federal Funds Effective Rate in
effect on such day plus 1⁄2 of 1%. 
Any change in the Alternate Base Rate due to a change in the Prime Rate,
the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective
from and including the effective date of such change in the Prime Rate, the
Federal Funds Effective Rate or the Adjusted LIBO Rate, as the case may be.


 


“Amendment and
Restatement Agreement” means the Amendment and Restatement Agreement dated
as of December 16, 2009, among the Parent Borrower, Holdings, the Lenders
party thereto and JPMCB, as Administrative Agent.


 


“Applicable Rate”
means, for any day, (a) with respect to any ABR Class A Tranche B
Term Loan, 3.00%, (b) with respect to any ABR Class B Tranche B Term
Loan, 1.75%, (c) with respect to any Eurocurrency Class A Tranche B
Term Loan or Eurocurrency Class A Tranche B-1 Loan, 4.00%, (d) with
respect to any Eurocurrency Class B Tranche B Term Loan or Eurocurrency Class B
Tranch B-1 Loan, 2.75%, (e) with respect to any Swingline Loan, the
applicable percentage set forth below under the caption “Class A ABR
Spread”, (f) with respect to any ABR Class A Revolving Loan or
Eurocurrency Class A Revolving Loan, the applicable percentage set forth
below under the caption “Class A ABR Spread” or “Class A Eurocurrency
Spread”, as the case may be, based upon the Leverage Ratio as of the most
recent determination date:


 


2

















 


	
  Class A Applicable
  Rate

  
	
   

  
	
  Leverage Ratio

  	
   

  	
  Class A ABR

  Spread

  	
   

  	
  Class A

  Eurocurrency

  Spread

  	
   

  
	
  Category 1: 

  Greater than or equal to 3.00 to 1.00

  	
   

  	
  3.00

  	
  %

  	
  4.00

  	
  %

  
	
  Category 2: 

  Less than 3.00 to 1.00

  	
   

  	
  2.75

  	
  %

  	
  3.75

  	
  %

  



 


(g) with respect to any
ABR Class B Revolving Loan or Eurocurrency Class B Revolving Loan,
the applicable percentage set forth below under the caption “Class B ABR
Spread” or “Class B Eurocurrency Spread”, as the case may be, based upon
the Leverage Ratio as of the most recent determination date:


 


	
  Class B Applicable Rate

  
	
   

  
	
  Leverage Ratio

  	
   

  	
  Class B ABR

  Spread

  	
   

  	
  Class B

  Eurocurrency

  Spread

  	
   

  
	
  Category 1: 

  Greater than or equal to 4.50 to 1.00

  	
   

  	
  1.75

  	
  %

  	
  2.75

  	
  %

  
	
  Category 2: 

  Less than 4.50 to 1.00 but greater than or equal to 4.00 to 1.00

  	
   

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  
	
  Category 3: 

  Less than 4.00 to 1.00

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  



 


and (h) with respect to
the Commitment Fees (i) 0.75% in respect of Class A Revolving
Commitments and (ii) 0.50% in respect of Class B Revolving
Commitments.


 


For purposes of the
foregoing clauses (e), (f) and (g), (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Parent Borrower’s fiscal
year based upon Holdings’ consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) and (ii) each change in the
Applicable Rate resulting from a change in the Leverage Ratio shall be
effective during the period commencing on and including the date of delivery to
the Administrative Agent of such consolidated financial statements indicating such
change and ending on the date immediately preceding the effective date of the
next such change; provided that the Applicable Rate shall be deemed to
be in Category 1 (A) at any time that an Event of Default has
occurred and is continuing or (B) if Holdings or the Parent Borrower fails
to deliver the consolidated financial statements required to be delivered by it
pursuant to Section 5.01(a) or (b), during the period from the
expiration of the time for delivery thereof until such consolidated financial statements
are delivered.


 


3

















 


The Applicable Rate
(including the Class B Applicable Rate grid above) in respect of Class B
Tranche B Term Loans, Class B Tranche B-1 Loans and Class B Revolving
Loans will be decreased by 0.50% immediately after both the completion of the
IPO Repayment Event and the credit ratings for the Loans are B+ (with stable
outlook) or better by S&P and B1 (with stable outlook) or better by Moody’s
and for each day thereafter.


 


“Approved Fund” means
any Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.


 


“Assessment Rate”
means, for any day, the annual assessment rate in effect on such day that is
payable by a member of the Bank Insurance Fund classified as “well-capitalized”
and within supervisory subgroup “B” (or a comparable successor risk
classification) within the meaning of 12 C.F.R. Part 327 (or any successor
provision) to the Federal Deposit Insurance Corporation for insurance by such
Corporation of time deposits made in dollars at the offices of such member in
the United States; provided that if, as a result of any change in
any law, rule or regulation, it is no longer possible to determine the
Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.


 


“Asset Dropdown”
means the sale or contribution by Holdings to the Parent Borrower or any
Subsidiary of all of its assets to the extent permitted by applicable law or
third party contracts, except as otherwise agreed to by the Administrative
Agent.


 


“Assignment and
Acceptance” means an assignment and acceptance entered into by a Lender and
an assignee (with the consent of any party whose consent is required by Section 10.04),
and accepted by the Administrative Agent, in the form of Exhibit A to the
Existing Credit Agreement or any other form approved by the Administrative
Agent.


 


“Assumed Preferred Stock”
means any preferred stock or preferred equity interests of any Person that
becomes a Subsidiary after the First Restatement Effective Date; provided
that (a) such preferred stock or preferred equity interests exists at the
time such Person becomes a Subsidiary and is not created in contemplation of or
in connection with such Person becoming a Subsidiary and (b) the aggregate
liquidation value of all such outstanding preferred stock and preferred equity
interests shall not exceed $25,000,000 (which amount shall increase to $40,000,000
upon completion of the IPO Repayment Event) at any time outstanding, less the
aggregate principal amount of Indebtedness incurred and outstanding pursuant to
Section 6.01(a)(xi).


 


“Benchmark LIBO Rate”
has the meaning assigned to such term in Section 2.01(a)(ii)(D).


 


4

















 


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


 


“Borrowing” means (a) Loans
of the same Class and Type, made, converted or continued on the same date
and, in the case of Eurocurrency Loans, as to which a single Interest Period is
in effect, or (b) a Swingline Loan.


 


“Borrowing Request”
means a request by the Parent Borrower, a Subsidiary Term Borrower or a Foreign
Subsidiary Borrower, as the case may be, for a Borrowing in accordance with Section 2.03.


 


“Business Day” means
any day that is not a Saturday, Sunday or other day on which commercial banks
in New York City are authorized or required by law to remain closed; provided
that (a) when used in connection with any Eurocurrency Loan
denominated in dollars or Sterling, the term “Business Day” shall also
exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market and (b) when used in connection with any
Revolving Loan denominated in Euro, the term “Business Day” shall also exclude
any day on which the TARGET payment system is not open for the settlement of
payment in Euro.


 


“Calculation Date”
means (a) each date on which a Revolving Loan is made and (b) the
last Business Day of each calendar month.


 


“CAM” shall mean the
mechanism for the allocation and exchange of interests in the Credit Facilities
and collections thereunder established under Article IX.


 


“CAM Exchange” shall
mean the exchange of the Lender’s interests provided for in Section 9.01.


 


“CAM Exchange Date”
shall mean the date on which (a) any event referred to in paragraph (h) or
(i) of Article VII shall occur in respect of Holdings, the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower or (b) an
acceleration of the maturity of the Loans pursuant to Article VII shall
occur.


 


“CAM Percentage”
shall mean, as to each Lender, a fraction, expressed as a decimal, of which (a) the
numerator shall be the aggregate Dollar Equivalent (determined on the basis of
Exchange Rates prevailing on the CAM Exchange Date) of the Specified
Obligations owed to such Lender and such Lender’s participation in undrawn
amounts of Letters of Credit immediately prior to the CAM Exchange Date and (b) the
denominator shall be the aggregate Dollar Equivalent (as so determined) of the
Specified Obligations owed to all the Lenders and the aggregate undrawn amount
of outstanding Letters of Credit immediately prior to such CAM Exchange Date.


 


“Capital Expenditures”
means, for any period, without duplication, (a) the additions to property,
plant and equipment and other capital expenditures of Holdings, the Parent
Borrower and its consolidated Subsidiaries (including the Receivables Subsidiary)
that are (or would be) set forth in a consolidated statement of cash flows of
Holdings for 


 


5

















 


such period prepared in
accordance with GAAP other than (x) such additions and expenditures
classified as Permitted Acquisitions and (y) such additions and
expenditures made with Net Proceeds from any casualty or other insured damage
or condemnation or similar awards and (b) Capital Lease Obligations
incurred by Holdings, the Parent Borrower and its consolidated Subsidiaries
(including the Receivables Subsidiary) during such period.


 


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


 


“Change in Control”
means (a) the acquisition by any Person other than Holdings of any direct
Equity Interest in the Parent Borrower; (b) prior to the date of an
IPO, any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission
thereunder as in effect on the Restatement Effective Date) other than Heartland
and its Affiliates shall beneficially own at any time, directly or indirectly
(without giving effect, for avoidance of doubt, to shares owned by Heartland
and its Affiliates), a greater percentage of the aggregate ordinary voting
power of Holdings than the aggregate ordinary voting power of Holdings that is
beneficially owned at such time, directly or indirectly (without giving effect,
for avoidance of doubt, to shares owned by such Person), by Heartland and its
Affiliates (treating shares over which Heartland or its Affiliates have voting
authority by right of contract or otherwise as being owned by Heartland and its
Affiliates), unless Heartland and its Affiliates shall have the right to
designate, by right of contract or otherwise, a majority of the board of
directors of Holdings; (c) on or after an IPO, the acquisition of
beneficial ownership, directly or indirectly, by any Person or group (within
the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the Restatement
Effective Date) other than Heartland and its Affiliates, of Equity Interests
representing more than 25% of either the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests in Holdings and such
Person or group beneficially owns at such time, directly or indirectly (without
giving effect, for avoidance of doubt, to shares owned by Heartland and its
Affiliates), a greater percentage of the aggregate ordinary voting power of
Holdings than the aggregate ordinary voting power of Holdings that is
beneficially owned at such time, directly or indirectly, (without giving
effect, for avoidance of doubt, to shares owned by such Person), by Heartland
and its Affiliates (treating shares over which Heartland or its Affiliates have
voting authority by right of contract or otherwise as being owned by Heartland
and its Affiliates), unless Heartland and its Affiliates shall have the right
to designate, by right of contract or otherwise, a majority of the board of
directors of Holdings; (d) occupation of a majority of the seats on the
board of directors of Holdings by Persons who were not nominated by Heartland
and its Affiliates or approved by Heartland and its Affiliates; or (e) the
occurrence of any change in control (or similar event, however denominated)
with respect to Holdings or the Parent Borrower under 


 


6

















 


(i) any indenture or
agreement in respect of Material Indebtedness to which Holdings, the Parent
Borrower or any Subsidiary is a party, including the Subordinated Debt
Documents, (ii) any instrument governing any preferred stock of Holdings,
the Parent Borrower or any Subsidiary having a liquidation value or redemption
value in excess of $10,000,000 or (iii) the Permitted Receivables
Financing.


 


“Change in Law” means
(a) the adoption of any law, rule or regulation after the First
Restatement Effective Date, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the First Restatement Effective Date or (c) compliance by
any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by
any lending office of such Lender or by such Lender’s or the Issuing Bank’s
holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after
the First Restatement Effective Date.


 


“Class”, when used in
reference to any Loan or Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are Class A Revolving Loans, Class B
Revolving Loans, Class A Tranche B Term Loans, Class B Tranche B Term
Loans, Class A Tranche B-1 Loans, Class B Tranche B-1 Loans or
Swingline Loans, when used in reference to any Commitment, refers to whether
such Commitment is a Class A Revolving Commitment, Class B Revolving
Commitment, Class A Tranche B-1 Commitment or Class B Tranche B-1
Commitment and when used in reference to any Lender, refers to whether such
Lender is a Class A Revolving Lender, Class B Revolving Lender, Class A
Tranche B Lender, Class B Tranche B Lender, Class A Tranche B-1
Lender or Class B Tranche B-1 Lender.


 


“Class A Foreign
Currency Borrowing” means a Foreign Currency Borrowing comprised of Foreign
Currency Loans made by Class A Revolving Lenders.


 


“Class A Foreign
Currency Commitment” means, with respect to each Class A Revolving
Lender, the commitment of such Class A Revolving Lender to make Foreign
Currency Loans and to acquire participations in Foreign Currency Letters of
Credit, expressed as an amount representing the maximum aggregate amount of
such Class A Revolving Lender’s Foreign Currency Exposure hereunder, as
such commitment may be (a) reduced from time to time pursuant to Section 2.08
and (b) reduced or increased from time to time pursuant to assignments by
or to such Revolving Lender pursuant to Section 10.04.  The amount of each Class A Revolving
Lender’s Foreign Currency Commitment as of the Restatement Effective Date or as
of the date on which such Class A Revolving Lender shall have assumed its
Foreign Currency Commitment is set forth on Schedule 2.01 or in the
Assignment and Acceptance pursuant to which such Class A Revolving Lender
shall have assumed its Class A Foreign Currency Commitment, as applicable.


 


“Class A Foreign
Currency Exposure” means, with respect to any Class A Revolving Lender
at any time, the Dollar Equivalent of the sum of the outstanding 


 


7

















 


principal amount of such
Lender’s Foreign Currency Loans and Foreign Currency LC Exposure at such time.


 


“Class A Revolving
Applicable Percentage” means, at any time, with respect to any Class A
Revolving Lender, the percentage of the total Class A Revolving
Commitments represented by such Lender’s Class A Revolving
Commitment.  If the Class A
Revolving Commitments have terminated or expired, the Class A Revolving
Applicable Percentages shall be determined based upon the Class A
Revolving Commitments most recently in effect, giving effect to any
assignments.


 


“Class A Revolving
Availability Period” means the period from and including the Restatement
Effective Date to but excluding the earlier of the Class A Revolving
Commitment Termination Date and the date of termination of the Class A
Revolving Commitments.


 


“Class A Revolving
Commitment” means, with respect to each Class A Revolving Lender, the
commitment, if any, of such Class A Revolving Lender to make Class A
Revolving Loans, including Foreign Currency Loans, and to acquire
participations in Revolving Letters of Credit, including Foreign Currency
Letters of Credit, and Swingline Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Class A Revolving
Lender’s Class A Revolving Exposure, including Foreign Currency Exposure,
hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08, (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 10.04 and
(c) increased or assumed pursuant to the Incremental Amendment.  The amount of each Class A Revolving
Lender’s Class A Revolving Commitment as of the Restatement Effective Date
or as of the date on which such Class A Revolving Lender shall have
assumed its Class A Revolving Commitment is set forth on
Schedule 2.01 or in the Assignment and Acceptance or Incremental Amendment
pursuant to which such Class A Revolving Lender shall have assumed its Class A
Revolving Commitment, as applicable.


 


“Class A Revolving
Commitment Termination Date” means February 28, 2012; provided
that if, on or prior to February 28, 2012, the Parent Borrower has repaid
or refinanced the Existing Subordinated Notes in full, the Class A
Revolving Commitment Termination Date shall be December 15, 2013.


 


“Class A Revolving
Exposure” means, with respect to any Class A Revolving Lender at any
time, the sum of the outstanding principal amount of such Class A
Revolving Lender’s Class A Revolving Loans and its Revolving LC Exposure
and Swingline Exposure at such time.


 


“Class A Revolving
Lender” means a Lender with a Class A Revolving Commitment or, if the Class A
Revolving Commitments have terminated or expired, a Lender with Class A
Revolving Exposure.


 


“Class A Revolving
Loan” means (a) each Revolving Loan outstanding under (and as defined
in) the Existing Credit Agreement as of the Restatement Effective 


 


8

















 


Date that became a Class A
Revolving Loan hereunder pursuant to the Amendment and Restatement Agreement
and (b) a Loan made on or after the Restatement Effective Date pursuant to
Section 2.01(a)(i)(A).


 


“Class A Tranche B
Lender” means a Lender with an outstanding Class A Tranche B Term
Loan.


 


“Class A Tranche B
Maturity Date” means December 15, 2015, or if such day is not a
Business Day, the first Business Day thereafter; provided that if the
Existing Subordinated Notes have not been repaid or refinanced on or prior to February 28,
2012, the Class A Tranche B Maturity Date will be February 28, 2012.


 


“Class A Tranche B
Term Loan” means a Tranche B Term Loan outstanding under (and as defined
in) the Existing Credit Agreement as of the Restatement Effective Date that
became a Class A Tranche B Term Loan hereunder pursuant to the Amendment
and Restatement Agreement.


 


“Class A Tranche B-1
Commitment” means, with respect to each Class A Tranche B-1 Lender, an
amount representing the maximum permitted aggregate amount of such Lender’s
Tranche B-1 Credit Exposure hereunder, as such amount may be (a) reduced
from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04.  For the
avoidance of doubt, a Lender’s Class A Tranche B-1 Commitment shall be
deemed “unused” at any time to the extent it exceeds such Lender’s Tranche B-1
Credit Exposure at such time.  The amount
of each Class A Tranche B-1 Lender’s Class A Tranche B-1 Commitment
as of the Restatement Effective Date or as of the date on which such Class A
Tranche B-1 Lender became a Class A Tranche B-1 Lender is set forth on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender
shall have assumed its Class A Tranche B-1 Commitment, as applicable.


 


“Class A Tranche B-1
Lender” means a Lender with a Class A Tranche B-1 Commitment or, if
the Class A Tranche B-1 Commitments have been reduced to zero, a Lender
with a Tranche B-1 Credit Exposure attributable to a Class A Tranche B-1
Commitment.


 


“Class A Tranche B-1
Loan” means (a) a Tranche B-1 Loan made under (and as defined in) the
Existing Credit Agreement that as of the Restatement Effective Date became a Class A
Tranche B-1 Loan hereunder pursuant to the Amendment and Restatement Agreement
or (b) a Tranche B-1 Loan made on or after the Restatement Effective Date
by a Class A Tranche B-1 Lender.


 


“Class B Foreign
Currency Borrowing” means a Foreign Currency Borrowing comprised of Foreign
Currency Loans made by Class B Revolving Lenders.


 


“Class B Foreign
Currency Commitment” means, with respect to each Class B Revolving
Lender, the commitment of such Class B Revolving Lender to make Foreign
Currency Loans, expressed as an amount representing the maximum aggregate 


 


9

















 


amount of such Class B
Revolving Lender’s Foreign Currency Exposure hereunder, as such commitment may
be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced
or increased from time to time pursuant to assignments by or to such Revolving
Lender pursuant to Section 10.04. 
The amount of each Class B Revolving Lender’s Foreign Currency
Commitment as of the Restatement Effective Date or as of the date on which such
Class B Revolving Lender shall have assumed its Foreign Currency
Commitment is set forth on Schedule 2.01 or in the Assignment and
Acceptance pursuant to which such Class B Revolving Lender shall have
assumed its Foreign Currency Commitment, as applicable.


 


“Class B Foreign
Currency Exposure” means, with respect to any Class B Revolving Lender
at any time, the Dollar Equivalent of the sum of the outstanding principal
amount of such Lender’s Foreign Currency Loans at such time.


 


“Class B Revolving
Applicable Percentage” means, with respect to any Class B Revolving
Lender, the percentage of the total Class B Revolving Commitments
represented by such Lender’s Class B Revolving Commitment.  If the Class B Revolving Commitments
have terminated or expired, the Class B Revolving Applicable Percentages
shall be determined based upon the Class B Revolving Commitments most
recently in effect, giving effect to any assignments.


 


“Class B Revolving
Availability Period” means the period from and including the Restatement
Effective Date to but excluding the earlier of the Class B Revolving
Commitment Termination Date and the date of termination of the Class B
Revolving Commitments.


 


“Class B Revolving
Commitment” means, with respect to each Class B Revolving Lender, the
commitment, if any, of such Class B Revolving Lender to make Class B
Revolving Loans, including Foreign Currency Loans, expressed as an amount
representing the maximum aggregate amount of such Class B Revolving
Lender’s Class B Revolving Exposure, including Foreign Currency Exposure,
hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 10.04.  The amount of each Class B Revolving
Lender’s Class B Revolving Commitment as of the Restatement Effective Date
or as of the date on which such Class B Revolving Lender shall have
assumed its Class B Revolving Commitment is set forth on
Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Class B
Revolving Lender shall have assumed its Class B Revolving Commitment, as
applicable.


 


“Class B Revolving
Commitment Termination Date” means August 2, 2011.


 


“Class B Revolving
Exposure” means, with respect to any Class B Revolving Lender at any
time, the sum of the outstanding principal amount of such Class B
Revolving Lender’s Class B Revolving Loans at such time.


 


10

















 


“Class B Revolving
Lender” means a Lender with a Class B Revolving Commitment or, if the Class B
Revolving Commitments have terminated or expired, a Lender with Class B
Revolving Exposure.


 


“Class B Revolving
Loan” means a Revolving Loan (a) outstanding under (and as defined in)
the Existing Credit Agreement as of the Restatement Effective Date that became
a Class B Revolving Facility Loan hereunder pursuant to the Amendment and
Restatement Agreement and (b) made by a Class B Revolving Lender on
or after the Restatement Effective Date pursuant to Section 2.01(a)(i)(B).


 


“Class B Tranche B
Lender” means a Lender with an outstanding Class B Tranche B Term
Loan.


 


“Class B Tranche B
Maturity Date” means August 2, 2013, or if such day is not a Business
Day, the first Business Day thereafter; provided that if the Existing
Subordinated Notes have not been repaid or refinanced on or prior to February 28,
2012, the Class B Tranche B Maturity Date will be February 28, 2012.


 


“Class B Tranche B
Term Loan” means a Tranche B Term Loan outstanding under (and as defined
in) the Existing Credit Agreement as of the Restatement Effective Date that
became a Class B Tranche B Term Loan hereunder pursuant to the Amendment
and Restatement Agreement.


 


“Class B Tranche B-1
Commitment” means, with respect to each Class B Tranche B-1 Lender, an
amount representing the maximum permitted aggregate amount of such Lender’s
Tranche B-1 Credit Exposure hereunder, as such amount may be (a) reduced
from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04.  For the
avoidance of doubt, a Lender’s Class B Tranche B-1 Commitment shall be
deemed “unused” at any time to the extent it exceeds such Lender’s Tranche B-1
Credit Exposure at such time.  The amount
of each Class B Tranche B-1 Lender’s Class B Tranche B-1 Commitment
as of the Restatement Effective Date or as of the date on which such Class B
Tranche B-1 Lender became a Class B Tranche B-1 Lender is set forth on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender
shall have assumed its Class B Tranche B-1 Commitment, as applicable.


 


“Class B Tranche B-1
Lender” means a Lender with a Class B Tranche B-1 Commitment or, if
the Class B Tranche B-1 Commitments have been reduced to zero, a Lender
with a Tranche B-1 Credit Exposure attributable to a Class A Tranche B-1
Commitment.


 


“Class B Tranche B-1
Loan” means (a) a Tranche B-1 Loan made under (and as defined in) the
Existing Credit Agreement that as of the Restatement Effective Date became a Class B
Tranche B-1 Loan hereunder pursuant to the Amendment and Restatement Agreement
or (b) a Tranche B-1 Loan made on or after the Restatement Effective Date
by a Class B Tranche B-1 Lender.


 


11
















 


“Class C Revolving Commitments”
has the meaning assigned to such term in Section 2.23(a).


 


“Class C Revolving Lenders” has
the meaning assigned to such term in Section 2.23(a).


 


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


 


“Collateral” means any and all
“Collateral”, as defined in any applicable Security Document.


 


“Collateral Agent” means JPMCB, in its
capacity as collateral agent for the Lenders under the Security Documents.  With respect to Foreign Currency Borrowings, the
Collateral Agent may be an Affiliate of JPMCB, for purposes of administering
the collateralization of such Borrowings, and all references herein to the term
“Collateral Agent” shall be deemed to refer to the Collateral Agent in respect
of the applicable Borrowing or to all Collateral Agents, as the context
requires.


 


“Collateral and Guarantee Requirement”
means the requirement that:


 


(a) the
Collateral Agent shall have received from each party thereto (other than the
Collateral Agent) either (i) a counterpart of (A) the Guarantee
Agreement, (B) the Indemnity, Subrogation and Contribution Agreement, (C) the
Pledge Agreement and (D) the Security Agreement in each case duly executed
and delivered on behalf of such Loan Party, or (ii) in the case of any
Person that becomes a Loan Party after the Original Effective Date, a
supplement to each of the Guarantee Agreement, the Indemnity, the Subrogation
and Contribution Agreement, the Pledge Agreement and the Security Agreement, in
each case in the form specified therein, duly executed and delivered on behalf
of such Loan Party;


 


(b) all
outstanding Equity Interests of the Parent Borrower and each Subsidiary
(including the Receivables Subsidiary) owned by or on behalf of any Loan Party
shall have been pledged pursuant to the Pledge Agreement (except that the Loan
Parties shall not be required to pledge more than 65% of the outstanding voting
Equity Interests of any Foreign Subsidiary, it being understood that this
exception shall not limit the application of the Foreign Security Collateral
and Guarantee Requirement) and the Collateral Agent shall have received
certificates or other instruments representing all such Equity Interests,
together with stock powers or other instruments of transfer with respect
thereto endorsed in blank;


 


(c) all
Indebtedness of Holdings, the Parent Borrower and each Subsidiary in an
aggregate principal amount that exceeds $500,000 that is owing to any Loan
Party shall be evidenced by a promissory note and shall have been pledged
pursuant to the Pledge Agreement and the Collateral Agent shall have received
all 


 


12





















 


such promissory notes,
together with instruments of transfer with respect thereto endorsed in blank;


 


(d) all
documents and instruments, including Uniform Commercial Code financing
statements, required by law or reasonably requested by the Collateral Agent to
be filed, registered or recorded to create the Liens intended to be created by
the Security Agreement and the Pledge Agreement and perfect such Liens to the
extent required by, and with the priority required by, the Security Agreement
and the Pledge Agreement shall have been filed, registered or recorded or
delivered to the Collateral Agent for filing, registration or recording;


 


(e) the
Collateral Agent shall have received (i) counterparts of a Mortgage with
respect to each Mortgaged Property duly executed and delivered by the record
owner of such Mortgaged Property, (ii) a policy or policies of title
insurance issued by a nationally recognized title insurance company insuring
the Lien of each such Mortgage as a valid first Lien on the Mortgaged Property
described therein, free of any other Liens except as expressly permitted by Section 6.02,
together with such endorsements, coinsurance and reinsurance as the
Administrative Agent or the Required Lenders may reasonably request, and (iii) such
surveys, abstracts, appraisals, legal opinions and other documents as the
Administrative Agent or the Required Lenders may reasonably request with
respect to any such Mortgage or Mortgaged Property; and


 


(f) each
Loan Party (other than the Foreign Subsidiary Borrowers) shall have obtained
all consents and approvals required to be obtained by it in connection with the
execution and delivery of all Security Documents to which it is a party, the
performance of its obligations thereunder and the granting by it of the Liens
thereunder.


 


“Commission” means the Securities and
Exchange Commission or any Governmental Authority succeeding to any or all of
the functions of said Commission.


 


“Commitment” means a Class A
Revolving Commitment, Class B Revolving Commitment, Class A Tranche
B-1 Commitment or Class B Tranche B-1 Commitment, or any combination
thereof (as the context requires).


 


“Commitment Fee” has the meaning
assigned to such term in Section 2.12(a).


 


“Commitment Increase” has the meaning
assigned to such term in Section 2.23(b).


 


“Commitment Termination Date” means
the Class A Revolving Commitment Termination Date or the Class B
Revolving Commitment Termination Date, as applicable.


 


13

















 


“Consolidated Cash Interest Expense”
means, for any period, the excess of (a) the sum, without duplication, of (i) the
interest expense (including imputed interest expense in respect of Capital
Lease Obligations) of Holdings, the Parent Borrower and the Subsidiaries
(including the Receivables Subsidiary) for such period, determined on a
consolidated basis in accordance with GAAP, plus (ii) any interest accrued
during such period in respect of Indebtedness of Holdings, the Parent Borrower
or any Subsidiary (including the Receivables Subsidiary) that is required to be
capitalized rather than included in consolidated interest expense for such
period in accordance with GAAP, plus (iii) any cash payments made during
such period in respect of obligations referred to in clause (b)(iii) below
that were amortized or accrued in a previous period, plus (iv) interest-equivalent
costs associated with any Permitted Receivables Financing, whether accounted
for as interest expense or loss on the sale of receivables, minus (b) the
sum of, without duplication, (i) interest income of Holdings, the Parent
Borrower and the Subsidiaries (including the Receivables Subsidiary) for such
period, determined on a consolidated basis in accordance with GAAP, plus (ii) to
the extent included in such consolidated interest expense for such period,
noncash amounts attributable to amortization of financing costs paid in a
previous period, plus (iii) to the extent included in such consolidated
interest expense for such period, noncash amounts attributable to amortization
of debt discounts or accrued interest payable in kind for such period, plus (iv) to
the extent included in such consolidated interest expense for such period, all
financing fees incurred in connection with the Transactions.


 


“Consolidated EBITDA” means, for any
period, Consolidated Net Income for such period plus (a) without
duplication and to the extent deducted in determining such Consolidated Net
Income, the sum of (i) consolidated interest expense for such period, (ii) consolidated
income tax expense for such period (including all single business tax expenses
imposed by state law), (iii) all amounts attributable to depreciation and
amortization for such period, (iv) any extraordinary noncash charges for
such period, (v) all management fees and other fees paid during such
period to Heartland and/or its Affiliates pursuant to the Heartland Management
Agreement to the extent permitted by Section 6.09, (vi) interest-equivalent
costs associated with any Permitted Receivables Financing for such period,
whether accounted for as interest expense or loss on the sale of receivables,
and all Preferred Dividends, (vii) all extraordinary losses during such
period that are either noncash or relate to the retirement of Indebtedness, (viii) noncash
expenses during such period resulting from the grant of Equity Interests to
management and employees of Holdings, the Parent Borrower or any of the
Subsidiaries, (ix) the aggregate amount of deferred financing expenses for
such period, (x) all other noncash expenses or losses of Holdings, the
Parent Borrower or any of the Subsidiaries for such period (excluding any such
charge that constitutes an accrual of or a reserve for cash charges for any
future period), (xi) any nonrecurring fees, expenses or charges realized
by Holdings, the Parent Borrower or any of the Subsidiaries for such period
related to any offering of Equity Interests or incurrence of Indebtedness,
whether or not consummated, (xii) fees and expenses in connection with the
Transactions and the Restatement Transactions, (xiii) any nonrecurring
costs and expenses arising from the integration of any business acquired
pursuant to any Permitted Acquisition consummated after the Restatement
Effective Date not to exceed $15,000,000 in the aggregate (which amount shall
increase 


 


14

















 


to $10,000,000 in any fiscal
year and $25,000,000 in the aggregate upon completion of the IPO Repayment
Event), (xiv) any nonrecurring expenses or similar costs relating to cost
savings projects, including restructuring and severance expenses, not to exceed
$32,000,000 in the aggregate from and after October 1, 2009; provided that
no more than $15,000,000 may be counted in any fiscal year commencing on or
after January 1, 2010, (xv) [reserved], (xvi) [reserved], (xvii) EBITDA
from discontinued operations, not to exceed in any fiscal year $10,000,000,
(xviii) losses associated with the prepayment of leases (whether operating
leases or capital leases) outstanding on the Restatement Effective Date from
discontinued operations and (xix) losses or charges associated with asset
sales otherwise permitted hereunder not to exceed in the aggregate $10,000,000,
minus (b) without duplication and to the extent included in determining
such Consolidated Net Income, (i) any extraordinary gains for such period
and (ii) any gains realized from the retirement of Indebtedness after the
Restatement Effective Date, all determined on a consolidated basis in
accordance with GAAP.  If the Parent Borrower or any Subsidiary
has acquired assets to be used or useful in their continuing operations (to the
extent permitted by Section 6.14) in connection with the prepayment of
leases during the relevant period for determining the Senior Leverage Ratio,
Consolidated EBITDA for the relevant period shall be calculated only for
purposes of determining Senior Leverage Ratio after giving pro forma effect
thereto, as if such acquisition of assets and related termination of leases had
occurred on the first day of the relevant period for determining Consolidated
EBITDA. If the Parent Borrower or any Subsidiary has made any Permitted
Acquisition or any sale, transfer, lease or other disposition of assets outside
of the ordinary course of business permitted by Section 6.05 during the
relevant period for determining the Leverage Ratio and the Interest Expense
Coverage Ratio, Consolidated EBITDA for the relevant period shall be calculated
only for purposes of determining Leverage Ratio and the Interest Expense
Coverage Ratio after giving pro forma effect thereto, as if such Permitted
Acquisition or sale, transfer, lease or other disposition of assets (and, in
each case, any related incurrence, repayment or assumption of Indebtedness,
with any new Indebtedness being deemed to be amortized over the relevant period
in accordance with its terms, and assuming that any Revolving Loans borrowed in
connection with such acquisition are repaid with excess cash balances when
available) had occurred on the first day of the relevant period for determining
Consolidated EBITDA.  Any such pro forma
calculations may include operating and other expense reductions and other
adjustments for such period resulting from any Permitted Acquisition, or sale,
transfer, lease or other disposition of assets that is being given pro forma
effect to the extent that such operating and other expense reductions and other
adjustments (a) would be permitted pursuant to Article XI of
Regulation S-X under the Securities Act of 1933 (“Regulation S-X”) or (b) are
reasonably consistent with the purpose of Regulation S-X as determined in good
faith by the Parent Borrower in consultation with the Administration Agent.


 


“Consolidated Net Income” means, for
any period, the net income or loss of Holdings, the Parent Borrower and the
Subsidiaries (including the Receivables Subsidiary) for such period determined
on a consolidated basis in accordance with GAAP; provided that there
shall be excluded (a) the income of any Person (other than the Parent
Borrower) in which any other Person (other than the Parent Borrower or any 


 


15

















 


Subsidiary or any director
holding qualifying shares in compliance with applicable law) owns an Equity
Interest, except to the extent of the amount of dividends or other
distributions actually paid to the Parent Borrower or any of the Subsidiaries
during such period, and (b) the income or loss of any Person accrued prior
to the date it becomes a Subsidiary or is merged into or consolidated with the
Parent Borrower or any Subsidiary or the date that such Person’s assets are
acquired by the Parent Borrower or any Subsidiary.


 


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


 


“Credit Facility” means a category of
Commitments and extensions of credit thereunder.


 


“Default” means any event or condition
which constitutes an Event of Default or which upon notice, lapse of time or
both would, unless cured or waived, become an Event of Default.


 


“Defaulting Lender” means any Class A
Revolving Lender, as determined by the Administrative Agent in its reasonable
discretion acting in good faith, that has (a) failed to fund any portion
of its Class A Revolving Loans or participations in Revolving Letters of
Credit or Swingline Loans within three Business Days of the date required to be
funded by it hereunder, (b) notified the Parent Borrower, the
Administrative Agent, the Issuing Bank, the Swingline Lender or any Lender in
writing that it does not intend to comply with any of its funding obligations
under this Agreement or has made a public statement to the effect that it does
not intend to comply with its funding obligations under this Agreement or under
other agreements in which it commits to extend credit, (c) failed, within
three Business Days after request by the applicable Administrative Agent, to
confirm that it will comply with the terms of this Agreement relating to its
obligations to fund prospective Class A Revolving Loans and participations
in then outstanding Revolving Letters of Credit and Swingline Loans, or (d) (i) become
or is insolvent or has a parent company that has become or is insolvent or (ii) become
the subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in
any such proceeding or appointment or has a parent company that has become the
subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in
any such proceeding or appointment.


 


“Deposit” means, with respect to each
Lender at any time, amounts actually on deposit in the Deposit Account to the
credit of such Lender’s Sub-Account at
such time.


 


16

















 


“Deposit Account” means the “TriMas
2006 Credit Agreement Deposit Account” established by the Administrative Agent
at JPMCB pursuant to Section 2.01(a)(ii)(A).


 


“Deposit Return” has the meaning set
forth in Section 2.01(a)(ii)(D).


 


“Disclosed Matters” means the actions,
suits and proceedings and the environmental matters disclosed in
Schedule 3.06.


 


“dollars” or “$” refers to
lawful money of the United States of America.


 


“Dollar Equivalent” means, on any date
of determination, (a) with respect to any amount in dollars, such amount,
and (b) with respect to any amount in any Foreign Currency, the equivalent
in dollars of such amount, determined by the Administrative Agent pursuant to Section 1.05(b) using
the Exchange Rate with respect to such Foreign Currency at the time in effect
under the provisions of such Section.


 


“Domestic Loan Party” means any Loan
Party, other than the Foreign Subsidiary Borrowers.


 


“EMU Legislation” means the
legislative measures of the European Union for the introduction of, changeover
to or operation of the Euro in one or more member states.


 


“Environmental Laws” means all laws,
rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions,
notices or binding agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, Release or threatened Release
of any Hazardous Material or to health and safety matters.


 


“Environmental Liability” means any
liabilities, obligations, damages, losses, claims, actions, suits, judgments,
or orders, contingent or otherwise (including any liability for damages, costs
of environmental remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of Holdings, the Parent Borrower
or any Subsidiary (including the Receivables Subsidiary) directly or indirectly
resulting from or relating to (a) compliance or non-compliance with any
Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) any actual
or alleged exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.


 


“Equity Interests” means shares of
capital stock, partnership interests, membership interests in a limited
liability company, beneficial interests in a trust or other equity ownership
interests in a Person or any warrants, options or other rights to acquire such
interests.


 


17

















 


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


 


“ERISA Affiliate” means any trade or
business (whether or not incorporated) that, together with the Parent Borrower,
is treated as a single employer under Section 414(b) or (c) of
the Code or, solely for purposes of Section 302 of ERISA and Section 412
of the Code, is treated as a single employer under Section 414 of the
Code.


 


“ERISA Event” means (a) any
“reportable event”, as defined in Section 4043 of ERISA or the regulations
issued thereunder with respect to a Plan (other than an event for which the
30-day notice period is waived); (b) the existence with respect to any
Plan of an “accumulated funding deficiency” (as defined in Section 412 of
the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Parent Borrower or any of
its ERISA Affiliates of any liability under Title IV of ERISA with respect
to the termination of any Plan; (e) the receipt by the Parent Borrower or
any ERISA Affiliate from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (f) the incurrence by the Parent Borrower or any
of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt
by the Parent Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Parent Borrower or any ERISA Affiliate of any
notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.


 


“Euro” or “€” means the single
currency of the European Union as constituted by the Treaty on European Union
and as referred to in the EMU Legislation.


 


“Eurocurrency”, when used in reference
to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are bearing interest at a rate determined by reference to the
Adjusted LIBO Rate.


 


“Event of Default” has the meaning
assigned to such term in Article VII.


