Exhibit 10.1


 


EXECUTION
VERSION


 


AMENDED
AND RESTATED CREDIT AND GUARANTY AGREEMENT


 


dated
as of December 16, 2005


 


among


 


SANMINA–SCI
CORPORATION,


 


CERTAIN
SUBSIDIARIES OF SANMINA–SCI CORPORATION,


 


as
Guarantors,


 


VARIOUS
LENDERS,


 


BANK
OF AMERICA, N.A., as Initial Issuing Bank


 


CITICORP
USA, INC.,


 


as
Syndication Agent


 


THE
BANK OF NOVA SCOTIA,

DEUTSCHE BANK TRUST COMPANY AMERICAS,  

and KEYBANK NATIONAL ASSOCIATION,


 


as
Co-Documentation Agents


 


BANC
OF AMERICA SECURITIES LLC

and

CITIGROUP GLOBAL MARKETS INC.,


 


as
Joint Book Managers and Joint Lead Arrangers


 


BANK
OF AMERICA, N.A.


 


as
Administrative Agent


 


and


 


CITIBANK,
N.A.


 


as
Collateral Agent


 










 


$500.0
Million Senior Secured Credit Facility


 










 





















 


TABLE
OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  SECTION 1. DEFINITIONS AND
  INTERPRETATION

  	
  1

  
	
   

  	
   

  
	
  Section 1.1 Definitions

  	
  1

  
	
   

  	
   

  
	
  Section 1.2 Accounting
  Terms

  	
  33

  
	
   

  	
   

  
	
  Section 1.3
  Interpretation, Etc

  	
  34

  
	
   

  	
   

  
	
  Section 1.4 Letter of
  Credit Amounts

  	
  34

  
	
   

  	
   

  
	
  SECTION 2. LOANS

  	
  34

  
	
   

  	
   

  
	
  Section 2.1 Loans

  	
  34

  
	
   

  	
   

  
	
  Section 2.2
  Termination/Reduction/Repayments of Commitments

  	
  39

  
	
   

  	
   

  
	
  Section 2.3 Issuance of
  and Drawings and Reimbursement Under Letters of Credit

  	
  40

  
	
   

  	
   

  
	
  Section 2.4 Use of
  Proceeds

  	
  42

  
	
   

  	
   

  
	
  Section 2.5 Evidence of
  Debt; Register; Lenders’ Books and Records; Notes

  	
  42

  
	
   

  	
   

  
	
  Section 2.6 Prepayments
  of Loans

  	
  43

  
	
   

  	
   

  
	
  Section 2.7 Interest on
  Loans

  	
  44

  
	
   

  	
   

  
	
  Section 2.8
  Conversion/Continuation

  	
  45

  
	
   

  	
   

  
	
  Section 2.9 Default
  Interest

  	
  45

  
	
   

  	
   

  
	
  Section 2.10 Fees

  	
  45

  
	
   

  	
   

  
	
  Section 2.11 General
  Provisions Regarding Payments

  	
  46

  
	
   

  	
   

  
	
  Section 2.12 Ratable
  Sharing

  	
  47

  
	
   

  	
   

  
	
  Section 2.13 Taxes

  	
  48

  
	
   

  	
   

  
	
  Section 2.14 Illegality

  	
  50

  
	
   

  	
   

  
	
  Section 2.15 Inability
  to Determine Rates

  	
  50

  
	
   

  	
   

  
	
  Section 2.16 Increased
  Costs

  	
  50

  
	
   

  	
   

  
	
  Section 2.17
  Compensation for Losses

  	
  52

  



 


i





















 


	
  Section 2.18 Mitigation
  Obligations

  	
  52

  
	
   

  	
   

  
	
  Section 2.19 Removal or
  Replacement of a Lender

  	
  53

  
	
   

  	
   

  
	
  Section 2.20 Survival

  	
  53

  
	
   

  	
   

  
	
  Section 2.21
  Non-Continuing Lenders

  	
  53

  
	
   

  	
   

  
	
  SECTION 3. CONDITIONS PRECEDENT

  	
  54

  
	
   

  	
   

  
	
  Section 3.1 Closing Date

  	
  54

  
	
   

  	
   

  
	
  Section 3.2 Conditions
  to Each Loan or Issuance or Renewal

  	
  55

  
	
   

  	
   

  
	
  SECTION 4. REPRESENTATIONS AND
  WARRANTIES

  	
  56

  
	
   

  	
   

  
	
  Section 4.1
  Organization; Requisite Power and Authority; Qualification

  	
  56

  
	
   

  	
   

  
	
  Section 4.2 Capital
  Stock and Ownership

  	
  56

  
	
   

  	
   

  
	
  Section 4.3 Due
  Authorization

  	
  57

  
	
   

  	
   

  
	
  Section 4.4 No Conflict

  	
  57

  
	
   

  	
   

  
	
  Section 4.5 Governmental
  Consents

  	
  57

  
	
   

  	
   

  
	
  Section 4.6 Binding
  Obligation

  	
  57

  
	
   

  	
   

  
	
  Section 4.7 Historical
  Financial Statements

  	
  57

  
	
   

  	
   

  
	
  Section 4.8 Projections

  	
  58

  
	
   

  	
   

  
	
  Section 4.9 No Material
  Adverse Change

  	
  58

  
	
   

  	
   

  
	
  Section 4.10 No
  Restricted Junior Payments

  	
  58

  
	
   

  	
   

  
	
  Section 4.11 Adverse
  Proceedings, Etc

  	
  58

  
	
   

  	
   

  
	
  Section 4.12 Payment of
  Taxes

  	
  58

  
	
   

  	
   

  
	
  Section 4.13 Properties

  	
  58

  
	
   

  	
   

  
	
  Section 4.14 No Defaults

  	
  60

  
	
   

  	
   

  
	
  Section 4.15 Material
  Contracts

  	
  60

  
	
   

  	
   

  
	
  Section 4.16
  Governmental Regulation

  	
  60

  
	
   

  	
   

  
	
  Section 4.17 Margin
  Stock

  	
  60

  



 


ii





















 


	
  Section 4.18 Employee
  Matters

  	
  60

  
	
   

  	
   

  
	
  Section 4.19 Employee
  Benefit Plans

  	
  61

  
	
   

  	
   

  
	
  Section 4.20 Certain
  Fees

  	
  62

  
	
   

  	
   

  
	
  Section 4.21 Solvency

  	
  62

  
	
   

  	
   

  
	
  Section 4.22 Compliance
  with Statutes, Etc

  	
  62

  
	
   

  	
   

  
	
  Section 4.23 Disclosure

  	
  62

  
	
   

  	
   

  
	
  Section 4.24 Senior
  Indebtedness

  	
  62

  
	
   

  	
   

  
	
  SECTION 5. AFFIRMATIVE COVENANTS

  	
  63

  
	
   

  	
   

  
	
  Section 5.1 Financial
  Statements and Other Reports

  	
  63

  
	
   

  	
   

  
	
  Section 5.2 Existence

  	
  65

  
	
   

  	
   

  
	
  Section 5.3 Payment of
  Taxes and Claims

  	
  65

  
	
   

  	
   

  
	
  Section 5.4 Maintenance
  of Properties

  	
  66

  
	
   

  	
   

  
	
  Section 5.5 Insurance

  	
  66

  
	
   

  	
   

  
	
  Section 5.6 Inspections;
  Maintaining Books and Records

  	
  66

  
	
   

  	
   

  
	
  Section 5.7 Compliance
  with Laws

  	
  67

  
	
   

  	
   

  
	
  Section 5.8
  Environmental

  	
  67

  
	
   

  	
   

  
	
  Section 5.9 Subsidiaries

  	
  69

  
	
   

  	
   

  
	
  Section 5.10 Real Estate
  Assets

  	
  69

  
	
   

  	
   

  
	
  Section 5.11 Further
  Assurances

  	
  70

  
	
   

  	
   

  
	
  Section 5.12 Senior
  Indebtedness

  	
  70

  
	
   

  	
   

  
	
  Section 5.13
  Reestablishment of Security

  	
  70

  
	
   

  	
   

  
	
  SECTION 6. NEGATIVE COVENANTS

  	
  71

  
	
   

  	
   

  
	
  Section 6.1 Indebtedness

  	
  71

  
	
   

  	
   

  
	
  Section 6.2 Liens

  	
  73

  
	
   

  	
   

  
	
  Section 6.3 No Further
  Negative Pledges

  	
  77

  



 


iii





















 


	
  Section 6.4 Restricted
  Junior Payments

  	
  77

  
	
   

  	
   

  
	
  Section 6.5 Restrictions
  on Subsidiary Distributions

  	
  79

  
	
   

  	
   

  
	
  Section 6.6 Investments

  	
  79

  
	
   

  	
   

  
	
  Section 6.7 Financial
  Covenants

  	
  81

  
	
   

  	
   

  
	
  Section 6.8 Fundamental
  Changes; Disposition of Assets; Acquisitions

  	
  82

  
	
   

  	
   

  
	
  Section 6.9 Disposal of
  Subsidiary Interests

  	
  83

  
	
   

  	
   

  
	
  Section 6.10 Sales and
  Lease-Backs

  	
  83

  
	
   

  	
   

  
	
  Section 6.11
  Transactions with Shareholders and Affiliates

  	
  84

  
	
   

  	
   

  
	
  Section 6.12 Conduct of
  Business

  	
  84

  
	
   

  	
   

  
	
  Section 6.13 Amendments,
  Waivers or Prepayments with respect to Senior Indebtedness or Subordinated
  Indebtedness

  	
  84

  
	
   

  	
   

  
	
  Section 6.14 Fiscal Year

  	
  85

  
	
   

  	
   

  
	
  SECTION 7. GUARANTY

  	
  85

  
	
   

  	
   

  
	
  Section 7.1 Guaranty of
  the Obligations

  	
  85

  
	
   

  	
   

  
	
  Section 7.2 Contribution
  by Guarantors

  	
  85

  
	
   

  	
   

  
	
  Section 7.3 Payment by
  Guarantors

  	
  86

  
	
   

  	
   

  
	
  Section 7.4 Liability of
  Guarantors Absolute

  	
  86

  
	
   

  	
   

  
	
  Section 7.5 Waivers by
  Guarantors

  	
  88

  
	
   

  	
   

  
	
  Section 7.6 Guarantors’
  Rights of Subrogation, Contribution, Etc

  	
  89

  
	
   

  	
   

  
	
  Section 7.7 Subordination
  of Other Obligations

  	
  90

  
	
   

  	
   

  
	
  Section 7.8 Continuing
  Guaranty

  	
  90

  
	
   

  	
   

  
	
  Section 7.9 Authority of
  Guarantors or Company

  	
  90

  
	
   

  	
   

  
	
  Section 7.10 Financial
  Condition of Company

  	
  90

  
	
   

  	
   

  
	
  Section 7.11 Bankruptcy,
  Etc

  	
  90

  
	
   

  	
   

  
	
  Section 7.12 Discharge
  of Guaranty Upon Sale of Guarantor

  	
  91

  
	
   

  	
   

  
	
  SECTION 8. EVENTS OF DEFAULT

  	
  91

  



 


iv





















 


	
  Section 8.1 Events of
  Default

  	
  91

  
	
   

  	
   

  
	
  Section 8.2 Actions in
  Respect of the Letters of Credit upon Default

  	
  94

  
	
   

  	
   

  
	
  SECTION 9. AGENTS

  	
  94

  
	
   

  	
   

  
	
  Section 9.1 Appointment
  of Agents

  	
  94

  
	
   

  	
   

  
	
  Section 9.2 Powers and
  Duties

  	
  95

  
	
   

  	
   

  
	
  Section 9.3 Exculpatory
  Provisions

  	
  96

  
	
   

  	
   

  
	
  Section 9.4 Reliance by
  Administrative Agent

  	
  96

  
	
   

  	
   

  
	
  Section 9.5 Delegation
  of Duties

  	
  97

  
	
   

  	
   

  
	
  Section 9.6 Agents
  Entitled to Act as Lender

  	
  97

  
	
   

  	
   

  
	
  Section 9.7 Lender
  Parties’ Representations, Warranties and Acknowledgment

  	
  97

  
	
   

  	
   

  
	
  Section 9.8 Right to
  Indemnity

  	
  98

  
	
   

  	
   

  
	
  Section 9.9 Successor
  Administrative Agent

  	
  99

  
	
   

  	
   

  
	
  Section 9.10
  Administrative Agent May File Proofs of Claim

  	
  100

  
	
   

  	
   

  
	
  Section 9.11 Collateral
  Documents and Guaranty

  	
  100

  
	
   

  	
   

  
	
  SECTION 10. MISCELLANEOUS

  	
  102

  
	
   

  	
   

  
	
  Section 10.1 Notices

  	
  102

  
	
   

  	
   

  
	
  Section 10.2 Expenses

  	
  104

  
	
   

  	
   

  
	
  Section 10.3 Indemnity

  	
  104

  
	
   

  	
   

  
	
  Section 10.4 Set-Off

  	
  105

  
	
   

  	
   

  
	
  Section 10.5 Amendments
  and Waivers

  	
  106

  
	
   

  	
   

  
	
  Section 10.6 Successors
  and Assigns; Participations

  	
  107

  
	
   

  	
   

  
	
  Section 10.7
  Independence of Covenants

  	
  110

  
	
   

  	
   

  
	
  Section 10.8 Survival of
  Representations, Warranties and Agreements

  	
  110

  
	
   

  	
   

  
	
  Section 10.9 No Waiver;
  Remedies Cumulative

  	
  110

  
	
   

  	
   

  
	
  Section 10.10
  Marshalling; Payments Set Aside

  	
  110

  



 


v





















 


	
  Section 10.11 Patriot
  Act Notice

  	
  111

  
	
   

  	
   

  
	
  Section 10.12
  Severability

  	
  111

  
	
   

  	
   

  
	
  Section 10.13
  Obligations Several; Independent Nature of Lenders’ Rights

  	
  111

  
	
   

  	
   

  
	
  Section 10.14 Headings

  	
  111

  
	
   

  	
   

  
	
  Section 10.15 APPLICABLE
  LAW

  	
  111

  
	
   

  	
   

  
	
  Section 10.16 CONSENT TO
  JURISDICTION

  	
  111

  
	
   

  	
   

  
	
  Section 10.17 WAIVER OF
  JURY TRIAL

  	
  112

  
	
   

  	
   

  
	
  Section 10.18
  Confidentiality

  	
  112

  
	
   

  	
   

  
	
  Section 10.19 Usury
  Savings Clause

  	
  113

  
	
   

  	
   

  
	
  Section 10.20
  Counterparts

  	
  113

  
	
   

  	
   

  
	
  Section 10.21 No Liability
  of the Issuing Banks

  	
  113

  
	
   

  	
   

  
	
  Section 10.22
  Effectiveness

  	
  114

  
	
   

  	
   

  
	
  Section 10.23 Amendment
  and Restatement

  	
  114

  
	
   

  	
   

  
	
  APPENDICES:

  	
   

  
	
   

  	
   

  
	
  A

  	
  Commitments

  	
   

  
	
  B

  	
  Notice Addresses

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE:

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Existing Letters of Credit

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS:

  	
   

  
	
   

  	
   

  	
   

  
	
  A-1

  	
  Funding Notice

  	
   

  
	
  A-2

  	
  Notice of Issuance

  	
   

  
	
  A-3

  	
  Conversion/Continuation Notice

  	
   

  
	
  B

  	
  Note

  	
   

  
	
  C

  	
  Compliance Certificate

  	
   

  
	
  D

  	
  Opinions of U.S. Counsel

  	
   

  
	
  E

  	
  Assignment Agreement

  	
   

  
	
  F

  	
  Certificate Re Non-bank Status

  	
   

  



 


vi





















 


	
  G-1

  	
  Closing Date Certificate

  	
   

  
	
  G-2

  	
  Solvency Certificate

  	
   

  
	
  H

  	
  Counterpart Agreement

  	
   

  
	
  I

  	
  Pledge and Security Agreement

  	
   

  
	
  J

  	
  Mortgage

  	
   

  
	
  K

  	
  Landlord Waiver and Consent Agreement

  	
   

  
	
  L

  	
  Intercompany Note

  	
   

  
	
  M

  	
  Joinder to Intercreditor Agreement

  	
   

  



 


vii





















 


AMENDED
AND RESTATED CREDIT AND GUARANTY AGREEMENT


 


This AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT, dated as
of December 16, 2005, is entered into by and among SANMINA–SCI
CORPORATION, a Delaware corporation (“Company”), CERTAIN SUBSIDIARIES OF COMPANY,
as Guarantors, the Lenders party hereto from time to time, BANK OF AMERICA,
N.A. (“Bank of America”),
as the Initial Issuing Bank (the “Initial  Issuing Bank” and, together with the Lenders,
the “Lender Parties”),
CITICORP USA, INC., as Syndication Agent (the “Syndication Agent”), THE BANK OF NOVA
SCOTIA, DEUTSCHE BANK TRUST COMPANY AMERICAS and KEYBANK NATIONAL ASSOCIATION,
as Co-Documentation Agents (the “Co-Documentation Agents”), BANC OF AMERICA
SECURITIES LLC and CITIGROUP GLOBAL MARKETS INC., as Joint Book Managers and
Joint Lead Arrangers (the “Lead
Arrangers”), BANK OF AMERICA, as Administrative Agent (together
with its permitted successors in such capacity, “Administrative Agent”), and CITIBANK,
N.A., as Collateral Agent (together with its permitted successors in such
capacity, “Collateral
Agent”).


 


RECITALS:


 


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


 


WHEREAS, Company entered into a Credit and Guaranty Agreement, dated as of October 26,
2004, as amended by that certain Amendment No. 1 to Credit and Guaranty
Agreement dated as of February 15, 2005 and by that certain Amendment No. 2
to Credit and Guaranty Agreement dated as of June 6, 2005 (as so amended,
the “Existing Credit
Agreement”), with the banks, financial institutions and other
institutional lenders party thereto (the “Existing Lenders”) and Citicorp USA, Inc.,
as administrative agent;


 


WHEREAS, Company has requested to amend and restate the Existing Credit
Agreement in its entirety in order, among other things, to have Bank of America
act as the Administrative Agent, to extend the maturity of the Existing Credit
Agreement and to modify certain covenants;


 


WHEREAS, the Lenders have agreed to the amendment and restatement of the
Existing Credit Agreement as provided herein.


 


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


 


SECTION 1. DEFINITIONS
AND INTERPRETATION


 


Section 1.1  Definitions.  The following terms used herein, including in
the preamble, recitals, exhibits and schedules hereto, shall have the following
meanings:


 


“3% Notes” means the 3.0% Convertible
Subordinated Notes due 2007 issued by SCI Systems, Inc.


 


1





















 


“Accounts” means all of Company’s and
each Guarantor’s now owned or hereafter acquired or arising accounts, as
defined in the UCC.


 


“Administrative Agent” as defined in the
preamble hereto.


 


“Adverse Proceeding” means any action,
suit, proceeding (whether administrative, judicial or otherwise), governmental
investigation or arbitration (whether or not purportedly on behalf of Company
or any of its Subsidiaries) at law or in equity, or before or by any
Governmental Authority, domestic or foreign (including any Environmental
Claims), whether pending or, to the knowledge of Company or any of its
Subsidiaries, threatened against Company or any of its Subsidiaries or any
property of Company or any of its Subsidiaries.


 


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


 


“Agent” means each of Administrative
Agent, Collateral Agent, Syndication Agent, each Co-Documentation Agent and
each Lead Arranger.


 


“Aggregate Amounts Due” as defined in Section 2.12.


 


“Aggregate Payments” as defined in Section 7.2.


 


“Agreement” means this Amended and
Restated Credit and Guaranty Agreement, dated as of December 16, 2005, as
it may be amended, restated, supplemented or otherwise modified from time to
time.


 


“Applicable Margin” means a percentage
per annum determined by reference to the Debt Rating in effect from time to
time as set forth below:


 


	
   

  	
   

  	
  Applicable Margin

  	
   

  	
   

  	
   

  
	
  Performance Level

  	
   

  	
  Eurocurrency

  Rate Loans

  	
   

  	
  Base Rate

  Loans

  	
   

  	
  Commitment Fee

  	
   

  
	
  Level 1

  	
   

  	
  1.00

  	
  %

  	
  0.00

  	
  %

  	
  0.20

  	
  %

  
	
  Level 2

  	
   

  	
  1.25

  	
  %

  	
  0.25

  	
  %

  	
  0.25

  	
  %

  
	
  Level 3

  	
   

  	
  1.50

  	
  %

  	
  0.50

  	
  %

  	
  0.30

  	
  %

  
	
  Level 4

  	
   

  	
  1.75

  	
  %

  	
  0.75

  	
  %

  	
  0.35

  	
  %

  
	
  Level 5

  	
   

  	
  2.00

  	
  %

  	
  1.00

  	
  %

  	
  0.45

  	
  %

  



 


The Applicable Margin shall
initially be determined by reference to Level 3 above and thereafter shall be
determined in accordance with the Debt Rating as in effect from time to


 


2





















 


time. 
Company shall notify Administrative Agent in writing immediately upon
(and, in any event, no later than one day following) any change in the Debt
Rating.


 


“Applicable Percentage” means with
respect to any Lender at any time, the percentage (carried out to the ninth
decimal place) of the Revolving Credit Facility represented by such Lender’s
Revolving Credit Commitment at such time. 
If the Revolving Credit Commitment of each Lender to make Revolving
Credit Loans and the obligation of the Issuing Bank to make L/C Credit
Extensions have been terminated pursuant to Section 8.2, or if the
Revolving Credit Commitments have expired, then the Applicable Percentage of
each Lender in respect of the Revolving Credit Facility shall be determined
based on the Applicable Percentage of such Lender in respect of the Revolving
Credit Facility most recently in effect, giving effect to any subsequent
assignments.


 


“Applicable Reserve Requirement” means,
at any time, for any Eurocurrency Rate Loan, the maximum rate, expressed as a
decimal, at which reserves (including, without limitation, any basic marginal,
special, supplemental, emergency or other reserves) are required to be
maintained with respect thereto against “Eurocurrency liabilities” (as such
term is defined in Regulation D) under regulations issued from time to time by
the Board of Governors of the Federal Reserve System or other applicable
banking regulator.  Without limiting the
effect of the foregoing, the Applicable Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks with respect to (i) any
category of liabilities which includes deposits by reference to which the
applicable Eurocurrency Rate or any other interest rate of a Loan is to be
determined, or (ii) any category of extensions of credit or other assets
which include Eurocurrency Rate Loans.  A
Eurocurrency Rate Loan shall be deemed to constitute Eurocurrency liabilities
and as such shall be deemed subject to reserve requirements without benefits of
credit for proration, exceptions or offsets that may be available from time to
time to the applicable Lender.  The rate
of interest on Eurocurrency Rate Loans shall be adjusted automatically on and
as of the effective date of any change in the Applicable Reserve Requirement.


 


“Asset Sale” means a sale, lease or
sub-lease (as lessor or sublessor), sale and leaseback, assignment, conveyance,
transfer or other disposition to, or any exchange of property with, any Person
(other than Company or any Guarantor), in one transaction or a series of
transactions, of all or any part of Company’s or any of its Subsidiaries’
businesses, assets or properties of any kind, whether real, personal, or mixed
and whether tangible or intangible (other than cash and Cash Equivalents),
whether now owned or hereafter acquired, including, without limitation, the
Capital Stock of any of Company’s Subsidiaries, other than (i) inventory
(or other assets) sold or leased in the ordinary course of business (excluding
any such sales by operations or divisions discontinued or to be discontinued); (ii) sales
of other assets for aggregate consideration of less than $50.0 million in the
aggregate during the term hereof; (iii) the granting of Permitted Liens; (iv) the
licensing of intellectual property or know-how on commercially reasonable terms
and in the ordinary course of business; (v) the surrender or waiver of
litigation rights or settlement, release or surrender of tort or other
litigation claims of any kind; (vi) disposals of obsolete, worn out or
surplus equipment; (vii) any disposition by a Guarantor to Company or by
Company or a Guarantor to a Guarantor; (viii) any disposition made in
accordance with Section 6.4 or Section 6.6; (ix) any issuance of
Capital Stock by a Subsidiary of Company to Company or to another Subsidiary of
Company not prohibited hereunder; (x) the


 


3





















 


sub-lease of facilities of Company or any of
its Subsidiaries and the lease by Company or any of its Subsidiaries of facilities
under any operating lease, in either case, in the ordinary course of business;
(xi) sales of Real Estate Facilities required as part of Company’s Phase I,
Phase II and Phase III restructuring; provided
that at least 75% of the consideration for such sales of Real Estate Facilities
is in cash, and (xii) one or more sales by Company or any of its Subsidiaries
of Real Estate Facilities; provided
that the aggregate consideration for all such sales during the term hereof does
not exceed $50.0 million, (xiii) the sale of the Real Estate Facilities
comprising the Corporate Head Office Campus in connection with a sale and
leaseback transaction and (xiv) sales of Real Estate Facilities located in
Singapore for an aggregate consideration of no more than $20 million.