 


“Excess Cash Flow”
means, for any fiscal year, the sum (without duplication) of:


 


(a) the
Consolidated Net Income for such fiscal year, adjusted to exclude any gains or
losses attributable to Prepayment Events; plus


 


(b) the
excess, if any, of the Net Proceeds received during such fiscal year by
Holdings, the Parent Borrower and its consolidated Subsidiaries (including the
Receivables Subsidiary) in respect of any Prepayment Events over (x) amounts
permitted to be reinvested pursuant to Section 2.11(d) and (y) the
aggregate 


 


18





















 


principal amount of Tranche
B Term Loans prepaid pursuant to Section 2.11(d) in respect of such
Net Proceeds; plus


 


(c) depreciation,
amortization and other noncash charges or losses deducted in determining such
consolidated net income (or loss) for such fiscal year; plus


 


(d) the
sum of (i) the amount, if any, by which Net Working Capital (adjusted to
exclude changes arising from Permitted Acquisitions) decreased during such
fiscal year plus (ii) the net amount, if any, by which the consolidated
deferred revenues and other consolidated accrued long-term liability accounts
of Holdings, the Parent Borrower and its consolidated Subsidiaries (including
the Receivables Subsidiary) (adjusted to exclude changes arising from Permitted
Acquisitions) increased during such fiscal year plus (iii) the net amount,
if any, by which the consolidated accrued long-term asset accounts of Holdings,
Parent Borrower and its consolidated Subsidiaries (including the Receivables
Subsidiary) (adjusted to exclude changes arising from Permitted Acquisitions)
decreased during such fiscal year; minus


 


(e) the
sum of (i) any noncash gains included in determining such consolidated net
income (or loss) for such fiscal year plus (ii) the amount, if any, by
which Net Working Capital (adjusted to exclude changes arising from Permitted
Acquisitions) increased during such fiscal year plus (iii) the net amount,
if any, by which the consolidated deferred revenues and other consolidated
accrued long-term liability accounts of Holdings, the Parent Borrower and its
consolidated Subsidiaries (including the Receivables Subsidiary) (adjusted to
exclude changes arising from Permitted Acquisitions) decreased during such
fiscal year plus (iv) the net amount, if any, by which the consolidated
accrued long-term asset accounts of Holdings, the Parent Borrower and its
consolidated Subsidiaries (including the Receivables Subsidiary) (adjusted to
exclude changes arising from Permitted Acquisitions) increased during such
fiscal year; minus


 


(f) the
sum of (i) Capital Expenditures for such fiscal year (except to the extent
attributable to the incurrence of Capital Lease Obligations or otherwise
financed by incurring Long-Term Indebtedness) plus (ii) cash
consideration paid during such fiscal year to make acquisitions or other
capital investments (except to the extent financed by incurring Long-Term
Indebtedness); minus


 


(g) the
aggregate principal amount of Long-Term Indebtedness repaid or prepaid by
Holdings, the Parent Borrower and its consolidated Subsidiaries (including the
Receivables Subsidiary) during such fiscal year, excluding (i) Indebtedness
in respect of Revolving Loans (except to the extent the Revolving Commitments
are permanently reduced in the amount of and at the time of any such payment)
and Letters of Credit, (ii) Tranche B Term Loans prepaid pursuant to Section 2.11(d) or
(e), (iii) Indebtedness in respect of Tranche B-1 Loans (except to the
extent the Tranche B-1 Commitments are permanently reduced in 


 


19





















 


the amount of and at the
time of such payment) and (iv) repayments or prepayments of Long-Term
Indebtedness financed by incurring other Long-Term Indebtedness; minus


 


(h) the
noncash impact of currency translations and other adjustments to the equity
account, including adjustments to the carrying value of marketable securities
and to pension liabilities, in each case to the extent such items would
otherwise constitute Excess Cash Flow.


 


“Exchange Rate” means on any day, with
respect to any Foreign Currency, the rate at which such Foreign Currency may be
exchanged into dollars, as set forth at approximately 11:00 a.m., London
time, on such day on the Reuters World Currency Page for such Foreign
Currency.  In the event that such rate
does not appear on any Reuters World Currency Page, the Exchange Rate shall be
determined by reference to such other publicly available service for displaying
exchange rates as may be agreed upon by the Administrative Agent and the Parent
Borrower, or, in the absence of such agreement, such Exchange Rate shall
instead be the arithmetic average of the spot rates of exchange of the
Administrative Agent in the market where its foreign currency exchange
operations in respect of such Foreign Currency are then being conducted, at or
about 10:00 a.m., local time, on such date for the purchase of dollars for
delivery two Business Days later; provided that if at the time of
any such determination, for any reason, no such spot rate is being quoted, the
Administrative Agent, after consultation with the Parent Borrower, may use any
reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error.


 


“Excluded Taxes” means, with respect
to the Administrative Agent, any Lender, the Issuing Bank or any other
recipient of any payment to be made by or on account of any obligation of the
Parent Borrower, the Subsidiary Term Borrowers or any Foreign Subsidiary
Borrower hereunder, (a) income or franchise taxes imposed on (or measured
by) its net income by the United States of America, or by the jurisdiction
under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable
lending office is located, (b) any branch profits Taxes imposed by the
United States of America or any similar Tax imposed by any other
jurisdiction described in clause (a) above and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the Parent
Borrower under Section 2.19(b)), (i) any United States
withholding Tax that is in effect (other than as a result of a reallocation of
obligations by operation of the CAM) and would apply to amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Parent Borrower with respect to any United States
withholding Tax pursuant to Section 2.17(a) and (ii) any
withholding Tax that is attributable to such Foreign Lenders’ failure to comply
with Section 2.17(e).


 


20

















 


“Existing Credit Agreement” means the
Credit Agreement dated as of June 6, 2002, as amended and restated on August 2,
2006, by and among Holdings, the Parent Borrower, the Administrative Agent and
the other parties thereto, as in effect immediately prior to the Restatement
Effective Date.


 


“Existing Subordinated Notes” means
the 9.875% Subordinated Notes of Holdings due 2012 in the aggregate principal
amount of $437,770,000 (including the Exchange Notes issued in exchange for the
initial Existing Subordinated Notes as contemplated by the registration rights
agreement related thereto) and the Indebtedness represented thereby.


 


“Federal Funds Effective Rate” means,
for any day, the weighted average (rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as published
on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a
Business Day, the average (rounded upwards, if necessary, to the next 1/100 of
1%) of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.


 


“Financial Officer” means the chief
financial officer, principal accounting officer, treasurer or controller of
Holdings or the Parent Borrower, as applicable.


 


“First Restatement Effective Date”
means August 2, 2006.


 


“Foreign Currencies” means Euro and
Sterling.


 


“Foreign Currency Administrative Agent”
means J.P. Morgan Europe Limited, in its capacity as foreign currency
administrative agent for the Lenders hereunder.


 


“Foreign Currency Borrowing” means a
Borrowing comprised of Foreign Currency Loans.


 


“Foreign Currency Commitment” means a Class A
Foreign Currency Commitment or a Class B Foreign Currency Commitment.


 


“Foreign Currency Exposure” means Class A
Foreign Currency Exposure or Class B Foreign Currency Exposure.


 


“Foreign Currency LC Exposure” means,
at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Foreign Currency Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements in respect of Foreign Currency Letters
of Credit that have not yet been reimbursed by or on behalf of the Foreign
Subsidiary Borrowers at such time.  The
Foreign Currency LC Exposure of any Class A Revolving Lender at any time
shall be its Class A Revolving Applicable Percentage of the total Foreign
Currency LC Exposure at such time.


 


21

















 


“Foreign Currency Letter of Credit”
means a Letter of Credit denominated in a Foreign Currency.


 


“Foreign Currency Loan” means a
Revolving Loan denominated in a Foreign Currency.


 


“Foreign Lender” means any Lender that
is organized under the laws of a jurisdiction other than that in which the
Parent Borrower or any Foreign Subsidiary Borrower, as the case may be, is
located.  For purposes of this
definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.


 


“Foreign Security Collateral and Guarantee
Requirement” means the requirement that:


 


(a) the
Collateral Agent shall have received from the applicable Foreign Subsidiary
Borrower and its subsidiaries a counterpart of each Foreign Security Document
relating to the assets (including the capital stock of its subsidiaries) of
such Foreign Subsidiary Borrower, excluding assets as to which the Collateral
Agent shall determine in its reasonable discretion, after consultation with the
Parent Borrower, that the costs and burdens of obtaining a security interest
are excessive in relation to the value of the security afforded thereby;


 


(b) all
documents and instruments (including legal opinions) required by law or
reasonably requested by the Collateral Agent to be filed, registered or
recorded to create the Liens intended to be created over the assets specified
in clause (a) above and perfect such Liens to the extent required by,
and with priority required by, such Foreign Security Documents, shall have been
filed, registered or recorded or delivered to the Collateral Agent for filing,
registration or recording;


 


(c) such
Foreign Subsidiary Borrower and its subsidiaries shall become a guarantor of
the obligations under the Loan Documents of other Foreign Subsidiary Borrowers,
if any, under a guarantee agreement reasonably acceptable to the Collateral
Agent, in either case duly executed and delivered on behalf of such Foreign Subsidiary
Borrower and such subsidiaries, except that such guarantee shall not be
required if the Collateral Agent shall determine in its reasonable discretion,
after consultation with the Parent Borrower, that the benefits of such a
guarantee are limited and such limited benefits are not justified in relation
to the burdens imposed by such guarantee on the Parent Borrower and its
Subsidiaries; and


 


(d) such
Foreign Subsidiary Borrower shall have obtained all consents and approvals
required to be obtained by it in connection with the execution and delivery of
such Foreign Security Documents, the performance of its obligations thereunder
and the granting by it of the Liens thereunder.


 


22




















 


“Foreign Security Documents” means any
agreement or instrument entered into by any Foreign Subsidiary Borrower that is
reasonably requested by the Collateral Agent providing for a Lien over the
assets (including shares of other Subsidiaries) of such Foreign Subsidiary
Borrower.


 


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


 


“Foreign Subsidiary Borrowers” means
any wholly owned Foreign Subsidiary of the Parent Borrower organized under the
laws of England and Wales, any member nation of the European Union or any other
nation in Europe reasonably acceptable to the Collateral Agent that becomes a
party to this Agreement pursuant to Section 2.21.


 


“Foreign Subsidiary Borrowing Agreement”
means an agreement substantially in the form of Exhibit C to the Existing
Credit Agreement.


 


“GAAP” means generally accepted
accounting principles in the United States of America.


 


“Governmental Authority” means the
government of the United States of America, any other nation or any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.


 


“Guarantee” of or by any Person (the “guarantor”)
means any obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other obligation
of any other Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of the guarantor, direct
or indirect, (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase
(or to advance or supply funds for the purchase of) any security for the
payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation
of the payment thereof, (c) to maintain working capital, equity capital or
any other financial statement condition or liquidity of the primary obligor so
as to enable the primary obligor to pay such Indebtedness or other obligation
or (d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation; provided,
that the term Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business.


 


“Guarantee Agreement” means the
Guarantee Agreement, substantially in the form of Exhibit D to the
Existing Credit Agreement, made by Holdings, the Parent Borrower and the
Subsidiary Loan Parties party thereto in favor of the Collateral Agent for the
benefit of the Secured Parties.


 


23

















 


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


 


“Heartland” means Heartland Industrial
Partners, L.P., a Delaware limited partnership.


 


“Heartland Management Agreement” means
the monitoring agreement dated as of the Original Effective Date between
Heartland (or one or more of its Affiliates) and Holdings.


 


“Hedging Agreement” means any interest
rate protection agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency exchange rate or commodity
price hedging arrangement.


 


“Holdings” means TriMas Corporation, a
Delaware corporation.


 


“Increase Effective Date” has the
meaning assigned to such term in Section 2.23(b).


 


“Incremental Amendment” has the
meaning assigned to such term in Section 2.23(c).


 


“Indebtedness” of any Person means,
without duplication, (a) all obligations of such Person for borrowed money
or with respect to advances of any kind, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all
obligations of such Person in respect of the deferred purchase price of property
or services (excluding current accounts payable incurred in the ordinary course
of business), (f) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien on property owned or acquired by such Person, whether
or not the Indebtedness secured thereby has been assumed, (g) all
Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise,
of such Person as an account party in respect of letters of credit and letters
of guaranty and (j) all obligations, contingent or otherwise, of such
Person in respect of bankers’ acceptances. 
The Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with such entity, except
to the extent the terms of such Indebtedness provide that such Person is not
liable therefor.  Notwithstanding
anything to the contrary in this paragraph, the term “Indebtedness” shall not
include (a) agreements providing for indemnification, purchase price adjustments
or similar obligations incurred or assumed in connection with 


 


24

















 


the acquisition or
disposition of assets or capital stock, (b) trade payables and accrued
expenses in each case arising in the ordinary course of business and (c) Deposits.  For the avoidance of doubt, notwithstanding
any change in GAAP after the Restatement Effective Date that would require
lease obligations that would be treated as operating leases as of the
Restatement Effective Date, to be classified and accounted for as Capital Lease
Obligations or otherwise reflected on Holdings’ consolidated balance sheet,
such obligations shall continue to be excluded from the definition of
Indebtedness.


 


“Indemnified Taxes” means Taxes other than
Excluded Taxes.


 


“Indemnity, Subrogation and Contribution
Agreement” means the Indemnity, Subrogation and Contribution Agreement,
substantially in the form of Exhibit F to the Existing Credit Agreement,
among the Parent Borrower, the Subsidiary Loan Parties party thereto and the
Collateral Agent.


 


“Information Memorandum” means the
Confidential Information Memorandum dated June 2006, relating to the
Parent Borrower and the Transactions.


 


“Intercreditor Agreement” means an
intercreditor agreement among the Administrative Agent, the Collateral Agent,
and the holders of Permitted Subordinated Notes Refinancing Indebtedness, or a
trustee or agent acting on behalf of such holders, on terms consistent with
those set forth on Exhibit L hereto and otherwise reasonably satisfactory
to the Adminstrative Agent.


 


“Interest Election Request” means a
request by the Parent Borrower, a Subsidiary Term Borrower or a Foreign
Subsidiary Borrower, as the case may be, to convert or continue a Revolving
Loan or Term Borrowing in accordance with Section 2.07.


 


“Interest Expense Coverage Ratio”
means, as of the last day of any fiscal quarter, the ratio of (a) Consolidated
EBITDA to (b) the sum of (i) Consolidated Cash Interest Expense and (ii) Preferred
Dividends, in each case for the period of four consecutive fiscal quarters then
ended.


 


“Interest Payment Date” means (a) with
respect to any ABR Loan (other than a Swingline Loan), the last day of each
March, June, September and December, (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months’ duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months’ duration after the first day of such Interest Period, and (c) with
respect to any Swingline Loan, the day that such Loan is required to be repaid.


 


“Interest Period” means, with
respect to any Eurocurrency Borrowing, the period commencing on the date of
such Borrowing and ending on the numerically corresponding day in the calendar
month that is one, two, three or six months thereafter (or nine or twelve
months thereafter if, at the time of the relevant Borrowing, all Lenders 


 


25

















 


participating therein agree
to make an interest period of such duration available), as the Parent Borrower,
a Subsidiary Term Borrower or a Foreign Subsidiary Borrower, as the case may
be, may elect; provided, that (a) if any Interest Period would end
on a day other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end
on the next preceding Business Day and (b) any Interest Period that
commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month
of such Interest Period.  For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing. 
The amendment to the Existing Credit Agreement effected pursuant to the
Amendment and Restatement Agreement shall not affect any Interest Period for
any Loans outstanding on the Restatement Effective Date.


 


“Investors” means Heartland, its
Affiliates, and the other entities identified by Heartland as “Investors” to
the Administrative Agent prior to the Original Effective Date.


 


“IPO” means an underwritten public
offering by Holdings of Equity Interests of Holdings pursuant to a registration
statement filed with the Securities and Exchange Commission in accordance with
the Securities Act of 1933.


 


“IPO Repayment Event” means repayment
of principal in an aggregate minimum amount of $100,000,000 in respect of (i) Tranche
B Term Loans and/or (ii) Existing Subordinated Notes, in each case
contemporaneous with or subsequent to the consummation of an IPO.


 


“Issuing Bank” means JPMCB, in its
capacity as the issuer of Letters of Credit hereunder, and its successors in
such capacity as provided in Section 2.05(i).  The Issuing Bank may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates of the
Issuing Bank, including with respect to Foreign Currency Letters of Credit, and
in each such case the term “Issuing Bank” shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.  In the event that there is more than one
Issuing Bank at any time, references herein and in the other Loan Documents to
the Issuing Bank shall be deemed to refer to the Issuing Bank in respect of the
applicable Letter of Credit or to all Issuing Banks, as the context requires.


 


“JPMCB” means JPMorgan Chase Bank,
N.A.


 


“Judgment Currency” has the meaning
set forth in Section 10.14.


 


“Judgment Currency Conversion Date”
has the meaning set forth in Section 10.14.


 


26

















 


“LC Disbursement” means a payment made
by the Issuing Bank pursuant to a Letter of Credit.


 


“LC Exposure” means, at any time, the
sum of (a) the aggregate undrawn amount of all outstanding Letters of
Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Parent Borrower or the
Foreign Subsidiary Borrowers, as the case may be, at such time.  The LC Exposure of any Lender at any time
shall be the sum of its Class A Revolving Applicable Percentage of the
total Revolving LC Exposure at such time plus its Tranche B-1 Applicable
Percentage of the total Tranche B-1 LC Exposure at such time.


 


“LC Reserve Account” has the meaning
set forth in Section 9.02(a).


 


“Lender Affiliate” means, (a) with
respect to any Lender, (i) an Affiliate of such Lender or (ii) any
entity (whether a corporation, partnership, trust or otherwise) that is engaged
in making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business and is administered
or managed by a Lender or an Affiliate of such Lender and (b) with respect
to any Lender that is a fund that invests in bank loans and similar extensions
of credit, any other fund that invests in bank loans and similar extensions of
credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.


 


“Lenders” means the Persons listed on
Schedule 2.01 and any other Person that shall have become a party hereto
pursuant to an Assignment and Acceptance or an Incremental Amendment, as the
case may be, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance. 
Unless the context otherwise requires, the term “Lenders” includes the
Swingline Lender.


 


“Letter of Credit” means any letter of
credit issued pursuant to this Agreement.


 


“Leverage Ratio” means, on any date,
the ratio of (a) Total Indebtedness as of such date to (b) Consolidated
EBITDA for the period of four consecutive fiscal quarters of Holdings ended on
such date (or, if such date is not the last day of a fiscal quarter, ended on
the last day of the fiscal quarter of Holdings most recently ended prior to
such date for which financial statements are available).


 


“LIBO Rate” means, with respect to any
Eurocurrency Borrowing (other than such Borrowings denominated in a Foreign
Currency) for any Interest Period, the rate appearing on Page 3750 of the
Dow Jones Market Service (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page of such
Service, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity comparable to such
Interest Period. With respect to Eurocurrency Borrowings 


 


27

















 


denominated in a Foreign
Currency, the LIBO Rate for any Interest Period shall be determined by the
Administrative Agent at approximately 11:00 a.m., London time, on the
Quotation Day for such Interest Period by reference to the British Bankers’ Association
Interest Settlement Rates for deposits in the currency of such Borrowing (as
reflected on the applicable Telerate screen) for a period equal to such
Interest Period.  In the event that such
rate is not available at such time for any reason, then the “LIBO Rate”
with respect to such Eurocurrency Borrowing for such Interest Period shall be
the rate at which deposits in the applicable currency for the Dollar Equivalent
of $5,000,000 and for a maturity comparable to such Interest Period are offered
by the principal London office of the Administrative Agent in immediately
available funds in the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period.  Notwithstanding the foregoing,
at no time shall the LIBO Rate with respect to any Eurocurrency Borrowing
comprised of Class A Tranche B Loans or Class A Tranche B-1 Loans be
less than 2.00%.


 


“Lien” means, with respect to any
asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation,
encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital
lease or title retention agreement (or any financing lease having substantially
the same economic effect as any of the foregoing) relating to such asset and (c) in
the case of securities, any purchase option, call or similar right of a third
party with respect to such securities.


 


“Loan Documents” means this Agreement,
the Amendment and Restatement Agreement and the Security Documents.


 


“Loan Parties” means Holdings, the
Parent Borrower, the Subsidiary Term Borrowers, the Foreign Subsidiary
Borrowers and the other Subsidiary Loan Parties.


 


“Loans” means the loans made by the
Lenders to the Parent Borrower, the Subsidiary Term Borrowers and the Foreign
Subsidiary Borrowers pursuant to this Agreement.


 


“Long-Term Indebtedness” means any
Indebtedness that, in accordance with GAAP, constitutes (or, when incurred,
constituted) a long-term liability, including the current portion of any
Long-Term Indebtedness.


 


“Mandatory Costs Rate” has the meaning
set forth in Section 2.20.


 


“Margin Stock” shall have the meaning
assigned to such term in Regulation U.


 


“Material Adverse Effect” means a
material adverse effect on (a) the business, operations, properties,
assets, financial condition, or material agreements of Holdings, the Parent
Borrower and the Subsidiaries (including the Receivables Subsidiary), taken as
a whole (it being understood that any effect on the business, operations,
properties, assets, financial condition, or material agreements of Holdings,
the 


 


28

















 


Parent Borrower and the
Subsidiaries (including the Receivables Subsidiary) resulting from the Asset
Dropdown will not constitute a material adverse effect for purposes of this
clause (a)), (b) the ability of any Loan Party in any material
respect to perform any of its obligations under any Loan Document or (c) the
rights of or benefits available to the Lenders under any Loan Document.


 


“Material Agreements” means (a) any
agreements or instruments relating to Material Indebtedness and (b) the
Heartland Management Agreement.


 


“Material Indebtedness” means (a) Indebtedness
in respect of the Existing Subordinated Notes, the Permitted Senior Notes, the
Permitted Subordinated Notes and the Permitted Acquisition Subordinated Notes, (b) obligations
in respect of the Permitted Receivables Financing and (c) any other
Indebtedness (other than the Loans and Letters of Credit), or obligations in
respect of one or more Hedging Agreements, of any one or more of Holdings, the
Parent Borrower and its Subsidiaries evidencing an aggregate outstanding
principal amount exceeding $15,000,000. 
For purposes of determining Material Indebtedness, the “principal
amount” of the obligations of Holdings, the Parent Borrower or any Subsidiary
in respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that Holdings, the Parent
Borrower or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.


 


“Moody’s” means Moody’s Investors
Service, Inc.


 


“Mortgage” means a mortgage, deed of
trust, assignment of leases and rents, leasehold mortgage or other security
document granting a Lien on any Mortgaged Property  to secure the Obligations.  Each Mortgage shall be substantially in the
form of Exhibit G to the Existing Credit Agreement with such changes as
are necessary under applicable local law.


 


“Mortgaged Property” means, initially,
each parcel of real property and the improvements thereto owned by a Loan Party
and identified on Schedule 1.01(a), and includes each other parcel of real
property and improvements thereto with respect to which a Mortgage is granted
pursuant to Section 5.12 or 5.13.


 


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


 


“Net Proceeds” means, with respect to
any event (a) the cash proceeds received in respect of such event
including (i) any cash received in respect of any noncash proceeds, but
only as and when received, (ii) in the case of a casualty, insurance
proceeds in excess of $1,000,000 and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, net of (b) the
sum of (i) all reasonable fees and out-of-pocket expenses paid by
Holdings, the Parent Borrower and the Subsidiaries to third parties (other than
Affiliates) in connection with such event, (ii) in the case of a sale, transfer
or other disposition of an asset (including pursuant to a sale and leaseback
transaction or a casualty or a condemnation or similar proceeding), the amount
of all 


 


29

















 


payments required to be made
by Holdings, the Parent Borrower and the Subsidiaries as a result of such event
to repay Indebtedness (other than Loans) secured by such asset or otherwise
subject to mandatory prepayment as a result of such event, and (iii) the
amount of all Taxes paid (or reasonably estimated to be payable) by Holdings,
the Parent Borrower and the Subsidiaries, and the amount of any reserves
established by Holdings, the Parent Borrower and the Subsidiaries to fund
contingent liabilities reasonably estimated to be payable, in each case during
the 24-month period immediately following such event and that are directly
attributable to such event (as determined reasonably and in good faith by the
chief financial officer of Holdings or the Parent Borrower) to the extent such
liabilities are actually paid within such applicable time periods.  Notwithstanding anything to the contrary set
forth above, the proceeds of any sale, transfer or other disposition of
receivables (or any interest therein) pursuant to any Permitted Receivables Financing
shall not be deemed to constitute Net Proceeds.


 


“Net Working Capital” means, at any
date, (a) the consolidated current assets of Holdings, the Parent Borrower
and its consolidated Subsidiaries (including the Receivables Subsidiary) as of
such date (excluding cash and Permitted Investments) minus (b) the
consolidated current liabilities of Holdings, the Parent Borrower and its
consolidated Subsidiaries (including the Receivables Subsidiary) as of such
date (excluding current liabilities in respect of Indebtedness).  Net Working Capital at any date may be a
positive or negative number.  Net Working
Capital increases when it becomes more positive or less negative and decreases
when it becomes less positive or more negative.


 


“New Revolving Lender” has the meaning
assigned to such term in Section 2.23(a).


 


“New U.S. Holdco” means a Subsidiary
formed after the Restatement Effective Date under the laws of any State of the
United States, the Equity Interests of which are held solely by Foreign
Subsidiaries; provided that such newly formed Subsidiary shall not
engage in any business or own any assets other than the ownership of Equity
Interests in Foreign Subsidiaries and intercompany obligations that are
otherwise permitted hereunder.


 


“Non-Consenting Lender” has the
meaning assigned to such term in Section 10.02(c).


 


“Obligations” has the meaning assigned
to such term in the Security Agreement.


 


“Original Effective Date” means June 6,
2002.


 


“Other Taxes” means any and all
present or future recording, stamp, documentary, excise, transfer, sales,
property or similar taxes, charges or levies imposed by any Governmental
Authority arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document, other than Excluded Taxes.


 


30

















 


“Parent Borrower” means TriMas Company
LLC, a Delaware limited liability company.


 


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


 


“Perfection Certificate” means a
certificate in the form of Annex I to the Security Agreement or any other
form approved by the Collateral Agent.


 


“Permitted Acquisition” means any acquisition,
whether by purchase, merger, consolidation or otherwise, by the Parent Borrower
or a Subsidiary of all or substantially all the assets of, or all the Equity
Interests in, a Person or a division, line of business or other business unit
of a Person so long as (a) such acquisition shall not have been preceded
by a tender offer that has not been approved or otherwise recommended by the
board of directors of such Person, (b) such assets are to be used in, or
such Person so acquired is engaged in, as the case may be, a business of the
type conducted by the Parent Borrower and its Subsidiaries on the date of
execution of this Agreement or in a business reasonably related thereto, (c) such
acquisition shall be financed with proceeds from (i) Revolving Loans,
Permitted Acquisition Subordinated Notes, Acquisition Lease Financings,
Permitted Receivables Financings and/or Qualified Holdings Preferred Stock
issued and outstanding pursuant to clause (b) of the definition of
Qualified Holdings Preferred Stock, (ii) the issuance of Equity Interests
by Holdings, (iii) Excess Cash Flow not required to be used to prepay
Tranche B Term Loans pursuant to Section 2.11(e), (iv) Net Proceeds
in respect of any Prepayment Event permitted to be reinvested pursuant to Section 2.11(d) or
(v) any combination thereof and (d) immediately after giving effect
thereto, (i) no Default has occurred and is continuing or would result
therefrom, (ii) all transactions related thereto are consummated in all
material respects in accordance with applicable laws, (iii) all the Equity
Interests (other than Assumed Preferred Stock) of each Subsidiary formed for
the purpose of or resulting from such acquisition shall be owned directly by
the Parent Borrower or a Subsidiary and all actions required to be taken under
Sections 5.12 and 5.13 have been taken, (iv) Holdings, the Parent
Borrower and its Subsidiaries are in compliance, on a pro forma basis after
giving effect to such acquisition, with the covenants contained in Section 6.13
recomputed as at the last day of the most recently ended fiscal quarter of
Holdings for which financial statements are available, as if such acquisition
(and any related incurrence or repayment of Indebtedness) had occurred on the
first day of each relevant period for testing such compliance (provided
that any acquisition that occurs prior to the first testing period under such
Sections shall be deemed to have occurred during such first testing period), (v) any
Indebtedness or any preferred stock that is incurred, acquired or assumed in
connection with such acquisition shall be in compliance with Section 6.01,
(vi) the aggregate amount of unused available Revolving Commitments taken
together with the amounts available to be drawn under the Permitted Receivables
Financing is at least $50,000,000; provided that the consideration paid
in respect of Permitted Acquisitions in each of the fiscal years ending on December 31,
2010 and December 31, 2011 shall not exceed the sum of $25,000,000 (which
amount may be increased for the fiscal year ending December 31, 2011 by an
amount equal to the total unused amount of such 


 


31

















 


$25,000,000 limit for the
fiscal year ending December 31, 2010) plus the amount of Net
Proceeds in respect of Prepayment Events permitted to be reinvested pursuant to
Section 2.11(d) and not otherwise reinvested or used to prepay
Tranche B Term Loans pursuant to the terms thereof during such year and (vii) the
Parent Borrower has delivered to the Administrative Agent an officers’
certificate to the effect set forth in clauses (a), (b), (c) and (d)(i) through
(vi) above, together with all relevant financial information for the
Person or assets to be acquired.


 


“Permitted Acquisition Subordinated Notes”
means Indebtedness of Holdings or the Parent Borrower in an aggregate principal
amount not to exceed at any time the sum of (x) $250,000,000 and (y) the
amount of any underwriting or placement discounts, fees or commissions and
other financing expenses incurred to yield net proceeds of $250,000,000, less
the liquidation value of any applicable Qualified Holdings Preferred Stock
issued and outstanding pursuant to clause (b) of the definition of
Qualified Holdings Preferred Stock, provided that (a) such
Indebtedness and any related Guarantees shall not be secured by any Lien, (b) such
Indebtedness shall be subject to subordination and intercreditor provisions
that are no more favorable to the holders or obligees thereof than the
subordination or intercreditor provisions of the Existing Subordinated Notes in
any material respect, (c) such Indebtedness shall not have any principal
payments due prior to the date that is 12 months after the Class A Tranche
B Maturity Date (which for purposes of this provision shall be deemed to be December 15,
2015), whether at maturity or otherwise, except upon the occurrence of a change
of control or similar event (including asset sales), in each case so long as
the provisions relating to change of control or similar events (including asset
sales) included in the governing instrument of such Indebtedness provide that
the provisions of this Agreement must be satisfied prior to the satisfaction of
such provisions of such Indebtedness and (d) such Indebtedness bears
interest at a fixed rate, which rate shall be, in the good faith judgment of
the Parent Borrower’s board of directors, consistent with the market at the
time of issuance for similar Indebtedness for comparable issuers or borrowers.


 


“Permitted Capital Expenditure Amount”
means with respect to any fiscal year, the sum of (i) the Base Amount for
such fiscal year as specified below, (ii) 10% of Acquired Assets (the “Acquired
Assets Amount”) and (iii) for each fiscal year after any Acquired
Assets Amount is initially included in clause (ii) above, 5% of such
Acquired Assets Amount, calculated on a cumulative basis.


 


	
  Fiscal Year Ended

  	
   

  	
  Base Amount

  	
   

  
	
   

  	
  2006

  	
   

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
   

  	
  2007

  	
   

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
   

  	
  2008

  	
   

  	
   

  	
  $

  	
  44,000,000

  	
   

  
	
   

  	
  2009

  	
   

  	
   

  	
  $

  	
  48,400,000

  	
   

  
	
   

  	
  2010

  	
   

  	
   

  	
  $

  	
  37,500,000

  	
   

  
	
   

  	
  2011

  	
   

  	
   

  	
  $

  	
  37,500,000

  	
   

  
	
   

  	
  2012

  	
   

  	
   

  	
  $

  	
  40,000,400

  	
   

  
	
   

  	
  2013

  and thereafter

  	
   

  	
   

  	
  $

  	
  45,000,000

  	
   

  



 


32

















 


“Permitted Encumbrances” means:


 


(a) Liens
imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.05;


 


(b) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 5.05;


 


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


 


(d) deposits
to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations
of a like nature, in each case in the ordinary course of business and Liens in
respect of the proceeds from the issuance of Permitted Acquisition Subordinated
Notes held by a trustee or an agent prior to the consummation of a Permitted
Acquisition;


 


(e) judgment
Liens in respect of judgments that do not constitute an Event of Default under
clause (k) of Article VII;


 


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


 


(g) ground
leases in respect of real property on which facilities owned or leased by
Holdings, the Parent Borrower or any of the Subsidiaries are located, other
than any Mortgaged Property;


 


(h) Liens
in favor or customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods in
the ordinary course of business;


 


(i) Leases
or subleases granted to other Persons and not interfering in any material
respect with the business of Holdings, the Parent Borrower and the
Subsidiaries, taken as a whole;


 


33




















 


(j) banker’s
liens, rights of set-off or similar rights, in each case arising by operation
of law; and


 


(k) Liens
in favor of a landlord on leasehold improvements in leased premises;


 


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


 


“Permitted Investments” means:


 


(a) direct
obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any
agency thereof to the extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing within one
year from the date of acquisition thereof;


 


(b) investments
in commercial paper maturing within one year from the date of acquisition
thereof and having, at such date of acquisition, the highest credit rating
obtainable from S&P or from Moody’s;


 


(c) investments
in certificates of deposit, banker’s acceptances and time deposits maturing
within one year from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the
United States of America or any State thereof which has a combined capital
and surplus and undivided profits of not less than $500,000,000;


 


(d) fully
collateralized repurchase agreements with a term of not more than 30 days
for securities described in clause (a) above and entered into with a
financial institution satisfying the criteria described in clause (c) above;


 


(e) securities
issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof having
maturities of not more than six months from the date of acquisition thereof
and, at the time of acquisition, having the highest credit rating obtainable
from S&P or from Moody’s;


 


(f) securities
issued by any foreign government or any political subdivision of any foreign
government or any public instrumentality thereof having maturities of not more
than six months from the date of acquisition thereof and, at the time of
acquisition, having the highest credit rating obtainable from S&P or from
Moody’s;


 


(g) investments
of the quality as those identified on Schedule 6.04 as “Qualified Foreign
Investments” made in the ordinary course of business;


 


34





















 


(h) cash;
and


 


(i) investments
in funds that invest solely in one or more types of securities described in
clauses (a), (e) and (f) above.


 


“Permitted Joint Venture and Foreign
Subsidiary Investments” means investments by Holdings, the Parent Borrower
or any Subsidiary in the Equity Interests of (a) any Person that is not a
Subsidiary or (b) any Person that is a Foreign Subsidiary, in an aggregate
amount not to exceed $50,000,000; provided that such amount shall
increase to (i) $75,000,000 upon completion of the IPO Repayment Event and
(ii) $100,000,000 upon completion of the IPO Repayment Event and after the
Leverage Ratio is less than 3.75 to 1.00.


 


“Permitted Receivables Documents”
means the Receivables Purchase Agreement, the Receivables Transfer Agreement
and all other documents and agreements relating to the Permitted Receivables
Financing.


 


“Permitted Receivables Financing”
means (a) the sale by the Parent Borrower and certain Subsidiaries (other
than Foreign Subsidiaries) of accounts receivable to the Receivables Subsidiary
pursuant to the Receivables Purchase Agreement and (b) the sale or pledge
of such accounts receivable (or participations therein) by the Receivables
Subsidiary to certain purchasers pursuant to the Receivables Transfer
Agreement.


 


“Permitted Senior Notes” means
Indebtedness of Holdings or the Parent Borrower, provided that (a) such
Indebtedness and any related Guarantees shall not be secured by any Lien, (b) the
net proceeds from such Indebtedness shall be used to prepay Tranche B Term
Loans pursuant to Section 2.11(d), except that up to $250,000,000 in
proceeds from such Indebtedness may instead be used to repay Revolving Loans
pursuant to Section 2.09(a) and reduce the balances in respect of the
Permitted Receivables Financing, in either case, only if, immediately after
giving effect to such repayment, the Senior Leverage Ratio is less than 3.00 to
1.00, (c) such Indebtedness shall not have any principal payments due
prior to December 15, 2016, whether at maturity or otherwise, except upon
the occurrence of a change of control or similar event (including asset sales),
in each case so long as the provisions relating to change of control or similar
events (including asset sales) included in the governing instrument of such
Indebtedness provide that the provisions of this Agreement must be satisfied
(or, in the case of asset sales, permit the provisions of this Agreement to be
satisfied) prior to the satisfaction of such provisions of such Indebtedness
and (d) such Indebtedness bears interest at a fixed rate, which rate shall
be, in the good faith judgment of the Parent Borrower’s board of directors,
consistent with the market at the time of issuance for similar Indebtedness for
comparable issuers or borrowers.


 


“Permitted Subordinated Notes” means
Indebtedness of Holdings or the Parent Borrower, provided that (a) such
Indebtedness and any related Guarantees shall not be secured by any Lien, (b) such
Indebtedness shall be subject to subordination and intercreditor provisions
that are no more favorable to the holders or obligees thereof than 


 


35

















 


the subordination or intercreditor
provisions of the Existing Subordinated Notes in any material respect, (c) the
Net Proceeds from such Indebtedness shall be used to prepay Tranche B Term
Loans pursuant to Section 2.11(d), except that up to $250,000,000 in
proceeds from such Indebtedness may instead be used to repay Revolving Loans
pursuant to Section 2.09(a) and reduce the balances in respect of the
Permitted Receivables Financing, only if, immediately after giving effect to
such repayment, the Senior Leverage Ratio is less than 3.00 to 1.00, (d) such
Indebtedness shall not have any principal payments due prior to December 15,
2016, whether at maturity or otherwise, except upon the occurrence of a change
of control or similar event (including asset sales), in each case so long as the
provisions relating to change of control or similar events (including asset
sales) included in the governing instrument of such Indebtedness provide that
the provisions of this Agreement must be satisfied (or, in the case of asset
sales, permit the provisions of this Agreement to be satisfied) prior to the
satisfaction of such provisions of such Indebtedness and (e) such
Indebtedness bears interest at a fixed rate, which rate shall be, in the good
faith judgment of the Parent Borrower’s board of directors, consistent with the
market at the time of issuance for similar Indebtedness for comparable issuers
or borrowers.


 


“Permitted Subordinated Notes Refinancing
Indebtedness” means Indebtedness of Holdings or the Parent Borrower; provided
that (a) the aggregate principal amount of such Indebtedness shall not
exceed the sum of the aggregate principal amount of Existing Subordinated Notes
refinanced thereby plus fees, expenses and call premiums relating
thereto plus $25,000,000, (b) all Net Proceeds from such Indebtedness
(other than the portion of such Net Proceeds attributable to the $25,000,000
amount in excess of payments in respect of the Existing Subordinated Notes
referred to in clause (a) above) shall be used to repay the Existing
Subordinated Notes and to pay related fees, expenses and call premiums, (c) such
Indebtedness (and any related Guarantees) shall be either unsecured or secured
by the Collateral on a second lien basis to the Obligations and shall not be
secured by any property or assets of Holdings or any Subsidiary other than the
Collateral, (d) if so secured, the holders of such Indebtedness, or a
trustee or agent acting on behalf of such holders, shall enter into an
Intercreditor Agreement with the Collateral Agent, (e) such Indebtedness
shall not have any principal payments due prior to March 31, 2016, whether
at maturity or otherwise, except upon the occurrence of a change of control or
similar event (including asset sales), in each case so long as the provisions
relating to change of control or similar events (including asset sales)
included in the governing instrument of such Indebtedness provide that the
provisions of this Agreement must be satisfied (or, in the case of asset sales,
permit the provisions of this Agreement to be satisfied) prior to the
satisfaction of such provisions of such Indebtedness and (f) such
Indebtedness shall bear interest at a fixed rate, which rate shall be, in the
good faith judgment of the Parent Borrower’s board of directors, consistent
with the market at the time of issuance for similar Indebtedness for comparable
issuers or borrowers.