 


“Assignment Agreement” means an
Assignment and Assumption Agreement substantially in the form of Exhibit E,
with such amendments or modifications as may be approved by Administrative
Agent.


 


“Authorized Officer” means, as applied to
any Person, any individual holding the position of chairman of the board (if an
officer), chief executive officer, president, chief operating officer, vice
president-treasurer (or the equivalent thereof), vice president-controller (or
the equivalent thereof), and such Person’s chief financial officer or
treasurer.


 


“Auto-Extension Letter of Credit” as
defined in Section 2.1(b)(iii).


 


“Available Amount” of any Letter of
Credit means, at any time, the maximum amount available to be drawn under such
Letter of Credit at any time (assuming compliance at such time with all
conditions to drawing).


 


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


 


“Base Rate” means, for each day in any period,
a fluctuating interest rate per annum as shall be in effect from time to time,
which rate per annum shall at all times for such day during such period be
equal to the higher of:


 


(a)                                  the rate of interest announced publicly by Bank of America, from time
to time, as Bank of America’s base rate in effect for such day; and


 


(b)                                 0.50% per annum above the Federal Funds Rate for such day.


 


“Base Rate Loan” means a Loan bearing
interest at a rate determined by reference to the Base Rate.


 


“Beneficiary” means each Agent, Lender
and Lender Counterparty.


 


“Business Day” means (i) any day
excluding Saturday, Sunday and any day which is a legal holiday under the laws
of the State of New York or is a day on which banking institutions located in
such state are authorized or required by law or other governmental action to
close and (ii) with respect to all notices, determinations, fundings and
payments in connection with the Eurocurrency Rate or any Eurocurrency Rate
Loans, the term “Business Day” means


 


4





















 


any day which is a Business Day described in
clause (i) and which is also a day for trading by and between banks in
Dollar deposits in the London interbank market.


 


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


 


“Capital Stock” means any and all shares,
interests, participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in a Person
(other than a corporation), including, without limitation, partnership
interests and membership interests, and any and all warrants, rights or options
to purchase or other arrangements or rights to acquire any of the foregoing,
but excluding any debt security convertible into or exchangeable into such
interest.


 


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


 


“Cash Equivalents” means, as at any date
of determination, (a) securities issued or directly and fully guaranteed
or insured by (i) the United States Government or any agency or
instrumentality thereof (provided
that the full faith and credit of the United States is pledged in support
thereof), or (ii) any member of the European Economic Area or Switzerland,
or any agency or instrumentality thereof (provided
that such country, agency or instrumentality has a credit rating at least equal
to that of the United States and the full faith and credit of such country is
pledged in support thereof), in each case, with such securities having
maturities of not more than thirteen months from the date of acquisition; (b) marketable
general obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof
maturing within thirteen months from the date of acquisition thereof (provided that the full faith and credit of
such state is pledged in support thereof) and, at the time of acquisition
thereof, having credit ratings of at least AA- (or the equivalent) by S&P
and at least Aa3 (or the equivalent) by Moody’s; (c) certificates of
deposit, time deposits, eurodollar time deposits, overnight bank deposits or
bankers’ acceptances having maturities of not more than thirteen months from
the date of acquisition thereof issued by any commercial bank organized in the
United States of America, Canada, Japan or Switzerland or any member of the
European Economic Area, in each case, of recognized standing and having
combined capital and surplus in excess of $500.0 million (or the foreign
currency equivalent thereof); (d) repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clauses (a), (b) and (c) entered into with any bank meeting the
qualifications specified in clause (c) above; (e) commercial paper
having a rating at the time of acquisition thereof of at least A-1 from S&P
or at least P-1 from Moody’s or carrying an equivalent rating by a nationally
recognized rating agency, if both of the two named rating agencies cease
publishing ratings of investments, and in any case maturing within thirteen
months after the date of acquisition thereof; (f) interests in any
investment company or money market fund substantially all of the assets of
which are of the type specified in clauses (a) through (e) above; (g) corporate
obligations with long term ratings of A or better from S&P or Moody’s, with
such obligations having maturities of not more than thirteen months from the
date of acquisition; and (h) asset backed securities rated AAA or better
by S&P or Moody’s, with such securities having maturities of not more than
thirteen months from the date of acquisition.


 


5





















 


“Certificate re Non-Bank Status” means a
certificate substantially in the form of Exhibit F.


 


“Change of Control” means, at any time, (i) any
Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the
Exchange Act) (a) shall have acquired beneficial ownership of 35% or more
on a fully diluted basis of the voting and/or economic interest in the Capital
Stock of Company or (b) shall have obtained the power (whether or not
exercised) to elect a majority of the members of the board of directors (or
similar governing body) of Company; (ii) during any period of twelve (12)
consecutive months, the majority of the seats (other than vacant seats) on the
board of directors (or similar governing body) of Company cease to be occupied
by Persons who either (a) were members of the board of directors of
Company on the Closing Date or (b) were nominated for election by the
board of directors of Company, a majority of whom were directors on the Closing
Date or whose election or nomination for election was previously approved by a
majority of such directors or directors elected in accordance with this clause
(b); or (iii) any “change of control” or similar event under and as
defined in any documentation relating to any Material Indebtedness.


 


“Change in Law” means the occurrence,
after the date of this Agreement, of any of the following:  (a) the adoption or taking effect of any
law, rule, regulation or treaty, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any
request, guideline or directive (whether or not having the force of law) by any
Governmental Authority.


 


“Closing Date” means the date upon which
all of the conditions set forth in Section 3.1 hereof have been satisfied.


 


“Closing Documents” means (i) this
Agreement and (ii) the Consent and Ratification of Collateral Documents.


 


“Closing Date Certificate” means a
Closing Date Certificate substantially in the form of Exhibit G-1.


 


“Co-Documentation Agents” as defined in
the preamble hereto.


 


“Collateral” means, collectively, all of
the real, personal and mixed property (including Capital Stock) in which Liens
are purported to be granted pursuant to the Collateral Documents as security
for the Obligations.


 


“Collateral Agent” as defined in the
preamble hereto.


 


“Collateral Documents” means the Pledge
and Security Agreement, the Mortgages, the Landlord Personal Property
Collateral Access Agreements, if any, and all other instruments, documents and
agreements delivered by any Credit Party pursuant to this Agreement or any of
the other Credit Documents in order to grant to Collateral Agent, for the
benefit of Secured Parties, a Lien on any real, personal or mixed property of
that Credit Party as security for the Obligations.


 


6





















 


“Commitment” means a Revolving Credit
Commitment or a Letter of Credit Commitment, as the context may require.


 


“Commodity Agreement” means any swap
agreement, contract or similar agreement entered into to protect Company and
its Subsidiaries against fluctuations in the prices of raw materials used in
their businesses.


 


“Company” as defined in the preamble
hereto.


 


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


 


“Communications” as defined in Section 10.1(b).


 


“Consent and Ratification of Collateral Documents”
means that certain Consent and Ratification of Collateral Documents, dated as
of even date herewith, by and among each Credit Party in favor of the
Collateral Agent for the benefit of the Secured Parties.


 


“Consolidated Capital Expenditures”
means, for any period, the aggregate of all expenditures of Company and its
Subsidiaries during such period determined on a consolidated basis that, in
accordance with GAAP, are or should be included in “purchase of property and
equipment” or similar items reflected in the consolidated statement of cash
flows of Company and its Subsidiaries.


 


“Consolidated Tangible Foreign Assets”
means, as of any date of determination, the sum of the amounts that would
appear on a consolidated balance sheet of the Foreign Subsidiaries of Company
as the total assets of the Foreign Subsidiaries of Company, minus the total
intangible assets of the Foreign Subsidiaries of Company.


 


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


 


“Contributing Guarantors” as defined in Section 7.2.


 


“Control Agreement” means any control
agreement entered into by any Loan Party, in the form of Exhibit B, C or D
to the Pledge and Security Agreement or otherwise.


 


“Conversion,” “Convert”
and “Converted”
each refers to a conversion of Loans of one Type with Loans of another Type
pursuant to Section 2.8.


 


“Conversion/Continuation Date” means the
effective date of a continuation or conversion, as the case may be, as set
forth in the applicable Conversion/Continuation Notice.


 


“Conversion/Continuation Notice” means a
Conversion/Continuation Notice substantially in the form of Exhibit  A-3.


 


7





















 


“Convertible Indebtedness” means
Indebtedness convertible into Capital Stock of Company or any of its
Subsidiaries at the option of the holder thereof.


 


“Convertible Securities” means (a) Company’s
Zero Coupon Notes, (b) the 3% Notes and (c) and Refinancing
Convertible Securities.


 


“Corporate Head Office Campus” means
Company’s head office campus located at 2700 North First Street, 2701 Zanker
Road, 60 East Plumeria Drive and 30 East Plumeria Drive, San Jose, California
95134.


 


“Counterpart Agreement” means a
Counterpart Agreement substantially in the form of Exhibit H delivered by
a Credit Party pursuant to Section 5.9.


 


“Credit Date” means the date of a making
of a Loan.


 


“Credit Document” means any of this
Agreement, the Notes, if any, the Collateral Documents, the Intercreditor
Agreement, the Environmental Indemnity Agreement, the Interco Subordination
Agreement, each Letter of Credit Agreement, each Secured Hedge Agreement and
all other documents, instruments or agreements executed and delivered by a
Credit Party for the benefit of any Agent or any Lender in connection herewith,
in each case as amended.


 


“Credit Party” means Company and each
Subsidiary of Company from time to time party to a Credit Document.


 


“Currency Agreement” means any foreign
exchange contract, currency swap agreement, futures contract, option contract,
synthetic cap or other similar agreement or arrangement, each of which is for
the purpose of managing or hedging the foreign currency risk associated with
Company’s and its Subsidiaries’ operations and not for speculative purposes.


 


“Current Book Value” means, as of any
date of determination, the book value of an asset as of the end of the Company’s
Fiscal Quarter ended immediately prior to such date of determination.


 


“Debt Rating” means, as of any date for
S&P, the corporate credit rating of the Company (or equivalent rating for
similar obligations as may be used by S&P from time to time) that has been
most recently announced by S&P and, as of any date for Moody’s, the family
rating of the Company (or equivalent rating for similar obligations as may be
used by Moody’s from time to time) that has been most recently announced by
Moody’s.  For purposes of the foregoing, (a) if
only one of S&P and Moody’s shall have in effect a Debt Rating, the
Applicable Margin shall be determined by reference to the available rating; (b) if
neither S&P nor Moody’s shall have in effect a Debt Rating, the Applicable
Margin will be set in accordance with Level 5 under the definition of “Applicable
Margin”; (c) if the ratings established by S&P and Moody’s shall fall
within different levels, the Applicable Margin shall be based upon the higher
rating; provided that if the
ratings differential is (A) two levels (e.g. Level 1 and Level 3), the
intermediate level shall be used, (B) three levels (e.g. Levels 1 and 4),
the higher of the two intermediate levels shall be used, and (C) four levels
(e.g. Levels 1 and 5), Level 3 shall be used; (d) if any rating
established by S&P or Moody’s shall be changed, such change shall be
effective as of the date on which such change is first announced publicly by
the rating agency making


 


8





















 


such change; and (e) if S&P or Moody’s
shall change the basis on which ratings are established, each reference to the
Debt Rating announced by S&P or Moody’s, as the case may be, shall refer to
the then equivalent rating by S&P or Moody’s, as the case may be.


 


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


 


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


 


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


 


“Designated Proceeds Account” means the
account of Company held with (a) Bank of America, N.A. and (b) any
other financial institution to the extent that such account is subject to a
control agreement in favor of the Collateral Agent, in each case from time to
time, the proceeds of which have been designated by Company to be used in the
case of clause (a) for the refinancing in whole or in part of the Senior
Secured Notes and otherwise for the refinancing in whole or in part of any
Indebtedness under Section 6.1(c), in each case with any excess proceeds
remaining in such account following the Company’s satisfaction of such
Indebtedness or portion thereof being refinanced, to be paid to the Company
upon its written request to the Administrative Agent; provided that the Company is in pro forma compliance with the covenants
set forth in Section 6.7 immediately prior to and immediately following
such payment to it.


 


“Disclosure Letter” means the Disclosure
Letter of Company to Agents and Lenders dated the Closing Date.


 


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


 


“Domestic Subsidiary” means any
Subsidiary organized under the laws of the United States of America, any State
thereof or the District of Columbia (other than Sanmina-SCI Netherlands
Holdings LLC).


 


“EBITDA” means for any period, an amount
determined for Company and its Subsidiaries on a consolidated basis in
accordance with GAAP equal to the sum of the following: (a) Net Income;
plus (b) to the extent deducted in the calculation of Net Income: (i) Taxes,
whether paid or deferred, (ii) Net Interest Expense, (iii) amortization,
(iv) depreciation, (v) other non-cash charges for such period
including, without limitation, goodwill, fixed asset and other intangibles
impairment; provided that any
cash payments made in any future period in respect of such charges shall be subtracted
from EBITDA in the period when such payments are made, (vi) an amount, not
to exceed $165.0 million in the aggregate over the term of this Agreement,
equal to the sum of all Cash charges associated with restructuring costs
incurred during the period


 


9





















 


beginning with the first Fiscal Quarter of
the Company’s 2006 Fiscal Year, (vii) an amount equal to the sum of all
charges associated with integration-related expenses (but excluding any
associated restructuring expenses) incurred in such period in connection with
any merger or acquisition permitted under this Agreement, (viii) an
amount, not to exceed $175 million in the aggregate over the term of this
Agreement, equal to the sum of all charges associated with the repayment or
redemption of the Convertible Securities, the Senior Secured Notes or the New
Senior Subordinated Notes, (ix) accelerated recognition of pension
expenses previously deferred under FAS 87/88 in connection with early
termination of SCI Systems, Inc.’s “Supplemental Retirement Plan” not to
exceed $20.0 million in the aggregate, (x)
any non-cash charges associated with the recognition of fair value of stock
options and other equity-based compensation issued to employees which have been
expensed in Company’s statement of operations for such period and (xi) any
penalties payable under any Hedge Agreement in connection with the refinancing,
redemption or repayment of the Senior Secured Notes or the New Senior
Subordinated Notes, provided that,
for the purpose of covenant compliance, EBITDA for the Fiscal Quarters ended April 2,
2005, July 2, 2005 and October 1, 2005 shall be deemed to be $104.3
million, $95.9 million and $102.4 million, respectively.


 


“Eligible Assignee” means (i) a
commercial bank organized under the laws of the United States, or any State
thereof, and having a combined capital and surplus of at least $100.0 million; (ii) a
commercial bank organized under the laws of any other country which is a member
of the OECD, or a political subdivision of any such country, and having a
combined capital and surplus of at least $100.0 million; provided, that, such
bank is acting through a branch or agency located in the United States; (iii) a
Person that is primarily engaged in the business of commercial banking and that
is (a) a Subsidiary of a Lender, (b) a Subsidiary of a Person of
which a Lender is a Subsidiary, or (c) a Person of which a Lender is a
Subsidiary; (iv) any Lender or any Person described in clause (a)(i) of
the definition of “Lender Affiliate”; (v) any Lender Affiliate not
described in clause (a)(i) of the definition thereof;  (vi) any other entity which is an “accredited
investor” (as defined in Regulation D under the Securities Act) which extends
credit or buys loans as one of its businesses, including but not limited to,
insurance companies, mutual funds and lease financing companies; and (vii) any
other Person acceptable to the Issuing Banks and the Agent and, provided no
Event of Default is continuing, Company. 
No Credit Party or any Affiliate thereof shall be an Eligible Assignee.


 


“Employee Benefit Plan” means any “employee
benefit plan” as defined in Section 3(3) of ERISA which is or was
sponsored, maintained or contributed to by, or required to be contributed by,
Company, any of its Subsidiaries or any of their respective ERISA Affiliates.


 


“Environmental Claim” means any
investigation, notice, notice of violation, claim, action, suit, proceeding,
demand, abatement order or other order or directive (conditional or otherwise),
by any governmental authority or any other Person, arising (i) pursuant to
or in connection with any actual or alleged violation of any Environmental Law;
(ii) in connection with any Hazardous Material or any actual or alleged
Hazardous Materials Activity; or (iii) in connection with any actual or
alleged damage, injury, threat or harm to health, safety, natural resources or
the environment.


 


“Environmental Indemnity Agreement” means
the environmental indemnity agreement, in form and substance reasonably
satisfactory to Administrative Agent, Collateral


 


10





















 


Agent and Company, executed by Company in
favor of Collateral Agent, as it may be amended, supplemented or otherwise
modified from time to time.


 


“Environmental Laws” means any and all
current or future foreign or domestic, federal or state (or any subdivision of
either of them), statutes, ordinances, orders, rules, regulations, judgments,
Governmental Authorizations, or any other requirements of Governmental
Authorities relating to (i) environmental matters, including those
relating to any Hazardous Materials Activity; (ii) the generation, use,
storage, transportation or disposal of Hazardous Materials; or (iii) occupational
safety and health, industrial hygiene, land use or the protection of the
environment, human, plant or animal health or welfare, in any manner applicable
to Company or any of its Subsidiaries or any Real Estate Facility.


 


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


 


“ERISA  Affiliate” means, as applied to any
Person, (i) any corporation which is a member of a controlled group of
corporations within the meaning of Section 414(b) of the Internal
Revenue Code of which that Person is a member; (ii) any trade or business
(whether or not incorporated) which is a member of a group of trades or
businesses under common control within the meaning of Section 414(c) of
the Internal Revenue Code of which that Person is a member; and (iii) any
member of an affiliated service group within the meaning of Section 414(m)
or (o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause
(ii) above is a member.  Any former
ERISA Affiliate of Company or any of its Subsidiaries shall continue to be
considered an ERISA Affiliate of Company or any such Subsidiary within the
meaning of this definition with respect to the period such entity was an ERISA
Affiliate of Company or such Subsidiary and with respect to liabilities arising
after such period for which Company or such Subsidiary is liable under the
Internal Revenue Code or ERISA.


 


“ERISA Event” means (i) a “reportable
event” within the meaning of Section 4043 of ERISA and the regulations
issued thereunder with respect to any Pension Plan (excluding those for which
the provision for 30-day notice to the PBGC has been waived by regulation); (ii) the
failure to meet the minimum funding standard of Section 412 of the
Internal Revenue Code with respect to any Pension Plan (whether or not waived
in accordance with Section 412(d) of the Internal Revenue Code) or
the failure to make by its due date a required installment under Section 412(m)
of the Internal Revenue Code with respect to any Pension Plan or the failure to
make any required contribution to a Multiemployer Plan by its due date; (iii) the
provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of
ERISA of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates
from any Pension Plan with two or more contributing sponsors or the termination
of any such Pension Plan resulting in liability to Company, any of its
Subsidiaries or any of their respective Affiliates pursuant to Section 4063
or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition which
might constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the imposition of
liability on Company, any of its Subsidiaries or any of their respective ERISA
Affiliates pursuant to Section


 


11





















 


4062(e) or 4069 of ERISA or by reason of
the application of Section 4212(c) of ERISA; (vii) the
withdrawal of Company, any of its Subsidiaries or any of their respective ERISA
Affiliates in a complete or partial withdrawal (within the meaning of Sections
4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential
liability therefor, or the receipt by Company, any of its Subsidiaries or any
of their respective ERISA Affiliates of notice from any Multiemployer Plan that
it is in reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA, or that it intends to terminate or has terminated under Section 4041A
or 4042 of ERISA; (viii) the occurrence of an act or omission which could
give rise to the imposition on Company, any of its Subsidiaries or any of their
respective ERISA Affiliates of fines, penalties, taxes or related charges under
Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c),
(i) or (l), or Section 4071 of ERISA in respect of any Employee
Benefit Plan; (ix) the assertion of a material claim (other than routine
claims for benefits) against any Employee Benefit Plan other than a Multiemployer
Plan or the assets thereof, or against Company, any of its Subsidiaries or any
of their respective ERISA Affiliates in connection with any Employee Benefit
Plan; (x) receipt from the Internal Revenue Service of notice of the failure of
any Pension Plan (or any other Employee Benefit Plan intended to be qualified
under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of
the Internal Revenue Code, or the failure of any trust forming part of any
Pension Plan to qualify for exemption from taxation under Section 501(a) of
the Internal Revenue Code; or (xi) the imposition of a Lien pursuant to Section 401(a)(29)
or 412(n) of the Internal Revenue Code or pursuant to ERISA with respect to any
Pension Plan.


 


“Eurocurrency Rate” means, for any
Interest Rate Determination Date with respect to an Interest Period for a
Eurocurrency Rate Loan, the rate per annum obtained by dividing (and rounding
upward to the next whole multiple of 1/16 of 1%) (i) (a) the rate per
annum (rounded to the nearest 1/100 of 1%) equal to the rate determined by
Administrative Agent to be the offered rate which appears on the page of
the Reuters Screen which displays an average British Bankers Association
Interest Settlement Rate for deposits (for delivery on the first day of such
period) with a term equivalent to such period in Dollars, determined as of
approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (b) in the event the rate referenced in the
preceding clause (a) does not appear on such page or service or if
such page or service shall cease to be available, the rate per annum
(rounded to the nearest 1/100 of 1%) equal to the rate determined by
Administrative Agent to be the offered rate on such other page or other
service which displays an average British Bankers Association Interest
Settlement Rate for deposits (for delivery on the first day of such period)
with a term equivalent to such period in Dollars, determined as of
approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (c) in the event the rates referenced in the
preceding clauses (a) and (b) are not available, the rate per annum
(rounded to the nearest 1/100 of 1%) equal to the offered quotation rate to
first class banks in the London interbank market by Bank of America for
deposits (for delivery on the first day of the relevant period) in Dollars of
amounts in same day funds comparable to the principal amount of the applicable
Loan of Administrative Agent, in its capacity as a Lender, for which the
Eurocurrency Rate is then being determined with maturities comparable to such
period as of approximately 11:00 a.m. (London, England time) on such
Interest Rate Determination Date, by (ii) an amount equal to (a) one
minus (b) the Applicable Reserve Requirement.


 


12





















 


“Eurocurrency Rate Loan” means a Loan
bearing interest at a rate determined by reference to the Eurocurrency Rate.


 


“European Economic Area” means the member
nations of the European Economic Area pursuant to the Oporto Agreement on the
European Economic Area dated May 2, 1992, as amended.


 


“Event of Default” means each of the
conditions or events set forth in Section 8.1.


 


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


 


“Excluded Debt Amount” means the amount
of all proceeds from issuances of Debt by Company held in the Designated
Proceeds Account from time to time.


 


“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 Company hereunder,
(a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes),
by the jurisdiction (or any political subdivision thereof) under the laws of
which such recipient is organized, in which its principal office is located or
with which it has a present or former connection (other than solely as a result
of entering into, delivering or performing its obligations pursuant to this
Agreement) or, in the case of any Lender, in which its applicable Lending
Office is located, (b) any branch profits taxes imposed by the United
States or any similar tax imposed by any other jurisdiction in which Company is
located and (c) in the case of a Foreign Lender, any withholding tax that (i) is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party hereto (or designates a new Lending Office), except to
the extent that such Foreign Lender was entitled, at the time of designation of
a new Lending Office, or such Foreign Lenders’ assignor was entitled, at the
time of assignment, to receive additional amounts from Company with respect to
such withholding tax pursuant to Section 2.13(a), or (ii) is
attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law after the date such Foreign Lender becomes a party
hereto) to comply with Section 2.13(e).


 


“Existing Letters of Credit” means each
of the Letters of Credit issued by Citibank, N.A. prior to the Closing Date and
listed on Schedule 1.1 hereto.


 


“Fair Share” as defined in Section 7.2.


 


“Fair Share Contribution Amount” as
defined in Section 7.2.


 


“Fair Share Shortfall” as defined in Section 7.2.


 


“Federal Funds Effective Rate” means for
any day, the rate per annum (expressed, as a decimal, rounded upwards, if
necessary, to the next higher 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided,


 


13





















 


(i) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (ii) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate
charged to Administrative Agent, in its capacity as a Lender, on such day on
such transactions as determined by Administrative Agent.


 


“Financial Officer Certification” means,
with respect to the financial statements for which such certification is
required, the certification of the chief financial officer of Company that such
financial statements fairly present, in all material respects, the financial
condition of Company and its Subsidiaries as at the dates indicated and the
results of their operations and their cash flows for the periods indicated,
subject to changes resulting from audit and normal year-end adjustments and the
absence of footnotes in the case of interim period financial statements.