 


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


 


36

















 


“Plan” 
means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412
of the Code or Section 302 of ERISA, and in respect of which the Parent
Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.


 


“Pledge Agreement” means the Pledge
Agreement, substantially in the form of Exhibit H to the Existing Credit
Agreement, among Holdings, the Parent Borrower, the Subsidiary Loan Parties
party thereto and the Collateral Agent for the benefit of the Secured Parties.


 


“Preferred Dividends” means any cash
dividends of Holdings permitted hereunder paid with respect to preferred stock
of Holdings.


 


“Prepayment Event” means:


 


(a) any
sale, transfer or other disposition (including pursuant to a sale and leaseback
transaction) of any property or asset of Holdings, the Parent Borrower or any
Subsidiary, other than dispositions described in clauses (a), (b),
(c), (d), (f), (g) and (j) (but only to the extent the
sales, transfers or other dispositions under clause (j) do not exceed
$25,000,000 thereof) of Section 6.05 and Section 6.06(a), provided
that Acquisition Lease Financings shall not constitute a Prepayment Event; or


 


(b) any
casualty or other insured damage to, or any taking under power of eminent
domain or by condemnation or similar proceeding of, any property or asset of
Holdings, the Parent Borrower or any Subsidiary having a book value or fair
market value in excess of $1,000,000, but only to the extent that the Net
Proceeds therefrom have not been applied to repair, restore or replace such
property or asset within 365 days after such event; or


 


(c) the
incurrence by Holdings, the Parent Borrower or any Subsidiary of any
Indebtedness, other than Indebtedness permitted by Section 6.01(a) (except
for Permitted Senior Notes (except to the extent proceeds therefrom are
permitted to be used for other purposes pursuant to clause (b) of the
definition thereof) and Permitted Subordinated Notes (except to the extent
proceeds therefrom are permitted to be used for other purposes pursuant to
clause (c) of the definition thereof)).


 


“Prime Rate” means the rate of
interest per annum publicly announced from time to time by JPMCB as its prime
rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.


 


“Purchase Agreement” means the Stock
Purchase Agreement dated as of May 17, 2002, among Heartland, Holdings and
Seller as amended, supplemented or otherwise modified from time to time.


 


37

















 


“Qualified Holdings Preferred Stock”
means any preferred capital stock or preferred equity interest of Holdings (a)(i) that
does not provide for any cash dividend payments or other cash distributions in
respect thereof prior to the Class A Tranche B Maturity Date and (ii) that
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable or exercisable) or upon the happening of any event
does not (A)(x) mature or become mandatorily redeemable pursuant to a
sinking fund obligation or otherwise; (y) become convertible or
exchangeable at the option of the holder thereof for Indebtedness or preferred
stock that is not Qualified Holdings Preferred Stock; or (z) become
redeemable at the option of the holder thereof (other than as a result of a
change of control event), in whole or in part, in each case on or prior to the
first anniversary of the Class A Tranche B Maturity Date (which for
purposes of this provision shall be deemed to be December 15, 2015) and (B) provide
holders thereunder with any rights upon the occurrence of a “change of control”
event prior to the repayment of the Obligations under the Loan Documents, (b) with
respect to which Holdings has delivered a notice to the Administrative Agent
that it has issued preferred stock or preferred equity interest in lieu of
incurring (x) Permitted Acquisition Subordination Notes or (y) Indebtedness
permitted by clause (xiii) under Section 6.01(a), with such notice
specifying to which of such Indebtedness such preferred stock or preferred
equity interest applies; provided that (i) the aggregate
liquidation value of all such preferred stock or preferred equity interest
issued pursuant to this clause (b) shall not exceed at any time the
dollar limitation related to the applicable Indebtedness hereunder, less the
aggregate principal amount of such Indebtedness then outstanding and (ii) the
terms of such preferred stock or preferred equity interests (x) shall
provide that upon a default thereof, the remedies of the holders thereof shall
be limited to the right to additional representation on the board of directors
of Holdings and (y) shall otherwise be no less favorable to the Lenders,
in the aggregate, than the terms of the applicable Indebtedness or (c) having
an aggregate initial liquidation value not to exceed $25,000,000, provided
that the terms of such preferred stock or preferred equity interests shall
provide that upon a default thereof, the remedies of the holders thereof shall
be limited to the right to additional representation on the board of directors
of Holdings.


 


“Quotation Day” means, with respect to
any Eurocurrency Borrowing denominated in a Foreign Currency and any Interest
Period, the day on which it is market practice in the relevant interbank market
for prime banks to give quotations for deposits in the currency of such
Borrowing for delivery on the first day of such Interest Period.  If such quotations would normally be given by
prime banks on more than one day, the Quotation Day will be the last of such
days.


 


“Reaffirmation Agreement” means the
Reaffirmation Agreement dated as of the date hereof, among the Parent Borrower,
Holdings, the Subsidiary Loan Parties and JPMCB, as Administrative Agent and
Collateral Agent.


 


“Receivables Purchase Agreement” means
(a) the Receivables Purchase Agreement dated as of June 6, 2002 among
the Receivables Subsidiary, Holdings, the Parent Borrower and the Subsidiaries
party thereto, related to the Permitted Receivables Financing, as may be
amended, supplemented or otherwise modified to the extent 


 


38

















 


permitted by Section 6.11
and (b) any agreement replacing such Receivables Purchase Agreement, provided
that such replacing agreement contains terms that are substantially similar to
such Receivables Purchase Agreement and that are otherwise no more adverse to
the Lenders than the applicable terms of such Receivables Purchase
Agreement.  It is understood that the
receivables purchase agreement relating to the proposed receivables
securitization facility to be arranged by Wachovia Bank, National Assocation
and Wells Fargo Securities LLC or any of their respective affiliates, on terms
substantially similar to those under the Receivables Purchase Agreement
referred to in clause (a) above, as approved by the Administrative Agent,
will be a Receivables Purchase Agreement.


 


“Receivables Subsidiary” means TSPC, Inc.,
a Nevada corporation.


 


“Receivables Transfer Agreement” means
(a) the Receivables Transfer Agreement dated as of the Original Effective
Date, among the Receivables Subsidiary, Holdings and the purchasers party
thereto, relating to the Permitted Receivables Financing, as may be amended,
supplemented or otherwise modified to the extent permitted by Section 6.11
and (b) any agreement replacing such Receivables Transfer Agreement, provided
that such replacing agreement contains terms that are substantially similar to
such Receivables Transfer Agreement and that are otherwise no more adverse to
the Lenders than the applicable terms of such Receivables Transfer
Agreement.  It is understood that the
receivables transfer agreement relating to the proposed receivables
securitization facility to be arranged by Wachovia Bank, National Assocation
and Wells Fargo Securities LLC or any of their respective affiliates, on terms
substantially similar to those under the Receivables Transfer Agreement
referred to in clause (a) above, as approved by the Administrative Agent,
will be a Receivables Transfer Agreement.


 


“Register” has the meaning set forth
in Section 10.04.


 


“Regulation U” shall mean
Regulation U of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.


 


“Regulation X” shall mean Regulation X
of the Board as from time to time in effect and all official rulings and
interpretations thereunder or thereof.


 


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


 


“Release” means any release, spill,
emission, leaking, dumping, injection, pouring, deposit, disposal, discharge,
dispersal, leaching or migration into or through the environment (including
ambient air, surface water, groundwater, land surface or subsurface strata) or
within any building, structure, facility or fixture.


 


“Replacement Subordinated Notes” means
Indebtedness of Holdings or the Parent Borrower of the type described in
clauses (a), (b), (d) and (e) of the definition of “Permitted
Subordinated Notes”.


 


39

















 


“Required Lenders” means, at any time,
Lenders having Revolving Exposures, Tranche B Term Loans, Tranche B-1
Commitments and unused Revolving Commitments representing more than 50% of the
sum of the total Revolving Exposures, outstanding Tranche B Term Loans,
Tranche B-1 Commitments and unused Revolving Commitments at such time.


 


“Restatement Effective Date” has the
meaning assigned to such term in the Amendment and Restatement Agreement.


 


“Restatement Transactions” means (a) the
execution and delivery by each Loan Party that is a party thereto of the
Amendment and Restatement Agreement and any amendments or modifications to the
other Loan Documents contemplated thereby, (b) the amendment and
restatement of the Existing Credit Agreement in the form of this Agreement and
the consummation of the other transactions and matters contemplated by the
Amendment and Restatement Agreement and (c) the payment of fees and expenses
incurred in connection with the foregoing.


 


“Restricted Indebtedness” means
Indebtedness of Holdings, the Parent Borrower or any Subsidiary, the payment,
prepayment, redemption, repurchase or defeasance of which is restricted under Section 6.08(b).


 


“Restricted Payment” means any
dividend or other distribution (whether in cash, securities or other property)
with respect to any Equity Interests in Holdings, the Parent Borrower or any
Subsidiary (including the Receivables Subsidiary), or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancelation or termination of any Equity Interests in Holdings, the Parent
Borrower or any Subsidiary (including the Receivables Subsidiary) or any
option, warrant or other right to acquire any such Equity Interests in
Holdings, the Parent Borrower or any Subsidiary (including the Receivables
Subsidiary).


 


“Revolving Commitments” means Class A
Revolving Commitments and Class B Revolving Commitments.


 


“Revolving Exposure” means Class A
Revolving Exposure or Class B Revolving Exposure (or both), as the context
requires.


 


“Revolving LC Disbursement” means a
payment made by any Issuing Bank pursuant to a Revolving Letter of Credit.


 


“Revolving LC Exposure” means, at any
time, the sum of (a) the aggregate undrawn amount of all outstanding
Revolving Letters of Credit at such time plus (b) the aggregate amount of
all Revolving LC Disbursements that have not yet been reimbursed by or on
behalf of the Parent Borrower at such time (by the borrowing of Loans or
otherwise).  The Revolving LC Exposure of
any Class A Revolving Lender at any time shall be its Class A
Revolving Applicable Percentage of the total Revolving LC Exposure at such
time.


 


40

















 


“Revolving Lenders” means the Class A
Revolving Lenders and Class B Revolving Lenders.


 


“Revolving Letter of Credit” means, at
any time, each Letter of Credit outstanding at such time designated as a
Revolving Letter of Credit pursuant to Section 2.05(a).


 


“Revolving Loans” means the Class A
Revolving Loans and Class B Revolving Loans.


 


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


 


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


 


“Security Agreement” means the
Security Agreement, substantially in the form of Exhibit I to the Existing
Credit Agreement, among Holdings, the Parent Borrower, the Subsidiary Loan
Parties party thereto and the Collateral Agent for the benefit of the Secured
Parties.


 


“Security Documents” means the
Security Agreement, the Pledge Agreement, the Mortgages, the Guarantee
Agreement, the Indemnity, Subrogation and Contribution Agreement, the
Intercreditor Agreement, each Foreign Security Document entered into pursuant
to Section 2.21 and Section 4.03 and each other security agreement or
other instrument or document executed and delivered pursuant to Section 5.12
or 5.13 to secure any of the Obligations.


 


“Seller” means Metaldyne Corporation,
a Delaware corporation.


 


“Senior Indebtedness” means Total
Indebtedness less Subordinated Debt.


 


“Senior Leverage Ratio” means, on any
date, the ratio of (a) Senior Indebtedness as of such date to (b) Consolidated
EBITDA for the period of four consecutive fiscal quarters of the Parent
Borrower ended on such date (or, if such date is not the last day of a fiscal
quarter, ended on the last day of the fiscal quarter of the Parent Borrower
most recently ended prior to such date for which financial statements are
available).


 


“Shareholder Agreement” means the
Shareholders Agreement dated as of the Original Effective Date, among Holdings,
Heartland and the other parties thereto, as amended from time to time.


 


“Specified Obligations” means
Obligations consisting of the principal and interest on Loans, reimbursement
obligations in respect of LC Disbursements and fees.


 


41

















 


“Statutory Reserve Rate” means a
fraction (expressed as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board (or in the case of
Foreign Currency Borrowings, the applicable Governmental Authority) to which
the Administrative Agent is subject with respect to the Adjusted LIBO Rate, for
eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in
Regulation D of the Board).  Such
reserve percentages shall include those imposed pursuant to such
Regulation D.  Eurocurrency Loans
shall be deemed to constitute eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under any
applicable law, rule or regulation. 
The Statutory Reserve Rate shall be adjusted automatically on and as of
the effective date of any change in any reserve percentage.


 


“Sterling” or “£” means the lawful
money of the United Kingdom.


 


“Sub-Account” has the meaning set
forth in Section 2.01(a)(ii)(A).


 


“Subordinated Debt” means the Existing
Subordinated Notes, the Permitted Subordinated Notes, the Permitted Acquisition
Subordinated Notes and any other subordinated Indebtedness of Holdings, the
Parent Borrower or any Subsidiary.


 


“Subordinated Notes Documents” means
the indenture under which any of the Existing Subordinated Notes, the Permitted
Subordinated Notes and the Permitted Acquisition Subordinated Notes are issued
and all other instruments, agreements and other documents evidencing or
governing such Notes or providing for any Guarantee or other right in respect
thereof.


 


“subsidiary” means, with respect to
any Person (the “parent”) at any date, any corporation, limited
liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s
consolidated financial statements if such financial statements were prepared in
accordance with GAAP as of such date, as well as any other corporation, limited
liability company, partnership, association or other entity (a) of which
securities or other ownership interests representing more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
or (b) that is, as of such date, otherwise Controlled, by the parent or
one or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent.


 


“Subsidiary” means any subsidiary of
the Parent Borrower or Holdings, as the context requires, including the
Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers.  Unless expressly otherwise provided, the term
“Subsidiary” shall not include the Receivables Subsidiary.


 


42

















 


“Subsidiary Loan Party” means (a) any
Subsidiary that is not a Foreign Subsidiary (other than (i) the Foreign
Subsidiary Borrowers and (ii) any New U.S. Holdco), (b) any
Subsidiary Term Borrower and (c) any Foreign Subsidiary Borrower and any
other Foreign Subsidiary that executes a guarantee agreement pursuant to
paragraph (c) of the Collateral and Guarantee Requirement.


 


“Subsidiary Term Borrowers” means each
direct or indirect wholly owned domestic subsidiary of the Parent Borrower
listed on the signature page of the Existing Credit Agreement.


 


“Swingline Exposure” means, at any
time, the aggregate principal amount of all Swingline Loans outstanding at such
time.  The Swingline Exposure of any Class A
Revolving Lender at any time shall be its Class A Revolving Applicable
Percentage of the total Swingline Exposure at such time.


 


“Swingline Lender” means either JPMCB,
in its capacity as lender of Swingline Loans hereunder, or Comerica Bank, in
its capacity as lender of Swingline Loans hereunder, as the case may be.  References herein and in the other Loan
Documents to the Swingline Lender shall be deemed to refer to the Swingline
Lender in respect of the applicable Swingline Loan or to all Swingline Lenders,
as the context requires.


 


“Swingline Loan” means a Loan made
pursuant to Section 2.04.


 


“Synthetic Purchase Agreement” means
any swap, derivative or other agreement or combination of agreements pursuant
to which Holdings, the Parent Borrower or a Subsidiary is or may become
obligated to make (i) any payment (other than in the form of Equity
Interests of Holdings) in connection with a purchase by a third party from a
Person other than Holdings, the Parent Borrower or a Subsidiary of any Equity
Interest or Restricted Indebtedness or (ii) any payment (other than on
account of a permitted purchase by it of any Equity Interest or any Restricted
Indebtedness) the amount of which is determined by reference to the price or
value at any time of any Equity Interest or Restricted Indebtedness; provided
that (i) the other obligations under the Purchase Agreement or (ii) phantom
stock or similar plans providing for payments only to current or former
directors, officers, consultants, advisors or employees of Holdings, the Parent
Borrower or the Subsidiaries (or to their heirs or estates) shall not be deemed
to be a Synthetic Purchase Agreement.


 


“Taxes” means any and all present or
future taxes (of any nature whatsoever), levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.


 


“Term Loan Borrowers” means the Parent
Borrower and the Subsidiary Term Borrowers.


 


“Total Indebtedness” means, as of any
date, the sum of, without duplication, (a) the aggregate principal amount
of Indebtedness of Holdings, the Parent 


 


43

















 


Borrower and the
Subsidiaries outstanding as of such date, in the amount that would be reflected
on a balance sheet prepared as of such date on a consolidated basis in
accordance with GAAP, plus (b) the aggregate “Net Investment” as defined
in Annex A to the Receivables Transfer Agreement, plus (c) the
aggregate principal amount of Indebtedness of Holdings, the Parent Borrower and
the Subsidiaries outstanding as of such date that is not required to be
reflected on a balance sheet in accordance with GAAP, determined on a
consolidated basis; provided that, for purposes of clause (c) above,
the term “Indebtedness” shall not include (i) contingent obligations of
Holdings, the Parent Borrower or any Subsidiary as an account party in respect
of any letter of credit or letter of guaranty unless, without duplication, such
letter of credit or letter of guaranty supports an obligation that constitutes
Indebtedness and (ii) Indebtedness described in Section 6.01(a)(xii).


 


“Tranche B Lenders” means the Class A
Tranche B Lenders and Class B Tranche B Lenders.


 


“Tranche B Maturity Date” means the Class A
Tranche B Maturity Date or the Class B Tranche B Maturity Date, as
applicable.


 


“Tranche B Term Loans” means the Class A
Tranche B Term Loans and Class B Tranche B Term Loans.


 


“Tranche B-1 Applicable Percentage”
means, with respect to any Tranche B-1 Lender, the percentage of the Tranche
B-1 Total Commitment represented by such Lender’s Tranche B-1 Commitment.  If the Tranche B-1 Commitments have been
reduced to zero, the Tranche B-1 Applicable Percentages shall be determined
based upon the Tranche B-1 Commitments most recently in effect, giving effect
to any assignments.


 


“Tranche B-1 Availability Period”
means the period from and including the First Restatement Effective Date to but
excluding the earlier of the Class B Revolving Commitment Termination Date
and the date of termination of the Tranche B-1 Commitments.


 


“Tranche B-1 Commitments” means the Class A
Tranche B-1 Commitments and Class B Tranche B-1 Commitments.


 


“Tranche B-1 Credit Exposure” means,
with respect to any Lender at any time, the sum of the outstanding principal
amount of such Lender’s Tranche B-1 Loans and such Lender’s Tranche B-1 LC
Exposure at such time.


 


“Tranche B-1 LC Disbursement” means a
payment made by any Issuing Bank pursuant to a Tranche B-1 Letter of Credit.


 


“Tranche B-1 LC Exposure” means, at
any time, the sum of (a) the aggregate undrawn amount of all outstanding
Tranche B-1 Letters of Credit at such time plus (b) the aggregate amount
of all Tranche B-1 LC Disbursements that have not yet been reimbursed by or on
behalf of the Parent Borrower at such time (by the borrowing 


 


44

















 


of Loans or otherwise).  The Tranche B-1 LC Exposure of any Lender at
any time shall be its Tranche B-1 Applicable Percentage of the total Tranche
B-1 LC Exposure at such time.


 


“Tranche B-1 Lender” means a Class A
Tranche B-1 Lender or a Class B Tranche B-1 Lender.


 


“Tranche B-1 Letter of Credit” means,
at any time, each Letter of Credit outstanding at such time designated as a
Tranche B-1 Letter of Credit pursuant to Section 2.05(a).


 


“Tranche B-1 Loan” means a Loan made
pursuant to Section 2.02(a)(ii).


 


“Tranche B-1 Total Commitment” means,
at any time, the aggregate amount of all the Tranche B-1 Commitments at such
time.


 


“Transactions” means (a) the
execution, delivery and performance by each Loan Party of the Loan Documents to
which it is to be a party, the borrowing of Loans, the use of the proceeds
thereof and the issuance of Letters of Credit hereunder and (b) the
payment of the fees and expenses payable in connection with (a) above.


 


“Type”, when used in reference to any
Loan or Borrowing, refers to whether the rate of interest on such Loan, or on
the Loans comprising such Borrowing, is determined by reference to the Adjusted
LIBO Rate or the Alternate Base Rate.


 


“Undrawn/Unreimbursed Tranche B-1 LC
Exposure” means, at any time, the sum of (a) the aggregate undrawn
amounts of all outstanding Tranche B-1 Letters of Credit at such time plus (b) the
aggregate amounts of all Tranche B-1 LC Disbursements that have not yet been (i) reimbursed
by or on behalf of the Parent Borrower at such time (by the borrowing of Loans
or otherwise) or (ii) otherwise repaid to the applicable Issuing Banks by
the application of the Deposits pursuant to Section 2.05(e).  The Undrawn/Unreimbursed Tranche B-1 LC
Exposure of any Lender at any time shall be its Tranche B-1 Applicable
Percentage of the total Undrawn/Unreimbursed Tranche B-1 LC Exposure at such
time.


 


“Withdrawal Liability” means liability
to a Multiemployer Plan as a result of a complete or partial withdrawal from
such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.


 


SECTION 1.02.  Classification of Loans and Borrowings.  For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g., a “Class A
Revolving Loan” or a “Class B Tranche B-1 Loan”) or by Type (e.g.,
a “Eurocurrency Loan”) or by Class and Type (e.g., a “Eurocurrency Class A
Revolving Loan”).  Borrowings also may be
classified and referred to by Class (e.g., a “Class A
Revolving Loan” or a “Class B Tranche B-1 Loan”) or by Type (e.g.,
a “Eurocurrency Borrowing”) or by Class and Type (e.g., a
“Eurocurrency Class  A Revolving Loan”).


 


45




















 


SECTION 1.03.  Terms
Generally.  The definitions of terms
herein shall apply equally to the singular and plural forms of the terms
defined.  Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms.  The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation”.  The word “will”
shall be construed to have the same meaning and effect as the word
“shall”.  Unless the context requires
otherwise (a) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns,
(c) the words “herein”, “hereof” and “hereunder”, and words of similar
import, shall be construed to refer to this Agreement in its entirety and not
to any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the
words “asset” and “property” shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.


 


SECTION 1.04.  Accounting
Terms; GAAP.  Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Parent Borrower notifies the Administrative Agent that the Parent
Borrower requests an amendment to any provision hereof to eliminate the effect
of any change occurring after the Restatement Effective Date in GAAP or in the
application thereof on the operation of such provision (or if the
Administrative Agent notifies the Parent Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith.  Notwithstanding
any other provision contained herein, all terms of an accounting or financial
nature used herein shall be construed, and all computations of amounts and
ratios referred to herein shall be made, without giving effect to any election
under Statement of Financial Accounting Standards 159 (or any other Financial
Accounting Standard having a similar result or effect) to value any
Indebtedness or other liabilities of Holdings, the Parent Borrower or any
Subsidiary at “fair value”, as defined therein.


 


SECTION 1.05.  Exchange
Rates.  (a) Not later than
1:00 p.m., New York City time, on each Calculation Date beginning
with the date on which the initial Foreign Currency Borrowing is made or the
initial Foreign Currency Letter of Credit is issued, the Administrative Agent
shall (i) determine the Exchange Rate as of such Calculation Date with
respect to each Foreign Currency and (ii) give notice thereof to the
Revolving Lenders and the Parent Borrower (on behalf of itself and the Foreign
Subsidiary Borrowers).  The Exchange
Rates so determined shall become effective on the first 


 


46

















 


Business Day
immediately following the relevant Calculation Date (a “Recalculation Date”),
shall remain effective until the next succeeding Recalculation Date, and shall
for all purposes of this Agreement (other than Section 9.01,
Section 10.14 or any other provision expressly requiring the use of a
current Exchange Rate) be the Exchange Rates employed in converting any amounts
between dollars and Foreign Currencies.


 


(b) Not later than 5:00 p.m., New York City time, on
each Recalculation Date and each date on which Revolving Loans denominated in
any Foreign Currency are made, the Administrative Agent shall
(i) determine the aggregate amount of the Dollar Equivalents of
(A) the principal amounts of the Foreign Currency Loans then outstanding
(after giving effect to any Foreign Currency Loans made or repaid on such
date), (B) the face value of outstanding Foreign Currency Letters of Credit
and (C) unreimbursed drawings in respect of Foreign Currency Letters of Credit
and (ii) notify the Revolving Lenders and the Parent Borrower (on behalf
of itself and the Foreign Subsidiary Borrowers) of the results of such
determination.


 


SECTION 1.06.  Redenomination
of Certain Foreign Currencies. 
(a) Each obligation of any party to this Agreement to make a
payment denominated in the national currency unit of any member state of the
European Union that adopts the Euro as its lawful currency after the Restatement
Effective Date shall be redenominated into Euro at the time of such adoption
(in accordance with the EMU Legislation). 
If, in relation to the currency of any such member state, the basis of
accrual of interest expressed in this Agreement in respect of that currency
shall be inconsistent with any convention or practice in the London Interbank
Market for the basis of accrual of interest in respect of the Euro, such
expressed basis shall be replaced by such convention or practice with effect
from the date on which such member state adopts the Euro as its lawful
currency; provided that if any Foreign Currency Borrowing in the
currency of such member state is outstanding immediately prior to such date,
such replacement shall take effect, with respect to such Foreign Currency
Borrowing, at the end of the then current Interest Period.


 


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


 


ARTICLE II


 


The Credits


 


SECTION 2.01.  Commitments;
Deposit Account. 
(a) (i) Subject to the terms and conditions set forth herein,
(A) each Class A Revolving Lender agrees to make Class A Revolving
Loans to the Parent Borrower and the Foreign Subsidiary Borrowers, as the case
may be, from time to time during the Class A Revolving Availability Period
in an aggregate principal amount that will not result in such
Lender’s (x) Class A Revolving Exposure exceeding such Lender’s
Class A Revolving Commitment or 


 


47

















 


(y) Foreign
Currency Exposure exceeding such Lender’s Class A Foreign Currency
Commitment and (B) each Class B Revolving Lender agrees to make
Class B Revolving Loans to the Parent Borrower and the Foreign Subsidiary
Borrowers, as the case may be, from time to time during the Class B
Revolving Availability Period in an aggregate principal amount that will not
result in such Lender’s (x) Class B Revolving Exposure exceeding
such Lender’s Class B Revolving Commitment or (y) Foreign Currency
Exposure exceeding such Lender’s Class B Foreign Currency Commitment.


 


(ii) (A) On or prior to the First Restatement Effective Date,
the Administrative Agent has established a bank account with JPMCB as the
Deposit Account of the Administrative Agent with the title “TriMas 2006 Credit
Agreement Deposit Account”.  The Administrative
Agent shall maintain records enabling it to determine at any time the amount of
the interest of each Tranche B-1 Lender in the Deposit Account (the interest of
each Tranche B-1 Lender in the Deposit Account, as evidenced by such records,
being referred to as such Lender’s “Sub-Account”).  The Administrative Agent shall establish such
additional Sub-Accounts for assignee Tranche B-1 Lenders as shall be required
pursuant to Section 10.04(b).  No
Person (other than the Administrative Agent) shall have the right to make any
withdrawal from the Deposit Account or to exercise any other right or power
with respect thereto except as expressly provided in
Section 2.01(a)(ii)(C) below or in Section 10.04(b).  Without limiting the generality of the
foregoing, each party hereto acknowledges and agrees that the Deposits are and
will at all times be property of the Tranche B-1 Lenders, and that no amount on
deposit at any time in the Deposit Account shall be the property of any of the
Loan Parties, constitute “Collateral” under the Credit Documents or otherwise
be available in any manner to satisfy any Obligations of any of the Loan
Parties under the Credit Documents.  Each
Tranche B-1 Lender agrees that its right, title and interest in and to the
Deposit Account shall be limited to the right to require amounts in its
Sub-Account to be applied as provided in Section 2.01(a)(ii)(C) below
and that it will have no right to require the return of its Deposit other than
as expressly provided in such Section 2.01(a)(ii)(C).  Each Tranche B-1 Lender hereby
acknowledges that (1) its Deposit constitutes payment for its participations in
Tranche B-1 Letters of Credit issued or to be issued hereunder, (2) its
Deposit and any investments made therewith shall secure its obligations to the
Issuing Banks hereunder and (3) the Issuing Banks will be issuing,
amending, renewing and extending Tranche B-1 Letters of Credit in reliance on
the availability of such Tranche B-1 Lender’s Deposit to discharge such
Tranche B-1 Lender’s obligations in accordance with
Section 2.05(e) in connection with any Tranche B-1 LC Disbursement
thereunder.  Each Lender hereby grants to
the Administrative Agent, for the benefit of the Issuing Banks, a security
interest in its Deposit and agrees that the Administrative Agent, as holder of
the Deposits and any investments made therewith, will be acting, inter  alia,
as collateral agent for the Issuing Banks. 
The funding of the Deposits and the agreements with respect thereto set
forth in this Agreement constitute arrangements among the Administrative Agent,
the Issuing Banks and the Tranche B-1 Lenders with respect to the funding
obligations of the Tranche B-1 Lenders under this Agreement, and the Deposits
do not constitute loans or extensions of credit to any Loan Party.  No Loan Party shall have any responsibility
or liability to the Tranche B-1 Lenders, the Agents or any other Person in
respect of the establishment, 


 


48

















 


maintenance,
administration or misappropriation of the Deposit Account (or any Sub-Account)
or with respect to the investment of amounts held therein, including pursuant
to Section 2.01(a)(ii)(D) below, or the duties and responsibilities
of the Administrative Agent with respect to the foregoing contemplated by
Section 2.01(a)(ii)(E) below. 
JPMCB hereby waives any right of setoff against the Deposits that it may
have under applicable law or otherwise with respect to amounts owed to it by
Tranche B-1 Lenders (it being agreed that such waiver shall not reduce the
rights of JPMCB, in its capacity as an Issuing Bank or otherwise, to apply or
require the application of the Deposits in accordance with the provisions of
this Agreement).


 


(B) The following amounts will be deposited in the Deposit Account
at the following times:


 


(1) The Deposits of each Tranche B-1
Lender (including the amount deposited in the Deposit Account by such Lender on
the First Restatement Effective Date in an amount equal to such Lender’s
Tranche B-1 Commitment) shall be available, on the terms and subject to the
conditions set forth herein, (A) to fund Tranche B-1 Loans by such Tranche
B-1 Lender pursuant to Section 2.02(a) and (B) for application
pursuant to Section 2.05(e) to reimburse such Lender’s Tranche B-1
Applicable Percentage of Tranche B-1 LC Disbursements that are not reimbursed
by the Parent Borrower.


 


(2) On any date prior to the
Class B Revolving Commitment Termination Date on which the Administrative
Agent receives any payment for the account of any Tranche B-1 Lender with
respect to the principal amount of any of its Tranche B-1 Loans, subject to
clause (4) below, the Administrative Agent shall deposit such amount in
the Deposit Account and credit such amount to the Sub-Account of such Tranche
B-1 Lender.


 


(3) On any date prior to the
Class B Revolving Commitment Termination Date on which the Administrative
Agent or any Issuing Bank receives any reimbursement payment from the Parent
Borrower in respect of a Tranche B-1 LC Disbursement with respect to which amounts
were withdrawn from the Deposit Account to reimburse any Issuing Bank, subject
to clause (4) below, the Administrative Agent shall deposit in the Deposit
Account, and credit to the Sub-Accounts of the Tranche B-1 Lenders, the portion
of such reimbursement payment to be deposited therein, in accordance with
Section 2.05(e).


 


(4) If at any time when any amount is
required to be deposited in the Deposit Account under clause (2) or (3) above
the sum of such amount and the aggregate amount of the Deposits at such time
would exceed the Tranche B-1 Total Commitment minus the aggregate principal
amount of the outstanding Tranche B-1 Loans, then such excess shall not be
deposited in the Deposit Account and the Administrative Agent shall instead pay
to each Tranche B-1 Lender its Tranche B-1 Applicable Percentage of such
excess.


 


49

















 


(5) Concurrently with the effectiveness
of any assignment by any Tranche B-1 Lender of all or any portion of its
Tranche B-1 Commitment, the Administrative Agent shall transfer into the
Sub-Account of the assignee the corresponding portion of the amount on deposit
in the assignor’s Sub-Account in accordance with
Section 10.04(b)(vii)(B)(2).


 


(C) Amounts on deposit in the Deposit Account shall be withdrawn
and distributed (or transferred, in the case of clause (5) below) as
follows:


 


(1) On each date on which a Tranche B-1
Borrowing is to be made, the Administrative Agent shall, pursuant to
Section 2.02(a) or Section 2.05(e), as applicable, and subject
to the satisfaction of the conditions applicable thereto set forth in
Section 4.02, withdraw from the Deposit Account the principal amount of
such Tranche B-1 Borrowing (and debit the Sub-Account of each Tranche B-1
Lender in the amount of such Lender’s Tranche B-1 Applicable Percentage of such
Borrowing) and make such amount available to the Parent Borrower.


 


(2) On each date on which an Issuing
Bank is to be reimbursed by the Tranche B-1 Lenders pursuant to
Section 2.05(e) for any Tranche B-1 LC Disbursement, the
Administrative Agent shall withdraw from the Deposit Account the amount of such
unreimbursed Tranche B-1 LC Disbursement (and debit the Sub-Account of each
Tranche B-1 Lender in the amount of such Tranche B-1 Lender’s Applicable
Percentage of such unreimbursed Tranche B-1 LC Disbursement) and make such
amount available to such Issuing Bank in accordance with Section 2.05(e).


 


(3) Concurrently with each voluntary
reduction of the Tranche B-1 Total Commitment pursuant to and in accordance
with Section 2.08(b), the Administrative Agent shall withdraw from the
Deposit Account and pay to each Tranche B-1 Lender such Tranche B-1 Lender’s
Applicable Percentage of any amount by which the Deposits, after giving effect
to such reduction of the Tranche B-1 Total Commitment, would exceed the Tranche
B-1 Total Commitment minus the aggregate principal amount of the outstanding
Tranche B-1 Loans and unreimbursed Tranche B-1 LC Disbursements that have been
funded by the application of Deposits.


 


(4) Concurrently with any reduction of
the Tranche B-1 Total Commitment to zero pursuant to and in accordance with
Section 2.08(c) or Article VII, the Administrative Agent shall
withdraw from the Deposit Account and pay to each Tranche B-1 Lender such Tranche
B-1 Lender’s Tranche B-1 Applicable Percentage of the excess at such time of
the aggregate amount of the Deposits over the Undrawn/Unreimbursed Tranche B-1
LC Exposure.


 


(5) Concurrently with the effectiveness
of any assignment by any Tranche B-1 Lender of all or any portion of its
Tranche B-1 Commitment, the corresponding portion of the assignor’s Sub-Account
shall be transferred from the 


 


50

















 


assignor’s Sub-Account to the assignee’s Sub-Account in accordance with
Section 10.04(b) and, if required by Section 10.04(b), the
Administrative Agent shall close such assignor’s Sub-Account.


 


(6) Upon the reduction of each of the
Tranche B-1 Total Commitment and the Undrawn/Unreimbursed Tranche B-1 LC
Exposure to zero, the Administrative Agent shall withdraw from the Deposit
Account and pay to each Tranche B-1 Lender the entire remaining amount of such
Tranche B-1 Lender’s Deposit, and shall close the Deposit Account.


 


Each Tranche B-1 Lender irrevocably and unconditionally agrees that its
Deposit may be applied or withdrawn from time to time as set forth in this
Section 2.01(a)(ii)(C).


 


(D) The Administrative Agent shall invest, or cause to be
invested, the Deposit of each Tranche B-1 Lender so as to earn for the account
of such Tranche B-1 Lender a return thereon (the “Deposit Return”) for each day at a rate per annum equal to
(1) the one month LIBOR rate as determined by the Administrative Agent on
such day (or if such day was not a Business Day, the first Business Day
immediately preceding such day) based on rates for deposits in dollars (as set
forth by Bloomberg L.P.-page BTMM or any other comparable publicly
available service as may be selected by the Administrative Agent) (the “Benchmark LIBO Rate”) minus
(2) 0.25% per annum (based on a 365/366 day year).  The Benchmark LIBO Rate will be reset on each
Business Day.  The Deposit Return accrued
through and including the last day of March, June, September and
December of each year shall be payable by the Administrative Agent to each
Tranche B-1 Lender on the third Business Day following such last day,
commencing on the first such date to occur after the First Restatement
Effective Date, and on the date on which each of the Tranche B-1 Total
Commitment and the Tranche B-1 LC Exposure shall have been reduced to zero, and
the Administrative Agent agrees to pay to each Tranche B-1 Lender the amount
due to it under this sentence.  No Loan
Party shall have any obligation under or in respect of the provisions of this
Section 2.01(a)(ii)(D).


 


(E) As provided in Article VIII, the Administrative Agent may
perform any and all its duties and exercise its rights and powers contemplated
by this Section 2.01 by or through one or more sub-agents appointed by it
(which may include any of its Affiliates). 
The parties hereto acknowledge that on or prior to the First Restatement
Effective Date the Administrative Agent has engaged JPMorgan Chase
Institutional Trust Services to act as its sub-agent in connection with the
Deposit Account, and that in such capacity JPMorgan Chase Institutional Trust
Services shall be entitled to the benefit of all the provisions of this
Agreement contemplated by Article VIII, including the provisions of
Section 10.03.


 


51

















 


(F) Notwithstanding any other provision of this Agreement,
including Sections 2.02 and 2.05(a), no Tranche B-1 Loan shall be made, and no
Tranche B-1 Letter of Credit shall be issued or the stated amount thereof
increased, if after giving effect thereto the aggregate amount of the Deposits
would be less than the Undrawn/Unreimbursed Tranche B-1 LC Exposure.  The Administrative Agent agrees to provide,
at the request of any Issuing Bank, information to such Issuing Bank as to the
aggregate amount of the Deposits and the Undrawn/Unreimbursed Tranche B-1 LC
Exposure.


 


(G) The Parent Borrower and each Issuing Bank acknowledges and
agrees that, notwithstanding any other provision contained herein, the deposit
by each Tranche B-1 Lender in the Deposit Account on the First Restatement
Effective Date of funds equal to its Tranche B-1 Commitment (except as provided
in the second to last sentence of Section 2.05(d)) fully discharged the
obligation of such Tranche B-1 Lender to fund Tranche B-1 Loans by such Tranche
B-1 Lender pursuant to Section 2.02(a) and to reimburse such Lender’s
Tranche B-1 Applicable Percentage of Tranche B-1 LC Disbursements that are not
reimbursed by the Parent Borrower pursuant to Section 2.05(d) or (e),
and that no other or further payments shall be required to be made by any
Tranche B-1 Lender in respect of any such funding or reimbursement obligations.