 


“First Lien Claimholder Representative”
has the meaning assigned to that term in the Intercreditor Agreement.


 


“First Priority” means, with respect to
any Lien purported to be created in any Collateral pursuant to any Collateral
Document, that such Lien is the only Lien to which such Collateral is subject,
other than any Permitted Lien securing Indebtedness.


 


“First Tier Foreign Subsidiary” means, at
any date of determination, a Foreign Subsidiary in which Company or any
Domestic Subsidiary (or any combination thereof) owns directly more than 50%,
in the aggregate, of the Capital Stock of such Subsidiary.


 


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


 


“Fiscal Year” means the fiscal year of
Company and its Subsidiaries ending on the Saturday nearest September 30
of each year.


 


“Fixed Charge Coverage Ratio” means, for
any period and in respect of Company and its Subsidiaries on a consolidated
basis, the ratio of (a) the amount equal to the sum of (i) EBITDA for
the period of four consecutive Fiscal Quarters then ending less (ii) Consolidated Capital
Expenditures during such four consecutive Fiscal Quarter period, to (b) the
sum of (i) Interest Expense paid during such four consecutive Fiscal
Quarter period excluding any interest which according to its terms is not
required to be paid in cash, any interest paid in respect of the Excluded Debt
Amount and amortization amounts in respect of costs incurred in connection with
the issuance of any Indebtedness permitted hereunder, (ii) Taxes paid
during such four consecutive Fiscal Quarter period excluding any Taxes not paid
in cash, and (iii) scheduled repayments of Senior Indebtedness (including
in respect of Capital Leases but excluding any repayments in respect of
Convertible Securities) due over the succeeding four Fiscal Quarters, whether
or not actually paid during such period in each case for Company and its
Subsidiaries for such period.


 


“Flood Hazard Property” means any Real
Estate Asset subject to a mortgage or deed of trust in favor of Collateral
Agent, for the benefit of Secured Parties, and located in an area designated by
the Federal Emergency Management Agency as having special flood or mud slide
hazards.


 


14





















 


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


 


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


 


“Funding Guarantors” as defined in Section 7.2.


 


“Funding Notice” means a notice
substantially in the form of Exhibit A-1.


 


“GAAP” means, subject to the limitations
on the application thereof set forth in Section 1.2, United States
generally accepted accounting principles in effect as of the date of
determination thereof.


 


“Governmental Authority” means any
federal, state, municipal, national or other government, governmental
department, commission, board, bureau, court, agency or instrumentality or
political subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to any government or any court, in each case whether associated with a state of
the United States, the United States, or a foreign entity or government.


 


“Governmental Authorization” means any
permit, license, authorization, plan, directive, consent order or consent
decree of or from any Governmental Authority.


 


“Grantor” as defined in the Pledge and
Security Agreement.


 


“Guaranteed Obligations” as defined in Section 7.1.


 


“Guarantor” means each Domestic
Subsidiary of Company.


 


“Guaranty” means the guaranty of each
Guarantor set forth in Section 7.


 


“Hazardous Materials” means any chemical,
material or substance, exposure to which is prohibited, limited or regulated by
any Governmental Authority or which may or could pose a hazard to the health
and safety of the owners, occupants or any Persons in the vicinity of any Real
Estate Facility or to the indoor or outdoor environment.


 


“Hazardous Materials Activity” means any
past, current, proposed or threatened activity, event or occurrence involving
any Hazardous Materials, including the use, manufacture, possession, storage,
holding, presence, existence, location, Release, threatened Release, discharge,
placement, generation, transportation, processing, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.


 


“Hedge Agreement” means a Commodity
Agreement, Currency Agreement or Interest Rate Agreement permitted under this
Agreement.


 


15





















 


“Highest Lawful Rate” means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to any Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.


 


“Historical Financial Statements” means,
as of the Closing Date, the audited financial statements of Company and its
Subsidiaries for the Fiscal Years ended September 27, 2003 and October 2,
2004, consisting of balance sheets and the related consolidated statements of
income, stockholders’ equity and cash flows for such Fiscal Years, certified by
the chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company and its Subsidiaries as
at the dates indicated and the results of their operations and their cash flows
for the periods indicated.


 


“ISP” means, with respect to any Letter
of Credit, the “International Standby Practices 1998” published by the
Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance).


 


“Increased Cost Lender” as defined in Section 2.19.


 


“Indebtedness”, as applied to any Person,
means, without duplication, (i) all indebtedness for borrowed money; (ii) that
portion of obligations with respect to Capital Leases that is properly
classified as a liability on a balance sheet in conformity with GAAP; (iii) all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments; (iv) any obligation owed for all
or any part of the deferred purchase price of property or services (excluding
any such obligations incurred under ERISA), which purchase price is (a) due
more than six months from the date of incurrence of the obligation in respect
thereof or (b) evidenced by a note or similar written instrument; (v) all
indebtedness secured by any Lien on any property or asset owned or held by that
Person regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person; (vi) the
face amount of any letter of credit issued for the account of that Person or as
to which that Person is otherwise liable for reimbursement of drawings; (vii) the
direct or indirect guaranty, endorsement (otherwise than for collection or
deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of any Indebtedness described in
clauses (i) through (vi) or clause (x) of this definition; (viii) any
obligation of such Person the primary purpose or intent of which is to provide
assurance to an obligee that any Indebtedness described in clauses (i) through
(vi) or clause (x) of this definition of the obligor thereof will be paid
or discharged; and (ix) any liability of such Person for any Indebtedness
described in clauses (i) through (vi) or clause (x) of this
definition through any agreement (contingent or otherwise) (a) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such Indebtedness
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise) or (b) to maintain the solvency or any balance sheet item,
level of income or financial condition of another if, in the case of any
agreement described under subclauses (a) or (b) of this clause (ix),
the primary purpose or intent thereof is as described in clause (viii) above;
and (x) net obligations of such Person in respect of any derivative
transaction, including, without limitation, any Hedge Agreement, whether
entered into for hedging or speculative purposes;


 


16





















 


provided that in no event shall the term “Indebtedness” include (x) any
indebtedness or other obligations under any overdraft or cash management
facility; provided, further that such indebtedness or other
obligations are incurred in the ordinary course of business, and are repaid in
full no later than the Business Day immediately following the date on which
they were incurred, or (y), except as set forth in clause (iv) above, any
trade payable incurred in the ordinary course or (z) any operating lease.


 


“Indemnified Liabilities” means, collectively,
any and all liabilities, obligations, losses, damages (including natural
resource damages), Indemnified Taxes, penalties, claims (including
Environmental Claims), costs (including the costs of any investigation, study,
sampling, testing, abatement, cleanup, removal, remediation or other response
action necessary to remove, remediate, clean up or abate any Hazardous
Materials Activity), expenses and disbursements of any kind or nature
whatsoever (including the reasonable fees and disbursements of counsel and
consultants for Indemnitees in connection with any investigative,
administrative or judicial proceeding commenced or threatened by any Person,
whether or not any such Indemnitee shall be designated as a party or a
potential party thereto, and any fees or expenses incurred by Indemnitees in
enforcing this indemnity), whether direct, indirect or consequential and
whether based on any federal, state, local or foreign laws, statutes, rules or
regulations (including securities and commercial laws, statutes, rules or
regulations and Environmental Laws), on common law or equitable cause or on
contract or otherwise, that may be imposed on, incurred by, or asserted against
any such Indemnitee, in any manner relating to or arising out of (i) this
Agreement or the other Credit Documents or the transactions contemplated hereby
or thereby (including Lenders’ agreement to make the Loans or the use or
intended use of the proceeds thereof, or any enforcement of any of the Credit
Documents (including any sale of, collection from, or other realization upon
any of the Collateral or the enforcement of the Guaranty)); (ii) the
statements of Company contained in the commitment letter among Bank of America,
N.A., Banc of America Securities LLC and the Company with respect to the
transactions contemplated by this Agreement; or (iii) any Environmental
Claim or any Hazardous Materials Activity relating to or arising from, directly
or indirectly, any past, present or future activity, operation, land ownership,
or practice of Company or any of its Subsidiaries.


 


“Indemnified Taxes” means Taxes and Other
Taxes of the Administrative Agent, or Lender or the Issuing Bank or any other
recipient of any payment arising in connection with the transactions
contemplated by this Agreement other than Excluded Taxes.


 


“Indemnitee” as defined in Section 10.3.


 


“Initial Issuing Bank” as defined in the
preamble hereto.


 


“Insignificant Subsidiary” means (a) a
Foreign Subsidiary having assets with a book value equal to $5.0 million or
less and (b) Sanmina-SCI Espana S.L.U., a company formed under the laws of
Spain.


 


“Intercompany Indebtedness” means
Indebtedness (whether or not evidenced by a writing) of Company or any of its
Subsidiaries payable to, as applicable, Company or any of its Subsidiaries.


 


17





















 


“Intercompany Note” means each promissory
note (if any) executed by (a) any Credit Party evidencing Intercompany
Indebtedness of such Credit Party payable to Company or any of its
Subsidiaries, or (b) any Subsidiary of Company evidencing Intercompany
Indebtedness of such Subsidiary payable to any Credit Party, in each case,
substantially in the form of Exhibit L.


 


“Interco Subordination Agreement” means
the Amended and Restated Interco Subordination Agreement dated as of October 26,
2004 among the Credit Parties, each Subsidiary that may from time to time
become a payee on any Intercompany Indebtedness owed by a Credit Party, the
Collateral Agent, and the Second Lien Collateral Trustee, as it may be amended,
supplemented or otherwise modified from time to time.


 


“Intercreditor Agreement” means the
Intercreditor Agreement dated as of December 23, 2002 between the First
Lien Claimholder Representative and the Second Lien Collateral Trustee, as it
may be amended, supplemented or otherwise modified from time to time.


 


“Interest Expense” means, for any period,
total interest expense (including that portion attributable to Capital Leases
in accordance with GAAP and capitalized interest) of Company and its
Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness of Company and its Subsidiaries, including all commissions,
discounts and other fees, charges owed with respect to letters of credit and
net costs under Interest Rate Agreements.


 


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


 


“Interest Period” means, in connection
with a Eurocurrency Rate Loan, an interest period of one, two, three or six
months, as selected by Company in the applicable Funding Notice or
Conversion/Continuation Notice, (i) initially, commencing on the Credit
Date or Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter,
commencing on the day on which the immediately preceding Interest Period
expires; provided, (a) if an
Interest Period would otherwise expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day unless no
further Business Day occurs in such month, in which case such Interest Period
shall expire on the immediately preceding Business Day; (b) any Interest
Period that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall, subject to clause (c) of this
definition, end on the last Business Day of a calendar month; and (c) no
Interest Period shall extend beyond the Maturity Date.


 


“Interest Rate Agreement” means any
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedging agreement or other similar agreement or
arrangement, each of which is for the purpose of managing the interest rate


 


18





















 


exposure or interest rate risk associated
with Company’s and its Subsidiaries’ operations and not for speculative
purposes.


 


“Interest Rate Determination Date” means,
with respect to any Interest Period, the date that is two Business Days prior
to the first day of such Interest Period.


 


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


 


“Inventory” means any inventory, goods or
other personal property which is held by or on behalf of any Person for sale or
lease or which constitute raw materials or materials used or consumed or to be
used or consumed in such Person’s business.


 


“Investment” means (i) any direct or
indirect purchase or other acquisition by Company or any of its Subsidiaries
of, or of a beneficial interest in, any of the Securities of any other Person
(other than a Guarantor); (ii) any direct or indirect redemption,
retirement, purchase or other acquisition for value, by any Subsidiary of
Company from any Person (other than Company or any Guarantor), of any Capital
Stock of such Person; and (iii) any direct or indirect loan, advance
(other than advances to employees for moving, entertainment and travel
expenses, drawing accounts and similar expenditures in the ordinary course of
business) or capital contribution by Company or any of its Subsidiaries to any
other Person (other than Company or any Guarantor), including all indebtedness
and accounts receivable from that other Person that are not current assets or
did not arise from sales to that other Person in the ordinary course of
business. The amount of any Investment shall be the original cost of such
Investment plus the cost of all additions thereto, without any adjustments for
increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.


 


“Issuing Bank” means the Initial Issuing
Bank, Citibank, N.A. (solely in connection with Existing Letters of Credit) and
any Eligible Assignee to which a Letter of Credit Commitment hereunder has been
assigned pursuant to Section 10.6 so long as such Eligible Assignee expressly
agrees to perform in accordance with their terms all of the obligations that by
the terms of this Agreement are required to be performed by it as an Issuing
Bank and notifies Administrative Agent of its Principal Office and the amount
of its Letter of Credit Commitment (which information shall be recorded by
Administrative Agent in the Register), for so long as such Initial Issuing Bank
or Eligible Assignee, as the case may be, shall have a Letter of Credit
Commitment.


 


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


 


“Landlord Personal Property Collateral Access Agreement”
means a Landlord Waiver and Consent Agreement substantially in the form of Exhibit K
with such amendments or modifications as may be approved by Collateral Agent.


 


“Law” or “Laws” means all international, foreign,
Federal, state and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any


 


19





















 


Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.


 


“L/C Cash Collateral Account” means an
account of Company held at Bank of America, N.A., established at the request of
the Administrative Agent to provide cash collateral in respect of Letters of
Credit issued hereunder.


 


“L/C Credit Extension” means, with
respect to any Letter of Credit, the issuance thereof or extension of the
expiry date thereof, or the increase of the amount thereof.


 


“L/C Related Documents” has the meaning
specified in Section 2.3(d)(i).


 


“Lead Arranger” as defined in the
preamble hereto.


 


“Lender” means each financial institution
listed on the signature pages hereto as a Lender, and any other Person
that becomes a party hereto pursuant to an Assignment Agreement.


 


“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, any other fund which 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.


 


“Lender Counterparty” means each Lender
or any Affiliate of a Lender counterparty to a Secured Hedge Agreement
(including any Person who is a Lender as of the Closing Date but subsequently,
whether before or after entering into a Secured Hedge Agreement, ceases to be a
Lender).


 


“Lender Parties” as defined in the
preamble hereto.


 


“Lending Office” means, as to any Lender,
the office or offices of such Lender as such Lender may from time to time
notify the Borrower and the Administrative Agent.


 


“Letter of Credit Agreement” has the
meaning specified in Section 2.3(a).


 


“Letter of Credit Application” means an
application and agreement for the issuance or amendment of a Letter of Credit
in the form from time to time in use by the Issuing Bank.


 


“Letter of Credit Commitment” means, with
respect to each Issuing Bank at any time, the amount set forth opposite such
Issuing Bank’s name on Appendix A hereto under the caption “Letter of Credit
Commitment” or, if an Issuing Bank has entered into one or more Assignment and
Acceptances, set forth for such Issuing Bank in the Register maintained by


 


20





















 


Administrative Agent pursuant to Section 2.5(b) as
such Issuing Bank’s “Letter of Credit Commitment”, as such amount may be
reduced at or prior to such time pursuant to Section 2.2.


 


“Letter of Credit Expiration Date” means
the day that is seven days prior to the Maturity Date then in effect for the
Revolving Credit Facility (or, if such day is not a Business Day, the next
preceding Business Day).


 


“Letter of Credit Facility” means, at any
time, an amount equal to the lesser of (a) the aggregate amount of the
Issuing Banks’ Letter of Credit Commitments at such time and (b) $150.0
million, as such amount may be reduced at or prior to such time pursuant to Section 2.2.


 


“Letter of Credit Liability” means, as of
any date of determination, all then existing liabilities of Company to the
Issuing Banks in respect of the Letters of Credit, whether such liability is
contingent or fixed, and shall, in each case, consist of the sum of (i) the
aggregate maximum amount (the determination of such maximum amount to assume
compliance with all conditions for drawing) then available to be drawn under
such Letters of Credit (including without limitation, amounts available under
such Letters of Credit for which a draft has been presented but not yet
honored) and (ii) the aggregate amount which has then been paid by and not
been reimbursed to, the Issuing Banks under such Letters of Credit.  For the purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.4.  For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by operation of Rule 3.4 of the ISP,
such Letter of Credit shall be deemed to be “outstanding” in the amount so
remaining available to be drawn.


 


“Letter of Credit Loan” means a Loan made
by an Issuing Bank or any Lender pursuant to Section 2.3(c).


 


“Letters of Credit” has the meaning
specified in Section 2.1(a)(ii).


 


“Leverage Ratio” means the ratio as of
the last day of any Fiscal Quarter of (i) Indebtedness of Company and its
Subsidiaries on a consolidated basis in accordance with GAAP (other than the
Excluded Debt Amount) as of such day to (ii) EBITDA for the period of four
consecutive Fiscal Quarters ending on such day.


 


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


 


“Loan” means a Revolving Credit Loan or a
Letter of Credit Loan, as the context may require.


 


“Loan Exposure” means, with respect to
any Lender, as of any date of determination, the outstanding principal amount
of the Loans of such Lender or, if no Loans are outstanding, the aggregate
Revolving Credit Commitments of such Lender.


 


21





















 


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


 


“Material Adverse Effect” means a
material adverse effect on (i) the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company and its
Subsidiaries taken as a whole; (ii) the ability of any Credit Party to
fully and timely perform its Obligations; (iii) the legality, validity,
binding effect or enforceability against a Credit Party of a Credit Document to
which it is a party; or (iv) the rights, remedies and benefits available
to, or conferred upon, any Agent, any Lender or any Secured Party under any
Credit Document.


 


“Material Contract” means any contract or
other arrangement to which Company or any of its Subsidiaries is a party (other
than the Credit Documents) for which breach, nonperformance, cancellation or
failure to renew could reasonably be expected to have a Material Adverse Effect.


 


“Material Indebtedness” shall mean (a) Indebtedness
in respect of the Senior Secured Notes and (b) any other Indebtedness
(other than the Loans), or obligations in respect of one or more Hedge
Agreements, of any Credit Party evidencing an aggregate outstanding principal
amount exceeding $10.0 million. For purposes of determining Material
Indebtedness, the “principal amount” of the obligations of such Credit Party in
respect of any Hedge Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that such Credit Party would
be required to pay if such Hedge Agreement were terminated at such time.


 


“Material Real Estate  Asset” means (i) any
active fee-owned Real Estate Asset located in the United States having a fair
market value in excess of $5.0 million as of the date of the acquisition
thereof or on the date of this Agreement, as applicable and (ii) any Real
Estate Asset located in the United States that the Requisite Lenders have
reasonably determined is material to the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any
Subsidiary thereof.


 


“Maturity Date” means the earlier of (i) the
third anniversary of the Closing Date, and (ii) the date that all Loans shall
become due and payable in full hereunder, whether by acceleration or otherwise.


 


“Moody’s” means Moody’s Investor Services, Inc.


 


“Mortgage” means a mortgage, deed of
trust or deed to secure debt, as applicable, substantially in the form of Exhibit J
or such other form that may be agreed to by Collateral Agent, as it may be
amended, supplemented or otherwise modified from time to time.


 


“Mortgaged Properties” means each Real
Estate Asset encumbered by a Mortgage.


 


“Multiemployer Plan” means any Employee
Benefit Plan which is a “multiemployer plan” as defined in Section 3(37)
of ERISA.


 


22





















 


“NAIC” means The National Association of
Insurance Commissioners, and any successor thereto.


 


“Narrative Report” means, with respect to
the financial statements for which such narrative report is required, a
narrative report describing the operations of Company and its Subsidiaries in
the form prepared for presentation to senior management thereof for the
applicable Fiscal Quarter or Fiscal Year and for the period from the beginning
of the then current Fiscal Year to the end of such period to which such
financial statements relate.


 


“Net Income” means, for any period, (i) the
net income (or loss) of Company and its Subsidiaries on a consolidated basis
for such period taken as a single accounting period determined in conformity
with GAAP, minus (ii) (a) the income (or loss) of any Person
(other than a Subsidiary of Company) in which any other Person (other than
Company or any of its Subsidiaries) has a joint interest, except to the extent
of the amount of dividends or other distributions actually paid to Company or
any of its Subsidiaries by such Person during such period, (b) the income
(or loss) of any Person accrued prior to the date it becomes a Subsidiary of
Company or is merged into or consolidated with Company or any of its
Subsidiaries or that Person’s assets are acquired by Company or any of its
Subsidiaries, (c) the income of any Subsidiary of Company to the extent that
the declaration or payment of dividends or similar distributions by that
Subsidiary of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary, (d) any
after-tax gains or losses attributable to Asset Sales or returned surplus
assets of any Pension Plan, and (e) (to the extent not included in clauses
(a) through (d) above) any net extraordinary gains or net
extraordinary losses, to the extent included in determining net income for such
period.


 


“Net Interest Expense” means, for any
period, Interest Expense for such period minus interest income included
in Net Income for such period.


 


“New Senior Subordinated Notes Agreement”
means that certain indenture, dated as of February 22, 2005, by and among
the Company, certain subsidiaries of the Company as guarantors, and the
trustee, governing the New Senior Subordinated Notes, as it may be amended,
supplemented, or otherwise modified from time to time and any indenture entered
into in connection with the Refinancing Senior Subordinated Notes.


 


“New Senior Subordinated Notes Documents”
means the New Senior Subordinated Notes, the New Senior Subordinated Notes
Agreement, the New Senior Subordinated Notes Guarantees, the Refinancing Senior
Subordinated Notes and all other documents executed and delivered with respect
to any of the foregoing.


 


“New Senior Subordinated Notes Guarantees”
means the guarantees by the guarantors pursuant to the New Senior Subordinated
Notes Agreement, as each may be amended, supplemented or otherwise modified
from time to time.


 


“New Senior Subordinated Notes” means the
6-3/4% Senior Subordinated Notes due 2013 of the Company issued pursuant to the
New Senior Subordinated Notes Agreement, and any registered notes issued by the
Company in exchange for, and as contemplated by, any of


 


23





















 


the New Senior Subordinated Notes with
substantially identical terms as the New Senior Subordinated Notes.


 


“Non-Consenting Lender” as defined in Section 2.19.


 


“Non-renewal Notice Date” as defined in Section 2.1(b)(iii).


 


“Note” means a promissory note in the
form of Exhibit B, evidencing the aggregate indebtedness of Company to
such Lender resulting from the Revolving Credit Loans and Letter of Credit
Loans made by such Lender, as it may be amended, supplemented or otherwise
modified from time to time.


 


“Notice” means a Funding Notice, a
Conversion/Continuation Notice, or a Notice of Issuance.


 


“Notice of Issuance” as defined in Section 2.3(a).


 


“Obligations” means all obligations of
every nature of each Credit Party from time to time owed to the Agents
(including former Agents), the Lenders or any of them and Lender Counterparties
under any Credit Document or Hedge Agreement (including, without limitation,
with respect to a Hedge Agreement, obligations owed thereunder to any person
who was a Lender or an Affiliate of a Lender at the time such Hedge Agreement
was entered into), whether for principal, interest (including interest which,
but for the filing of a petition in bankruptcy with respect to such Credit
Party, would have accrued on any Obligation, whether or not a claim is allowed
against such Credit Party for such interest in the related bankruptcy
proceeding), payments for early termination of Hedge Agreements, fees,
expenses, indemnification or otherwise.


 


“Obligee Guarantor” as defined in Section 7.7.


 


“OECD” means the Organization for
Economic Development and Cooperation.


 


“Officer’s Certificate” means, as applied
to any corporation, a certificate executed on behalf of such corporation by its
Chairman of the Board (if an officer), its Chief Executive Officer, its
President or one of its Vice Presidents or by its Chief Financial Officer, Vice
President-Finance or its Treasurer, in each case in their official (and not
individual) capacity.


 


“Organizational Documents” means (i) with
respect to any corporation, its certificate or articles of incorporation or
organization, as amended, and its by-laws, as amended, (ii) with respect
to any limited partnership, its certificate of limited partnership, as amended,
and its partnership agreement, as amended, (iii) with respect to any
general partnership, its partnership agreement, as amended, and (iv) with
respect to any limited liability company, its articles of organization, as
amended, and its operating agreement, as amended.  In the event any term or condition of this
Agreement or any other Credit Document requires any Organizational Document to
be certified by a secretary of state or similar governmental official, the
reference to any such “Organizational Document” shall only be to a document of
a type customarily certified by such governmental official.


 


24





















 


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


 


“Patriot Act” means the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Pub. L. 107-56.


 


“PBGC” means the Pension Benefit Guaranty
Corporation or any successor thereto.


 


“Pension Plan” means any Employee Benefit
Plan, other than a Multiemployer Plan, which is subject to Section 412 of
the Internal Revenue Code or Section 302 of ERISA.