 


(b) [Reserved].


 


(c) Within the foregoing limits and subject to the terms and
conditions set forth herein, the Parent Borrower and the Foreign Subsidiary
Borrowers, as the case may be, may borrow, prepay and reborrow Revolving Loans
or Tranche B-1 Loans.  Amounts repaid or
prepaid in respect of Tranche B Term Loans may not be reborrowed.


 


SECTION 2.02.  Loans and
Borrowings.  (a) (i) Each
Loan (other than a Swingline Loan) shall be made as part of a Borrowing
consisting of Loans of the same Class and Type made by the Lenders ratably
in accordance with their respective Commitments of the applicable Class; provided
that for purposes of this paragraph (a), the Class A Tranche B-1
Commitments and Class B Tranche B-1 Commitments shall be deemed to be one
Class.  The failure of any Lender to make
any Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender’s failure to
make Loans as required.


 


(ii) Subject to the terms and conditions set forth herein, each
Tranche B-1 Lender agrees to make Tranche B-1 Loans to the Parent Borrower,
with amounts in its Sub-Account, from time to time during the Tranche B-1
Availability Period in an aggregate principal amount that will not after giving
effect to any such Tranche B-1 Loan result in such Lender’s Tranche B-1 Credit
Exposure exceeding such Lender’s Tranche B-1 Commitment.  Each Tranche B-1 Loan shall be part of a
Tranche B-1 Borrowing consisting of Loans of the same Type held by the Tranche
B-1 Lenders ratably in accordance with their respective 


 


52

















 


Tranche B-1 Applicable Percentages, without regard to whether any such
Lender is a Class A Tranche B-1 Lender or a Class B Tranche B-1
Lender.  Each Tranche B-1 Lender hereby
authorizes and directs the Administrative Agent to make its portion of each
Tranche B-1 Borrowing available to the Parent Borrower by withdrawing from the
Deposit Account (and debiting such Tranche B-1 Lender’s Sub-Account in the
amount of) such Lender’s Tranche B-1 Applicable Percentage of such Tranche B-1
Borrowing and crediting such amount to the applicable account of the Parent
Borrower as provided in Section 2.06. 
Within the foregoing limits and subject to the terms and conditions set
forth herein, the Parent Borrower may borrow, prepay and reborrow Tranche B-1
Loans.


 


(b) Subject to Section 2.14, each Loan (other than Foreign
Currency Loans) shall be comprised entirely of ABR Loans or Eurocurrency Loans
as the Parent Borrower may request in accordance herewith.  All Foreign Currency Borrowings shall be
comprised entirely of Eurocurrency Loans. 
Each Swingline Loan shall be an ABR Loan.  Each Lender at its option may make any
Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option
shall not affect the obligation of the Parent Borrower, a Subsidiary Term
Borrower or a Foreign Subsidiary Borrower, as the case may be, to repay such
Loan in accordance with the terms of this Agreement.


 


(c) At the commencement of each Interest Period for any
Eurocurrency Borrowing, such Borrowing shall be in an aggregate amount that is
an integral multiple of $1,000,000 (or 1,000,000 units of the applicable
Foreign Currency) and not less than $5,000,000 (or 5,000,000 units of the applicable
Foreign Currency).  At the time that each
ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate amount
that is an integral multiple of $1,000,000 and not less than $5,000,000; provided
that (i) an ABR Revolving Borrowing of either Class may be in an
aggregate amount that is equal to the entire unused balance of the total
Revolving Commitments of such Class, and (ii) an ABR Class A
Revolving Borrowing or a Tranche B-1 Borrowing, or a Eurocurrency Class A
Revolving Borrowing, in the case of Foreign Currency Letters of Credit, may be
in an aggregate amount that is equal to the amount that is required to finance
the reimbursement of a Revolving LC Disbursement or Tranche B-1 LC Disbursement
as contemplated by Section 2.05(e). 
Each Swingline Loan shall be in an amount that is an integral multiple
of $100,000 and not less than $500,000. 
Borrowings of more than one Type and Class may be outstanding at
the same time; provided that there shall not at any time be more than a
total of 12 Eurocurrency Borrowings outstanding.


 


(d) Notwithstanding any other provision of this Agreement, none of
the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary
Borrower shall be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
(i) in the case of a Class A Revolving Borrowing, the Class A
Revolving Commitment Termination Date, (ii) in the case of a Class B
Revolving Borrowing or Tranche B-1 Borrowing, the Class B Revolving
Commitment Termination Date, (iii) in the case of a Class A Tranche B
Term 


 


53

















 


Borrowing, the
Class A Tranche B Maturity Date and (iv) in the case of a
Class B Tranche B Term Borrowing, the Class B Tranche B Maturity
Date.


 


(e) Notwithstanding any other provision of this Agreement, but
subject to Article IX, a Lender with no Foreign Currency Commitment
hereunder shall not be obligated to make or participate in any Foreign Currency
Loans.


 


SECTION 2.03.  Requests
for Borrowings.  (a) To request
a Revolving Loan or Tranche B-1 Loan, the Parent Borrower shall notify the
Administrative Agent of such request by telephone (i) in the case of a
Eurocurrency Borrowing, not later than 12:00 noon, New York City
time, three Business Days before the date of the proposed Borrowing or
(ii) in the case of an ABR Borrowing, not later than 12:00 noon,
New York City time, one Business Day before the date of the proposed Borrowing;
provided that any such notice of an ABR Class A Revolving Loan to
finance the reimbursement of an LC Disbursement as contemplated by
Section 2.05(e) may be given not later than 10:00 a.m.,
New York City time, on the date of the proposed Borrowing, and (b) to
request a Foreign Currency Borrowing, the applicable Foreign Subsidiary
Borrower shall notify the Foreign Currency Administrative Agent of such request
by telephone not later than 11:00 a.m., London Time, three Business Days
before the date of the proposed Borrowing. 
Each such telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of
a written Borrowing Request in a form approved by the Administrative Agent and
signed by the Parent Borrower and, in the case of a Foreign Currency Borrowing,
the applicable Foreign Subsidiary Borrower. 
Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:


 


(i) whether the requested Borrowing is to be a Revolving Borrowing
or Tranche B-1 Borrowing;


 


(ii) in the case of a Revolving Borrowing, whether the requested
Borrowing is a Class A Revolving Borrowing or a Class B Revolving
Borrowing;


 


(iii) the aggregate amount of such Borrowing;


 


(iv) the date of such Borrowing, which shall be a Business Day;


 


(v) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing, unless such Borrowing is a Foreign Currency Borrowing;


 


(vi) if such Borrowing is a Foreign Currency Borrowing, the relevant
Foreign Currency;


 


(vii) in the case of a Eurocurrency Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period contemplated
by the definition of the term “Interest Period”; and


 


54
















 


(viii) the location and number of the Parent Borrower’s or the
applicable Foreign Subsidiary Borrower’s, as the case may be, account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.


 


If no election as to the Class of any Revolving Borrowing is
specified, then the requested Revolving Borrowing shall be a Class A
Revolving Borrowing.  If no election as
to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing, unless such Borrowing is a Foreign Currency Borrowing, in which
case such Borrowing shall be a Eurocurrency Borrowing.  If no Interest Period is specified with
respect to any requested Eurocurrency Revolving Loan, then the Parent Borrower
shall be deemed to have selected an Interest Period of one month’s
duration.  Promptly following receipt of
a  Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the
requested Borrowing.


 


SECTION 2.04.  Swingline
Loans.  (a) Subject to the terms
and conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans to the Parent Borrower from time to time during the Class A
Revolving Availability Period, in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate principal amount of
outstanding Swingline Loans exceeding $20,000,000 or (ii) the sum of the
total Class A Revolving Exposures exceeding the total Class A
Revolving Commitments; provided that the Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline
Loan.  On the last day of each month
during the Class A Revolving Availability Period, the Parent Borrower
shall repay any outstanding Swingline Loans. 
Within the foregoing limits and subject to the terms and conditions set
forth herein, the Parent Borrower may borrow, prepay and reborrow Swingline
Loans.


 


(b) To request a Swingline Loan, the Parent Borrower shall notify
the Administrative Agent of such request by telephone (confirmed by telecopy),
not later than 12:00 noon, New York City time, on the day of a
proposed Swingline Loan.  Each such
notice shall be irrevocable and shall specify the requested date (which shall
be a Business Day) and amount of the requested Swingline Loan.  The Administrative Agent will promptly advise
the Swingline Lender of any such notice received from the Parent Borrower.  The Swingline Lender shall make each
Swingline Loan available to the Parent Borrower by means of a credit to the
general deposit account of the Parent Borrower with the Swingline Lender (or,
in the case of a Swingline Loan made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e), by remittance to the Issuing
Bank) by 3:00 p.m., New York City time, on the requested date of such
Swingline Loan. The Parent Borrower shall not request a Swingline Loan if at
the time of and immediately after giving effect to such request a Default has
occurred and is continuing.


 


(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business 


 


55

















 


Day require
the Class A Revolving Lenders to acquire participations on such Business
Day in all or a portion of the Swingline Loans outstanding.  Such notice shall specify the aggregate
amount of Swingline Loans in which Class A Revolving Lenders will
participate.  Promptly upon receipt of
such notice, the Administrative Agent will give notice thereof to each
Class A Revolving Lender, specifying in such notice such Lender’s
Class A Revolving Applicable Percentage of such Swingline Loan or Loans.  Each Class A Revolving Lender hereby absolutely
and unconditionally agrees, upon receipt of notice as provided above, to pay to
the Administrative Agent, for the account of the Swingline Lender, such
Lender’s Class A Revolving Applicable Percentage of such Swingline Loan or
Loans.  Each Class A Revolving
Lender acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Class A
Revolving Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever (provided that
such payment shall not cause such Class A Revolving Lender’s Class A
Revolving Exposure to exceed such Class A Revolving Lender’s Class A
Revolving Commitment).  Each Class A
Revolving Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and
Section 2.06 shall apply, mutatis  mutandis, to the payment
obligations of the Class A Revolving Lenders), and the Administrative
Agent shall promptly pay to the Swingline Lender the amounts so received by it
from the Class A Revolving Lenders. 
The Administrative Agent shall notify the Parent Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lender
from the Parent Borrower (or other party on behalf of the Parent Borrower) in respect
of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a
sale of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Class A Revolving Lenders that
shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear. 
The purchase of participations in a Swingline Loan pursuant to this paragraph
shall not relieve the Parent Borrower of any default in the payment thereof.


 


SECTION 2.05.  Letters of
Credit.  (a) General.
(i) Subject to the terms and conditions set forth herein, the Parent
Borrower may request the issuance of Letters of Credit for its own account or
the account of a Subsidiary and any Foreign Subsidiary Borrower may request the
issuance of Foreign Currency Letters of Credit for its own account or the
account of a Subsidiary of such Foreign Subsidiary Borrower, in each case in a
form reasonably acceptable to the Administrative Agent and the Issuing Bank, at
any time and from time to time during the Class A Revolving Availability
Period and the Tranche B-1 Availability Period, as applicable (provided
that the Parent Borrower or a Foreign Subsidiary Borrower, as the case may be,
shall be a co-applicant with respect to each Letter of Credit issued for the
account of or in favor of a Subsidiary that is not a Foreign Subsidiary
Borrower).  In the event of any
inconsistency between the terms and 


 


56

















 


conditions of
this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Parent Borrower or any Foreign
Subsidiary Borrower, as the case may be, to, or entered into by the Parent
Borrower or any Foreign Subsidiary Borrower, as the case may be, with, the
Issuing Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.


 


(ii) The Parent Borrower may at any time redesignate Tranche B-1
Letters of Credit as Revolving Letters of Credit and Revolving Letters of
Credit (other than Revolving Letters of Credit denominated in a Foreign
Currency) as Tranche B-1 Letters of Credit; provided, that (A) the
Parent Borrower shall by notice to the Administrative Agent identify the
Letters of Credit to be redesignated hereunder and certify that the conditions
to such redesignation set forth in the following clause (B) are satisfied
and that no Default shall have occurred and be continuing; and (B) no redesignation
of a Letter of Credit shall become effective hereunder unless after giving
effect to such redesignation the conditions precedent to the issuance,
amendment, renewal or extension of a Letter of Credit under the third sentence
of paragraph (b) below shall be satisfied. 
The Class A Revolving Lenders hereby agree that upon the
effectiveness of any redesignation of a Tranche B-1 Letter of Credit as a
Revolving Letter of Credit, the Issuing Bank that issued such Letter of Credit
shall be deemed, without further action by any party hereto, to have granted to
each Class A Revolving Lender, and each Class A Revolving Lender
shall be deemed to have purchased from such Issuing Bank, a participation in
such Letter of Credit in accordance with paragraph (d) below, and on and
after the effectiveness of any such redesignation, such Letter of Credit shall
constitute a Revolving Letter of Credit for all purposes hereof.  The Tranche B-1 Lenders hereby agree that
upon the effectiveness of any redesignation of a Revolving Letter of Credit as
a Tranche B-1 Letter of Credit, the Issuing Bank that issued such Letter of
Credit shall be deemed, without further action by any party hereto, to have
granted to each Tranche B-1 Lender, and each Tranche B-1 Lender shall be deemed
to have purchased from such Issuing Bank, a participation in such Letter of
Credit in accordance with paragraph (d) below, and on and after the
effectiveness of any such redesignation, such Letter of Credit shall constitute
a Tranche B-1 Letter of Credit for all purposes hereof.  No Tranche B-1 Letter of Credit may be
redesignated as a Revolving Letter of Credit if the Parent Borrower and the
Issuing Bank in respect thereof shall have agreed at the time such Issuing Bank
became an Issuing Bank that such Issuing Bank will not be required to issue
Revolving Letters of Credit, or that Tranche B-1 Letters of Credit issued by
such Issuing Bank may not be redesignated by the Parent Borrower as Revolving
Letters of Credit, and shall not have subsequently agreed otherwise.


 


(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions.  To request the issuance
of a Letter of Credit (or the amendment, renewal or extension of an outstanding
Letter of Credit), the Parent Borrower or the applicable Foreign Subsidiary
Borrower, as the case may be, shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved 


 


57

















 


by the Issuing
Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance
of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount of such Letter of Credit, the
currency in which such Letter of Credit is to be issued (which in the case of a
Tranche B-1 Letter of Credit, shall be dollars, and in the case of a Revolving
Letter of Credit, shall be dollars or a Foreign Currency), whether such Letter
of Credit is to be a Revolving Letter of Credit or a Tranche B-1 Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit.  If requested by the
Issuing Bank, the Parent Borrower or the applicable Foreign Subsidiary
Borrower, as the case may be, also shall submit a letter of credit application
on the Issuing Bank’s standard form in connection with any request for a Letter
of Credit.  A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Parent Borrower or the
applicable Foreign Subsidiary Borrower, as the case may be, shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the LC Exposure shall not exceed $65,000,000,
(ii) the total Revolving LC Exposure shall not exceed $50,000,000,
(iii) the total Class A Revolving Exposure shall not exceed the total
Class A Revolving Commitments, (iv) the total Tranche B-1 Exposure shall
not exceed the total Tranche B-1 Commitments and (v) the total
Class A Foreign Currency Exposures shall not exceed the total Class A
Foreign Currency Commitments.


 


(c) Expiration Date. 
Each Letter of Credit shall expire at or prior to the close of business
on the earlier of (i) the date one year after the date of the issuance of
such Letter of Credit (or, in the case of any renewal or extension thereof, one
year after such renewal or extension) and (ii) the date that is five
Business Days prior to(A) in the case of a Revolving Letter of Credit, the
Class A Revolving Commitment Termination Date and (B) in the case of
a Tranche B-1 Letter of Credit, the Class B Revolving Commitment
Termination Date.


 


(d) Participations. 
By the issuance of a Letter of Credit (or an amendment to a Letter of
Credit increasing the amount thereof) and without any further action on the
part of the Issuing Bank or the Lenders, the Issuing Bank hereby grants
(i) to each Class A Revolving Lender, and each Class A Revolving
Lender hereby acquires from the Issuing Bank, a participation in such Revolving
Letters of Credit equal to such Class A Revolving Lender’s Class A
Revolving Applicable Percentage of the aggregate amount available to be drawn
under such Revolving Letters of Credit and (ii) to each Tranche B-1
Lender, and each Tranche B-1 Lender hereby acquires from the Issuing Bank, a
participation in such Tranche B-1 Letters of Credit equal to such Lender’s
Tranche B-1 Applicable Percentage of the aggregate amount available to be drawn
under such Tranche B-1 Letters of Credit. 
In consideration and in furtherance of the foregoing, (A) each
Class A Revolving Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank, such
Class A Revolving 


 


58

















 


Lender’s
Class A Revolving Applicable Percentage of each Revolving LC Disbursement
made by the Issuing Bank and not reimbursed by the Parent Borrower or the
applicable Foreign Subsidiary Borrower, as the case may be, on the date due as
provided in paragraph (e) of this Section, or of any reimbursement payment
in respect of a Revolving LC Disbursement required to be refunded to the Parent
Borrower or the applicable Foreign Subsidiary Borrower, as the case may be, for
any reason, and (B) each Tranche B-1 Lender hereby absolutely and
unconditionally authorizes and directs the Administrative Agent, and the
Administrative Agent agrees, to withdraw from the Deposit Account (and debit
such Lender’s Sub-Account in the amount of) such Lender’s Tranche B-1
Applicable Percentage of each Tranche B-1 LC Disbursement made by such Issuing
Bank and not reimbursed by the Parent Borrower on the date due as provided in
paragraph (e) of this Section, or such Lender’s Tranche B-1 Applicable
Percentage of any reimbursement payment in respect of a Tranche B-1 LC
Disbursement required to be refunded to the Parent Borrower for any reason (it being
understood and agreed that, except as provided in the last sentence of this
paragraph, each Tranche B-1 Lender’s obligations in respect of participations
in Tranche B-1 Letters of Credit shall be payable solely from, and limited to,
such Tranche B-1 Lender’s Deposit).  Each
Class A Revolving Lender and Tranche B-1 Lender acknowledges and agrees
that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is, subject in the case of Tranche B-1 Lenders to
the preceding sentence, absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of its Class A Revolving Commitment, its Tranche
B-1 Commitment, all Class A Revolving Commitments or the Tranche B-1 Total
Commitment, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever; provided that in the event
any reimbursement payment in respect of a Tranche B-1 LC Disbursement shall be
required to be refunded by an Issuing Bank to the Parent Borrower after the
return of the Deposits to the Lenders as provided in
Section 2.01(a)(ii)(C), each Tranche B-1 Lender agrees to acquire and fund
a participation in such refunded amount equal to the lesser of its Tranche B-1
Applicable Percentage thereof and the amount of its Deposit that shall have
been so returned.  Notwithstanding the
foregoing or any other provision of this Agreement, but subject to
Article IX, a Lender with no Foreign Currency Commitment hereunder shall
not be obligated to participate in any Foreign Currency Letter of Credit.


 


(e) Reimbursement. 
If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Parent Borrower or the applicable Foreign Subsidiary
Borrower, as the case may be, shall reimburse such LC Disbursement by paying to
the Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on the date that such LC Disbursement
is made, if the Parent Borrower or the applicable Foreign Subsidiary Borrower,
as the case may be, shall have received notice of such LC Disbursement prior to
10:00 a.m., New York City time or London time (in the case of Foreign
Currency Letters of Credit), on such date, or, if such notice has not been
received by the Parent Borrower or the applicable Foreign Subsidiary Borrower,
as the case may be, prior to such time on such date, then not later than
12:00 noon, New York City time or London time (in the case of Foreign
Currency 


 


59

















 


Letters of
Credit), on the Business Day immediately following the day that the Parent
Borrower or the applicable Foreign Subsidiary Borrower, as the case may be,
receives such notice; provided that (i) the Parent Borrower
may, subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 or 2.04 that such payment be financed with an
ABR Borrowing (which will be a Borrowing of Class A Revolving Loans in the
case of a Revolving Letter of Credit or of Tranche B-1 Loans in the case of a
Tranche B-1 Letter of Credit) in an equivalent amount and, to the extent so
financed, the Parent Borrower’s obligation to make such payment shall be
discharged and replaced by the resulting ABR Class A Revolving Loan,
Swingline Loan or Tranche B-1 Loan and (ii) such Foreign Subsidiary Borrower
may, subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 that such payment be financed with a
Eurocurrency Class A Revolving Loan in an equivalent amount in the
applicable Foreign Currency and, to the extent so financed, such Foreign
Subsidiary Borrower’s obligation to make such payment shall be discharged and
replaced by the resulting Eurocurrency Class A Revolving Loan.  If the Parent Borrower or the applicable
Foreign Subsidiary Borrower, as the case may be, fails to make such payment
when due, the Administrative Agent shall notify each Lender of the applicable
LC Disbursement, the payment then due from the Parent Borrower or the
applicable Foreign Subsidiary Borrower, as the case may be, in respect thereof
and such Lender’s Class A Revolving Applicable Percentage or Tranche B-1
Applicable Percentage, as the case may be, thereof.  Promptly following receipt of such notice,
each Lender shall pay to the Administrative Agent its Class A Revolving
Applicable Percentage or its Tranche B-1 Applicable Percentage, as the case may
be, of the unreimbursed LC Disbursement in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and
Section 2.06 shall apply, mutatis  mutandis, to the payment
obligations of the Class A Revolving Lenders and the Tranche B-1 Lenders),
and the Administrative Agent shall promptly pay to the Issuing Bank the amounts
so received by it from the Class A Revolving Lenders and the Tranche B-1
Lenders.  Promptly following receipt by
the Administrative Agent of any payment from the Parent Borrower or the
applicable Foreign Subsidiary Borrower, as the case may be, pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
Issuing Bank or, to the extent that Class A Revolving Lenders or Tranche
B-1 Lenders have made payments pursuant to this paragraph to reimburse the
Issuing Bank, then distribute such payment to such Lenders and the Issuing Bank
as their interests may appear.  Any
payment made by a Class A Revolving Lender or a Tranche B-1 Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Class A Revolving Loans or
Tranche B-1 Loans or a Swingline Loan as contemplated above) shall not
constitute a Loan and shall not relieve the Parent Borrower or the applicable
Foreign Subsidiary Borrower, as the case may be, of its obligation to reimburse
such LC Disbursement.


 


(f) Obligations Absolute. 
The obligation of the Parent Borrower or any Foreign Subsidiary Borrower
to reimburse LC Disbursements as provided in paragraph (e) of this
Section shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under any and
all circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of 


 


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any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft
or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the obligations of the
Parent Borrower or any Foreign Subsidiary Borrower hereunder.  None of the Administrative Agent, the Lenders
or the Issuing Bank, or any of their Related Parties, shall have any liability
or responsibility by reason of or in connection with the issuance or transfer
of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing Bank; provided
that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Parent Borrower or any applicable Foreign Subsidiary Borrower,
as the case may be, to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Parent Borrower or any applicable Foreign Subsidiary Borrower, as the case may
be, to the extent permitted by applicable law) suffered by the Parent Borrower
or any applicable Foreign Subsidiary Borrower, as the case may be, that are
caused by the Issuing Bank’s failure to exercise care when determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof.  The parties hereto
expressly agree that, in the absence of gross negligence or wilful misconduct
on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each
such determination.  In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.


 


(g) Disbursement Procedures.  The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit.  The Issuing
Bank shall promptly notify the Administrative Agent and the Parent Borrower or
any applicable Foreign Subsidiary Borrower, as the case may be, by telephone
(confirmed by telecopy) of such demand for payment and whether the Issuing Bank
has made or will make an LC Disbursement thereunder; provided that any
failure to give or delay in giving such notice shall not (i) relieve the
Parent Borrower or any applicable Foreign Subsidiary Borrower, as the case may
be, of its obligation to reimburse the Issuing Bank and the Lenders with
respect to any such LC Disbursement (other than with respect to the timing of
such reimbursement obligation set 


 


61

















 


forth in
Section 2.05(e)) or (ii) relieve (A) any Lender’s obligations to
acquire participations as required pursuant to paragraph (d) of this
Section 2.05 or (B) in the case of a Tranche B-1 LC Disbursement, the
obligation of the Administrative Agent, promptly after receipt of such notice,
to withdraw from the Deposit Account each Lender’s Tranche B-1 Applicable
Percentage of such Tranche B-1 LC Disbursement and apply such amounts to make
payments to the Issuing Bank as provided herein.


 


(h) Interim Interest. 
If the Issuing Bank shall make any LC Disbursement, then, unless the
Parent Borrower or any applicable Foreign Subsidiary Borrower, as the case may
be, shall reimburse such LC Disbursement in full on the date such LC
Disbursement is made, the unpaid amount thereof shall bear interest, for each
day from and including the date such LC Disbursement is made to but excluding
the date that the Parent Borrower or any applicable Foreign Subsidiary
Borrower, as the case may be, reimburses such LC Disbursement, at the rate per
annum then applicable to (i) in the case of interest for the account of
the Issuing Bank, ABR Class A Revolving Loans and (ii) in the case of
interest for the account of any Lender, ABR Loans made by such Lender; provided
that, if the Parent Borrower or any applicable Foreign Subsidiary Borrower, as
the case may be, fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section 2.05, then
Section 2.13(c) shall apply. 
Interest accrued pursuant to this paragraph shall be for the account of
the Issuing Bank, except that interest accrued on and after the date of payment
by any Lender pursuant to paragraph (e) of this Section 2.05 to
reimburse the Issuing Bank shall be for the account of such Lender to the
extent of such payment.


 


(i) Replacement of the Issuing Bank; Additional Issuing Banks.  The Issuing Bank may be replaced at any time
by written agreement among the Parent Borrower (on behalf of itself and the
Foreign Subsidiary Borrowers), the Administrative Agent, the replaced Issuing
Bank and the successor Issuing Bank.  One
or more Lenders may be appointed as additional Issuing Banks by written
agreement among the Parent Borrower (on behalf of itself and the Foreign
Subsidiary Borrowers), the Administrative Agent (whose consent will not be
unreasonably withheld) and the Lender that is to be so appointed.  The Administrative Agent shall notify the
Lenders of any such replacement of the Issuing Bank or any such additional
Issuing Bank.  At the time any such
replacement shall become effective, the Parent Borrower (on behalf of itself
and the Foreign Subsidiary Borrowers) shall pay all unpaid fees accrued for the
account of the replaced Issuing Bank pursuant to Section 2.12(b).  From and after the effective date of any such
replacement or addition, as applicable, (i) the successor or additional
Issuing Bank shall have all the rights and obligations of the Issuing Bank
under this Agreement with respect to Letters of Credit to be issued thereafter
and (ii) references herein to the term “Issuing Bank” shall be deemed to
refer to such successor or such addition or to any previous Issuing Bank, or to
such successor or such addition and all previous Issuing Banks, as the context
shall require.  After the replacement of
an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing
Bank under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters of
Credit.  If at any time there is more
than one Issuing Bank hereunder, the Parent 


 


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Borrower (on
behalf of itself and the Foreign Subsidiary Borrowers) may, in its discretion,
select which Issuing Bank is to issue any particular Letter of Credit.


 


(j) Cash Collateralization. 
If any Event of Default shall occur and be continuing, on the Business
Day that the Parent Borrower or any Foreign Subsidiary Borrower receives notice
from the Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Class A Revolving Lenders and/or Tranche
B-1 Lenders with LC Exposure representing greater than 50% of the total LC
Exposure) demanding the deposit of cash collateral pursuant to this paragraph, the
Parent Borrower and the Foreign Subsidiary Borrowers, as the case may be, shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash in
the applicable currency equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to
deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to
the Parent Borrower or any Foreign Subsidiary Borrower described in
clause (h) or (i) of Article VII.  Each such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Parent Borrower and the Foreign Subsidiary Borrowers under
this Agreement.  The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account.  Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and
at the risk and expense of the Parent Borrower and the Foreign Subsidiary
Borrowers, such deposits shall not bear interest.  Interest or profits, if any, on such
investments shall accumulate in such account. 
Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Parent Borrower and the
Foreign Subsidiary Borrowers for the LC Exposure at such time or, if the maturity
of the Loans has been accelerated (but subject to the consent of Class A
Revolving Lenders and/or Tranche B-1 Lenders with LC Exposure representing
greater than 50% of the total LC Exposure), be applied to satisfy other
obligations of the Parent Borrower and the Foreign Subsidiary Borrowers under
this Agreement.  If the Parent Borrower
or any Foreign Subsidiary Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such
amount plus any accrued interest or realized profits of such amounts (to the
extent not applied as aforesaid) shall be returned to the Parent Borrower or
such Foreign Subsidiary Borrower within three Business Days after all Events of
Default have been cured or waived.  If
the Parent Borrower is required to provide an amount of such collateral
hereunder pursuant to Section 2.11(b), such amount plus any accrued
interest or realized profits on account of such amount (to the extent not
applied as aforesaid) shall be returned to the Parent Borrower as and to the
extent that, after giving effect to such return, the Parent Borrower would
remain in compliance with Section 2.11(b) and no Default or Event of
Default shall have occurred and be continuing.


 


63

















 


SECTION 2.06.  Funding of
Borrowings.   (a) Each Lender
shall make each Loan to be made by it hereunder on the proposed date thereof by
wire transfer of immediately available funds by 12:00 noon, New York
City time, or in the case of Foreign Currency Borrowings, London time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be
made as provided in Section 2.04. 
The Administrative Agent will make such Loans available to the Parent
Borrower or the applicable Foreign Subsidiary Borrower, as the case may be, by
promptly crediting the amounts so received, in like funds, to an account of the
Parent Borrower or such Foreign Subsidiary Borrower, as the case may be,
maintained with the Administrative Agent in New York City, or in the case
of Foreign Currency Borrowings, London, and designated by the Parent Borrower
or such Foreign Subsidiary Borrower, as the case may be, in the applicable Borrowing
Request; provided that ABR Class A Revolving Loans made to finance
the reimbursement of an LC Disbursement as provided in
Section 2.05(e) shall be remitted by the Administrative Agent to the
Issuing Bank.


 


(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender’s share of such
Borrowing, the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to the
Parent Borrower or the applicable Foreign Subsidiary Borrower, as the case may
be, a corresponding amount.  In such event,
if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the
Parent Borrower or the applicable Foreign Subsidiary Borrower, as the case may
be, severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to the Parent Borrower or the applicable
Foreign Subsidiary Borrower, as the case may be, to but excluding the date of
payment to the Administrative Agent, at (i) in the case of such Lender, the
greater of (x) the Federal Funds Effective Rate and (y) a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation, except with respect to Foreign Currency
Borrowings, the applicable rate shall be determined as specified in
clause (y) above, or (ii) in the case of the Parent Borrower or
any Foreign Subsidiary Borrower, the interest rate applicable to ABR
Class A Revolving Loans.  If such
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing.


 


(c) The Administrative Agent will make each Tranche B-1 Loan to be
made hereunder available to the Parent Borrower by promptly crediting the
amounts withdrawn by it from the Deposit Account in accordance with
Section 2.02(a)(ii), in like funds, to an account designated by the Parent
Borrower in the applicable Borrowing Request; provided that Tranche B-1
Loans made to finance the reimbursement of an LC Disbursement as provided in
Section 2.05(e) shall be remitted by the Administrative Agent to the
applicable Issuing Bank.


 


64

















 


SECTION 2.07.  Interest
Elections.  (a) Each Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurocurrency Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. 
Thereafter, the Parent Borrower, the applicable Subsidiary Term Borrower
or the applicable Foreign Subsidiary Borrower, as the case may be, may elect to
convert such Borrowing to a different Type or to continue such Borrowing and,
in the case of a Eurocurrency Borrowing, may elect Interest Periods therefor,
all as provided in this Section.  The
Parent Borrower, the applicable Subsidiary Term Borrower or the applicable
Foreign Subsidiary Borrower, as the case may be, may elect different options
with respect to different portions of the affected Borrowing, in which case
each such portion shall be allocated ratably among the Lenders holding the
Loans comprising such Borrowing, and the Loans comprising each such portion
shall be considered a separate Borrowing. 
This Section shall not apply to Swingline Loans, which may not be
converted or continued.


 


(b) To make an election pursuant to this Section, the Parent
Borrower, the applicable Subsidiary Term Borrower or the applicable Foreign
Subsidiary Borrower, as the case may be, shall notify the Administrative Agent
of such election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Parent Borrower, the applicable
Subsidiary Term Borrower or the applicable Foreign Subsidiary Borrower, as the
case may be, were requesting a Revolving Loan, Tranche B-1 Loan or Tranche B
Term Loan of the Type resulting from such election to be made on the effective
date of such election.  Each such
telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of
a written Interest Election Request in a form approved by the Administrative
Agent and signed by the Parent Borrower, the applicable Subsidiary Term
Borrower or the applicable Foreign Subsidiary Borrower, as the case may be.


 


(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:


 


(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to clauses (iii) and
(iv) below shall be specified for each resulting Borrowing);


 


(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;


 


(iii) whether the resulting Borrowing is to be an ABR Borrowing or
a Eurocurrency Borrowing; and


 


(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term “Interest
Period”.


 


65
















 


If any such Interest Election Request requests a Eurocurrency Borrowing
but does not specify an Interest Period, then the Parent Borrower, the
applicable Subsidiary Term Borrower or the applicable Foreign Subsidiary
Borrower, as the case may be, shall be deemed to have selected an Interest
Period of one month’s duration.


 


(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details thereof and of
such Lender’s portion of each resulting Borrowing.


 


(e) If an Interest Election Request with respect to a Eurocurrency
Borrowing is not timely delivered prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein,
at the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing (unless such Borrowing is a Foreign Currency Borrowing, in which case
such Borrowing shall become due and payable on the last day of such Interest
Period).  Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the
Foreign Subsidiary Borrowers), then, so long as an Event of Default is
continuing (i) no outstanding Borrowing (other than a Foreign Currency
Borrowing) may be converted to or continued as a Eurocurrency Borrowing and
(ii) unless repaid, each Eurocurrency Borrowing (other than a Foreign
Currency Borrowing) shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.


 


SECTION 2.08.  Termination
and Reduction of Commitments. 
(a) Unless previously terminated, (i) the Class A
Revolving Commitments shall terminate on the Class A Revolving Commitment
Termination Date and (ii) the Class B Revolving Commitments and
Tranche B-1 Commitments shall terminate on the Class B Revolving
Commitment Termination Date.  Each party
to this Agreement acknowledges that the Tranche B Commitments (as defined in
the Existing Credit Agreement) have terminated.


 


(b) The Parent Borrower (on behalf of itself and the Foreign
Subsidiary Borrowers) may at any time terminate, or from time to time reduce,
the Commitments of any Class (it being understood that reductions of the
Class A Revolving Commitments or the Class B Revolving Commitments
will automatically reduce the related Foreign Currency Commitments on a pro
rata basis); provided that (i) each reduction of the Commitments of
any Class shall be in an amount that is an integral multiple of $1,000,000
and not less than $5,000,000 and (ii) (A) the Revolving Commitments
of either Class shall not be terminated or reduced if, after giving effect
to any concurrent prepayment of the Revolving Loans of such Class in
accordance with Section 2.11, the sum of the Revolving Exposures of such
Class would exceed the total Revolving Commitments of such Class or
(B) the Tranche B-1 Commitments shall not be reduced if, after giving
effect to any concurrent prepayment of the Tranche B-1 Loans in accordance with
Section 2.11, the sum of the Tranche B-1 Exposures would exceed the
Tranche B-1 Total Commitment.


 


66

















 


(c) The Parent Borrower (on behalf of itself and the Foreign
Subsidiary Borrowers) shall notify the Administrative Agent (or, in the case of
Foreign Currency Commitments, the Foreign Currency Administrative Agent) of any
election to terminate or reduce the Commitments of any Class under paragraph (b) of
this Section at least three Business Days prior (and, in the case of
Foreign Currency Commitments, not later than 11 a.m., London Time, three
Business Days prior) to the effective date of such termination or reduction,
specifying such election and the effective date thereof.  Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Parent Borrower
(on behalf of itself and the Foreign Subsidiary Borrowers) pursuant to this
Section shall be irrevocable; provided that a notice of termination
of the Revolving Commitments of either Class or a notice of reduction of
the Tranche B-1 Commitments to zero delivered by the Parent Borrower (on behalf
of itself and the Foreign Subsidiary Borrowers) may state that such notice is
conditioned upon the effectiveness of other credit facilities or the occurrence
of another transaction, in which case such notice may be revoked by the Parent
Borrower (on behalf of itself and the Foreign Subsidiary Borrowers) (by notice
to the Administrative Agent on or prior to the specified effective date) if
such condition is not satisfied.  Any
reduction of the Commitments of any Class shall be permanent.  Each reduction of the Revolving Commitments of
either Class shall be made ratably among the Lenders of such Class, as
applicable, in accordance with their respective Revolving Commitments of such
Class and each reduction of the Tranche B-1 Commitments shall be made
ratably among the Tranche B-1 Lenders in accordance with their respective
Tranche B-1 Commitments.


 


For the avoidance of doubt, the conversion of a Class B Revolving
Commitment into a Class A Revolving Commitment pursuant to an Incremental
Amendment shall not be considered a reduction of Revolving Commitments and the
provisions of this Section 2.08 shall not apply to such conversion.


 


SECTION 2.09.  Repayment of
Loans; Evidence of Debt.  (a) The Parent Borrower, each
Subsidiary Term Borrower (with respect to Tranche B Term Loans made to such
Subsidiary Term Borrower) and each Foreign Subsidiary Borrower (with respect to
Foreign Currency Loans made to such Foreign Subsidiary Borrower) hereby
unconditionally promises to pay (i) to the Administrative Agent
(A) for the account of each Class A Revolving Lender the then unpaid
principal amount of each Class A Revolving Loan of such Lender on the
Class A Revolving Commitment Termination Date, (B) for the account of
each Class B Revolving Lender the then unpaid principal amount of each
Class B Revolving Loan of such Lender on the Class B Revolving
Commitment Termination Date, (C) for the account of each Tranche B-1
Lender the then unpaid principal amount of each Tranche B-1 Loan of such Lender
on the Class B Revolving Commitment Termination Date, (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Tranche B Term Loan of such Lender as provided in
Section 2.10 and (iii) to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the earlier of the Class A
Revolving Commitment Termination Date and the first date after such Swingline
Loan is made that is the 15th or last day of a calendar month and is at least
two Business Days after such 


 


67

















 


Swingline Loan
is made; provided that on each date that a Revolving Loan (other than a
Foreign Currency Borrowing) is made, the Parent Borrower shall repay all
Swingline Loans that were outstanding on the date such Borrowing was requested.


 


(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Parent
Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.


 


(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and
Type thereof and the Interest Period applicable thereto, (ii) the amount
of any principal or interest due and payable or to become due and payable from
the Parent Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary
Borrowers to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder for the account of the Lenders
and each Lender’s share thereof.


 


(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima
facie evidence of the existence and amounts of the obligations recorded
therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Parent Borrower, the Subsidiary Term Borrowers and
the Foreign Subsidiary Borrowers to repay the Loans in accordance with the
terms of this Agreement.