 


“Performance Level” means Level 1, Level
2, Level 3, Level 4, or Level 5, as identified by reference to the Debt Rating
in effect from time to time:


 




	
   

  	
   

  	
  Debt
  Rating

  	
   

  
	
  Performance Level

  	
   

  	
  S&P

  	
   

  	
  Moody’s

  	
   

  
	
  Level 1

  	
   

  	
  >BB+

  	
   

  	
  >Ba1

  	
   

  
	
  Level 2

  	
   

  	
  BB+

  	
   

  	
  Ba1

  	
   

  
	
  Level 3

  	
   

  	
  BB

  	
   

  	
  Ba2

  	
   

  
	
  Level 4

  	
   

  	
  BB-

  	
   

  	
  Ba3

  	
   

  
	
  Level 5

  	
   

  	
  < BB-

  	
   

  	
  < Ba3

  	
   

  






 


“Permitted Acquisition” means any
acquisition by Company or any of its wholly-owned Subsidiaries, whether by
purchase, merger or otherwise, of all or substantially all of the assets of, all
of the Capital Stock of, or a business line or unit or a division of, any
Person; provided,


 


(i)                                     immediately
prior to, and after giving effect thereto, no Default or Event of Default shall
have occurred and be continuing or would result therefrom;


 


(ii)                                  all
transactions in connection therewith shall be consummated, in all material
respects, in accordance with all applicable laws and in conformity with all
applicable Governmental Authorizations;


 


(iii)                               in
the case of the acquisition of Capital Stock in which all of the Capital Stock
(except for any such Securities in the nature of directors’ qualifying shares
required pursuant to applicable law) acquired or otherwise issued by such
Person or any newly formed Subsidiary of Company in connection with such acquisition
shall be owned 100%


 


25





















 


by Company or a Guarantor, the Company shall take,
or cause to be taken, promptly after the date such Person becomes a Subsidiary
of Company, each of the actions set forth in Sections 5.9 and/or 5.10, as
applicable;


 


(iv)                              Company
shall have delivered to Administrative Agent at least ten (10) Business
Days prior to such proposed acquisition, all relevant financial information
with respect to such acquired assets, including, without limitation, the
aggregate consideration for such acquisition;


 


(v)                                 any
Person or assets or division as acquired in accordance herewith shall
constitute a Permitted Business; and


 


(vi)                              such
acquisition shall not have been preceded by a tender offer that has not been
approved by the board of directors of such Person.


 


“Permitted Business” means any business
that is related, ancillary or complementary to the businesses of Company and
its Subsidiaries on the Closing Date or any reasonable extension thereof.


 


“Permitted Convertible Securities Refinancing Conditions”
means, with respect to any refinancing, purchase, redemption, exchange or other
principal or premium payment in respect of, as applicable, the Convertible
Securities, each of the following:  (a) in
the case of any incurrence of Indebtedness in connection with any of the
foregoing, such incurrence may occur not more than 180 days prior to, the
purchase, redemption, exchange or other principal or premium payment in respect
of the Convertible Securities, and the terms of any new Indebtedness issued to
refinance, purchase, redeem or exchange or otherwise make principal or premium
payments in respect of the Convertible Securities must (i) provide for a
stated maturity of any principal payment (including any amortization payments)
no earlier than 181 days after the final maturity date of the Loans, (ii) contain
covenants and events of default that, taken as a whole, are no less favorable
to the obligors thereon or to the Lenders than the Senior Secured Notes as in
effect on the date hereof (determined in good faith by the board of directors
of Company), (iii) not exceed in a principal amount the Indebtedness being
refinanced and (iv) be unsecured; (b) on a pro forma basis, adjusting
for such refinancing, purchase, redemption, exchange or other principal or
premium payment, as applicable, the Unencumbered Cash and Available Credit must
be at least $500.0 million; (c) no Default or Event of Default has
occurred and is continuing or would result from such refinancing, purchase,
redemption, exchange or other principal or premium payment, as applicable; and (d) no
Loan shall be requested hereunder for the purpose of using the proceeds as
consideration for such refinancing, purchase, redemption, exchange or other
principal or premium payment.


 


“Permitted Liens” means each of the Liens
permitted pursuant to Section 6.2.


 


“Permitted Receivables” means accounts
receivable (including notes, chattel paper, accounts, instruments and general
intangibles consisting of rights to payment) generated by any Foreign
Subsidiary (each, an “originator”)
in the ordinary course of business, together with any guarantees, insurance,
letters of credit, collateral, service contracts and other agreements
associated with any account receivable, the interest of the originator in the
inventory


 


26





















 


and goods, including returned or repossessed
inventory or goods, if any, the sale, financing or lease of which gave rise to
an account receivable, the interest of Securitization Subsidiary in the
agreement with the originator pursuant to which such Securitization Subsidiary
purchased such accounts receivable, and other ancillary rights of the
originator rising in connection with the transaction giving rise to such
accounts receivable and all business records relating thereto.


 


“Permitted Refinancing” means
refinancings and extensions (including successive refinancings and extensions)
of any Indebtedness if the terms and conditions thereof are not less favorable
to the obligor thereon or to the Lenders (other than interest rates and
conversion rates) than the Senior Secured Notes as in effect on the date hereof
(determined in good faith by the Board of Directors of the Company), and the
average life to maturity thereof is greater than or equal to that of the Senior
Secured Notes as in effect on the date hereof (determined in good faith by the
Board of Directors of the Company); provided, however, that (i) in respect of any
refinancing or extension of any Convertible Securities, the average life to
maturity of such Indebtedness shall be greater than that of the Indebtedness
evidenced hereby, (ii) in respect of any refinancing of the Convertible
Securities, the Permitted Convertible Securities Refinancing Condition has been
met, (iii) in respect of any refinancing of any Senior Indebtedness, the
Senior Refinancing Conditions have been met (iv) in respect of any
refinancing of any Subordinated Indebtedness, such Indebtedness shall be
subordinated to the rights of the Lenders hereunder on substantially similar
subordination terms as the subordinated Indebtedness being refinanced or in a
manner satisfactory to the Administrative Agent, and (iv) any such
Indebtedness shall not (A) include Indebtedness of an obligor that was not
an obligor (including by way of guaranty) with respect to the Indebtedness
being extended, renewed or refinanced, other than any guarantees granted by a
Subsidiary of Company in respect of any Indebtedness issued to refinance the 3%
Notes, provided that the rights
of the beneficiaries under such guarantees shall be subordinated to the rights
of the Lenders against such Subsidiary under the Guaranty (or any amendment,
restatement or replacement thereof) in documentation satisfactory to the Administrative
Agent, (B) exceed in a principal amount (or if incurred with original
issue discount, an aggregate issue price) the Indebtedness being renewed,
extended or refinanced, plus an amount necessary to pay any fees and expenses,
including premiums and defeasance costs, related thereto, or (C) be
incurred, created or assumed if any Default or Event of Default has occurred
and is continuing or would result therefrom.


 


“Permitted Securitization” means (a) transfers
constituting sales under GAAP and accompanied by the delivery of a customary
true sale opinion given by independent counsel, to a Securitization Subsidiary
of Permitted Receivables by the applicable originator and (b) if
applicable, the incurrence by the Securitization Subsidiary of Indebtedness to
a conduit or other receivables credit provider secured by a Lien on any or all
assets of such Securitization Subsidiary; provided
that the face amount of receivables sold may not exceed the thresholds set
forth in Section 6.8(d)(ii).


 


“Person” means and includes natural
persons, corporations, limited partnerships, general partnerships, limited
liability companies, limited liability partnerships, joint stock companies,
Joint Ventures, associations, companies, trusts, banks, trust companies, land
trusts, business trusts or other organizations, whether or not legal entities,
and Governmental Authorities.


 


27





















 


“Phase I Report” means, with respect to
any Real Estate Facility, a report that (i) conforms to the ASTM Standard
Practice for Environmental Site Assessments: Phase I Environmental Site
Assessment Process, E 1527, (ii) was conducted no more than six months
prior to the date such report is required to be delivered hereunder, by one or
more environmental consulting firms reasonably satisfactory to Administrative
Agent, (iii) includes an assessment of asbestos-containing materials at
such Real Estate Facility, and (iv) is accompanied by (a) an estimate
of the reasonable worst-case cost of investigating and remediating any
Hazardous Materials Activity identified in the Phase I Report as giving rise to
an actual or potential material violation of any Environmental Law or as
presenting a material risk of giving rise to a material Environmental Claim,
and (b) a current compliance audit setting forth an assessment of Company’s,
its Subsidiaries’ and such Real Estate Facility’s current and past compliance
with Environmental Laws and an estimate of the cost of rectifying any
non-compliance with current Environmental Laws identified therein and the cost
of compliance with reasonably anticipated future Environmental Laws identified
therein.


 


“Platform” as defined in Section 10.1(b).


 


“Pledge and Security Agreement” means the
Pledge and Security Agreement, dated as of October 26, 2004, executed by
Company and each Guarantor substantially in the form of Exhibit I, as it
may be amended, supplemented or otherwise modified from time to time.


 


“Principal Office” means, for
Administrative Agent, such Person’s “Principal Office” as set forth on Appendix
B, or such other office as such Person may from time to time designate in
writing to Company, Administrative Agent and each Lender.


 


“Projections” as defined in Section 4.8.


 


“Property” means, with respect to any
Person, any interest of such Person in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible, including Capital Stock in,
and other securities of, any Person.


 


“Pro Rata Share” means with respect to
each Lender, the percentage obtained by dividing (A) an amount equal to
the sum of the Loan Exposure of that Lender, by (B) an amount equal to the
sum of the aggregate Loan Exposure of all Lenders.


 


“Real Estate Asset” means, at any time of
determination, any interest (fee, leasehold or otherwise) then owned by any
Credit Party in any real property.


 


“Real Estate Facility” means any real
property (including all buildings, fixtures or other improvements located
thereon) now, hereafter or heretofore owned, leased, operated or used by
Company or any of its Subsidiaries or any of their respective predecessors or
Affiliates.


 


“Refinancing Convertible Securities”
means any Convertible Indebtedness issued to refinance in whole or in part from
time to time any of the Convertible Securities, the Senior Secured Notes, the
Refinancing Senior Secured Notes, the New Senior Subordinated Notes or the
Refinancing Senior Subordinated Notes, provided such notes do not provide for
any mandatory payments of principal (whether through redemption or otherwise)
earlier than the respective Convertible Securities, the Senior Secured Notes,
the Refinancing Senior Secured


 


28





















 


Notes, the New Senior Subordinated Notes or
the Refinancing Senior Subordinated Notes being refinanced and otherwise do not
contain, in the good faith judgment of the Board of Directors of the Company,
more burdensome terms and conditions (other than interest rates and conversion
rates) than such Senior Secured Notes, provided,
however, that in respect of any
refinancing of any Convertible Securities, such notes shall not provide for any
payments of principal (whether through redemption or otherwise but not
including conversion into Capital Stock of the Company or any of its
Subsidiaries) earlier than 180 days after the Maturity Date.


 


“Refinancing Senior Secured Notes” means
any notes (other than notes evidencing Convertible Indebtedness) issued to
refinance in whole or in part from time to time any of the Senior Secured Notes
or any Refinancing Senior Secured Notes provided such notes do not provide for
any mandatory payments of principal (whether through redemption or otherwise)
earlier than the Senior Secured Notes or such Refinancing Senior Secured Notes
being refinanced and otherwise do not contain, in the good faith judgment of
the Board of Directors of the Company, more burdensome terms and conditions
(other than interest rates) than the Senior Secured Notes.


 


“Refinancing Senior Subordinated Notes”
means any notes (other than notes evidencing Convertible Indebtedness) issued
to refinance in whole or in part from time to time any of the New Senior
Subordinated Notes or any Refinancing Senior Subordinated Notes provided such
notes do not provide for any mandatory payments of principal (whether through redemption
or otherwise) earlier than the New Senior Subordinated Notes or such
Refinancing Senior Subordinated Notes being refinanced and otherwise do not
contain, in the good faith judgment of the Board of Directors of the Company,
more burdensome terms and conditions (other than interest rates) than the
Senior Secured Notes.


 


“Register” as defined in Section 2.5(b).


 


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


 


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


 


“Release” means any release, spill,
emission, leaking, pumping, pouring, injection, escaping, deposit, disposal,
discharge, dispersal, dumping, leaching or migration of any Hazardous Material
into the indoor or outdoor environment (including the abandonment or disposal
of any barrels, containers or other closed receptacles containing any Hazardous
Material), including the movement of any Hazardous Material through the air,
soil, surface water or groundwater.