 


(e) Any Lender may request that Loans of any Class made by it
be evidenced by a promissory note.  In
such event, the Parent Borrower, the applicable Subsidiary Term Borrower or the
applicable Foreign Subsidiary Borrower, as the case may be, shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent.  Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 10.04) be represented by one or more
promissory notes in such form payable to the order of the payee named therein
(or, if such promissory note is a registered note, to such payee and its
registered assigns).


 


SECTION 2.10.  Amortization
of Tranche B Term Loans. 
(a) Subject to adjustment pursuant to paragraph (e) of
this Section, the Term Loan Borrowers(i) shall repay Class A Tranche
B Term Loans on each date set forth below in an aggregate principal amount
equal to (A) a fraction, the numerator of which is the aggregate principal
amount of Class A Tranche B Term Loans outstanding on the Restatement
Effective Date and the denominator of which is the aggregate principal amount
of Tranche B Term Loans outstanding on the Restatement Effective Date multiplied
by (B) the amount set forth opposite such date in the table below and (ii)
shall repay Class B Tranche B Term Loans on each date set forth below on
or before the Class B Tranche B 


 


68

















 


Maturity Date
in an aggregate principal amount equal to (A) a fraction, the numerator of
which is the aggregate principal amount of Class B Tranche B Term Loans
outstanding on the Restatement Effective Date and the denominator of which is
the aggregate principal amount of Tranche B Term Loans outstanding on the
Restatement Effective Date multiplied by (B) the amount set forth opposite
such date in the table below (it being understood that the amounts set forth
below do not reflect adjustments in respect of prepayments, if any, of Tranche
B Term Loans prior to the Restatement Effective Date, which shall affect and
reduce the scheduled amortization payments set forth below in a manner
consistent with Section 2.10(d) of the Existing Credit Agreement):


 




	
  Date

  	
   

  	
  Amount

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  March 31, 2011

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  September 30, 2011

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  March 31, 2012

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  June 30, 2012

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  September 30, 2012

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  December 31, 2012

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  March 31, 2013

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  June 30, 2013

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  September 30, 2013

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  December 31, 2013

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  March 31, 2014

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  June 30, 2014

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  September 30, 2014

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  December 31, 2014

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  March 31, 2015

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  June 30, 2015

  	
   

  	
  $

  	
  650,000

  	
   

  
	
  September 30, 2015

  	
   

  	
  $

  	
  650,000

  	
   

  






 


69

















 


provided that the foregoing scheduled
amortization payments shall be deemed to include, with respect to each
Class of Tranche B Term Loans, the entire remaining principal amount
of the Tranche B Term Loans of such Class payable on the applicable
Tranche B Maturity Date.  It is
understood that the foregoing scheduled repayments of Class A Tranche B
Term Loans and Class B Tranche B Term Loans are intended to result in
scheduled repayments of such Term Loans in the same amounts that would have
been required, as of the Restatement Effective Date, if the Restatement
Transactions had not occurred, but taking into account adjustments subsequent
to the Restatement Effective Date and, in the case of Class A
Tranche B Loans, scheduled repayments after the date that such Loans would
have matured under the Existing Credit Agreement.


 


(b) [Reserved].


 


(c) To the extent not previously paid, (i) all Class A
Tranche B Term Loans shall be due and payable on the Class A Tranche B
Maturity Date and (ii) all Class B Tranche B Term Loans shall be due
and payable on the Class B Tranche B Maturity Date.


 


(d) Any prepayment of Tranche B Term Loans of either
Class shall be applied to reduce the subsequent scheduled repayments of
the Tranche B Term Loans of such Class to be made pursuant to this Section ratably;
provided that any prepayment made pursuant to
Section 2.11(a) shall be applied, first, to reduce the next two
scheduled repayments of the Tranche B Term Loans of such Class due to be
made within the next twelve months pursuant to this Section unless and
until such next scheduled repayment has been eliminated as a result of
reductions hereunder (provided, further, that the amount of such
prepayment that may be allocated as provided in this proviso may not exceed the
greater of 50% of such prepayment and the amount of such two scheduled
repayments).  Notwithstanding the
foregoing, any prepayment of Eurocurrency Tranche B Term Loans made pursuant to
Section 2.11(a) on a date that is (x) the last day of an
Interest Period and (y) no more than five days prior to a scheduled
amortization payment pursuant this Section shall be applied, first, to
reduce such scheduled payment, and any excess shall be applied as required by
the first sentence of this Section 2.10(d).


 


(e) Prior to any repayment of any Tranche B Term Loans of either
Class hereunder, the Parent Borrower (on behalf of itself and the
applicable Subsidiary Term Borrower) shall select the Borrowing or Borrowings
of the applicable Class to be repaid and shall notify the Administrative Agent
by telephone (confirmed by telecopy) of such selection not later than
11:00 a.m., New York City time, three Business Days before the
scheduled date of such repayment.  Each
repayment of a Borrowing shall be applied ratably to the Loans included in the
repaid Borrowing.  Repayments of Tranche
B Term Loans shall be accompanied by accrued interest on the amount repaid.


 


SECTION 2.11.  Prepayment
of Loans.  (a) The Parent
Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers,
as the case may be, shall have the right at any time and from time to time to
prepay any Borrowing in whole or in part, subject to the requirements of this
Section.


 


70

















 


(b) In the event and on such occasion that (i) the sum of the
Class A Revolving Exposures exceeds the total Class A Revolving
Commitments, (ii) the sum of the Class B Revolving Exposures exceeds
the total Class B Revolving Commitments or (iii) the sum of the Tranche
B-1 Exposures exceeds the Tranche B-1 Total Commitment, the Parent Borrower and
the Foreign Subsidiary Borrowers, as the case may be, shall prepay Loans (or,
if no such Borrowings are outstanding, deposit cash collateral in an account
with the Administrative Agent pursuant to Section 2.05(j)) in an aggregate
amount equal to such excess.


 


(c) In the event and on such occasion that (i) the sum of the
Class A Foreign Currency Exposures exceeds (A) 105% of the total
Class A Foreign Currency Commitments solely as a result of currency
fluctuations or (B) the total Class A Foreign Currency Commitments
(other than as a result of currency fluctuations), the Foreign Subsidiary
Borrowers shall prepay Class A Foreign Currency Borrowings (or if no such
Borrowings are outstanding, deposit cash collateral in an account with the
Administrative Agent pursuant to Section 2.05(j)) in an amount equal to
the amount by which the sum of Class A Foreign Currency Exposures exceed
the total Class A Foreign Currency Commitments no later than in the case
of clause (i)(A) above the next Interest Payment Date and in the case
of clause (i)(B) above, the first Business Day that such excess exists and
(ii) the sum of the Class B Foreign Currency Exposures exceeds
(A) 105% of the total Class B Foreign Currency Commitments solely as
a result of currency fluctuations or (B) the total Class B Foreign
Currency Commitments (other than as a result of currency fluctuations), the
Foreign Subsidiary Borrowers shall prepay Class B Foreign Currency
Borrowings (or if no such Borrowings are outstanding, deposit cash collateral
in an account with the Administrative Agent pursuant to Section 2.05(j))
in an amount equal to the amount by which the sum of Class B Foreign
Currency Exposures exceed the total Class B Foreign Currency Commitments
no later than in the case of clause (ii)(A) above the next Interest
Payment Date and in the case of clause (ii)(B) above, the first Business
Day that such excess exists.


 


(d) In the event and on each occasion that any Net Proceeds are
received by or on behalf of Holdings, the Parent Borrower or any Subsidiary in
respect of any Prepayment Event, the Parent Borrower (on behalf of itself and,
in the case of Tranche B Term Loans, the Subsidiary Term Borrowers) shall,
within three Business Days after such Net Proceeds are received, prepay Tranche
B Term Loans in an aggregate amount equal to such Net Proceeds; provided
that, in the case of any event described in clause (a) of the
definition of the term Prepayment Event (other than sales, transfers or other
dispositions pursuant to Section 6.05(j) in excess of $25,000,000),
if Holdings or the Parent Borrower shall deliver, within such three Business
Days, to the Administrative Agent a certificate of a Financial Officer to the
effect that Holdings, the Parent Borrower and the Subsidiaries, intend to apply
the Net Proceeds from such event (or a portion thereof specified in such
certificate), within 365 days after receipt of such Net Proceeds, to
acquire real property, equipment or other tangible assets to be used in the
business of the Parent Borrower and the Subsidiaries, and certifying that no
Default has occurred and is continuing, then no prepayment shall be required
pursuant to this paragraph in respect of the Net Proceeds in respect of such
event (or the portion of such Net Proceeds 


 


71

















 


specified in
such certificate, if applicable) except to the extent of any such Net Proceeds
therefrom that have not been so applied by the end of such 365-day period, at
which time a prepayment shall be required in an amount equal to such Net
Proceeds that have not been so applied.


 


(e) Following the end of each fiscal year of the Parent Borrower,
commencing with the fiscal year ending December 31, 2006, the Parent
Borrower (on behalf of itself and, in the case of Tranche B Term Loans, the
Subsidiary Term Borrowers) shall prepay Tranche B Term Loans in an aggregate
amount equal to 50% of Excess Cash Flow for such fiscal year; provided
that such percentage shall be reduced from 50% to 25% with respect to the
prepayment under this paragraph (e) if the Parent Borrower’s Leverage
Ratio as of the last fiscal quarter preceding the applicable prepayment date is
less than 3.00 to 1.00.  Each prepayment
pursuant to this paragraph shall be made on or before the date on which
financial statements are delivered pursuant to Section 5.01 with respect
to the fiscal year for which Excess Cash Flow is being calculated (and in any
event within 95 days after the end of such fiscal year).


 


(f) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Parent Borrower (on behalf of itself, the Subsidiary Term
Borrowers and the Foreign Subsidiary Borrowers) shall select the Borrowing or
Borrowings to be prepaid and shall specify such selection in the notice of such
prepayment pursuant to paragraph (g) of this Section.  In the event of any optional or mandatory
prepayment of Tranche B Term Loans made at a time when Tranche B Term Loans of
more than one Class remain outstanding, the Parent Borrower shall select
Tranche B Term Loans to be prepaid so that the aggregate amount of such
prepayment is allocated between the Class A Tranche B Term Loans and
Class B Tranche B Term Loans pro rata based on the aggregate principal
amount of outstanding Borrowings of each such Class; provided that any
optional prepayment of Class B Tranche B Term Loans may be made pursuant
to Section 2.11(a) above without a pro rata prepayment of
Class A Tranche B Term Loans.  Any
optional prepayment of Tranche B-1 Loans shall be allocated ratably among the
Tranche B-1 Lenders based on the aggregate principal amount of each such
Lender’s outstanding Tranche B-1 Loans, without regard to whether any such
Lender is a Class A Tranche B-1 Lender or a Class B Tranche B-1
Lender.


 


(g) The Parent Borrower (on behalf of itself, the Subsidiary Term
Borrowers and the Foreign Subsidiary Borrowers) shall notify the Administrative
Agent (or, in the case of a Foreign Currency Borrowing, the Foreign Currency
Administrative Agent) and, in the case of prepayment of a Swingline Loan, the
Swingline Lender by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurocurrency Borrowing, not
later than 12:00 noon, New York City time, three Business Days before
the date of prepayment, (ii) in the case of prepayment of an ABR
Borrowing, not later than 12:00 noon, New York City time, one
Business Day before the date of prepayment, (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York
City time, on the date of prepayment and (iv) in the case of prepayment of
a Foreign Currency Borrowing, not later than 11 a.m. London Time, three
Business Days before the date of prepayment. 
Each such notice shall be 


 


72

















 


irrevocable
and shall specify the prepayment date, the principal amount of each Borrowing
or portion thereof to be prepaid and, in the case of a mandatory prepayment, a
reasonably detailed calculation of the amount of such prepayment; provided
that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of either Class of the Revolving
Commitments or a conditional notice of reduction of the Tranche B-1 Commitments
to zero as contemplated by Section 2.08, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.08.  Promptly following
receipt of any such notice (other than a notice relating solely to Swingline
Loans), the Administrative Agent shall advise the Lenders of the contents
thereof.  Each partial prepayment of any
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.02,
except as necessary to apply fully the required amount of a mandatory
prepayment.  Each prepayment of a
Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing.  Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.13.
Prepayments of Tranche B-1 Loans shall be deposited by the Administrative Agent
in the Deposit Account to the extent provided in Section 2.01(a)(ii)(B).


 


(h) In the event that any optional prepayment of Class A
Tranche B Term Loans or any reduction in the Class A Tranche B-1
Commitments is made substantially concurrently with (or with the proceeds from)
the incurrence of Indebtedness by Holdings, the Parent Borrower or any
Subsidiary of Indebtedness in the form of a term loan facility or a synthetic
letter of credit (or similar) facility, as applicable, having interest margins
that are, or upon satisfaction of certain conditions could be, lower than the
Applicable Margin then in effect for the Class A Tranche B Term Loans or
the Class A Tranche B-1 Loans, as applicable, such prepayment or reduction
shall be accompanied by, in the case of any such prepayment or reduction prior
to the first anniversary of the Restatement Effective Date, a prepayment
premium equal to 2.00% of the aggregate principal amount of Class A Tranche
B Term Loans so prepaid and Class A Tranche B-1 Commitments so reduced
and, in the case of any such prepayment or reduction after the first
anniversary but prior to the second anniversary of the Restatement Effective
Date, a prepayment premium equal to 1.00% of the aggregate principal amount of
Class A Tranche B Term Loans so prepaid and Class A Tranche B-1
Commitments so reduced.


 


SECTION 2.12.  Fees.  (a) The Parent Borrower (on behalf of
itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers)
agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee (the “Commitment Fee”), which shall accrue at the Applicable
Rate on the average daily unused amount of Class A Revolving Commitment or
Class B Revolving Commitment, as applicable, of such Lender during the
period from and including the Restatement Effective Date to but excluding the
date on which such Commitment terminates. 
Accrued Commitment Fees shall be payable in arrears in respect of either
Class of the Revolving Commitments, on the last day of March, June,
September and December of each year and on the date on which the
Revolving Commitments of such Class terminate, commencing on the first
such date to occur after the Restatement Effective Date.  All Commitment Fees shall be computed on the
basis of a year of 360 days and shall be 


 


73

















 


payable for
the actual number of days elapsed (including the first day but excluding the
last day).  For purposes of computing
Commitment Fees with respect to Revolving Commitments, a Revolving Commitment
of a Lender shall be deemed to be used to the extent of the outstanding
Revolving Loans and Revolving LC Exposure of such Lender (and the Swingline
Exposure of such Lender shall be disregarded for such purpose).


 


(b) (i) The Parent Borrower (on behalf of itself and the
Foreign Subsidiary Borrowers) agrees to pay (A) to the Administrative
Agent for the account of each Class A Revolving Lender a participation fee
with respect to its participations in Revolving Letters of Credit, which shall
accrue at the same Applicable Rate as interest on Eurocurrency Class A
Revolving Loans made by such Lender on the average daily amount of such
Lender’s Revolving LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Restatement Effective Date to but excluding the later of the date on which
(1) such Lender’s Class A Revolving Commitment terminates and (2) such
Lender ceases to have any Revolving LC Exposure, and (B) to the Issuing
Bank a fronting fee, which shall accrue at the rate of 0.25% per annum on the
average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Restatement Effective Date to but excluding the later of the date
on which (1) all Class A Revolving Commitments terminate and Tranche
B-1 Commitments are reduced to zero and (2) the date on which there ceases
to be any LC Exposure, as well as the Issuing Bank’s standard fees with respect
to the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. 
Participation fees and fronting fees accrued through and including the
last day of March, June, September and December of each year shall be
payable on the third Business Day following such last day, commencing on the
first such date to occur after the First Restatement Effective Date; provided
that (x) all such fees in respect of Revolving Letters of Credit shall be
payable on the date on which the Class A Revolving Commitments terminate
and any such fees accruing after the date on which the Class A Revolving
Commitments terminate shall be payable on demand and (y) all such fees
payable in respect of Tranche B-1 Letters of Credit shall be payable on the
date on which the Tranche B-1 Total Commitment is reduced to zero and any such
fees accruing after the date on which the Tranche B-1 Total Commitment is
reduced to zero shall be payable on demand. 
Any other fees payable to the Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand.  All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding
the last day).


 


(ii) The Parent Borrower (on behalf of itself and the Foreign
Subsidiary Borrowers) agrees to pay to the Administrative Agent for the account
of each Tranche B-1 Lender a fee, accruing at the rate of 4.00% per annum in
the case of a Class A Tranche B-1 Lender and 2.75% per annum in the case
of a Class B Tranche B-1 Lender, on the daily amount of the Deposit of
such Lender during the period from and including the date hereof to but
excluding the date on which each of the Tranche B-1 Total Commitment and the
Tranche B-1 LC Exposure have been reduced to zero.  In addition, the Parent Borrower agrees to
pay to the 


 


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Administrative Agent for the account of each Tranche B-1 Lender an
additional amount, accruing at the rate per annum of (i) in the case of each
Class A Tranche B-1 Lender, 0.25% plus the excess of 2.00% over the
Benchmark LIBO Rate and (ii) in the case of each Class B Tranche B-1
Lender, 0.25%, in each case on the daily amount of the Deposit of such Lender
during the period from and including the First Restatement Effective Date to
but excluding the date on which each of the Tranche B-1 Total Commitment and
the Tranche B-1 LC Exposure have been reduced to zero.  Fees and other amounts under this paragraph
accrued through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following
such last day, commencing on the first such date to occur after the Restatement
Effective Date, and on the date on which each of the Tranche B-1 Total
Commitment and the Tranche B-1 LC Exposure have been reduced to zero.  All fees and amounts payable under this paragraph
shall be computed on the basis of a 365/366 day year and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).


 


(c) The Parent Borrower (on behalf of itself, the Subsidiary Term
Borrowers and the Foreign Subsidiary Borrowers) agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Parent Borrower and the
Administrative Agent.


 


(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
Commitment Fees and participation fees, to the Lenders entitled thereto.  Fees paid shall not be refundable under any
circumstances.


 


SECTION 2.13.  Interest.  (a) The Loans comprising each
ABR Borrowing (including each Swingline Loan) shall bear interest at the
applicable Alternate Base Rate plus the Applicable Rate.


 


(b) The Loans comprising each Eurocurrency Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.


 


(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by the Parent Borrower, the
Subsidiary Term Borrowers or the Foreign Subsidiary Borrowers, as the case may
be, hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of
overdue principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided in the preceding paragraphs of this Section or (ii) in
the case of any other amount, 2% plus the rate applicable to ABR Revolving
Loans of the Class as to which such overdue amount relates or the
Class of Lender as to which such overdue amount is owing (or, if such
overdue amount is not related to a particular Class, the rate 


 


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applicable to
ABR Class A Revolving Loans as provided in paragraph (a) of this
Section).


 


(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans of
either Class, upon termination of the Revolving Commitments of such
Class and in the case of Tranche B-1 Loans, upon reduction of the Tranche
B-1 Commitment to zero; provided that (i) interest accrued pursuant
to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Class A
Revolving Availability Period or Class B Revolving Availability Period, as
applicable), accrued interest on the principal amount repaid or prepaid shall
be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurocurrency Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.


 


(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that (i) interest on a Foreign Currency
Borrowing denominated in Sterling and (ii) interest computed by reference
to the Alternate Base Rate at times when the Alternate Base Rate is based on
the Prime Rate shall be computed on the basis of a year of 365 days (or
366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last
day).  The applicable Alternate Base Rate
or Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.


 


SECTION 2.14.  Alternate
Rate of Interest.  If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing denominated in
any currency:


 


(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or


 


(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their Loans
included in such Borrowing for such Interest Period;


 


then the Administrative Agent shall give notice thereof to the Parent
Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign
Subsidiary Borrowers) and the Lenders by telephone or telecopy as promptly as
practicable thereafter and, until the Administrative Agent notifies the Parent
Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign
Subsidiary Borrowers) and the Lenders that the circumstances giving rise to
such notice no longer exist, (i) any Interest Election Request that
requests the conversion of any Borrowing denominated in such currency to, or continuation
of any Borrowing denominated in such currency as, a Eurocurrency Borrowing
shall be ineffective, and any Eurocurrency Borrowing denominated in such
currency that is requested to be continued (A) if such currency is the
dollar, shall be 


 


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converted to an ABR Borrowing on the last day of the Interest Period
applicable thereto and (B) if such currency is a Foreign Currency, shall
be repaid on the last day of the Interest Period applicable thereto and (ii) if
any Borrowing Request requests a Eurocurrency Borrowing denominated in such
currency (A) if such currency is the dollar, such Borrowing shall be made
as an ABR Borrowing and (B) if such currency is a Foreign Currency, such
Borrowing Request shall be ineffective.


 


SECTION 2.15.  Increased
Costs.  (a) If any Change in Law
shall:


 


(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank or any Deposit or the
Deposit Account; or


 


(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or Eurocurrency
Loans made by such Lender or any Letter of Credit or participation therein or
any Deposit or the Deposit Account;


 


and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining its Deposit or any Eurocurrency Loan (or
of maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or the Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Parent Borrower, the applicable Subsidiary Term Borrowers
or the applicable Foreign Subsidiary Borrowers, as the case may be, will pay to
such Lender or the Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Bank, as the case may be,
for such additional costs incurred or reduction suffered.


 


(b) If any Lender or the Issuing Bank determines that any Change
in Law regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender’s or the Issuing Bank’s capital or on the
capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Deposit or Sub-Account of such Lender, or the
Letters of Credit issued by the Issuing Bank, to a level below that which such
Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding
company could have achieved but for such Change in Law (taking into
consideration such Lender’s or the Issuing Bank’s policies and the policies of
such Lender’s or the Issuing Bank’s holding company with respect to capital
adequacy), then from time to time the Parent Borrower, the applicable
Subsidiary Term Borrowers or the applicable Foreign Subsidiary Borrowers, as
the case may be, will pay to such Lender or the Issuing Bank, as the case may
be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any
such reduction suffered.


 


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(c) A
certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company,
as the case may be, as specified in paragraph (a) or (b) of this
Section shall be delivered to the Parent Borrower (on behalf of itself,
the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) and shall
be conclusive absent manifest error.  The
Parent Borrower, the applicable Subsidiary Term Borrowers or the applicable
Foreign Subsidiary Borrowers, as the case may be, shall pay such Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.


 


(d) Failure
or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or
the Issuing Bank’s right to demand such compensation; provided that none
of the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary
Borrower shall be required to compensate a Lender or the Issuing Bank pursuant
to this Section for any increased costs or reductions incurred more than
270 days prior to the date that such Lender or the Issuing Bank, as the
case may be, notifies the Parent Borrower (on behalf of itself, the Subsidiary
Term Borrowers and the Foreign Subsidiary Borrowers) of the Change in Law
giving rise to such increased costs or reductions and of such Lender’s or the
Issuing Bank’s intention to claim compensation therefor; provided  further
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to
include the period of retroactive effect thereof.


 


SECTION 2.16.  Break Funding Payments.  In the event of (a) the payment of any
principal of any Eurocurrency Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b) the
conversion of any Eurocurrency Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Revolving Loan or Tranche B Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(g) and is revoked in accordance
therewith), or (d) the assignment of any Eurocurrency Loan other than on
the last day of the Interest Period applicable thereto as a result of a request
by the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary
Borrower pursuant to Section 2.19, then, in any such event, the Parent
Borrower, the applicable Subsidiary Term Borrower or the applicable Foreign
Subsidiary Borrower, as the case may be, shall compensate each Lender for the
loss, cost and expense attributable to such event.  In the case of a Eurocurrency Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable
to such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period
for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of 


 


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such period, for deposits in
the applicable currency of a comparable amount and period from other banks in
the Eurocurrency market.  A certificate
of any Lender setting forth any amount or amounts that such Lender is entitled
to receive pursuant to this Section shall be delivered to the Parent
Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign
Subsidiary Borrowers) and shall be conclusive absent manifest error.  The Parent Borrower, the applicable
Subsidiary Term Borrower or the applicable Foreign Subsidiary Borrower, as the
case may be, shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.


 


SECTION 2.17.  Taxes. 
(a) Any and all payments by or on account of any obligation of the
Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary
Borrower hereunder or under any other Loan Document shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes; provided
that if the Parent Borrower, any Subsidiary Term Borrower or any Foreign
Subsidiary Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or Issuing Bank (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Parent Borrower, such Subsidiary Term Borrower or such Foreign Subsidiary
Borrower, as the case may be, shall make such deductions and (iii) the
Parent Borrower, such Subsidiary Term Borrower or such Foreign Subsidiary
Borrower, as the case may be, shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.


 


(b) In
addition, the Parent Borrower, each Subsidiary Term Borrower and each Foreign
Subsidiary Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.


 


(c) The
Parent Borrower, each Subsidiary Term Borrower and each Foreign Subsidiary
Borrower, as the case may be, shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (i) paid
by the Administrative Agent, such Lender or the Issuing Bank, as the case may
be, on or with respect to any payment by or on account of any obligation of the
Parent Borrower, each Subsidiary Term Borrower and each Foreign Subsidiary
Borrower, as the case may be,  hereunder
or under any other Loan Document (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto and (ii) withheld by the Administrative Agent with respect
to any and all payments of the Deposit Return to the Tranche B-1 Lenders
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section), in each case, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority.  A certificate as to the amount of such
payment or liability delivered to the Parent Borrower, any Subsidiary Term
Borrower or any Foreign Subsidiary Borrower, as the case may be, by a Lender or



 


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the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.


 


(d) As
soon as practicable after any payment of Indemnified Taxes or Other Taxes by
the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary
Borrower to a Governmental Authority, the Parent Borrower, such Subsidiary Term
Borrower or such Foreign Subsidiary Borrower, as the case may be, shall deliver
to the Administrative Agent the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a copy of the
return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.


 


(e) Any
Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Parent Borrower, any Subsidiary
Term Borrower or any Foreign Subsidiary Borrower, as the case may be, is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Parent Borrower (on behalf
of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers)
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed
by applicable law or reasonably requested by the Parent Borrower (on behalf of
itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) as
will permit such payments to be made without withholding or at a reduced rate.


 


(f) If
the Administrative Agent or a Lender (or a transferee) determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Parent Borrower, any Subsidiary Term
Borrower or any Foreign Subsidiary Borrower or with respect to which the Parent
Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign
Subsidiary Borrowers) has paid additional amounts pursuant to this Section 2.17,
it shall pay over such refund to the Parent Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Parent Borrower,
any Subsidiary Term Borrower or any Foreign Subsidiary Borrower under this Section 2.17
with respect to the Taxes or the Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of the Administrative Agent or such Lender (or
transferee) and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, however,
that the Parent Borrower, any Subsidiary Term Borrower or any Foreign
Subsidiary Borrower, upon the request of the Administrative Agent or such
Lender (or transferee), agrees to repay the amount paid over to the Parent
Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender (or
transferee) in the event the Administrative Agent or such Lender (or
transferee) is required to repay such refund to such Governmental
Authority.  Nothing contained in this Section 2.17(f) shall
require the Administrative Agent or any Lender to make available its tax
returns or any other information relating to its taxes which it deems
confidential to the Parent Borrower or any other person.


 


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SECTION 2.18.  Payments Generally; Pro Rata Treatment;
Sharing of Set-offs.  (a) The
Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the
Foreign Subsidiary Borrowers) shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest,
fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) on or before the time expressly required hereunder
or under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 12:00 noon, New York City time, or if
the applicable Loan is a Foreign Currency Loan, London time), on the date when
due, in immediately available funds, without set-off or counterclaim.  Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon.  All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue,
New York, New York (unless otherwise instructed in the case of
Foreign Currency Loans), except payments to be made directly to the Issuing
Bank or Swingline Lender as expressly provided herein and except that payments
pursuant to Sections 2.15, 2.16, 2.17 and 10.03 shall be made directly to the
Persons entitled thereto and payments pursuant to other Loan Documents shall be
made to the Persons specified therein. 
The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof.  If any
payment under any Loan Document shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding Business
Day, and, in the case of any payment accruing interest, interest thereon shall
be payable for the period of such extension. 
Subject to Section 9.01, (i) all payments under each Loan
Document of principal or interest in respect of any Loan or LC Disbursement
shall be made in the currency of such Loan or LC Disbursement, (ii) any
portion of the fees payable pursuant to Section 2.12(b) in respect of
Foreign Currency LC Exposure shall be made in the applicable Foreign Currency,
and (iii) all other payments hereunder and under each other Loan Document
shall be made in dollars.


 


(b) If
at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second,
towards payment of principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such parties.


 


(c) If
any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Revolving Loans, Tranche B Term Loans, Tranche B-1 Loans or participations
in LC Disbursements or Swingline Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans,
Tranche B Term Loans, Tranche B-1 Loans and participations in LC Disbursements
and Swingline Loans 


 


81

















 


and accrued interest thereon
than the proportion received by any other Lender, then the Lender receiving
such greater proportion shall purchase (for cash at face value) participations
in the Revolving Loans, Tranche B Term Loans, Tranche B-1 Loans and
participations in LC Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans, Tranche B Term Loans,
Tranche B-1 Loans and participations in LC Disbursements and Swingline Loans; provided
that (i) if any such participations are purchased and all or any portion
of the payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Parent Borrower, any Subsidiary
Term Borrower or any Foreign Subsidiary Borrower pursuant to and in accordance
with the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or participant,
other than to the Parent Borrower or any Subsidiary or Affiliate thereof (as to
which the provisions of this paragraph shall apply).  The Parent Borrower, each Subsidiary Term
Borrower and each Foreign Subsidiary Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Parent Borrower, any Subsidiary Term Borrower or any
Foreign Subsidiary Borrower, as the case may be, rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Parent Borrower, such Subsidiary Term Borrower or such
Foreign Subsidiary Borrower in the amount of such participation.


 


(d) Unless
the Administrative Agent shall have received notice from the Parent Borrower
(on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary
Borrowers) prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary
Borrower, as the case may be, will not make such payment, the Administrative
Agent may assume that the Parent Borrower, such Subsidiary Term Borrower or
such Foreign Subsidiary Borrower, as the case may be, has made such payment on
such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the Issuing Bank, as the case may be (or to the
extent provided in Section 2.01(a)(ii)(B), deposit in the Deposit
Account), the amount due.  In such event,
if the Parent Borrower, such Subsidiary Term Borrower or such Foreign
Subsidiary Borrower, as the case may be, has not in fact made such payment,
then each of the Lenders or the Issuing Bank, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or Issuing Bank (or, if such amount shall have been
deposited in the Deposit Account, each Tranche B-1 Lender authorizes the
Administrative Agent to withdraw such amount from the Deposit Account) with
interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of 


 


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the Federal Funds Effective
Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.


 


(e) If
any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or 10.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are
fully paid.


 


SECTION 2.19.  Mitigation Obligations; Replacement of
Lenders.  (a) If any Lender
requests compensation under Section 2.15, or if the Parent Borrower,
any Subsidiary Term Borrower or any Foreign Subsidiary Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.17, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender.  The Parent Borrower (on behalf of itself, the
Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) hereby agrees
to pay all reasonable costs and expenses incurred by any Lender in connection
with any such designation or assignment.


 


(b) If
any Lender requests compensation under Section 2.15, or if the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, or if
any Lender defaults in its obligation to fund Loans hereunder (or, in the case
of a Class A Revolving Lender, becomes a Defaulting Lender), then the
Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the
Foreign Subsidiary Borrowers) may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 10.04), all its interests, rights and obligations
under this Agreement to an assignee selected by the Parent Borrower that shall
assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Parent Borrower (on
behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary
Borrowers) shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Commitment is being assigned, the Issuing Bank and
Swingline Lender), which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, its Deposit and participations in LC Disbursements and
Swingline Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Parent Borrower, the Subsidiary
Term Borrowers and the 


 


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Foreign Subsidiary Borrowers
(in the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.15 or
payments required to be made pursuant to Section 2.17, such assignment
will result in a material reduction in such compensation or payments.  A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower to require such
assignment and delegation cease to apply.


 


SECTION 2.20.  Additional Reserve Costs.  (a) If and so long as any Revolving
Lender is required to make special deposits with the Bank of England, to
maintain reserve asset ratios or to pay fees, in each case in respect of such
Revolving Lender’s Foreign Currency Loans, such Revolving Lender may require
the relevant Foreign Subsidiary Borrower to pay, contemporaneously with each
payment of interest on each of such Foreign Currency Loans, additional interest
on such Foreign Currency Loan at a rate per annum equal to the mandatory costs
rate (the “Mandatory Costs Rate”) calculated in accordance with the
formula and in the manner set forth in Exhibit K to the Existing Credit Agreement.


 


(b) If
and so long as any Revolving Lender is required to comply with reserve assets,
liquidity, cash margin or other requirements of any monetary or other authority
(including any such requirement imposed by the European Central Bank or the European
System of Central Banks, but excluding requirements reflected in the Statutory
Reserve Rate or the Mandatory Costs Rate) in respect of any of such Revolving
Lender’s Foreign Currency Loans, such Revolving Lender may require the relevant
Foreign Subsidiary Borrower to pay, contemporaneously with each payment of
interest on each of such Revolving Lender’s Foreign Currency Loans subject to
such requirements, additional interest on such Foreign Currency Loan at a rate
per annum specified by such Revolving Lender to be the cost to such Revolving
Lender of complying with such requirements in relation to such Foreign Currency
Loan.


 


(c) Any
additional interest owed pursuant to paragraph (a) or (b) above
shall be determined by the relevant Revolving Lender, which determination shall
be conclusive absent manifest error, and notified to the Parent Borrower (on
behalf of the relevant Foreign Subsidiary Borrower) (with a copy to the
Administrative Agent) at least five Business Days before each date on which
interest is payable for the relevant Foreign Currency Loan, and such additional
interest so notified by such Revolving Lender shall be payable to the
Administrative Agent for the account of such Revolving Lender on each date on
which interest is payable for such Foreign Currency Loan.


 


SECTION 2.21.  Designation of Foreign Subsidiary
Borrowers.  The Parent Borrower may
at any time and from time to time designate any Foreign Subsidiary as a Foreign
Subsidiary Borrower, by delivery to the Administrative Agent of a Foreign
Subsidiary Borrowing Agreement executed by such Foreign Subsidiary and the
Parent Borrower, and upon such delivery such Foreign Subsidiary shall for all
purposes of this Agreement and the other Loan Documents be a Foreign Subsidiary
Borrower until the 


 


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Parent Borrower shall
terminate such designation pursuant to a termination agreement satisfactory to
the Administrative Agent, whereupon such Foreign Subsidiary shall cease to be a
Foreign Subsidiary Borrower and a party to this Agreement and any other
applicable Loan Documents. 
Notwithstanding the preceding sentence, but subject to Section 10.04(a),
no such termination will become effective as to any Foreign Subsidiary Borrower
at a time when any principal of or interest on any Loan to such Foreign
Subsidiary Borrower is outstanding.  As
soon as practicable upon receipt of a Foreign Subsidiary Borrowing Agreement,
the Administrative Agent shall send a copy thereof to each Lender.


 


SECTION 2.22.  Foreign Subsidiary Borrower Costs.  (a) If the cost to any Revolving Lender
of making or maintaining any Foreign Currency Loan to a Foreign Subsidiary
Borrower is increased (or the amount of any sum received or receivable by any
Revolving Lender (or its applicable lending office) is reduced) by an amount
deemed in good faith by such Revolving Lender to be material, by reason of the
fact that such Foreign Subsidiary Borrower is incorporated in, or conducts
business in, a jurisdiction outside the United States, such Foreign
Subsidiary Borrower shall indemnify such Revolving Lender for such increased
cost or reduction within 15 days after demand by such Revolving Lender
(with a copy to the Administrative Agent). 
A certificate of such Revolving Lender claiming compensation under this
paragraph and setting forth the additional amount or amounts to be paid to it
hereunder (and the basis for the calculation of such amount or amounts) shall
be conclusive in the absence of manifest error.


 


(b) Each
Revolving Lender will promptly notify the Parent Borrower (on behalf of the
relevant Foreign Subsidiary Borrower) and the Administrative Agent of any event
of which it has knowledge that will entitle such Revolving Lender to additional
interest or payments pursuant to paragraph (a) above, but in any
event within 45 days after such Revolving Lender obtains actual knowledge
thereof; provided that (i) if any Revolving Lender fails to give
such notice within 45 days after it obtains actual knowledge of such an
event, such Revolving Lender shall, with respect to compensation payable
pursuant to this Section 2.22 in respect of any costs resulting from such
event, only be entitled to payment under this Section 2.22 for costs
incurred from and after the date 45 days prior to the date that such
Revolving Lender does give such notice and (ii) each Revolving Lender will
designate a different applicable lending office, if, in the judgment of such
Revolving Lender, such designation will avoid the need for, or reduce the
amount of, such compensation and will not be otherwise disadvantageous to such
Revolving Lender.


 


SECTION 2.23.  Increase in or Conversion of Commitments.  (a)The Parent Borrower, by written notice to
the Administrative Agent, may (i) (A) from time to time request that
the Class A Revolving Commitments be increased and (B) on one
occasion, request that the Revolving Commitments be increased pursuant to the
creation of an additional class of Revolving Commitments (“Class C
Revolving Commitments” and the lender or lenders providing such Class C
Revolving Commitments, the “Class C Revolving Lenders”), which Class C
Revolving Commitments shall have the terms described in paragraph (e) below;
provided that (x) the aggregate amount of the Class C 


 


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Revolving Commitments shall
not exceed $7,500,000 and (y) the aggregate amount of the Revolving
Commitments after giving effect to any increase in Revolving Commitments
pursuant to this clause (i) shall not exceed $90,000,000 and (ii) from
time to time convert the Class B Revolving Commitment of any Class B
Revolving Lender (that shall have elected in writing to so convert) to a Class A
Revolving Commitment, provided that no Class B Revolving Lender
shall have any obligation to so convert. 
Any such notice shall set forth (i) the amount of the requested
increase or conversion, (ii) the date on which such increase or conversion
is requested to become effective (which shall be not less than 10 Business Days
or more than 60 days after the date of such notice unless otherwise agreed by
the Parent Borrower and the Administrative Agent) and (iii) each financial
institution that is willing to extend Class A Revolving Commitments or Class C
Revolving Commitments and each Class B Revolving Lender that is willing to
convert its Class B Revolving Commitment to a Class A Revolving
Commitment, as applicable (each, a “New Revolving Lender”); provided
that each New Revolving Lender shall be subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld or
delayed) and each New Revolving Lender shall execute all such documentation as
the Administrative Agent shall reasonably specify to evidence its Class A
Revolving Commitment or its Class C Revolving Commitment and/or its status
as a Class A Revolving Lender or a Class C Revolving Lender
hereunder, as the case may be.


 


(b) On
the effective date (the “Increase Effective Date”) of any increase in
the Class A Revolving Commitments or addition of Class C Revolving
Commitments or conversion of Class B Revolving Commitments pursuant to
this Section 2.23 (a “Commitment Increase”) (i) if any Class A
Revolving Loans are outstanding, the Parent Borrower (A) shall prepay all Class A
Revolving Loans then outstanding (including all accrued but unpaid interest
thereon) and (B) may, at its option, fund such prepayment by
simultaneously borrowing Class A Revolving Loans (and, if applicable,
loans under the Class C Revolving Commitments) in accordance with this
Agreement, which Class A Revolving Loans (and, if applicable, loans under
the Class C Revolving Commitments) shall be made by the Class A
Revolving Lenders ratably in accordance with their respective unused Revolving
Commitments (calculated after giving effect to the Commitment Increase) and (ii) in
the case of any conversion of a Class B Revolving Commitment to a Class A
Revolving Commitment, if any Class B Revolving Loans are outstanding, the
Parent Borrower (A) shall prepay all Class B Revolving Loans then
outstanding (including all accrued but unpaid interest thereon) and (ii) may,
at its option, fund such prepayment by simultaneously borrowing Class B
Revolving Loans in accordance with this Agreement, which Class B Revolving
Loans shall be made by the Class B Revolving Lenders ratably in accordance
with their respective Class B Revolving Applicable Percentages (calculated
after giving effect to the conversion of such New Class A Revolving
Lender’s Class B Revolving Commitment into a Class A Revolving
Commitment).  The payments made pursuant
to clauses (i) and (ii) above in respect of Eurodollar Revolving
Loans of each Class shall be subject to Section 2.16.


 


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(c) New
Class A Revolving Commitments or Class C Revolving Commitments created
pursuant to this Section 2.23 shall become effective on the date specified
in the notice delivered by the Parent Borrower pursuant to the first sentence
of paragraph (a) above unless otherwise agreed by the Parent Borrower and
the Administrative Agent.  Any Commitment
Increase shall become effective pursuant to an amendment (the “Incremental
Amendment”) to this Agreement executed by the Parent Borrower, each New
Revolving Lender and the Administrative Agent. 
Any Incremental Amendment may, without the consent of any other Lenders,
effect such amendments to this Agreement and the other Loan Documents as may be
necessary or appropriate, in the reasonable opinion of the Administrative Agent
and the Parent Borrower, to effect the provisions of this Section.


 


(d) Notwithstanding
the foregoing, no increase in the total Class A Revolving Commitments
(including any increase resulting from the conversion of Class B Revolving
Commitments) or addition of Class C Revolving Commitments or addition of a
New Revolving Lender shall become effective under this Section unless (i) on
the effective date of such increase or addition, the conditions set forth in Section 4.02
shall be satisfied as though a Borrowing were being made on such date and the
Administrative Agent shall have received a certificate to that effect dated
such date and executed by the President, a Vice President or a Financial
Officer of Holdings and the Parent Borrower and (ii) the Administrative
Agent shall have received (with sufficient copies for each of the Class A
Revolving Lenders and, if applicable, Class C Revolving Lenders) documents
consistent with those delivered on the Restatement Effective Date as to the
corporate power and authority of the Parent Borrower to borrow hereunder after
giving effect to such increase or addition (or, if such documents delivered on
the Restatement Effective Date already contemplate an increase in an amount at
least equal to the amount of such increase, stating that such documents remain
in full force and effect on the date of such increase and have not been
annulled, modified, rescinded or revoked).


 


(e) Any
Class C Revolving Commitments shall have the same terms as those
applicable to Class A Revolving Commitments hereunder (including maturity,
interest rate margin and commitment fees) and shall be treated as Class A
Revolving Commitments for all purposes, except that Class C Revolving
Lenders shall not participate in Revolving Letters of Credit or Swingline
Loans.


 


SECTION 2.24.  Defaulting Lenders.  Notwithstanding any provision of this
Agreement to the contrary, if any Class A Revolving Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as
such Lender is a Defaulting Lender:


 


(a) Fees
shall cease to accrue on the unfunded portion of the Class A Revolving
Commitment of such Defaulting Lender pursuant to Section 2.12(a).


 


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(b) The
Class A Revolving Commitment and Revolving Credit Exposure of such
Defaulting Lender shall not be included in determining whether the requisite
Lenders have taken or may take any action hereunder (including any consent to
any amendment or waiver pursuant to Section 10.02); provided that any
waiver, amendment or modification requiring the consent of all Lenders or each
affected Lender which affects such Defaulting Lender differently than other
affected Lenders shall require the consent of such Defaulting Lender.


 


(c) If
any Swingline Exposure or Revolving LC Exposure exists at the time a Class A
Revolving Lender becomes a Defaulting Lender then (i) all or any part of
such Swingline Exposure and Revolving LC Exposure shall be reallocated among
the Class A Revolving Lenders that are not Defaulting Lenders in
accordance with their respective Class A Revolving Applicable Percentages
but only to the extent (x) the sum of all such non-Defaulting Lenders’ Class A
Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and
Revolving LC Exposure does not exceed the total of all such non-Defaulting
Lenders’ Class A Revolving Commitments and (y) the conditions set
forth in Section 4.02 are satisfied at such time.  In the case of any such reallocation, the
fees payable to the Class A Revolving Lenders pursuant to Section 2.12(a) and
Section 2.12(b)(i) shall be adjusted in accordance with such
non-Defaulting Lenders’ Class A Revolving Applicable Percentages.


 


(d) If
the reallocation described in clause (c) above cannot, or can only
partially, be effected, the Parent Borrower shall, within one Business Day
following notice by the Administrative Agent (x) first, prepay such
Swingline Exposure and (y) second, cash collateralize such Defaulting
Lender’s Revolving LC Exposure (after giving effect to any partial reallocation
pursuant to clause (c) above) in accordance with the procedures set forth
in Section 2.05(j) for so long as such Revolving LC Exposure is
outstanding.  In the case of any such
cash collateralization, the Parent Borrower shall not be required to pay any
fees to such Defaulting Lender pursuant to Section 2.12(b)(i) with
respect to such Defaulting Lender’s Revolving LC Exposure for so long as such
Defaulting Lender’s Revolving LC Exposure is cash collateralized.


 


(e) If
any Defaulting Lender’s Revolving LC Exposure is neither cash collateralized
nor reallocated pursuant to paragraph (c) or (d) above, then, without
prejudice to any rights or remedies of the Issuing Bank or any Class A
Revolving Lender that is not a Defaulting Lender hereunder, all participation
fees payable under Section 2.12(b)(i) with respect to such Defaulting
Lender’s Revolving LC Exposure shall be payable to the Issuing Bank until such
LC Exposure is cash collateralized and/or reallocated pursuant to paragraph (c) and
(d) above.


 


(f) So
long as any Lender is a Defaulting Lender, the Swingline Lender shall not be
required to fund any Swingline Loan and the Issuing Bank shall not be required
to issue, amend or increase any Revolving Letter of Credit, unless it is
satisfied that the related exposure will be 100% covered by the Class A
Revolving 


 


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Commitments
of the Class A Revolving Lenders that are not Defaulting Lenders and/or
cash collateral will be provided by the Parent Borrower in accordance with
paragraph (c) above, and participating interests in any such newly issued
or increased Revolving Letter of Credit or newly made Swingline Loan shall be
allocated among Class A Revolving Lenders that are not Defaulting Lenders
in a manner consistent with paragraph (c) above (and Defaulting Lenders
shall not participate therein).


 


(g) Any
amount payable to such Defaulting Lender hereunder (whether on account of
principal, interest, fees or otherwise and including any amount that would
otherwise be payable to such Defaulting Lender pursuant to Section 2.18,
but excluding Section 2.19(b)) shall, in lieu of being distributed to such
Defaulting Lender, be retained by the Administrative Agent in a segregated
account and, subject to any applicable requirements of law, be applied at such
time or times as may be determined by the Administrative Agent (i) first,
to the payment of any amounts owing by such Defaulting Lender to the
Administrative Agent hereunder, (ii) second, pro rata, to the payment of
any amounts owing by such Defaulting Lender to the Issuing Bank or Swingline
Lender hereunder, (iii) third, to the funding of any Class A
Revolving Loan or the funding or cash collateralization of any participating
interest in any Swingline Loan or Revolving Letter of Credit in respect of
which such Defaulting Lender has failed to fund its portion thereof as required
by this Agreement, as determined by the Administrative Agent, (iv) fourth,
if so determined by the Administrative Agent and the Parent Borrower, held in
such account as cash collateral for future funding obligations of the
Defaulting Lender under this Agreement, (v) fifth, pro rata, to the
payment of any amounts owing to the Parent Borrower or the Class A
Revolving Lenders as a result of any judgment of a court of competent
jurisdiction obtained by the Parent Borrower or any Class A Revolving
Lender against such Defaulting Lender as a result of such Defaulting Lender’s
breach of its obligations under this Agreement and (vi) sixth, to such
Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if such payment is (x) a prepayment of the
principal amount of any Class A Revolving Loans or reimbursement
obligations in respect of Revolving LC Disbursements which a Defaulting Lender
has funded its participation obligations and (y) made at a time when the
conditions set forth in Section 4.02 are satisfied, such payment shall be
applied solely to prepay the Class A Revolving Loans of, and reimbursement
obligations owed to, all Class A Revolving Lenders that are not Defaulting
Lenders pro rata prior to being applied to the prepayment of any Class A
Revolving Loans, or reimbursement obligations owed to, any Defaulting Lender.


 


(h) In
the event that the Administrative Agent, the Parent Borrower, the Issuing Bank
and the Swingline Lender each agrees that a Defaulting Lender has adequately
remedied all matters that caused such Lender to be a Defaulting Lender, then
the Swingline Exposure and Revolving LC Exposure of the Class A Revolving
Lenders shall be readjusted to reflect the inclusion of such Lender’s 


 


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Commitment
and on such date such Lender shall purchase at par such of the Class A
Revolving Loans of the other Class A Revolving Lenders (but not Swingline
Loans) as the Administrative shall determine may be necessary in order for such
Lender to hold such Class A Revolving Loans in accordance with its Class A
Revolving Applicable Percentage.


 


ARTICLE III


 


Representations and
Warranties


 


Each
of Holdings, the Parent Borrower, each Subsidiary Term Borrower (as to itself
only) and each Foreign Subsidiary Borrower (as to itself only) represents and
warrants to the Lenders that:


 


SECTION 3.01.  Organization; Powers.  Each of Holdings, the Parent Borrower and its
Subsidiaries (including the Receivables Subsidiary) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.


 


SECTION 3.02.  Authorization; Enforceability.  The Transactions and Restatement Transactions
to be entered into by each Loan Party are within such Loan Party’s powers and
have been duly authorized by all necessary action.  This Agreement has been duly executed and
delivered by each of Holdings and the Parent Borrower and constitutes, and each
other Loan Document to which any Loan Party is to be a party, when executed and
delivered by such Loan Party, will constitute, a legal, valid and binding
obligation of Holdings, the Parent Borrower or such Loan Party (as the case may
be), enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.


 


SECTION 3.03.  Governmental Approvals; No Conflicts.  The Transactions and Restatement Transactions
and the other transactions contemplated hereby (a) do not require any
consent or approval of, registration or filing with, or any other action by,
any Governmental Authority, except (x) such as have been obtained or made
and are in full force and effect, (y) filings necessary to perfect Liens
created under the Loan Documents and (z) consents, approvals,
registrations, filings or actions the failure of which to obtain or perform
could not reasonably be expected to result in a Material Adverse Effect, (b) will
not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of Holdings, the Parent Borrower or any of its
Subsidiaries (including the Receivables Subsidiary) or any order of any
Governmental Authority, (c) will not violate or result in a default under
any indenture, 


 


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agreement or other
instrument binding upon Holdings, the Parent Borrower or any of its
Subsidiaries (including the Receivables Subsidiary) or its assets, or give rise
to a right thereunder to require any payment to be made by Holdings, the Parent
Borrower or any of its Subsidiaries (including the Receivables Subsidiary),
except for violations, defaults or the creation of such rights that could not
reasonably be expected to result in a Material Adverse Effect, and (d) will
not result in the creation or imposition of any Lien on any asset of Holdings,
the Parent Borrower or any of its Subsidiaries (including the Receivables
Subsidiary), except Liens created under the Loan Documents and Liens permitted
by Section 6.02.


 


SECTION 3.04.  Financial Condition; No Material Adverse
Change.  (a)Holdings has heretofore
furnished to the Lenders its consolidated balance sheet and statements of
income, stockholders equity and cash flows (i) as of and for the fiscal
year ended December 31, 2008, reported on by KPMG LLP, independent public
accountants, and (ii) as of and for the fiscal quarter and the portion of
the fiscal year ended September 30, 2009, certified by its chief financial
officer.  Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of Holdings and its consolidated Subsidiaries as of
such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.


 


(b) [Reserved]


 


(c) Except
as disclosed in the financial statements referred to above or the notes thereto
or in the Information Memorandum, except for the Disclosed Matters and except
for liabilities arising as a result of the Transactions, after giving effect to
the Transactions, none of Holdings, the Parent Borrower or the Subsidiaries
(including the Receivables Subsidiary) has, as of the First Restatement
Effective Date, any contingent liabilities that would be material to Holdings,
the Parent Borrower and the Subsidiaries (including the Receivables
Subsidiary), taken as a whole.


 


(d) Since
December 31, 2005, there has been no event, change or occurrence that,
individually or in the aggregate, has had or could reasonably be expected to
result in a Material Adverse Effect.


 


SECTION 3.05.  Properties.  (a) Each of Holdings, the Parent
Borrower and its Subsidiaries has good title to, or valid leasehold interests
in, all its real and personal property material to its business (including its
Mortgaged Properties), except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to utilize
such properties for their intended purposes.


 


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


 


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(c) Schedule
3.05 sets forth the address of each real property that is owned or leased by
Holdings, the Parent Borrower or any of its Subsidiaries as of the First
Restatement Effective Date after giving effect to the Transactions.


 


(d) As
of the First Restatement Effective Date, none of Holdings, the Parent Borrower
or any of its Subsidiaries has received written notice of any pending or
contemplated condemnation proceeding affecting any Mortgaged Property or any
sale or disposition thereof in lieu of condemnation.  Neither any Mortgaged Property nor any
interest therein is subject to any right of first refusal, option or other
contractual right to purchase such Mortgaged Property or interest therein.


 


SECTION 3.06.  Litigation and Environmental Matters.  (a) There are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority pending
against or, to the knowledge of Holdings or the Parent Borrower, threatened
against or affecting Holdings, the Parent Borrower or any of its Subsidiaries
(including the Receivables Subsidiary) (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that
involve any of the Loan Documents or the Transactions or Restatement
Transactions.


 


(b) Except
for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, none of Holdings, the Parent Borrower or any of its
Subsidiaries (including the Receivables Subsidiary) (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice
of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability.


 


(c) Since
the First Restatement Effective Date, there has been no change in the status of
the Disclosed Matters that, individually or in the aggregate, has resulted in,
or materially increased the likelihood of, a Material Adverse Effect.


 


SECTION 3.07.  Compliance with Laws and Agreements.  Each of Holdings, the Parent Borrower and its
Subsidiaries (including the Receivables Subsidiary) is in compliance with all
laws, regulations and orders of any Governmental Authority applicable to it or
its property and all indentures, agreements and other instruments binding upon
it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.  No Default has occurred and is continuing.


 


SECTION 3.08.  Investment Company Status.  None of Holdings, the Parent Borrower or any
of its Subsidiaries (including the Receivables Subsidiary) is an “investment
company” as defined in, or subject to regulation under, the Investment Company
Act of 1940.


 


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SECTION 3.09.  Taxes. 
Each of Holdings, the Parent Borrower and its Subsidiaries (including
the Receivables Subsidiary) has timely filed or caused to be filed all Tax
returns and reports required to have been filed and has paid or caused to be
paid all Taxes required to have been paid by it, except (a) any Taxes that
are being contested in good faith by appropriate proceedings and for which
Holdings, the Parent Borrower or such Subsidiary (including the Receivables
Subsidiaries), as applicable, has set aside on its books adequate reserves or (b) to
the extent that the failure to do so could not reasonably be expected to result
in a Material Adverse Effect.


 


SECTION 3.10.  ERISA. 
No ERISA Event has occurred or is reasonably expected to occur that,
when taken together with all other such ERISA Events for which liability is
reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect.  As of the First
Restatement Effective Date, the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not,
as of the date of the most recent financial statements reflecting such amounts,
exceed by more than $5,100,000 the fair market value of the assets of all such
underfunded Plans.


 


SECTION 3.11.  Disclosure.  Each of Holdings and the Parent Borrower has
disclosed to the Lenders all agreements, instruments and corporate or other
restrictions to which Holdings, the Parent Borrower or any of its Subsidiaries
(including the Receivables Subsidiary) is subject, and all other matters known
to any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.  Neither the Information Memorandum nor any of
the other reports, financial statements, certificates or other information furnished
by or on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or any other Loan Document or
delivered hereunder or thereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that, with respect to projected financial information, Holdings and the Parent
Borrower represent only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time such projections were
prepared.


 


SECTION 3.12.  Subsidiaries.  Holdings does not have any subsidiaries other
than the Parent Borrower and the Parent Borrower’s Subsidiaries.  Schedule 3.12 sets forth the name of,
and the ownership interest of the Parent Borrower in, each Subsidiary of the
Parent Borrower and identifies each Subsidiary that is a Subsidiary Loan Party,
in each case as of the First Restatement Effective Date.


 


SECTION 3.13.  Insurance.  Schedule 3.13 sets forth a description of all
material insurance policies maintained by or on behalf of Holdings, the Parent
Borrower and the Subsidiaries as of the First Restatement Effective Date.  As of the First Restatement Effective Date,
all premiums due in respect of such insurance have been paid.


 


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SECTION 3.14.  Labor Matters.  As of the Restatement Effective Date, there
are no strikes, lockouts or slowdowns against Holdings, the Parent Borrower or
any Subsidiary pending or, to the knowledge of Holdings or the Parent Borrower,
threatened that could reasonably be expected to have a Material Adverse Effect.  All payments due from Holdings, the Parent
Borrower or any Subsidiary, or for which any claim may be made against
Holdings, the Parent Borrower or any Subsidiary, on account of wages and
employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of Holdings, the Parent Borrower or such
Subsidiary except for those which, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.  The consummation of the Transactions or
Restatement Transactions will not give rise to any right of termination or
right of renegotiation on the part of any union under any collective bargaining
agreement to which Holdings, the Parent Borrower or any Subsidiary is bound.


 


SECTION 3.15.  Solvency.  Immediately after the consummation of the
Transactions to occur on the First Restatement Effective Date and immediately
following the making of each Loan made on the First Restatement Effective Date
and after giving effect to the application of the proceeds of such Loans, (a) the
fair value of the assets of each Loan Party, at a fair valuation, will exceed
its debts and liabilities, subordinated, contingent or otherwise; (b) the
present fair saleable value of the property of each Loan Party will be greater
than the amount that will be required to pay the probable liability of its
debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (c) each Loan
Party will be able to pay its debts and liabilities, subordinated, contingent
or otherwise, as such debts and liabilities become absolute and matured; and (d) the
Loan Parties, on a consolidated basis, will not have unreasonably small capital
with which to conduct the business in which it is engaged as such business is
now conducted and is proposed to be conducted following the First Restatement
Effective Date.


 


SECTION 3.16.  Senior Indebtedness.  The Obligations constitute “Senior
Indebtedness” under and as defined in the Subordinated Notes Documents.


 


SECTION 3.17.  Security Documents.  (a) The Pledge Agreement is effective to
create in favor of the Collateral Agent, for the benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral (as
defined in the Pledge Agreement) and, when such Collateral is delivered to the
Collateral Agent and for so long as the Collateral Agent remains in possession
of such Collateral, the security interest created by the Pledge Agreement shall
constitute a perfected first priority security interest in all right, title and
interest of the pledgor thereunder in such Collateral, in each case prior and
superior in right to any other Person.


 


(b) The
Security Agreement is effective to create in favor of the Collateral Agent, for
the benefit of the Secured Parties, a legal, valid and enforceable security
interest in the Collateral (as defined in the Security Agreement) and, when
financing statements in appropriate form are filed in the offices specified on
Schedule 6 to the Perfection Certificate, the security interest created by
the Security Agreement shall 


 


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constitute a perfected
security interest in all right, title and interest of the grantors thereunder
in such Collateral (other than the Intellectual Property (as defined in the
Security Agreement)), in each case prior and superior in right to any other
Person, other than with respect to Liens permitted by Section 6.02.


 


(c) When
the Security Agreement (or a summary thereof) is filed in the
United States Patent and Trademark Office and the United States
Copyright Office and the financing statements referred to in Section 3.17(b) above
are appropriately filed, the security interest created by the Security
Agreement shall constitute a perfected security interest in all right, title
and interest of the grantors thereunder in the Intellectual Property (as
defined in the Security Agreement) in which a security interest may be
perfected by filing, recording or registering a security agreement, financing
statement or analogous document in the United States Patent and Trademark
Office or the United States Copyright Office, as applicable, in each case prior
and superior in right to any other Person (it being understood that subsequent
recordings in the United States Patent and Trademark Office and the
United States Copyright Office and subsequent UCC filings may be necessary
to perfect a lien on registered trademarks, trademark applications and
copyrights acquired by the Loan Parties after the Original Effective Date),
other than with respect to Liens permitted by Section 6.02.


 


(d) The
Mortgages are effective to create, subject to the exceptions listed in each
title insurance policy covering such Mortgage, in favor of the Collateral
Agent, for the benefit of the Secured Parties, a legal, valid and enforceable
Lien on all of the applicable mortgagor’s right, title and interest in and to
the Mortgaged Properties thereunder and the proceeds thereof, and when the
Mortgages are filed in the offices specified on Schedule 3.17(d), the Lien
created by each Mortgage shall constitute a perfected Lien on all right, title
and interest of the applicable mortgagor in such Mortgaged Properties and the
proceeds thereof, in each case prior and superior in right to any other Person,
other than with respect to the rights of Persons pursuant to Liens permitted by
Section 6.02.


 


(e) Following
the execution of any Foreign Security Document pursuant to Section 4.03,
each Foreign Security Document shall be effective to create in favor of the
Collateral Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable security interest in the applicable collateral covered by such
Foreign Security Document, and when the actions specified in such Foreign
Security Document, if any, are completed, the security interest created by such
Foreign Security Document shall constitute a perfected security interest in all
right, title and interest of the grantors thereunder in such collateral to the
full extent possible under the laws of the applicable foreign jurisdiction, in
each case prior and superior in right to any other Person, other than with
respect to Liens permitted by Section 6.02.


 


SECTION 3.18.  Federal Reserve Regulations.  (a) None of Holdings, the Parent Borrower
or any of the Subsidiaries (including the Receivables Subsidiary) is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.


 


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(b) No
part of the proceeds of any Loan or any Letter of Credit will be used, whether
directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of the provisions of
the Regulations of the Board, including Regulation U or X.


 


ARTICLE IV


 


Conditions


 


SECTION 4.01.  [Intentionally Omitted.]


 


SECTION 4.02.  Each Credit Event.  The obligation of each Lender to make a Loan
on the occasion of any Borrowing (other than (i) any Class A Revolving
Loan made pursuant to Section 2.04(c) or Section 2.05(d) and
(ii) any continuation or conversion of a Borrowing pursuant to the terms
hereof that does not result in the increase of the aggregate principal amount
of the Borrowings then outstanding), of each Tranche B-1 Lender to make a
deposit, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to receipt of the request therefor in accordance herewith
and to the satisfaction of the following conditions:


 


(a) The
representations and warranties of each Loan Party set forth in the Loan
Documents shall be true and correct on and as of the date of such Borrowing or
the date of issuance, amendment, renewal or extension of such Letter of Credit,
as applicable.


 


(b) At
the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default shall have occurred and be continuing.


 


Each
Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by Holdings
and the Parent Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.


 


SECTION 4.03.  Credit Events Relating to Foreign
Subsidiary Borrowers.  The obligation
of each Lender to make Loans to any Foreign Subsidiary Borrower, and of the
Issuing Bank to issue, amend, renew or extend any Letter of Credit to any
Foreign Subsidiary Borrower, is subject to the satisfaction of the following
conditions:


 


(a) With
respect to the initial Loan made or the initial Letter of Credit issued,
whichever comes first, to such Foreign Subsidiary Borrower,


 


(i) the
Administrative Agent (or its counsel) shall have received such Foreign
Subsidiary Borrower’s Foreign Subsidiary Borrowing Agreement duly executed by
all parties thereto; and


 


(ii) the
Administrative Agent shall have received such documents (including legal
opinions) and certificates as the Administrative Agent or its 


 


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counsel
may reasonably request relating to the formation, existence and good standing
of such Foreign Subsidiary Borrower, the authorization of the Foreign Currency
Borrowings as they relate to such Foreign Subsidiary Borrower and any other
legal matters relating to such Foreign Subsidiary Borrower or its Foreign
Subsidiary Borrowing Agreement, all in form and substance satisfactory to the
Administrative Agent and its counsel.


 


(b) With
respect to any Borrowing following which the aggregate amount of outstanding
Foreign Currency Borrowings exceeds the Dollar Equivalent of $5,000,000, the
Administrative Agent shall be satisfied that the Foreign Security Collateral
and Guarantee Requirement shall be satisfied with respect to all Foreign
Subsidiary Borrowers.


 


ARTICLE V


 


Affirmative Covenants


 


Until
the Commitments have expired or been terminated and the principal of and
interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, each of Holdings, the Parent
Borrower, each Subsidiary Term Borrower (as to itself only) and each Foreign
Subsidiary Borrower (as to itself only) covenants and agrees with the Lenders
that:


 


SECTION 5.01.  Financial Statements and Other
Information.  Holdings or the Parent
Borrower will furnish to the Administrative Agent and each Lender:


 


(a) within
95 days after the end of each fiscal year of Holdings, its audited
consolidated and unaudited consolidating balance sheet and related statements
of operations, stockholders’ equity and cash flows as of the end of and for
such year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by KPMG LLP or other independent public
accountants of recognized national standing (without a “going concern” or like
qualification or exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and results of
operations of Holdings and its consolidated subsidiaries on a consolidated
basis in accordance with GAAP consistently applied (it being understood that
the obligation to furnish the foregoing to the Administrative Agent and the
Lenders shall be deemed to be satisfied in respect of any fiscal year of
Holdings by the filing of Holdings’ annual report on Form 10-K for such
fiscal year with the Commission to the extent the foregoing are included
therein);


 


(b) within
50 days after the end of each of the first three fiscal quarters of each
fiscal year of Holdings, its consolidated balance sheet and related statements
of operations, stockholders’ equity and cash flows as of the end of and for
such fiscal quarter and the then elapsed portion of the fiscal year, setting
forth in each case in comparative form the figures for the corresponding period
or periods of (or, in the case of 


 


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the balance sheet, as of the
end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of Holdings and its consolidated subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes (it being
understood that the obligation to furnish the foregoing to the Administrative
Agent and the Lenders shall be deemed to be satisfied in respect of any fiscal
quarter of Holdings by the filing of Holdings’ quarterly report on Form 10-Q
for such fiscal quarter with the Commission to the extent the foregoing are
included therein);


 


(c) concurrently
with any delivery of financial statements under clause (a) or (b) above,
a certificate of a Financial Officer of Holdings or the Parent Borrower (i) certifying
as to whether a Default has occurred and, if a Default has occurred, specifying
the details thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations demonstrating
compliance with Sections 6.12, 6.13 and 6.14, (iii) stating
whether any change in GAAP or in the application thereof has occurred since the
date of Holdings’ audited financial statements referred to in Section 3.04
and, if any such change has occurred, specifying the effect of such change on
the financial statements accompanying such certificate, (iv) identifying
all Subsidiaries existing on the date of such certificate and indicating, for
each such Subsidiary, whether such Subsidiary is a Subsidiary Loan Party or a
Foreign Subsidiary and whether such Subsidiary was formed or acquired since the
end of the previous fiscal quarter and (v) to the extent that the Asset
Dropdown has not been completed, describing the status of the Asset Dropdown;


 


(d) concurrently
with any delivery of financial statements under clause (a) above, (i) a
certificate of the accounting firm that reported on such financial statements
stating whether they obtained knowledge during the course of their examination
of such financial statements of any Default (which certificate may be limited
to the extent required by accounting rules or guidelines) and (ii) a
certificate of a Financial Officer of Holdings or the Parent Borrower (A) identifying
any parcels of real property or improvements thereto with a value exceeding
$750,000 that have been acquired by any Loan Party since the end of the
previous fiscal year, (B) identifying any changes of the type described in
Section 5.03(a) that have not been previously reported by the Parent
Borrower, (C) identifying any Permitted Acquisitions that have been
consummated since the end of the previous fiscal year, including the date on
which each such Permitted Acquisition was consummated and the consideration
therefor, (D) identifying any Intellectual Property (as defined in the
Security Agreement) with respect to which a notice is required to be delivered
under the Security Agreement and has not been previously delivered and (E) identifying
any Prepayment Events that have occurred since the end of the previous fiscal
year and setting forth a reasonably detailed calculation of the Net Proceeds
received from Prepayment Events since the end of such previous fiscal year;


 


(e) no
later than February 15 of each fiscal year of Holdings (commencing with
the fiscal year ending December 31, 2005), a detailed consolidated budget
for such 


 


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fiscal year (including a
projected consolidated balance sheet and related statements of projected
operations and cash flow as of the end of and for such fiscal year and setting
forth the assumptions used for purposes of preparing such budget) and, promptly
when available, any material revisions of such budget that have been approved
by senior management of Holdings;


 


(f) promptly
after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by Holdings, the Parent
Borrower or any Subsidiary with the Commission or with any national securities
exchange, as the case may be (it being understood that the obligation to
furnish the foregoing to the Administrative Agent and the Lenders shall be
deemed to be satisfied to the extent the foregoing are filed with the
Commission); and


 


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


 


SECTION 5.02.  Notices of Material Events.  Holdings and the Parent Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:


 


(a) the
occurrence of any Default;


 


(b) the
filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting Holdings, the Parent
Borrower or any Subsidiary thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;


 


(c) the
occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability
of Holdings, the Parent Borrower and its Subsidiaries in an aggregate amount
exceeding $10,000,000; and


 


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


 


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


 


SECTION 5.03.  Information Regarding Collateral.  (a) The Parent Borrower will furnish to
the Administrative Agent prompt written notice of any change (i) in any
Loan Party’s legal name or in any trade name used to identify it in the conduct
of its business or in the ownership of its properties, (ii) in the
location of any Loan Party’s chief executive office, its principal place of
business, any office in which it 


 


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maintains books or records
relating to Collateral owned by it or any office or facility at which
Collateral owned by it is located (including the establishment of any such new
office or facility), (iii) in any Loan Party’s identity or structure, (iv) in
any Loan Party’s jurisdiction of organization or (v) in any Loan Party’s
Federal Taxpayer Identification Number. 
The Parent Borrower agrees not to effect or permit any change referred
to in the preceding sentence unless written notice has been delivered to the
Collateral Agent, together with all applicable information to enable the
Administrative Agent to make all filings under the Uniform Commercial Code or
otherwise that are required in order for the Collateral Agent (on behalf of the
Secured Parties) to continue at all times following such change to have a
valid, legal and perfected security interest in all the Collateral.


 


(b) Each
year, at the time of delivery of annual financial statements with respect to
the preceding fiscal year pursuant to clause (a) of Section 5.01,
Holdings (on behalf of itself and the other Loan Parties) shall deliver to the
Administrative Agent a certificate of a Financial Officer of Holdings (i) setting
forth the information required pursuant to the Perfection Certificate or
confirming that there has been no change in such information since the date of
the Perfection Certificate delivered on the Original Effective Date or the date
of the most recent certificate delivered pursuant to this Section and (ii) certifying
that all Uniform Commercial Code financing statements (including fixture
filings, as applicable) or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations,
containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
identified pursuant to clause (i) above to the extent necessary to protect
and perfect the security interests under the Collateral Agreement for a period
of not less than 18 months after the date of such certificate (except as noted
therein with respect to any continuation statements to be filed within such
period).


 


SECTION 5.04.  Existence; Conduct of Business; Asset
Dropdown.  (a) Each of Holdings,
the Parent Borrower and the Foreign Subsidiary Borrowers will, and will cause
each of the Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges, franchises, patents, copyrights,
trademarks and trade names the loss of which would have a Material Adverse
Effect; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03 or
disposition permitted under Section 6.05. 
Holdings and the Parent Borrower will cause all the Equity Interests of
the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers to be owned,
directly or indirectly, by the Parent Borrower or any Subsidiary, and the
Subsidiary Term Borrowers shall at all times remain a guarantor under the
Guarantee Agreement.


 


(b) Holdings
shall complete the Asset Dropdown as soon as reasonably practicable and in any
event on or prior to the date that is 90 days after the Original Effective
Date.


 


SECTION 5.05.  Payment of Obligations.  Each of Holdings, the Parent Borrower, the
Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers will, 


 


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and will cause each of the
Subsidiaries (including the Receivables Subsidiary) to, pay its Indebtedness
and other obligations, including Tax liabilities, before the same shall become
delinquent or in default, except where (a) the validity or amount thereof
is being contested in good faith by appropriate proceedings, (b) Holdings,
the Parent Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary
Borrowers or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP, (c) such contest effectively
suspends collection of the contested obligation and the enforcement of any Lien
securing such obligation and (d) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse
Effect.


 


SECTION 5.06.  Maintenance of Properties.  Each of Holdings, the Parent Borrower, the
Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers will, and will
cause each of the Subsidiaries to, keep and maintain all property material to
the conduct of their business, taken as a whole, in good working order and
condition, ordinary wear and tear excepted; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 6.03 or disposition permitted under Section 6.05.


 


SECTION 5.07.  Insurance.  Each of Holdings, the Parent Borrower, the
Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers will, and will
cause each of the Subsidiaries to, maintain insurance in such amounts (with no
greater risk retention) and against such risks as are customarily maintained by
companies of established repute engaged in the same or similar businesses
operating in the same or similar locations, except where the failure to do so
could not reasonably be expected to result in a Material Adverse Effect.  Such insurance shall be maintained with
financially sound and reputable insurance companies, except that a portion of
such insurance program (not to exceed that which is customary in the case of
companies engaged in the same or similar business or having similar properties
similarly situated) may be effected through self-insurance, provided
adequate reserves therefor, in accordance with GAAP, are maintained.  In addition, each of Holdings, the Parent
Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers
will, and will cause each of its Subsidiaries to, maintain all insurance
required to be maintained pursuant to the Security Documents.  The Parent Borrower will furnish to the
Lenders, upon request of the Administrative Agent, information in reasonable
detail as to the insurance so maintained. 
All insurance policies or certificates (or certified copies thereof)
with respect to such insurance shall be endorsed to the Collateral Agent’s
reasonable satisfaction for the benefit of the Lenders (including, without
limitation, by naming the Collateral Agent as loss payee or additional insured,
as appropriate).


 


SECTION 5.08.  Casualty and Condemnation.  The Parent Borrower (a) will furnish to
the Administrative Agent and the Lenders prompt written notice of casualty or
other insured damage to any material portion of any Collateral having a book
value or fair market value of $1,000,000 or more or the commencement of any action
or proceeding for the taking of any Collateral having a book value or fair
market value of $1,000,000 or more or any part thereof or interest therein
under power of eminent domain 


 


101

















 


or by condemnation or
similar proceeding and (b) will ensure that the Net Proceeds of any such
event (whether in the form of insurance proceeds, condemnation awards or
otherwise) are collected and applied in accordance with the applicable
provisions of this Agreement and the Security Documents.


 


SECTION 5.09.  Books and Records; Inspection and Audit
Rights.  Each of Holdings, the Parent
Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers
will, and will cause each of the Subsidiaries to, keep proper books of record
and account in which full, true and correct entries are made of all dealings
and transactions in relation to its business and activities.  Each of Holdings, the Parent Borrower, the
Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers will, and will
cause each of the Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit and
inspect its properties, to examine and make extracts from its books and records,
and to discuss its affairs, finances and condition with its officers and
independent accountants, all at such reasonable times and as often as
reasonably requested.


 


SECTION 5.10.  Compliance with Laws.  Each of Holdings, the Parent Borrower, the
Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers will, and will
cause each of the Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.


 


SECTION 5.11.  Use of Proceeds and Letters of Credit.  The Parent Borrower and the Subsidiary Term
Borrowers will use on the First Restatement Effective Date the proceeds of the
Tranche B Term Loan solely (a) to repay amounts outstanding under the
Existing Credit Agreement and (b) to pay costs and expenses in connection
with such repayment.  The proceeds of the
Revolving Loans, Tranche B-1 Loans and Swingline Loans will be used only for
general corporate purposes and, to the extent permitted by Section 6.01(a)(i),
Permitted Acquisitions.  Letters of
Credit will be available only for general corporate purposes.  No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations T, U and X.


 


SECTION 5.12.  Additional Subsidiaries.  If any additional Subsidiary is formed or
acquired after the Original Effective Date, the Parent Borrower will, within
five Business Days after such Subsidiary is formed or acquired, notify the
Administrative Agent and the Lenders thereof and, within five Business Days
after such Subsidiary is formed or acquired, cause the Collateral and Guarantee
Requirement to be satisfied with respect to any Equity Interest in or
Indebtedness of such Subsidiary owned by or on behalf of any Loan Party.


 


SECTION 5.13.  Further Assurances.  (a) Each of Holdings, the Parent Borrower,
the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers will, and
will cause each Subsidiary Loan Party to, execute any and all further
documents, 


 


102

















 


financing statements,
agreements and instruments, and take all such further actions (including the
filing and recording of financing statements, fixture filings, mortgages, deeds
of trust, landlord waivers and other documents), which may be required under
any applicable law, or which the Administrative Agent or the Required Lenders
may reasonably request, to cause the Collateral and Guarantee Requirement to be
and remain satisfied, all at the expense of the Loan Parties.  Holdings, the Parent Borrower, the Subsidiary
Term Borrowers and the Foreign Subsidiary Borrowers also agree to provide to
the Administrative Agent, from time to time upon request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority of
the Liens created or intended to be created by the Security Documents.


 


(b) If
any assets (including any real property or improvements thereto or any interest
therein) having a book value or fair market value of $1,000,000 or more in the
aggregate are acquired by the Parent Borrower or any Subsidiary Loan Party
after the Original Effective Date or through the acquisition of a Subsidiary
Loan Party under Section 5.12 (other than, in each case, assets
constituting Collateral under the Security Agreement or the Pledge Agreement
that become subject to the Lien of the Security Agreement or the Pledge
Agreement upon acquisition thereof), the Parent Borrower or, if applicable, the
relevant Subsidiary Loan Party will notify the Administrative Agent and the
Lenders thereof, and, if reasonably requested by the Administrative Agent or
the Required Lenders, the Parent Borrower will cause such assets to be
subjected to a Lien securing the Obligations and will take, and cause the
Subsidiary Loan Parties to take, such actions as shall be necessary or
reasonably requested by the Administrative Agent to grant and perfect such
Liens, including actions described in paragraph (a) of this Section,
all at the expense of the Loan Parties.


 


SECTION 5.14.  Interest Rate Protection.  As promptly as practicable, and in any event
within 90 days after the Original Effective Date, the Parent Borrower will
enter into with one or more Lenders, and thereafter for a period of not less
than three years will maintain in effect, one or more interest rate protection
agreements on such terms as shall be reasonably satisfactory to the
Administrative Agent, the effect of which shall be to fix or limit the interest
cost to the Parent Borrower with respect to at least 50% of the sum of (x) the
outstanding Tranche B Term Loans, (y) the outstanding Subordinated Debt
and (z) any other outstanding Indebtedness that may not be reborrowed
following a repayment thereof.


 


ARTICLE VI


 


Negative Covenants


 


Until
the Commitments have expired or terminated and the principal of and interest on
each Loan and all fees payable hereunder have been paid in full and all Letters
of Credit have expired or terminated and all LC Disbursements shall have been
reimbursed, each of Holdings, the Parent Borrower, each Subsidiary Term
Borrower (as to itself only) and each Foreign Subsidiary Borrower (as to itself
only) covenants and agrees with the Lenders that:


 


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SECTION 6.01.  Indebtedness; Certain Equity Securities.  (a) None of Holdings, the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will,
nor will they permit any Subsidiary to, create, incur, assume or permit to
exist any Indebtedness, except:


 


(i) Indebtedness
created under the Loan Documents;


 


(ii) (A) the
Permitted Receivables Financing and (B) financings in respect of sales of
accounts receivable by a Foreign Subsidiary permitted by Section 6.05(c)(ii);


 


(iii) Indebtedness
existing on the First Restatement Effective Date and set forth in
Schedule 6.01(a)(iii) and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding principal amount as
specified on such Schedule 6.01(a)(iii) or result in an earlier maturity
date or decreased weighted average life thereof;


 


(iv) the
Existing Subordinated Notes and refinancings thereof with Replacement
Subordinated Notes;


 


(v) the
Permitted Acquisition Subordinated Notes, the Permitted Subordinated Notes and
the Permitted Senior Notes;


 


(vi) Indebtedness
of the Parent Borrower to any Subsidiary and of any Subsidiary to the Parent
Borrower or any other Subsidiary; provided that Indebtedness of any
Subsidiary that is not a Domestic Loan Party to the Parent Borrower or any
Subsidiary Loan Party shall be subject to Section 6.04;


 


(vii) Guarantees
by the Parent Borrower of Indebtedness of any Subsidiary and by any Subsidiary
of Indebtedness of the Parent Borrower or any other Subsidiary; provided
that (A) Guarantees by the Parent Borrower or any Subsidiary Loan Party of
Indebtedness of any Subsidiary that is not a Domestic Loan Party shall be
subject to Section 6.04 and (B) this clause (vii) shall not
apply to the Existing Subordinated Notes, the Permitted Subordinated Notes, the
Permitted Senior Notes or the Permitted Acquisition Subordinated Notes;


 


(viii) Guarantees
by Holdings, the Parent Borrower or any Subsidiary, as the case may be, in
respect of the Existing Subordinated Notes, the Permitted Subordinated Notes,
the Permitted Senior Notes, the Permitted Acquisition Subordinated Notes or
Permitted Subordinated Notes Refinancing Indebtedness; provided that
none of Holdings, the Parent Borrower or any Subsidiary, as the case may be,
shall Guarantee the Existing Subordinated Notes, the Permitted Subordinated
Notes, the Permitted Senior Notes, the Permitted Acquisition Subordinated Notes
or Permitted Subordinated Notes Refinancing Indebtedness unless (A) it
also has Guaranteed the Obligations pursuant to the Guarantee Agreement and (B) such
Guarantee of the Existing Subordinated Notes, the Permitted Subordinated Notes,
or the Permitted Acquisition 


 


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Subordinated
Notes is subordinated to such Guarantee of the Obligations on terms no less
favorable to the Lenders than the subordination provisions of the Existing
Subordinated Notes;


 


(ix) Indebtedness
of the Parent Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital
Lease Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets prior to
the acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof or
result in an earlier maturity date or decreased weighted average life thereof; provided
that (A) such Indebtedness is incurred prior to or within 180 days
after such acquisition or the completion of such construction or improvement
and (B) the aggregate principal amount of Indebtedness permitted by this
clause (ix) shall not exceed $30,000,000 (which amount shall increase
to $50,000,000 upon completion of the IPO Repayment Event) at any time
outstanding;


 


(x) Indebtedness
arising as a result of an Acquisition Lease Financing or any other sale and
leaseback transaction permitted under Section 6.06;


 


(xi)
Indebtedness of any Person that becomes a Subsidiary after the First
Restatement Effective Date; provided that (A) such Indebtedness
exists at the time such Person becomes a Subsidiary and is not created in
contemplation of or in connection with such Person becoming a Subsidiary and (B) the
aggregate principal amount of Indebtedness permitted by this clause (xi)
shall not exceed $25,000,000 (which amount shall increase to $40,000,000 upon
completion of the IPO Repayment Event) at any time outstanding, less the
liquidation value of any outstanding Assumed Preferred Stock;


 


(xii)
Indebtedness of Holdings, the Parent Borrower or any Subsidiary in respect of
workers’ compensation claims, self-insurance obligations, performance bonds,
surety appeal or similar bonds and completion guarantees provided by Holdings,
the Parent Borrower and the Subsidiaries in the ordinary course of their
business;


 


(xiii)
other unsecured Indebtedness of Holdings, the Parent Borrower or any Subsidiary
in an aggregate principal amount not exceeding $15,000,000 (which amount shall
increase to $25,000,000 upon completion of the IPO Repayment Event) at any time
outstanding, less the liquidation value of any applicable Qualified Holdings
Preferred Stock issued and outstanding pursuant to clause (b) of the
definition of Qualified Holdings Preferred Stock;


 


(xiv)
secured Indebtedness incurred (A) prior to the Restatement Effective Date
in compliance with this clause (xiv) as provided in the Existing Credit
Agreement and (B) after the Restatement Effective Date in an aggregate 


 


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amount
not exceeding $25,000,000 at any time outstanding, in each case in respect of
foreign lines of credit;


 


(xv)
Indebtedness arising from the honoring by a bank or other financial institution
of a check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary course of
business; provided, however, that such Indebtedness is
extinguished within ten days of incurrence;


 


(xvi)
Indebtedness arising in connection with endorsement of instruments for deposit
in the ordinary course of business;


 


(xvii)
Indebtedness incurred in connection with the financing of insurance premiums in
an aggregate amount at any time outstanding not to exceed the premiums owed
under such policy, if applicable;


 


(xviii)
contingent obligations to financial institutions, in each case to the extent in
the ordinary course of business and on terms and conditions which are within
the general parameters customary in the banking industry, entered into to
obtain cash management services or deposit account overdraft protection
services (in an amount similar to those offered for comparable services in the
financial industry) or other services in connection with the management or opening
of deposit accounts or incurred as a result of endorsement of negotiable
instruments for deposit or collection purposes and other customary, contingent
obligations of the Parent Borrower and its Subsidiaries incurred in the
ordinary course of business;


 


(xix)
unsecured guarantees by the Parent Borrower or any Subsidiary Loan Party of
facility leases of any Loan Party;


 


(xx)
Indebtedness of the Parent Borrower or any Subsidiary Loan Party under Hedging
Agreements with respect to interest rates, foreign currency exchange rates or
commodity prices, in each case not entered into for speculative purposes; provided
that if such Hedging Agreements relate to interest rates, (A) such Hedging
Agreements relate to payment obligations on Indebtedness otherwise permitted to
be incurred by the Loan Documents and (B) the notional principal amount of
such Hedging Agreements at the time incurred does not exceed the principal
amount of the Indebtedness to which such Hedging Agreements relate; and


 


(xxi)
Permitted Subordinated Notes Refinancing Indebtedness.


 


(b) None
of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign
Subsidiary Borrower will, nor will they permit any Subsidiary to, issue any
preferred stock or other preferred Equity Interests, except (i) Qualified
Holdings Preferred Stock, (ii) Assumed Preferred Stock and (iii) preferred
stock or preferred Equity Interests held by Holdings, the Parent Borrower or
any Subsidiary.


 


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SECTION 6.02.  Liens. 
None of Holdings, the Parent Borrower, any Subsidiary Term Borrower or
any Foreign Subsidiary Borrower will, nor will they permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now
owned or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof, except:


 


(a) Liens
created under the Loan Documents;


 


(b) Permitted
Encumbrances;


 


(c) Liens
in respect of the Permitted Receivables Financing;


 


(d) any
Lien on any property or asset of Holdings, the Parent Borrower or any
Subsidiary existing on the First Restatement Effective Date and set forth in
Schedule 6.02; provided that (i) such Lien shall not apply to
any other property or asset of Holdings, the Parent Borrower or any Subsidiary
and (ii) such Lien shall secure only those obligations which it secures on
the First Restatement Effective Date and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;


 


(e) any
Lien existing on any property or asset prior to the acquisition thereof by the
Parent Borrower or any Subsidiary or existing on any property or asset of any
Person that becomes a Subsidiary after the First Restatement Effective Date
prior to the time such Person becomes a Subsidiary; provided that (i) such
Lien is not created in contemplation of or in connection with such acquisition
or such Person becoming a Subsidiary, as the case may be, (ii) such Lien
shall not apply to any other property or assets of the Parent Borrower or any
Subsidiary and (iii) such Lien shall secure only those obligations which
it secures on the date of such acquisition or the date such Person becomes a
Subsidiary, as the case may be;


 


(f) Liens
on fixed or capital assets acquired, constructed or improved by, or in respect
of Capital Lease Obligations of, the Parent Borrower or any Subsidiary; provided
that (i) such security interests secure Indebtedness permitted by
clause (ix) of Section 6.01(a), (ii) such security
interests and the Indebtedness secured thereby are incurred prior to or within
180 days after such acquisition or the completion of such construction or
improvement, (iii) the Indebtedness secured thereby does not exceed the
cost of acquiring, constructing or improving such fixed or capital assets and (iv) such
security interests shall not apply to any other property or assets of the
Parent Borrower or any Subsidiary;


 


(g) Liens,
with respect to any Mortgaged Property, described in Schedule B-2 of the title
policy covering such Mortgaged Property;


 


(h) Liens
in respect of sales of accounts receivable by Foreign Subsidiaries permitted by
Section 6.05(c)(ii);


 


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(i) other
Liens securing liabilities permitted hereunder in an aggregate amount not
exceeding (i) in respect of consensual Liens, $5,000,000 (which amount
shall increase to $10,000,000 upon completion of the IPO Repayment Event) and (ii) in
respect of all such Liens, $10,000,000 (which amount shall increase to
$20,000,000 upon completion of the IPO Repayment Event), in each case at any
time outstanding;


 


(j) Liens
in respect of Indebtedness permitted by Section 6.01(a)(xiv), provided
that the assets subject to such Liens are not located in the United States;


 


(k) Liens,
rights of setoff and other similar Liens existing solely with respect to cash
and Permitted Investments on deposit in one or more accounts maintained by any
Lender, in each case granted in the ordinary course of business in favor of
such Lender with which such accounts are maintained, securing amounts owing to
such Lender with respect to cash management and operating account arrangements,
including those involving pooled accounts and netting arrangements; provided
that, unless such Liens are non-consensual and arise by operation of law, in no
case shall any such Liens secure (either directly or indirectly) the repayment
of any Indebtedness for borrowed money;


 


(l) licenses
or sublicenses of Intellectual Property (as defined in the Security Agreement)
granted by any Company in the ordinary course of business and not interfering
in any material respect with the ordinary conduct of business of the Company;


 


(m) the
filing of UCC financing statements solely as a precautionary measure in
connection with operating leases or consignment of goods;


 


(n) Liens
for the benefit of a seller deemed to attach solely to cash earnest money
deposits in connection with a letter of intent or acquisition agreement with
respect to a Permitted Acquisition;


 


(o) Liens
deemed to exist in connection with Investments permitted under Section 6.04
that constitute repurchase obligations and in connection with related set-off
rights;


 


(p) Liens
of a collection bank arising in the ordinary course of business under Section 4-210
of the UCC in effect in the relevant jurisdiction covering only the items being
collected upon;


 


(q) Liens
of sellers of goods to the Parent Borrower or any of its Subsidiaries arising
under Article 2 of the UCC in effect in the relevant jurisdiction in the
ordinary course of business, covering only the goods sold and covering only the
unpaid purchase price for such goods and related expenses; and


 


(r) Liens
securing Permitted Subordinated Notes Refinancing Indebtedness.


 


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SECTION 6.03.  Fundamental Changes.  (a) None of Holdings, the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will,
nor will they permit any other Person to merge into or consolidate with it, or
liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing (i) any
Subsidiary may merge into the Parent Borrower in a transaction in which the
Parent Borrower is the surviving corporation, (ii) any Subsidiary may
merge into any Subsidiary in a transaction in which the surviving entity is a
Subsidiary and (if any party to such merger is a Subsidiary Loan Party) is a
Subsidiary Loan Party (provided that, with respect to any such mergers
involving the Subsidiary Term Borrowers or the Foreign Subsidiary Borrowers,
the surviving entity of such mergers shall be a Subsidiary Term Borrower or a
Foreign Subsidiary Borrower, as the case may be) and (iii) any Subsidiary (other
than a Subsidiary Loan Party) may liquidate or dissolve if the Parent Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Parent Borrower and is not materially disadvantageous to the
Lenders; provided that any such merger involving a Person that is not a
wholly owned Subsidiary immediately prior to such merger shall not be permitted
unless also permitted by Section 6.04. 
Notwithstanding the foregoing, this Section 6.03 shall not prohibit
any Permitted Acquisition.


 


(b) The
Parent Borrower will not, and will not permit any of its Subsidiaries to,
engage to any material extent in any business other than businesses of the type
conducted by the Parent Borrower and its Subsidiaries on the date of execution
of this Agreement and businesses reasonably related thereto.


 


(c) Holdings
will not engage in any business or activity other than (i) the ownership
of all the outstanding shares of capital stock of the Parent Borrower, (ii) performing
its obligations (A) under the Loan Documents, (B) under the
Subordinated Notes Documents and the agreements relating to the Permitted
Senior Notes and (C) under the Permitted Receivables Financing, (iii) activities
incidental thereto and to Holdings’s existence, (iv) activities related to
the performance of all its obligations in respect of the Transactions, (v) performing
its obligations under guarantees in respect of sale and leaseback transactions
permitted by Section 6.06 and (vi) other activities (including the
incurrence of Indebtedness and the issuance of its Equity Interests) that are
permitted by this Agreement.  Holdings
will not own or acquire any assets (other than shares of capital stock of the
Parent Borrower and the Permitted Investments or incur any liabilities (other
than liabilities imposed by law, including tax liabilities, liabilities related
to its existence and permitted business and activities specified in the
immediately preceding sentence).


 


(d) The
Receivables Subsidiary will not engage in any business or business activity
other than the activities related to the Permitted Receivables Financing and
its existence.  The Receivables
Subsidiary will not own or acquire any assets (other than the receivables
subject to the Permitted Receivables Financing) or incur any liabilities (other
than the liabilities imposed by law including tax liabilities, and other
liabilities related to its existence and permitted business and activities
specified in the 


 


109

















 


immediately preceding
sentence, including liabilities arising under the Permitted Receivables
Financing).


 


SECTION 6.04.  Investments, Loans, Advances, Guarantees
and Acquisitions.  None of the Parent
Borrower or any Foreign Subsidiary Borrower will, nor will they permit any
Subsidiary to, purchase, hold or acquire (including pursuant to any merger with
any Person that was not a wholly owned Subsidiary prior to such merger) any
Equity Interests in or evidences of indebtedness or other securities (including
any option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person,
or purchase or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person constituting a business unit,
except:


 


(a) Permitted
Investments;


 


(b) investments
existing on the First Restatement Effective Date and set forth on
Schedule 6.04;


 


(c) Permitted
Acquisitions;


 


(d) investments
by the Parent Borrower and the Subsidiaries in Equity Interests in their
respective Subsidiaries that exist immediately prior to any applicable
transaction; provided that (i) any such Equity Interests held by a
Loan Party shall be pledged pursuant to the Pledge Agreement or any applicable
Foreign Security Documents, as the case may be, to the extent required by this
Agreement and (ii) the aggregate amount of investments (excluding any such
investments, loans, advances and Guarantees to such Subsidiaries that are
assumed and exist on the date any Permitted Acquisition is consummated and that
are not made, incurred or created in contemplation of or in connection with
such Permitted Acquisition) by Loan Parties in, and loans and advances by Loan
Parties to, and Guarantees by Loan Parties of Indebtedness of, Subsidiaries
that are not Domestic Loan Parties made after the First Restatement Effective
Date shall not at any time exceed, in the aggregate, $50,000,000;


 


(e) loans
or advances made by the Parent Borrower to any Subsidiary and made by any
Subsidiary to the Parent Borrower or any other Subsidiary; provided that
(i) any such loans and advances made by a Loan Party shall be evidenced by
a promissory note pledged pursuant to the Pledge Agreement and (ii) the
amount of such loans and advances made by Loan Parties to Subsidiaries that are
not Loan Parties shall be subject to the limitation set forth in clause (d) above;


 


(f) Guarantees
permitted by Section 6.01(a)(viii);


 


(g) investments
arising as a result of the Permitted Receivables Financing;


 


(h) investments
constituting permitted Capital Expenditures under Section 6.14;


 


110

















 


(i) investments
received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business;


 


(j) any
investments in or loans to any other Person received as noncash consideration
for sales, transfers, leases and other dispositions permitted by Section 6.05;


 


(k) Guarantees
by Holdings, the Parent Borrower and the Subsidiaries of leases entered into by
any Subsidiary as lessee; provided that the amount of such Guarantees
made by Loan Parties to Subsidiaries that are not Loan Parties shall be subject
to the limitation set forth in clause (d) above;


 


(l) extensions
of credit in the nature of accounts receivable or notes receivable in the
ordinary course of business;


 


(m) loans
or advances to employees made in the ordinary course of business consistent
with prudent business practice and not exceeding $5,000,000 in the aggregate
outstanding at any one time;


 


(n) investments
in the form of Hedging Agreements permitted under Section 6.07;


 


(o) investments
by the Parent Borrower or any Subsidiary in (i) the capital stock of a
Receivables Subsidiary and (ii) other interests in a Receivables
Subsidiary, in each case to the extent required by the terms of the Permitted
Receivables Financing;


 


(p) payroll,
travel and similar advances to cover matters that are expected at the time of
such advances ultimately to be treated as expenses for accounting purposes and
that are made in the ordinary course of business;


 


(q) Permitted
Joint Venture and Foreign Subsidiary Investments;


 


(r) investments,
loans or advances in addition to those permitted by clauses (a) through
(q) above not exceeding in the aggregate $10,000,000 (which amount shall
increase to $20,000,000 upon completion of the IPO Repayment Event) at any time
outstanding; and


 


(s) investments
made with the Net Proceeds of any issuance of Equity Interests of Holdings
subsequent to an IPO.


 


SECTION 6.05.  Asset Sales.  None of Holdings, the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will they
permit any Subsidiary to, sell, transfer, lease or otherwise dispose of any
asset, including any Equity Interest owned by it, nor will they permit any
Subsidiary to issue any additional Equity Interest in such Subsidiary, except:


 


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(a) sales,
transfers, leases and other dispositions of inventory, used or surplus
equipment or other obsolete assets, Permitted Investments and Investments
referred to in Section 6.04(i) in the ordinary course of business;


 


(b) sales,
transfers and dispositions to the Parent Borrower or a Subsidiary; provided
that any such sales, transfers or dispositions involving a Subsidiary that is
not a Domestic Loan Party shall be made in compliance with Section 6.09;


 


(c) (i) sales
of accounts receivable and related assets pursuant to the Receivables Purchase
Agreement and (ii) sales of accounts receivable and related assets by a
Foreign Subsidiary pursuant to customary terms whereby recourse and exposure in
respect thereof to any Foreign Subsidiary does not exceed at any time
$10,000,000.


 


(d) the
creation of Liens permitted by Section 6.02 and dispositions as a result
thereof;


 


(e) sales
or transfers that are permitted sale and leaseback transactions pursuant to Section 6.06;


 


(f) sales
and transfers that constitute part of an Acquisition Lease Financing;


 


(g) Restricted
Payments permitted by Section 6.08;


 


(h) transfers
and dispositions constituting investments permitted under Section 6.04;


 


(i) sales,
transfers and other dispositions of property identified on Schedule 6.05; and


 


(j) sales,
transfers and other dispositions of assets (other than Equity Interests in a
Subsidiary) that are not permitted by any other clause of this Section; provided
that the aggregate fair market value of all assets sold, transferred or
otherwise disposed of in reliance upon this clause (j) shall not exceed (i) 15%
of the aggregate fair market value of all assets of the Parent Borrower
(determined as of the end of its most recent fiscal year), including any Equity
Interest owned by it, during any fiscal year of the Parent Borrower, provided
that such amount shall be increased, in respect of the fiscal year ending on December 31,
2006, and each fiscal year thereafter by an amount equal to the total unused
amount of such permitted sales, transfers and other dispositions for the
immediately preceding fiscal year (without giving effect to the amount of any
unused permitted sales, transfers and other dispositions that were carried
forward to such preceding fiscal year) and (ii) 25% of the aggregate fair
market value of all assets of the Parent Borrower as of the First Restatement
Effective Date, including any Equity Interest owned by it, during the term of
this Agreement subsequent to the First Restatement Effective Date;


 


112

















 


provided that (x) all
sales, transfers, leases and other dispositions permitted hereby (other than
those permitted by clause (b) above) shall be made for fair value and
(y) all sales, transfers, leases and other dispositions permitted by
clauses (i) and (j) above shall be for at least 85% cash
consideration.


 


SECTION 6.06.  Sale and Leaseback Transactions.  None of Holdings, the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will they
permit any Subsidiary to, enter into any arrangement, directly or indirectly,
whereby it shall sell or transfer any property, real or personal, used or
useful in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease such property or other property that it intends to use
for substantially the same purpose or purposes as the property sold or
transferred, except for (a) any such sale of any fixed or capital assets
(other than any such transaction to which (b) or (c) below is
applicable) that is made for cash consideration in an amount not less than the
cost of such fixed or capital asset in an aggregate amount less than or equal
to 15% of the Permitted Capital Expenditure Amount, so long as the Capital
Lease Obligations associated therewith are permitted by Section 6.01(a)(ix),
(b) in the case of property owned as of or after the Restatement Effective
Date, any such sale of any fixed or capital assets that is made for cash
consideration in an aggregate amount not less than the fair market value of
such fixed or capital assets not to exceed $25,000,000 in the aggregate, so
long as the Capital Lease Obligations (if any) associated therewith are
permitted by Section 6.01(a)(ix) and (c) any Acquisition Lease
Financing.


 


SECTION 6.07.  Hedging Agreements.  None of Holdings, the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will they
permit any Subsidiary to, enter into any Hedging Agreement, other than (a) Hedging
Agreements required by Section 5.14 and (b) Hedging Agreements
entered into in the ordinary course of business and which are not speculative
in nature to hedge or mitigate risks to which the Parent Borrower, any Subsidiary
Term Borrower, any Foreign Subsidiary Borrower or any other Subsidiary is
exposed in the conduct of its business or the management of its assets or
liabilities (including Hedging Agreements that effectively cap, collar or
exchange interest rates (from fixed to floating rates, from one floating rate
to another floating rate or otherwise)).


 


SECTION 6.08.  Restricted Payments; Certain Payments of
Indebtedness.  (a) None of
Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign
Subsidiary Borrower will, nor will they permit any Subsidiary to, declare or
make, or agree to pay or make, directly or indirectly, any Restricted Payment,
or incur any obligation (contingent or otherwise) to do so, except:


 


(i) Holdings
may declare and pay dividends with respect to its Equity Interests payable
solely in additional Equity Interests of Holdings;


 


(ii) Subsidiaries
may declare and pay dividends ratably with respect to their capital stock;


 


113

















 


(iii) the
Parent Borrower may make payments to Holdings to permit it to make, and
Holdings may make, Restricted Payments, not exceeding $5,000,000 during the
term of this Agreement, in each case pursuant to and in accordance with stock
option plans, equity purchase programs or agreements or other benefit plans, in
each case for management or employees or former employees of the Parent
Borrower and the Subsidiaries;


 


(iv) the
Parent Borrower may pay dividends to Holdings at such times and in such amounts
as shall be necessary to permit Holdings to discharge and satisfy its
obligations that are permitted hereunder (including (A) state and local
taxes and other governmental charges, and administrative and routine expenses
required to be paid by Holdings in the ordinary course of business and (B) cash
dividends payable by Holdings in respect of Qualified Holdings Preferred Stock
issued pursuant to clauses (b) and (c) of the definition thereof, provided
that dividends payable by the Parent Borrower to Holdings pursuant to this
clause (iv) in order to satisfy cash dividends payable by Holdings in
respect of Qualified Holdings Preferred Stock issued pursuant to clause (c) of
the definition thereof may only be made after the fiscal year ending December 31,
2006 with Excess Cash Flow not otherwise required to be used to prepay Tranche
B Term Loans pursuant to Section 2.11(e)); and


 


(v) the
Parent Borrower may make payments to Holdings to permit it to make, and
Holdings may make payments permitted by Sections 6.09(d), (e), (f), (g) and
(h); provided that, at the time of such payment and after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing
and Holdings and the Parent Borrower are in compliance with Section 6.12; provided,
further, that any payments that are prohibited because of the
immediately preceding proviso shall accrue and may be made as so accrued upon
the curing or waiver of such Default, Event of Default or noncompliance.


 


(b) None
of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign
Subsidiary Borrower will, nor will they permit any Subsidiary to, make or agree
to pay or make, directly or indirectly, any payment or other distribution
(whether in cash, securities or other property) of or in respect of principal
of or interest on any Indebtedness, or any payment or other distribution
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Indebtedness, except:


 


(i) payment
of Indebtedness created under the Loan Documents;


 


(ii) payment
of regularly scheduled interest and principal payments as and when due in
respect of any Indebtedness, other than payments in respect of the subordinated
Indebtedness prohibited by the subordination provisions thereof;


 


(iii) refinancings
of Indebtedness to the extent permitted by Section 6.01;


 


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(iv) payment
of secured Indebtedness (other than Permitted Subordinated Notes Refinancing
Indebtedness) out of the proceeds of any sale or transfer of the property or
assets securing such Indebtedness;


 


(v) payment
in respect of Capital Lease Obligations in an aggregate amount not to exceed
$25,000,000 during the term of this Agreement less the amount of Capital
Expenditures made pursuant to Section 6.14(c)(i);


 


(vi) payment
in respect of (A) Existing Subordinated Notes using proceeds from (1) the
issuance of Replacement Subordinated Notes or (2) Permitted Subordinated
Notes Refinancing Indebtedness and (B) Existing Subordinated Notes and
Permitted Subordinated Notes Refinancing Indebtedness using (1) any Net
Proceeds from an IPO, (2) the portion of Excess Cash Flow not subject to
mandatory prepayment pursuant to Section 2.11(e) or (3) any
source of cash (to the extent not otherwise prohibited in this Agreement) up to
an amount not to exceed (x) if, after giving effect to such payment, the
Leverage Ratio would be less than 3.25 to 1.00, $50,000,000 and (y) otherwise,
$15,000,000; and


 


(vii) payment
of Indebtedness with the Net Proceeds of an issuance of Holdings’ Equity
Interests subsequent to an IPO.


 


(c) None of Holdings, the Parent
Borrower or any Foreign Subsidiary Borrower will, nor will they permit any
Subsidiary to, enter into or be party to, or make any payment under, any
Synthetic Purchase Agreement unless (i) in the case of any Synthetic
Purchase Agreement related to any Equity Interest of Holdings, the payments
required to be made by Holdings are limited to amounts permitted to be paid
under Section 6.08(a), (ii) in the case of any Synthetic Purchase
Agreement related to any Restricted Indebtedness, the payments required to be
made by Holdings, the Parent Borrower or the Subsidiaries thereunder are
limited to the amount permitted under Section 6.08(b) and (iii) in
the case of any Synthetic Purchase Agreement, the obligations of Holdings, the
Parent Borrower and the Subsidiaries thereunder are subordinated to the
Obligations on terms satisfactory to the Required Lenders.


 


SECTION 6.09.  Transactions with Affiliates.  None of Holdings, the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will they
permit any Subsidiary to, sell, lease or otherwise transfer any property or
assets to, or purchase, lease or otherwise acquire any property or assets from,
or otherwise engage in any other transactions with, any of its Affiliates,
except:


 


(a) transactions that are at prices and
on terms and conditions not less favorable to the Parent Borrower or such
Subsidiary than could be obtained on an arm’s-length basis from unrelated third
parties;


 


(b) transactions between or among the
Parent Borrower and the Subsidiaries not involving any other Affiliate (to the
extent not otherwise prohibited by other provisions of this Agreement);


 


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(c) any Restricted Payment permitted by Section 6.08;


 


(d) transactions pursuant to agreements
in effect on the First Restatement Effective Date and listed on
Schedule 6.09 (provided that this clause (d) shall not
apply to any extension, or renewal of, or any amendment or modification of such
agreements that is less favorable to the Parent Borrower or the applicable
Subsidiaries, as the case may be);


 


(e) the payment, on a quarterly basis,
of management fees to Heartland and/or its Affiliates in accordance with the
Heartland Management Agreement, provided that the annual amount of such
management fees shall not exceed $4,000,000 and the payment of a one-time fee
in consideration of terminating the Heartland Management Agreement upon
consummation of an IPO in an amount not to exceed $10,000,000;


 


(f) the reimbursement of Heartland
and/or its Affiliates for their reasonable out-of-pocket expenses incurred by
them in connection with the Transactions and performing management services to
Holdings, the Parent Borrower and the Subsidiaries, pursuant to the Heartland
Management Agreement as in effect on the Original Effective Date;


 


(g) the payment of one time fees to
Heartland and/or its Affiliates in connection with any Permitted Acquisition,
such fees to be payable at the time of each such acquisition and not to exceed
the percentage of the aggregate consideration paid by Holdings, the Parent
Borrower and its Subsidiaries for any such acquisition as specified in the
Heartland Management Agreement as in effect on the Original Effective Date; and


 


(h) payments to Heartland and/or its
Affiliates for any financial advisor, underwriter or placement services or
other investment banking activities rendered to Holdings, the Parent Borrower
or the Subsidiaries, pursuant to the Heartland Management Agreement as in
effect on the Original Effective Date.


 


SECTION 6.10.  Restrictive Agreements.  None of Holdings, the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will they
permit any Subsidiary to, directly or indirectly, enter into, incur or permit
to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of Holdings, the Parent
Borrower or any Subsidiary to create, incur or permit to exist any Lien upon
any of its property or assets, or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its capital
stock or to make or repay loans or advances to the Parent Borrower or any other
Subsidiary or to Guarantee Indebtedness of the Parent Borrower or any other
Subsidiary; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by (A) any Loan Document or
Permitted Receivables Document or (B) any Existing Subordinated Notes,
Permitted Acquisition Subordinated Notes, Permitted Subordinated Notes,
Permitted Senior Notes or Permitted Subordinated Notes Refinancing Indebtedness
that are customary, in the reasonable judgment of the board of directors
thereof, for the market in which such Indebtedness is issued so long as such
restrictions do not prevent, impede or impair (x) the creation of Liens
and Guarantees in 


 


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favor of the Lenders under the Loan Documents or (y) the
satisfaction of the obligations of the Loan Parties under the Loan Documents, (ii) the
foregoing shall not apply to restrictions and conditions existing on the First
Restatement Effective Date identified on Schedule 6.10 (but shall apply to any
extension or renewal of, or any amendment or modification expanding the scope
of, any such restriction or condition), (iii) the foregoing shall not
apply to customary restrictions and conditions contained in agreements relating
to the sale of a Subsidiary pending such sale, provided, further,
that such restrictions and conditions apply only to the Subsidiary that is to
be sold and such sale is permitted hereunder, (iv) clause (a) of
the foregoing shall not apply to restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness and (v) clause (a) of the foregoing shall not apply
to customary provisions in leases and other agreements restricting the
assignment thereof.


 


SECTION 6.11.  Amendment of Material Documents.  None of Holdings, the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will they
permit any Subsidiary (including the Receivables Subsidiary) to, amend,
restate, modify or waive any of its rights under (a) its certificate of
incorporation, by-laws or other organizational documents, and (b) any
Material Agreement or other agreements (including joint venture agreements), in
each case to the extent such amendment, restatement, modification or waiver is
adverse to the Lenders in any material respect (it being agreed that the
addition or removal of Loan Parties from participation in a Permitted
Receivables Financing shall not constitute an amendment, modification or waiver
of either the Receivables Purchase Agreement or Receivables Transfer Agreement
that is adverse to the Lenders).


 


SECTION 6.12.  Interest Expense Coverage Ratio.  Neither Holdings nor the Parent Borrower will
permit the Interest Expense Coverage Ratio, in each case on the last day of any
period of four consecutive fiscal quarters ending during any period set forth
below, to be less than the ratio set forth below opposite such period:


 


	
  Period

  	
   

  	
  Ratio

  
	
  April 1, 2006, to September 30, 2006

  	
   

  	
  1.50 to 1.00

  
	
  October 1, 2006, to March 31, 2007

  	
   

  	
  1.70 to 1.00

  
	
  April 1, 2007, to September 30, 2007

  	
   

  	
  1.85 to 1.00

  
	
  October 1, 2007, to June 30, 2008

  	
   

  	
  1.90 to 1.00

  
	
  July 1, 2008, to December 31, 2008

  	
   

  	
  2.00 to 1.00

  
	
  January 1, 2009, to June 30, 2009

  	
   

  	
  2.10 to 1.00

  
	
  July 1, 2009, to December 31, 2009

  	
   

  	
  2.20 to 1.00

  
	
  January 1, 2010, to March 31, 2010

  	
   

  	
  2.30 to 1.00

  



 


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  April 1, 2010 to June 30, 2010

  	
   

  	
  2.15 to 1.00

  
	
  July 1, 2010 to June 30, 2011

  	
   

  	
  2.00 to 1.00

  
	
  July 1, 2011 to June 30, 2012

  	
   

  	
  2.25 to 1.00

  
	
  July 1, 2012 to December 31, 2012

  	
   

  	
  2.40 to 1.00

  
	
  January 1, 2013, to September 30, 2013

  	
   

  	
  2.50 to 1.00

  
	
  October 1, 2013, and thereafter

  	
   

  	
  2.75 to 1.00

  



 


SECTION 6.13.  Leverage Ratio.  Neither Holdings nor the Parent Borrower will
permit the Leverage Ratio on the last day of any fiscal quarter ending during
any period set forth below to exceed the ratio set forth opposite such period:


 


	
  Period

  	
   

  	
  Ratio

  
	
  April 1, 2006, to December 31, 2006

  	
   

  	
  5.75 to 1.00

  
	
  January 1, 2007, to June 30, 2007

  	
   

  	
  5.65 to 1.00

  
	
  July 1, 2007, to September 30, 2007

  	
   

  	
  5.50 to 1.00

  
	
  October 1, 2007, to June 30, 2008

  	
   

  	
  5.25 to 1.00

  
	
  July 1, 2008, to June 30, 2009

  	
   

  	
  5.00 to 1.00

  
	
  July 1, 2009, to September 30, 2009

  	
   

  	
  4.75 to 1.00

  
	
  October 1, 2009, to December 31, 2009

  	
   

  	
  4.50 to 1.00

  
	
  January 1, 2010 to March 31, 2010

  	
   

  	
  5.00 to 1.00

  
	
  April 1, 2010 to June 30, 2010

  	
   

  	
  5.25 to 1.00

  
	
  July 1, 2010 to December 31, 2010

  	
   

  	
  5.00 to 1.00

  
	
  January 1, 2011 to June 30, 2011

  	
   

  	
  4.75 to 1.00

  
	
  July 1, 2011 to September 30, 2011

  	
   

  	
  4.50 to 1.00

  
	
  October 1, 2011 to September 30, 2012

  	
   

  	
  4.25 to 100

  
	
  October 1, 2012, to June 30, 2013

  	
   

  	
  4.00 to 1.00

  
	
  July 1, 2013, and thereafter

  	
   

  	
  3.50 to 1.00

  



 


SECTION 6.14.  Capital Expenditures.  (a) Neither Holdings nor the Parent
Borrower will permit the aggregate amount of Capital Expenditures for any
period to exceed the applicable Permitted Capital Expenditure Amount, as such
amount may be reduced pursuant to Section 6.06(a), for such period.


 


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(b) Notwithstanding the foregoing, the
Parent Borrower may in respect of the fiscal year ending on December 31,
2006, and each fiscal year thereafter, increase the amount of Capital
Expenditures permitted to be made during such fiscal year pursuant to Section 6.14(a) by
an amount equal to the total unused amount of permitted Capital Expenditures
for the immediately preceding fiscal year (without giving effect to the amount
of any unused permitted Capital Expenditures that were carried forward to such
preceding fiscal year); provided that any such unused amounts shall be
disregarded and no such increase shall be permitted with respect to the amount
of Capital Expenditures permitted to be made during the fiscal year ending on December 31,
2010.


 


(c) In addition, the Parent Borrower or
its Subsidiaries may make (i) Capital Expenditures for prepayment of
leases in effect on the First Restatement Effective Date in connection with an
IPO, less the amount of capital leases prepaid pursuant to Section 6.08(b)(v),
(ii) Capital Expenditures resulting from the purchase of assets of
businesses constituting discontinued operations not to exceed $25,000,000 and (iii) Capital
Expenditures with Net Proceeds from any issuance of Holdings’ Equity Interests
subsequent to an IPO.


 


ARTICLE VII


 


Events of Default


 


If any of the following events (“Events of
Default”) shall occur:


 


(a) the Parent Borrower, any Subsidiary
Term Borrower or any Foreign Subsidiary Borrower shall fail to pay any
principal of any Loan or any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or otherwise;


 


(b) the Parent Borrower, any Subsidiary
Term Borrower or any Foreign Subsidiary Borrower shall fail to pay any interest
on any Loan or any fee or any other amount (other than an amount referred to in
clause (a) of this Article) payable under this Agreement or any other Loan
Document, when and as the same shall become due and payable, and such failure
shall continue unremedied for a period of five Business Days;


 


(c) any representation or warranty made
or deemed made by or on behalf of Holdings, the Parent Borrower, any Subsidiary
Term Borrower, any Foreign Subsidiary Borrower or any Subsidiary in or in
connection with any Loan Document or any amendment or modification thereof or
waiver thereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, shall prove to have
been incorrect in any material respect when made or deemed made;


 


(d) Holdings, the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower shall fail to
observe or perform any covenant, condition or agreement contained in Section 5.02,
5.04(a) (with respect to the existence of Holdings, 


 


119





















 


the Parent Borrower, any Subsidiary Term Borrower or any Foreign
Subsidiary Borrower and ownership of the Subsidiary Term Borrowers and the
Foreign Subsidiary Borrowers), 5.04(b), 5.11 or 5.14 or in Article VI;


 


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


 


(f) Holdings, the Parent Borrower or any
Subsidiary shall fail to make any payment of principal or interest in
respect of any Material Indebtedness, when and as the same shall become due and
payable after giving effect to any applicable grace period with respect thereto;


 


(g) any event or condition occurs that
results in any Material Indebtedness becoming due prior to its scheduled
maturity or that enables or permits the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity; provided
that this clause (g) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness;


 


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


 


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


 


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(j) Holdings, the Parent Borrower or any
Subsidiary shall become unable, admit in writing in a court proceeding its
inability or fail generally to pay its debts as they become due;


 


(k) one or more judgments for the
payment of money in an aggregate amount in excess of $15,000,000 shall be
rendered against Holdings, the Parent Borrower, any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed,
or any action shall be legally taken by a judgment creditor to attach or levy
upon any assets of Holdings, the Parent Borrower or any Subsidiary to enforce
any such judgment;


 


(l) an ERISA Event shall have occurred
that, in the opinion of the Required Lenders, when taken together with all
other ERISA Events that have occurred, could reasonably be expected to result
in a Material Adverse Effect on Holdings, the Parent Borrower and its
Subsidiaries;


 


(m) any Lien covering property having a
book value or fair market value of $1,000,000 or more purported to be created
under any Security Document shall cease to be, or shall be asserted by any Loan
Party not to be, a valid and perfected Lien on any Collateral, except (i) as
a result of the sale or other disposition of the applicable Collateral in a
transaction permitted under the Loan Documents or (ii) as a result of the
Administrative Agent’s failure to maintain possession of any stock
certificates, promissory notes or other instruments delivered to it under the Collateral
Agreement;


 


(n) the Guarantee Agreement shall cease
to be, or shall have been asserted not to be, in full force and effect;


 


(o) the Parent Borrower, Holdings or any
Subsidiary shall challenge the subordination provisions of the Subordinated
Debt or assert that such provisions are invalid or unenforceable or that the
Obligations of the Parent Borrower, any Subsidiary Term Borrower or any Foreign
Subsidiary Borrower, or the Obligations of Holdings or any Subsidiary under the
Guarantee Agreement, are not senior Indebtedness under the subordination
provisions of the Subordinated Debt, or any court, tribunal or government
authority of competent jurisdiction shall judge the subordination provisions of
the Subordinated Debt to be invalid or unenforceable or such Obligations to be
not senior Indebtedness under such subordination provisions or otherwise cease
to be, or shall be asserted not to be, legal, valid and binding obligations of
the parties thereto, enforceable in accordance with their terms; or


 


(p) a Change in Control shall occur;


 


then, and in every such event (other than an
event with respect to the Parent Borrower, any Subsidiary Term Borrower or any
Foreign Subsidiary Borrower described in clause (h) or (i) of this
Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by
notice to the Parent Borrower (on behalf of itself, the Subsidiary Term
Borrowers and the 


 


121

















 


Foreign Subsidiary Borrowers), take either or
both of the following actions, at the same or different times:  (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or
in part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Parent
Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers;
and in case of any event with respect to the Parent Borrower, any Subsidiary
Term Borrower or any Foreign Subsidiary Borrower described in clause (h) or
(i) of this Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Parent Borrower, any Subsidiary Term
Borrower or any Foreign Subsidiary Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Parent
Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers.


 


ARTICLE VIII


 


The Administrative Agent


 


Each of the Lenders and the Issuing Bank
hereby irrevocably appoints the Administrative Agent (it being understood that
reference in this Article VIII to the Administrative Agent shall be deemed
to include the Collateral Agent) as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental thereto.


 


The bank serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of business with Holdings,
the Parent Borrower or any Subsidiary or other Affiliate thereof as if it were
not the Administrative Agent hereunder.


 


The Administrative Agent shall not have any
duties or obligations except those expressly set forth in the Loan
Documents.  Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be
subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be 


 


122

















 


necessary under the
circumstances as provided in Section 10.02), and (c) except as
expressly set forth in the Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to Holdings, the Parent Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity.  The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 10.02)
or in the absence of its own gross negligence or wilful misconduct.  The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by Holdings, the Parent Borrower, a
Subsidiary Term Borrower, a Foreign Subsidiary Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or
in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document or
any other agreement, instrument or document, or (v) the satisfaction of
any condition set forth in Article IV or elsewhere in any Loan Document,
other than to confirm receipt of items expressly required to be delivered to
the Administrative Agent.


 


The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper
Person.  The Administrative Agent also
may rely upon any statement made to it orally or by telephone and believed by
it to be made by the proper Person, and shall not incur any liability for
relying thereon.  The Administrative
Agent may consult with legal counsel (who may be counsel for the Parent
Borrower, a Subsidiary Term Borrower or any Foreign Subsidiary Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.


 


The Administrative Agent may perform any and
all its duties and exercise its rights and powers by or through any one or more
sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. 
The exculpatory provisions of the preceding paragraphs shall apply to
any such sub-agent and to the Related Parties of each Administrative Agent and
any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.


 


Subject to the appointment and acceptance of
a successor Administrative Agent as provided in this paragraph, the
Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Parent Borrower (on behalf of itself, the Subsidiary Term
Borrowers and the Foreign Subsidiary Borrowers).  Upon any such 


 


123

















 


resignation, the Required
Lenders shall have the right, in consultation with the Parent Borrower and, if
applicable, the relevant Subsidiary Term Borrower and Foreign Subsidiary
Borrower, to appoint a successor from among the Lenders.  If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate
of any such bank.  Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder.  The fees payable by the
Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign
Subsidiary Borrowers) to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Parent
Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign
Subsidiary Borrowers) and such successor. 
After the Administrative Agent’s resignation hereunder, the provisions
of this Article and Section 10.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.


 


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


 


The Lenders identified in this Agreement as
the Syndication Agent and the Documentation Agents shall not have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Lenders. 
Without limiting the foregoing, none of the Syndication Agent or the
Documentation Agents shall have or be deemed to have a fiduciary relationship
with any Lender.  Each Lender hereby
makes the same acknowledgments with respect to the Syndication Agent and the
Documentation Agents as it makes with respect to the Administrative Agent or
any other Lender in this Article VIII.


 


ARTICLE IX


 


Collection Allocation Mechanism


 


SECTION 9.01.  Implementation of CAM.  (a) On the CAM Exchange Date, (i) the
Commitments shall automatically and without further act be terminated as 


 


124





















 


provided in Article VII, (ii) all Foreign Currency Borrowings
and the Commitments to make Foreign Currency Loans shall be converted into, and
all such amounts due thereunder shall accrue and be payable in, dollars at the
Exchange Rate on such date and (iii) the Lenders shall automatically and
without further act (and without regard to the provisions of Section 10.04)
be deemed to have exchanged interests in the Credit Facilities such that in
lieu of the interest of each Lender in each Credit Facility in which it shall
participate as of such date (including such Lender’s interest in the Specified
Obligations of each Loan Party in respect of each such Credit Facility), such
Lender shall hold an interest in every one of the Credit Facilities (including
the Specified Obligations of each Loan Party in respect of each such Credit
Facility and each LC Reserve Account established pursuant to Section 9.02
below), whether or not such Lender shall previously have participated therein,
equal to such Lender’s CAM Percentage thereof. 
Each Lender and each Loan Party hereby consents and agrees to the CAM
Exchange, and each Lender agrees that the CAM Exchange shall be binding upon
its successors and assigns and any person that acquires a participation in its
interests in any Credit Facility.


 


(b) As a result of the CAM Exchange,
upon and after the CAM Exchange Date, each payment received by the
Administrative Agent or the Collateral Agent pursuant to any Loan Document in
respect of the Specified Obligations, and each distribution made by the
Collateral Agent pursuant to any Security Documents in respect of the Specified
Obligations, shall be distributed to the Lenders pro rata in accordance with
their respective CAM Percentages.  Any
direct payment received by a Lender upon or after the CAM Exchange Date,
including by way of setoff, in respect of a Specified Obligation shall be paid
over to the Administrative Agent for distribution to the Lenders in accordance
herewith.


 


SECTION 9.02.  Letters of Credit.  (a) In the event that on the CAM
Exchange Date any Revolving Letter of Credit shall be outstanding and undrawn
in whole or in part, or any amount drawn under a Revolving Letter of Credit
shall not have been reimbursed either by the Parent Borrower or any Foreign
Subsidiary Borrower, as the case may be, or with the proceeds of a Revolving
Loan, each Class A Revolving Lender shall promptly pay over to the
Administrative Agent, in immediately available funds and in the currency that
such Letters of Credit are denominated, an amount equal to such Class A
Revolving Lender’s Class A Revolving Applicable Percentage (as notified to
such Lender by the Administrative Agent) of such Letter of Credit’s undrawn
face amount or (to the extent it has not already done so) such Letter of
Credit’s unreimbursed drawing, together with interest thereon from the CAM
Exchange Date to the date on which such amount shall be paid to the
Administrative Agent at the rate that would be applicable at the time to an ABR
Class A Revolving Loan in a principal amount equal to such amount, as the
case may be.  The Administrative Agent
shall establish a separate account or accounts for each Class A Revolving
Lender (each, an “LC Reserve Account”) for the amounts received with
respect to each such Letter of Credit pursuant to the preceding sentence.  The Administrative Agent shall deposit in
each Class A Revolving Lender’s LC Reserve Account such Lender’s CAM
Percentage of the amounts received from the Class A Revolving Lenders as
provided above.  The Administrative Agent
shall have sole dominion and control over each LC Reserve Account, and the 


 


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amounts deposited in each LC Reserve Account shall be held in such LC
Reserve Account until withdrawn as provided in paragraph (b), (c), (d) or
(e) below.  The Administrative Agent
shall maintain records enabling it to determine the amounts paid over to it and
deposited in the LC Reserve Accounts in respect of each Revolving Letter of
Credit and the amounts on deposit in respect of each Revolving Letter of Credit
attributable to each Lender’s CAM Percentage. 
The amounts held in each Lender’s LC Reserve Account shall be held as a
reserve against the Revolving LC Exposure, shall be the property of such
Lender, shall not constitute Loans to or give rise to any claim of or against
any Loan Party and shall not give rise to any obligation on the part of the
Parent Borrower or the Foreign Subsidiary Borrowers to pay interest to such
Lender, it being agreed that the reimbursement obligations in respect of
Revolving Letters of Credit shall arise only at such times as drawings are made
thereunder, as provided in Section 2.05.


 


(b) In the event that after the CAM
Exchange Date any drawing shall be made in respect of a Revolving Letter of
Credit, the Administrative Agent shall, at the request of the Issuing Bank,
withdraw from the LC Reserve Account of each Class A Revolving Lender any
amounts, up to the amount of such Lender’s CAM Percentage of such drawing,
deposited in respect of such Letter of Credit and remaining on deposit and
deliver such amounts to the Issuing Bank in satisfaction of the reimbursement
obligations of the Class A Revolving Lenders under Section 2.05(e) (but
not of the Parent Borrower and the Foreign Subsidiary Borrowers under Section 2.05(f),
respectively).  In the event any Class A
Revolving Lender shall default on its obligation to pay over any amount to the
Administrative Agent in respect of any Revolving Letter of Credit as provided
in this Section 9.02, the Issuing Bank shall, in the event of a drawing
thereunder, have a claim against such Class A Revolving Lender to the same
extent as if such Lender had defaulted on its obligations under Section 2.05(e),
but shall have no claim against any other Lender in respect of such defaulted
amount, notwithstanding the exchange of interests in the reimbursement
obligations pursuant to Section 9.01. 
Each other Lender shall have a claim against such defaulting Class A
Revolving Lender for any damages sustained by it as a result of such default,
including, in the event such Letter of Credit shall expire undrawn, its CAM
Percentage of the defaulted amount.


 


(c) In the event that after the CAM
Exchange Date any Revolving Letter of Credit shall expire undrawn, the
Administrative Agent shall withdraw from the LC Reserve Account of each Class A
Revolving Lender the amount remaining on deposit therein in respect of such
Letter of Credit and distribute such amount to such Lender.


 


(d) With the prior written approval of
the Administrative Agent and the Issuing Bank, any Class A Revolving
Lender may withdraw the amount held in its LC Reserve Account in respect of the
undrawn amount of any Revolving Letter of Credit.  Any Class A Revolving Lender making such
a withdrawal shall be unconditionally obligated, in the event there shall
subsequently be a drawing under such Letter of Credit, to pay over to the Administrative
Agent, for the account of the Issuing Bank on demand, its CAM Percentage of
such drawing.


 


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(e) Pending the withdrawal by any Class A
Revolving Lender of any amounts from its LC Reserve Account as contemplated by
the above paragraphs, the Administrative Agent will, at the direction of such
Lender and subject to such rules as the Administrative Agent may prescribe
for the avoidance of inconvenience, invest such amounts in Permitted Investments.  Each Class A Revolving Lender that has
not withdrawn its CAM Percentage of amounts in its LC Reserve Account as
provided in paragraph (d) above shall have the right, at intervals
reasonably specified by the Administrative Agent, to withdraw the earnings on
investments so made by the Administrative Agent with amounts in its LC Reserve
Account and to retain such earnings for its own account.


 


ARTICLE X


 


Miscellaneous


 


SECTION 10.01.  Notices.  Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:


 


(a) if to Holdings, the Parent Borrower,
any Subsidiary Term Borrower or any Foreign Subsidiary Borrower, to the Parent
Borrower (on behalf of itself, Holdings, any Subsidiary Term Borrower and any
Foreign Subsidiary Borrower) at 39400 Woodward Avenue, Suite 130,
Bloomfield Hills, MI 48304, Attention of Joshua Sherbin, General Counsel
(Telephone No. (248) 631-5450, Telecopy No. (248) 631-5413),


 


with
a copy to


 


Jonathan
A. Schaffzin, Esq.


Cahill
Gordon & Reindel LLP


80
Pine Street


New
York, New York


(Telecopy
No. (212) 269-5420);


 


(b) if to the Administrative Agent, to
JPMorgan Chase Bank, N.A., Loan and Agency Services Group, 1111 Fannin, 10th floor, Houston, Texas 77002 Attention of
Michael Chau (Telecopy: 713-750-2938), with a copy to JPMorgan Chase
Bank, N.A., 270 Park Avenue, New York, New York 10017,
Attention of Richard Duker (Telecopy No. 212-270-5127);


 


(c) if to the Issuing Bank, to it at
JPMorgan Chase Bank, N.A., Standby Letters of Credit, 10420 Highland Mn Dr BL2,
Tampa, Florida, 33610 4th floor (Telecopy: 813-432-5161) attention of
James Alonzo, and in the event that there is more than one Issuing Bank, to
such other Issuing Bank at its address (or telecopy number) set forth in its
Administrative Questionnaire;


 


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(d) if to JPMCB, as Swingline Lender, to
it at 1111 Fannin, 10th floor, Houston, Texas 77002, Attention of
Michael Chau (Telecopy: 713-750-2938);


 


(e) if to Comerica, as Swingline Lender,
to it at Comerica Tower at Detroit Center, 500 Woodward Avenue, 9th floor, M/C 3270, Detroit, Michigan 48226,
Attention of Tammy Gurne (Telecopy No. (313) 222-1582);


 


(f) if to the Foreign Currency
Administrative Agent, to J.P. Morgan Europe Limited, Loan and Agency Services
Group, 125 London Wall, 9th Floor, London, EC2Y 5AJ, United Kingdom, Attention
of James Beard (Telecopy No. +44 (0) 207-777-2360/2085); and


 


(g) if to any other Lender, to it at its
address (or telecopy number) set forth in its Administrative Questionnaire.


 


Any party hereto may change its address or telecopy
number for notices and other communications hereunder by notice to the other
parties hereto.  All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt.


 


SECTION 10.02.  Waivers; Amendments.  (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power.  The rights and remedies
of the Administrative Agent, the Issuing Bank and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies that they would otherwise have.  No waiver of any provision of any Loan Document
or consent to any departure by any Loan Party therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.  Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time.


 


(b) Neither this Agreement nor any other
Loan Document nor any provision hereof or thereof may be waived, amended or
modified except, in the case of this Agreement, pursuant to an agreement or
agreements in writing entered into by Holdings, the Parent Borrower, each
Subsidiary Term Borrower (but only to the extent such waiver, amendment or
modification relates to such Subsidiary Term Borrower), each Foreign Subsidiary
Borrower (but only to the extent such waiver, amendment or modification relates
to such Foreign Subsidiary Borrower) and the Required Lenders or, in the case
of any other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Administrative Agent and the Loan Party or Loan Parties
that are parties thereto, in each case with the consent of the Required
Lenders; provided that 


 


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no such agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon,
or reduce any fees payable hereunder, or reduce or forgive the Deposit Return,
without the written consent of each Lender affected thereby, (iii) postpone
the maturity of any Loan, or any scheduled date of payment of the principal
amount of any Term Loan under Section 2.10, or the required date of
reimbursement of any LC Disbursement, or any date for the payment of any
interest or fees payable hereunder, or reduce or forgive the amount of, waive
or excuse any such payment, or postpone the scheduled date of expiration of any
Commitment or postpone the scheduled date of expiration of any Letter of Credit
beyond the Commitment Termination Date, without the written consent of each
Lender affected thereby, (iv) change Section 2.18(a), (b) or (c) in
a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (v) change the
percentage set forth in the definition of “Required Lenders” or any other
provision of any Loan Document (including this Section) specifying the number
or percentage of Lenders (or Lenders of any Class) required to waive, amend or
modify any rights thereunder or make any determination or grant any consent
thereunder, without the written consent of each Lender (or each Lender of such
Class, as the case may be), (vi) release Holdings or any Subsidiary Loan
Party from its Guarantee under the Guarantee Agreement (except as expressly
provided in the Guarantee Agreement), or limit its liability in respect of such
Guarantee, without the written consent of each Lender, (vii) release all
or substantially all of the Collateral from the Liens of the Security Documents,
without the written consent of each Lender (except as expressly provided in the
Security Documents) or (viii) change any provisions of any Loan Document
in a manner that by its terms adversely affects the rights in respect of
payments due to Lenders holding Loans of any Class differently than those
holding Loans of any other Class, without the written consent of Lenders
holding a majority in interest of the outstanding Loans and unused Commitments
of each affected Class; provided, further, that (A) no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Issuing Bank or the Swingline Lender without the
prior written consent of the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, and (B) any waiver, amendment or
modification of this Agreement that by its terms affects the rights or duties
under this Agreement of the Revolving Lenders (but not the Tranche B Lenders,
Tranche B-1 Lenders and Incremental Lenders), the Tranche B-1 Lenders (but not
the Revolving Lenders, Tranche B Lenders and Incremental Lenders) the Tranche B
Lenders (but not the Revolving Lenders, Tranche B-1 Lenders and Incremental
Lenders), or the Incremental Lenders (but not the Revolving Lenders, Tranche B
Lenders and Tranche B-1 Lenders) may be effected by an agreement or agreements
in writing entered into by Holdings, the Parent Borrower, each Subsidiary Term
Borrower (but only to the extent such waiver, amendment or modification relates
to such Subsidiary Term Borrower), each Foreign Subsidiary Borrower (but only
to the extent such waiver, amendment or modification relates to such Foreign
Subsidiary Borrower) and requisite percentage in interest of the affected Class of
Lenders that would be required to consent thereto under this Section if
such Class of Lenders were the only Class of Lenders hereunder at the
time.  Notwithstanding the foregoing, any
provision of this Agreement may be amended by an agreement in writing entered
into by Holdings, the Parent Borrower, each 


 


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Subsidiary Term Borrower (but only to the extent such waiver, amendment
or modification relates to such Subsidiary Term Borrower), each Foreign
Subsidiary Borrower (but only to the extent such waiver, amendment or
modification relates to such Foreign Subsidiary Borrower), the Required Lenders
and the Administrative Agent (and, if their rights or obligations are affected
thereby, the Issuing Bank and the Swingline 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 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 under this Agreement.


 


(c) In connection with any proposed
amendment, modification, waiver or termination (a “Proposed Change”) requiring
the consent of all Lenders or all affected Lenders, if the consent of the
Required Lenders (and, to the extent any Proposed Change requires the consent
of Lenders holding Loans of any Class pursuant to clause (v) or (viii) of
paragraph (b) of this Section, the consent of at least 50% in
interest of the outstanding Loans and unused Commitments of such Class) to such
Proposed Change is obtained, but the consent to such Proposed Change of other
Lenders whose consent is required is not obtained (any such Lender whose
consent is not obtained as described in paragraph (b) of this Section being
referred to as a “Non-Consenting Lender”), then, so long as the Lender that is
acting as Administrative Agent is not a Non-Consenting Lender, the Parent
Borrower may, at its sole expense and effort, upon notice to such
Non-Consenting Lender and the Administrative Agent, require such Non-Consenting
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 10.04), all its interests, rights
and obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that (a) the Parent Borrower shall have received the
prior written consent of the Administrative Agent (and, if a Revolving
Commitment is being assigned, the Issuing Bank and Swingline Lender), which
consent shall not be unreasonably withheld, (b) such Non-Consenting Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts), (c) the
Borrower or such assignee shall have paid to the Administrative Agent the
processing and recordation fee specified in Section 10.04(b), (d) such
assignee shall consent to such Proposed Change and (e) if such
Non-Consenting Lender is acting as the Administrative Agent, it will not be
required to assign and delegate its interests, rights and obligations as
Administrative agent under this Agreement.


 


SECTION 10.03.  Expenses; Indemnity; Damage Waiver.  (a) Holdings, the Parent Borrower, each
Subsidiary Term Borrower and each Foreign Subsidiary Borrower, jointly and
severally, shall pay (i) all reasonable out-of-pocket expenses incurred by
the Agents and their Affiliates, including the reasonable fees, charges and
disbursements of one counsel in each applicable jurisdiction for each of the
Agents, in 


 


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connection with the syndication of the credit facilities provided for
herein, due diligence investigation, the preparation and administration of the
Loan Documents or any amendments, modifications or waivers of the provisions
thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), (ii) all reasonable out-of-pocket expenses incurred by
the Issuing Bank in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Agents, the Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for the Agents,
the Issuing Bank or any Lender, in connection with the enforcement or
protection of its rights in connection with the Loan Documents, including its
rights under this Section, or in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.


 


(b) Holdings, the Parent Borrower, each
Subsidiary Term Borrower and each Foreign Subsidiary Borrower, jointly and
severally, shall indemnify the Agents, the Issuing Bank and each Lender, and
each Related Party of any of the foregoing Persons (each such Person being
called an “Indemnitee”) against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of any
Loan Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective
obligations thereunder or the consummation of the Transactions, the Restatement
Transactions or any other transactions contemplated hereby, (ii) any Loan
or Letter of Credit or the use of the proceeds therefrom (including any refusal
by the Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any Mortgaged Property or
any other property currently or formerly owned or operated by Holdings, the
Parent Borrower or any Subsidiary, or any Environmental Liability related in
any way to Holdings, the Parent Borrower or any Subsidiary, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory
and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of
such Indemnitee.


 


(c) To the extent that Holdings, the
Parent Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary
Borrowers fail to pay any amount required to be paid by it to the Administrative
Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or
(b) of this Section (and without limiting such party’s obligation to
do so), each Lender severally agrees to pay to the Administrative Agent, the
Issuing Bank or the Swingline Lender, as the case may be, such Lender’s pro
rata share (determined as of 


 


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the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount; provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent, the
Issuing Bank or a Swingline Lender in its capacity as such; provided  further
that to the extent indemnification of (i) the Issuing Bank in respect of a
Revolving Letter of Credit or (ii) the Swingline Lender is required
pursuant to this Section 10.03(c), such obligation will be limited to Class A
Revolving Lenders only.  For purposes
hereof, a Lender’s “pro rata share” shall be determined based upon its share of
the sum of the total Revolving Exposures, outstanding Tranche B Term Loans,
unused Commitments and Tranche B-1 Total Commitment at the time.


 


(d) To the extent permitted by applicable
law, none of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any
Foreign Subsidiary Borrower shall assert, and each hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, the Restatement
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.


 


(e) All amounts due under this Section shall
be payable promptly after written demand therefor.


 


(f) Neither Heartland nor any director,
officer, employee, stockholder or member, as such, of any Loan Party or
Heartland shall have any liability for the Obligations or for any claim based
on, in respect of or by reason of the Obligations or their creation; provided
that the foregoing shall not be construed to relieve any Loan Party of its
Obligations under any Loan Document.


 


SECTION 10.04.  Successors and Assigns.  (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit), except that, subject to Section 10.15(g),
none of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any
Foreign Subsidiary Borrower may assign or otherwise transfer any of its rights
or obligations hereunder without the prior written consent of each Lender (and
any attempted assignment or transfer by Holdings, the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower without such
consent shall be null and void).  Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.


 


(b) Any Lender may assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its 


 


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Commitments, the Loans at the time owing to it and its Deposit); provided  that (i) except in the case of an
assignment to a Lender, a Lender Affiliate or an Approved Fund, each of the
Parent Borrower, each Subsidiary Term Borrower (but only to the extent such
assignment relates to a Tranche B Term Loan to such Subsidiary Term Borrower),
each Foreign Subsidiary Borrower and the Administrative Agent (and, in the case
of an assignment of all or a portion of a Class A Revolving Commitment or
any Lender’s obligations in respect of its LC Exposure or Swingline Exposure,
the Issuing Bank and the Swingline Lender) must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld or
delayed), (ii) except in the case of an assignment to a Lender, a Lender
Affiliate or an Approved Fund or an assignment of the entire remaining amount
of the assigning Lender’s Commitment or Loans, the amount of the Commitment or
Loans of the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than (x) in the
case of Revolving Commitments and Revolving Loans, $5,000,000, and (y) in
the case of Tranche B-1 Commitments and Tranche B Term Loans and Tranche
B-1 Loans, $1,000,000 unless each of the Parent Borrower, each Foreign
Subsidiary Borrower (but only to the extent such assignment relates to Foreign
Currency Commitments or Foreign Currency Loans relating to such Foreign
Subsidiary Borrower) and the Administrative Agent otherwise consent, (iii) each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement, except
that this clause (iii) shall not be construed to prohibit the assignment
of a proportionate part of all the assigning Lender’s rights and obligations in
respect of one Class of Commitments or Loans, (iv) notwithstanding
anything to the contrary, assignments by any Revolving Lender of any portion of
its Revolving Commitments or any portion of Revolving Loans must include a
ratable portion of its Foreign Currency Commitments and ratable portion of its
Foreign Currency Loans and visa versa, (v) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $3,500, (vi) the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire and (vii) in connection with each assignment of a Tranche B-1 Commitment, Tranche
B-1 Loan or Tranche B-1 LC Exposure, (A) the Deposit of the assignor
Lender shall not be released, but shall instead be purchased by the relevant
assignee and continue to be held for application (to the extent not already
applied) in accordance with Article II to satisfy such assignee’s
obligations in respect of such Tranche B-1 Loans and such Tranche B-1 LC
Exposure and (B) each Lender agrees that immediately prior to each
assignment (1) the Administrative Agent shall establish a new Sub-Account
in the name of the assignee, (2) a corresponding portion of the Deposit
credited to the Sub-Account of the assignor Lender shall be purchased by the
assignee and shall be transferred from the assignor’s Sub-Account to the
assignee’s Sub-Account and (3) if after giving effect to such assignment
the Tranche B-1 Commitment of the assignor Lender shall be zero, the
Administrative Agent shall close the Sub-Account of such assignor Lender;
and provided  further that any consent of the Parent Borrower or
any Subsidiary Term Borrower or any Foreign Subsidiary Borrower otherwise
required under this paragraph shall not be required if an Event of Default
under Article VII has occurred and is continuing.  Subject to acceptance and recording thereof
pursuant to 


 


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paragraph (d) of this Section, from and after the effective
date specified in each Assignment and Acceptance the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this
Agreement (provided that any liability of the Parent Borrower, any
Subsidiary Term Borrower or any Foreign Subsidiary Borrower to such assignee
under Section 2.15, 2.16 or 2.17 shall be limited to the amount, if any,
that would have been payable thereunder by the Parent Borrower, any Subsidiary
Term Borrower or any Foreign Subsidiary Borrower in the absence of such
assignment), and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and
10.03).  Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with paragraph (e) of this Section.


 


(c) The Administrative Agent, acting for
this purpose as an agent of the Parent Borrower, the Subsidiary Term Borrowers
and the Foreign Subsidiary Borrowers, shall maintain at one of its offices in
The City of New York a copy of each Assignment and Acceptance delivered to
it and a register for the recordation of the names and addresses of the
Lenders, and the Commitment of, and principal amount of the Loans and LC
Disbursements owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”).  The
entries in the Register shall be conclusive, and Holdings, the Parent Borrower,
the Subsidiary Term Borrowers, the Foreign Subsidiary Borrowers, the
Administrative Agent, the Issuing Bank and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary.  The Register shall be
available for inspection by the Parent Borrower, the Subsidiary Term Borrowers,
the Foreign Subsidiary Borrowers, the Issuing Bank and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.


 


(d) Upon its receipt of a duly completed
Assignment and Acceptance executed by an assigning Lender and an assignee, the
assignee’s completed Administrative Questionnaire (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. 
No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.


 


(e) Any Lender may, without the consent
of the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary
Borrower, the Administrative Agent, the Issuing Bank or the Swingline Lender,
sell participations to one or more banks 


 


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or other entities (a “Participant”) in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans and its Deposit owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) Holdings,
the Parent Borrower, the Subsidiary Term Borrowers, the Foreign Subsidiary
Borrowers, the Administrative Agent, the Issuing Bank and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 10.02(b) that
affects such Participant.  Subject to
paragraph (f) of this Section, the Parent Borrower, the Subsidiary Term
Borrowers and the Foreign Subsidiary Borrowers agree that each Participant
shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.08 as
though it were a Lender, provided such Participant agrees to be subject to Section 2.18(c) as
though it were a Lender.


 


(f) A Participant shall not be entitled
to receive any greater payment under Section 2.15 or 2.17 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the prior written consent of the Parent Borrower
and, to the extent applicable, each relevant Subsidiary Term Borrower and
Foreign Subsidiary Borrower.  A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.17 unless the Parent Borrower and, to the extent
applicable, each relevant Foreign Subsidiary Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Parent Borrower and, to the extent applicable, each relevant
Foreign Subsidiary Borrower, to comply with Section 2.17(e) as though
it were a Lender.


 


(g) Any Lender may, without the consent
of the Parent Borrower or the Administrative Agent, at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided
that no such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.


 


SECTION 10.05.  Survival.  All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other 


 


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Loan Document shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of the Loan
Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent, the Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated.  The provisions of Sections 2.15, 2.16, 2.17
and 10.03 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any
provision hereof.


 


SECTION 10.06.  Counterparts; Integration; Effectiveness.  This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.  This
Agreement, the other Loan Documents and any separate letter agreements with
respect to fees payable to the Administrative Agent constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating
to the subject matter hereof.  This
Agreement shall become effective as provided in the Amendment and Restatement
Agreement, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.


 


SECTION 10.07.  Severability.  Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.


 


SECTION 10.08.  Right of Setoff.  If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of the Parent
Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower
against any of and all the obligations of the Parent Borrower, any Subsidiary
Term Borrower or any Foreign Subsidiary Borrower now or hereafter existing
under this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured.  The rights
of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.


 


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SECTION 10.09.  Governing Law; Jurisdiction; Consent to
Service of Process.  (a) This
Agreement shall be construed in accordance with and governed by the law of the
State of New York.


 


(b) Each of Holdings, the Parent
Borrower, each Subsidiary Term Borrower and each Foreign Subsidiary Borrower
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of the Supreme Court of the State of New York
sitting in New York County and of the United States District Court of
the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to any Loan
Document, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
New York State or, to the extent permitted by law, in such Federal
court.  Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.  Nothing in this
Agreement or any other Loan Document shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against Holdings, the Parent Borrower, any of the Subsidiary Term
Borrowers, any of the Foreign Subsidiary Borrowers or their properties in the
courts of any jurisdiction.


 


(c) Each of Holdings, the Parent
Borrower, each  Subsidiary Term Borrower
and each Foreign Subsidiary Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or any
other Loan Document in any court referred to in paragraph (b) of this
Section.  Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.


 


(d) Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices
in Section 10.01.  Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.


 


SECTION 10.10.  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN  ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). 
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO 


 


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ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


SECTION 10.11.  Headings.  Article and Section headings and
the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.


 


SECTION 10.12.  Confidentiality.  Each of the 
Administrative Agent, the Issuing Bank and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Lender Affiliates’
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential pursuant to
the terms hereof), (b) to the extent requested by any regulatory or
quasi-regulatory authority, (c) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process, (d) to any
other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Parent Borrower, any Subsidiary Term Borrower, any
Foreign Subsidiary Borrower and their respective obligations, (g) with the
consent of the Parent Borrower or (h) to the extent such Information (i) is
publicly available at the time of disclosure or becomes publicly available
other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis from a source other than Holdings, the Parent Borrower or
any Subsidiary (including the Receivables Subsidiary).  For the purposes of this Section, “Information”
means all information received from Holdings, the Parent Borrower or any
Subsidiary  (including the Receivables
Subsidiary) relating to Holdings, the Parent Borrower or any Subsidiary
(including the Receivables Subsidiary) or its business, other than any such
information that is available to the Administrative Agent, the Issuing Bank or
any Lender on a nonconfidential basis prior to disclosure by Holdings, the
Parent Borrower or any Subsidiary (including the Receivables Subsidiary); provided
that, in the case of information received from Holdings, the Parent Borrower or
any Subsidiary (including the Receivables Subsidiary) after the First
Restatement Effective Date, such information is clearly identified at the time
of delivery as confidential.  Any Person
required to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


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SECTION 10.13.  Interest Rate Limitation.  Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the “Charges”), shall exceed the
maximum lawful rate (the “Maximum Rate”) which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.


 


SECTION 10.14.  Judgment Currency.  (a) The obligations hereunder of the
Parent Borrower, the Subsidiary Term Borrowers and the Foreign Subsidiary
Borrowers and under the other Loan Documents to make payments in dollars or in
the Foreign Currencies, as the case may be, (the “Obligation Currency”)
shall not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than the Obligation
Currency, except to the extent that such tender or recovery results in the
effective receipt by the Administrative Agent, the Collateral Agent or a Lender
of the full amount of the Obligation Currency expressed to be payable to the
Administrative Agent, Collateral Agent or Lender under this Agreement or the
other Loan Documents.  If, for the
purpose of obtaining or enforcing judgment against the Parent Borrower, any
Subsidiary Term Borrower, any Foreign Subsidiary Borrower or any other Loan
Party in any court or in any jurisdiction, it becomes necessary to convert into
or from any currency other than the Obligation Currency (such other currency
being hereinafter referred to as the “Judgment Currency”) an amount due
in the Obligation Currency, the conversion shall be made, at the Dollar
Equivalent of such amount, in each case, as of the date immediately preceding
the day on which the judgment is given (such Business Day being hereinafter
referred to as the “Judgment Currency Conversion Date”).


 


(b) If there is a change in the rate of
exchange prevailing between the Judgment Currency Conversion Date and the date
of actual payment of the amount due, the Parent Borrower, each Subsidiary Term
Borrower and each Foreign Subsidiary Borrower, as the case may be,  covenants and agrees to pay, or cause to be
paid, such additional amounts, if any (but in any event not a lesser amount),
as may be necessary to ensure that the amount paid in the Judgment Currency,
when converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.


 


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(c) For purposes of determining the
Dollar Equivalent, such amounts shall include any premium and costs payable in
connection with the purchase of the Obligation Currency.


 


SECTION 10.15.  Obligations Joint and Several.  (a) Each Term Loan Borrower agrees that
it shall, jointly with the other Term Loan Borrowers and severally, be liable
for all the Obligations in respect of the Tranche B Term Loans (the “Term
Loan Obligations”).  Each Term Loan
Borrower further agrees that the Term Loan Obligations of the other Term Loan
Borrowers may be extended and renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its agreement
hereunder notwithstanding any extension or renewal of any Term Loan Obligation
of the other Term Loan Borrowers.


 


(b) Each Term Loan Borrower waives
presentment to, demand of payment from and protest to the other Term Loan
Borrowers of any of the Term Loan Obligations or the other Term Loan Borrowers
of any Term Loan Obligations, and also waives notice of acceptance of its
obligations and notice of protest for nonpayment.  The Term Loan Obligations of a Term Loan
Borrower hereunder shall not be affected by (i) the failure of any Tranche
B Lender or the Issuing Bank or the Administrative Agent or the Collateral
Agent to assert any claim or demand or to enforce any right or remedy against
the other Term Loan Borrowers under the provisions of this Agreement or any of
the other Loan Documents or otherwise; (ii) any rescission, waiver,
amendment or modification of any of the terms or provisions of this Agreement,
any of the other Loan Documents or any other agreement; or (iii) the
failure of any Tranche B Lender or the Issuing Bank to exercise any right or
remedy against any other Term Loan Borrower.


 


(c) Each Term Loan Borrower further
agrees that its agreement hereunder constitutes a promise of payment when due
and not of collection, and waives any right to require that any resort be had by
any Tranche B Lender or the Issuing Bank to any balance of any deposit account
or credit on the books of any Tranche B Lender or the Issuing Bank in favor of
any other Term Loan Borrower or any other person.


 


(d) The Term Loan Obligations of each
Term Loan Borrower hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including compromise, and shall not
be subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Term Loan Obligations of the other Term Loan Borrowers or otherwise.  Without limiting the generality of the
foregoing, the Term Loan Obligations of each Term Loan Borrower hereunder shall
not be discharged or impaired or otherwise affected by the failure of the
Administrative Agent, the Collateral Agent or any Tranche B Lender or the
Issuing Bank to assert any claim or demand or to enforce any remedy under this
Agreement or under any other Loan Document or any other agreement, by any
waiver or modification in respect of any thereof, by any default, failure or
delay, willful or otherwise, in the performance of the Term Loan Obligations of
the other Term Loan Borrowers or by any other act or omission which may or
might in any manner or to any 


 


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extent vary the risk of such Term Loan Borrower or otherwise operate as
a discharge of such Term Loan Borrower as a matter of law or equity.


 


(e) Each Term Loan Borrower further
agrees that its obligations hereunder shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
principal of or interest on any Term Loan Obligation of the other Term Loan
Borrowers is rescinded or must otherwise be restored by the Administrative
Agent, the Collateral Agent or any Tranche B Lender or the Issuing Bank upon
the bankruptcy or reorganization of any of the other Term Loan Borrowers or
otherwise.


 


(f) In furtherance of the foregoing and
not in limitation of any other right which the Administrative Agent, the
Collateral Agent or any Tranche B Lender or the Issuing Bank may have at law or
in equity against any Term Loan Borrower by virtue hereof, upon the failure of
a Term Loan Borrower to pay any Term Loan Obligation when and as the same shall
become due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, each other Term Loan Borrower hereby promises to and will, upon
receipt of written demand by the Administrative Agent, forthwith pay, or cause
to be paid, in cash the amount of such unpaid Term Loan Obligations, and
thereupon each Tranche B Lender shall, in a reasonable manner, assign the
amount of the Term Loan Obligations of the other Term Loan Borrowers owed to it
and paid by such Term Loan Borrower pursuant to this Section 10.15 to such
Term Loan Borrower, such assignment to be pro
tanto to the extent to which the Term Loan Obligations in question
were discharged by such Term Loan Borrower or make such disposition thereof as
such Term Loan Borrower shall direct (all without recourse to any Term Loan
Lender and without any representation or warranty by any Term Loan Lender).


 


(g) Notwithstanding any other provision
herein, the Parent Borrower shall be entitled, at any time and in its sole
discretion, to designate any Term Loan Borrower (including itself) to replace
any other Term Borrower as a borrower hereunder with respect to any outstanding
Tranche B Term Loans.


 


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