 


“Replacement Lender” as defined in Section 2.19.


 


“Requisite Lenders” means, at any time,
Lenders owed or holding at least a majority in interest of the sum of (a) the
aggregate principal amount of the Loans outstanding at such time and (b) the
aggregate Available Amount of all Letters of Credit outstanding at such time,
or, if no such principal amount and no Letters of Credit are outstanding at
such time,


 


29





















 


Lenders holding at least a majority in
interest of the aggregate of the Revolving Credit Commitments.  For purposes of this definition, the
aggregate principal amount of Letter of Credit Loans owing to the Issuing Banks
and the Available Amount of each Letter of Credit shall be considered to be
owed to the Lenders ratably in accordance with their respective Revolving
Credit Commitments.


 


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


 


“Revolving Credit Borrowing” means a
Revolving Credit Borrowing consisting of simultaneous Revolving Credit Loans of
the same Type made by the Lenders.


 


“Revolving Credit Commitment” means the
commitment of a Lender to make or otherwise fund a Revolving Credit Loan and “Revolving
Credit Commitments” means the Revolving Credit Commitments of all Lenders in
the aggregate.  The amount of each Lender’s
Revolving Credit Commitment is set forth on Appendix A, subject to any
adjustment or reduction pursuant to the terms and conditions hereof, provided, however,
that at any time the aggregate face amount of receivables sold by the Company
and the Guarantors pursuant to Section 6.8(e) and outstanding shall
exceed (A) if the aggregate Current Book Value of Company’s and the
Guarantors’ receivables is equal to or greater than $300 million, the greater
of (x) $200 million or (y) 40% of the Current Book Value of Company’s and the
Guarantors’ receivables and (B) if the aggregate Current Book Value of
Company’s and the Guarantors’ receivables is less than $300 million, 40% of the
Current Book Value of Company’s and the Guarantors’ receivables, the aggregate
amount of the Revolving Credit Commitments for the purposes of making Loans or
issuing Letters of Credit shall be $0.


 


“Revolving Credit Facility” means, at any
time, the aggregate amount of the Lenders’ Revolving Credit Commitments at such
time.


 


“Revolving Credit Loan” means a loan made
by a Lender to Company pursuant to Section 2.1(a).


 


“S&P” means Standard & Poor’s
Ratings Group, a division of The McGraw Hill Corporation.


 


“Second Lien Collateral Trustee” has the
meaning assigned to that term in the Intercreditor Agreement.


 


“Secured Hedge Agreement” means any Hedge
Agreement entered into by and between Company and any Lender Counterparty.


 


30





















 


“Secured Parties” has the meaning
assigned to that term in the Pledge and Security Agreement.


 


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


 


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


 


“Securitization Subsidiary” means a
Subsidiary of any Foreign Subsidiary created solely for the purposes of
effecting a Permitted Securitization, the activities and assets of which are
limited solely to such purpose and assets, and the charter documents of which
contain customary bankruptcy-remote provisions.


 


“Senior Indebtedness” means on any date,
the outstanding principal amount of all Indebtedness of Company and its
Subsidiaries (exclusive of (i) intercompany Indebtedness between Company
and any of its Subsidiaries or between any Subsidiaries of Company, (ii) the
Convertible Securities, (iii) the Senior Secured Notes and any
Indebtedness secured on a pari passu basis with the Senior Secured Notes, (iv) any
other Indebtedness that is fully subordinated to the obligations of the Credit
Parties under the Credit Documents and (v) any other Indebtedness that is
not secured by any assets of any Credit Party).


 


“Senior Refinancing Conditions” means (a) on
a pro forma basis, adjusting for such refinancing, purchase, redemption,
exchange or other principal or premium payment, as applicable, the Unencumbered
Cash and Available Credit must be at least $500.0 million; (b) no Default
or Event of Default has occurred and is continuing or would result from such
refinancing, purchase, redemption, exchange or other principal or premium payment,
as applicable; and (c) no Loan shall be requested hereunder for the
purpose of using the proceeds as consideration for such refinancing, purchase,
redemption, exchange or other principal or premium payment.


 


“Senior Secured Note Agreement” means that
certain Indenture, dated as of December 23, 2002, by and among Company, as
issuer, certain subsidiaries thereof as initial guarantors, and State Street
Bank and Trust Company of California, N.A., as trustee, as it may be amended,
supplemented or otherwise modified from time to time and any indenture entered
into in connection with the Refinancing Senior Secured Notes.


 


“Senior Secured Note Documents” means the
Senior Secured Notes, the Senior Secured Note Agreement, the Senior Secured
Note Guarantees, the Refinancing Senior Secured Notes and all other documents
executed and delivered with respect to any of the foregoing.


 


31





















 


“Senior Secured Note Guarantees” means
the guarantees of the guarantors pursuant to the Senior Secured Note Agreement,
as each may be amended, supplemented or otherwise modified from time to time.


 


“Senior Secured Notes” means Company’s
$750.0 million 10.375% Senior Secured Notes due 2010, issued pursuant to the
Senior Secured Note Agreement, and any registered notes issued by Company in
exchange for, and as contemplated by, any of the Senior Secured Notes with
substantially identical terms as the Senior Secured Notes.


 


“Solvency Certificate” means a Solvency
Certificate of the chief financial officer of Company substantially in the form
of Exhibit G-2.


 


“Solvent” means, with respect to any
Credit Party, that as of the date of determination both (i) (a) the
sum of such Credit Party’s debt (including contingent liabilities) does not
exceed the present fair saleable value of such Credit Party’s present assets; (b) such
Credit Party’s capital is not unreasonably small in relation to its business as
contemplated on the Closing Date and reflected in the Projections or with
respect to any transaction contemplated or undertaken after the Closing Date;
and (c) such Person has not incurred and does not intend to incur, or
believe (nor should it reasonably believe) that it will incur, debts beyond its
ability to pay such debts as they become due (whether at maturity or
otherwise); and (ii) such Person is “solvent” within the meaning given
that term and similar terms under applicable laws relating to fraudulent
transfers and conveyances.  For purposes
of this definition, the amount of any contingent liability at any time shall be
computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability (irrespective of whether such contingent
liabilities meet the criteria for accrual under Statement of Financial
Accounting Standard No. 5).


 


“Subordinated Indebtedness” means (i) the
Indebtedness evidence by the Convertible Securities, (ii) Intercompany
Indebtedness of Company or any of its Subsidiaries subordinated in right of
payment to the Obligations pursuant to the Interco Subordination Agreement, (iii) the
Indebtedness evidenced by Company’s 63⁄4% Senior Subordinated Notes due 2013 and (iv) other
subordinated Indebtedness of Company or any of its Subsidiaries.  “Subordinated Indebtedness” shall in no event
include any Indebtedness of Company or any of its Subsidiaries that is
subordinated only due to the priority of any liens granted in relation thereto.


 


“Subsidiary” means, with respect to any
Person, any corporation, partnership, limited liability company, association,
joint venture or other business entity of which more than 50% of the total
voting power of shares of stock or other ownership interests entitled (without
regard to the occurrence of any contingency) to vote in the election of the
Person or Persons (whether directors, managers, trustees or other Persons
performing similar functions) having the power to direct or cause the direction
of the management and policies thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combination thereof; provided,
in determining the percentage of ownership interests of any Person controlled
by another Person, no ownership interest in the nature of a “qualifying share”
of the former Person shall be deemed to be outstanding.


 


32





















 


“Syndication Agent” as defined in the
recitals hereto.


 


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


 


“Terminated Lender” as defined in Section 2.19.


 


“Transaction Costs” means the fees, costs
and expenses payable by Company or any of Company’s Subsidiaries on or before
the Closing Date in connection with the transactions contemplated by the Credit
Documents.


 


“Type” means a Base Rate Loan or a
Eurocurrency Rate Loan.


 


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


 


“Unencumbered Cash and Available Credit”
means Cash and Cash Equivalents of Company and its Subsidiaries that is not
subject to a Lien (other than Liens in favor of Collateral Agent for the
benefit of the Secured Parties granted pursuant to any Credit Document and
Liens granted pursuant to any Senior Secured Note Document permitted hereunder)
other than Cash and Cash Equivalents held in the Designated Proceeds Account
from time to time, plus availability of Company and its Subsidiaries under
revolving lines of credit (including this Agreement).


 


“Unused Revolving Credit Commitment”
means, with respect to any Lender at any time, (a) such Lender’s Revolving
Credit Commitment at such time minus (b) the sum of (i) the aggregate
principal amount of all Revolving Credit Loans and Letter of Credit Loans made
by such Lender (in its capacity as a Lender) and outstanding at such time plus (ii) such
Lender’s Pro Rata Share of (A) the aggregate Available Amount of all
Letters of Credit outstanding at such time, and (B) the aggregate
principal amount of all Letter of Credit Loans made by the Issuing Banks
pursuant to Section 2.3(a) and outstanding at such time.


 


“Zero Coupon Notes” means Company’s Zero
Coupon Convertible Subordinated Debentures due 2020.


 


Section 1.2  Accounting Terms.  Except as otherwise expressly provided
herein, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.  Financial statements and other information
required to be delivered by Company to Lenders pursuant to Section 5.1(a) and
5.1(b) shall be prepared in accordance with GAAP as in effect at the time
of such preparation (and delivered together with the reconciliation statements
provided for in Section 5.1(d), if applicable).  Subject to the foregoing, calculations in
connection with the definitions, covenants and other provisions hereof shall
utilize accounting principles and policies in conformity with those used to
prepare Company’s financial statements for its Fiscal Year ended October 2,
2004.  If at any time any change in GAAP
would affect the computation of any financial ratio or requirement set forth in
any Credit Document, and either Company or the Requisite Lenders shall so
request, Administrative Agent, the Lenders and Company shall negotiate in good
faith to amend such ratio or requirement to preserve the


 


33





















 


original intent thereof in light of such
change in GAAP (subject to the approval of the Requisite Lenders); provided that, until so amended, (a) such
ratio or requirement shall continue to be computed in accordance with GAAP
prior to such change therein and (b) Company shall provide to
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.


 


Section 1.3  Interpretation, Etc.  Any of the terms defined herein may, unless
the context otherwise requires, be used in the singular or the plural, depending
on the reference.  References herein to
any Section, Appendix, Schedule or Exhibit shall be to a Section, an
Appendix, a Schedule or an Exhibit, as the case may be, hereof unless
otherwise specifically provided.  The use
herein of the word “include” or “including”, when following any general
statement, term or matter, shall not be construed to limit such statement, term
or matter to the specific items or matters set forth immediately following such
word or to similar items or matters, whether or not nonlimiting language (such
as “without limitation” or “but not limited to” or words of similar import) is
used with reference thereto, but rather shall be deemed to refer to all other
items or matters that fall within the broadest possible scope of such general
statement, term or matter.  Unless
otherwise expressly provided herein, (a) references to agreements
(including the Credit Documents) and other contractual instruments shall be
deemed to include all subsequent amendments, restatements, extensions, supplements
and other modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not
prohibited by any Credit Document and (b) all references to any law, rule or
regulation shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such law, rule or
regulation.


 


Section 1.4  Letter of Credit Amounts.  Unless otherwise specified herein, the amount
of a Letter of Credit at any time shall be deemed to be the stated amount of
such Letter of Credit in effect at such time; provided,
however, that with respect to any
Letter of Credit that, by its terms or the terms of any L/C Related Document
related thereto, provides for one or more automatic increases in the stated
amount thereof, the amount of such Letter of Credit shall be deemed to be the
maximum stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at such time.


 


SECTION 2. LOANS


 


Section 2.1  Loans. 
(a)  (i)  Revolving Credit Loans.  Each Lender severally agrees, on the terms
and conditions hereinafter set forth, to make Loans to Company from time to
time on any Business Day during the period from the Closing Date until the
Maturity Date in an aggregate amount not to exceed at any time outstanding such
Lender’s Revolving Credit Commitment, provided,
that, the Lenders shall not be obligated to, and shall not, make any Loans as
part of a Revolving Credit Borrowing if after giving effect to such Revolving
Credit Borrowing the sum of the then outstanding aggregate amount of all
Revolving Credit Borrowings and the then outstanding aggregate amount of all
Letter of Credit Liability shall exceed the aggregate amount of the Commitments
then in effect.  Each Revolving Credit
Borrowing shall be in an aggregate amount of $5.0 million or an integral
multiple of $1.0 million


 


34





















 


in excess thereof; provided, that, in the case of any Revolving Credit
Borrowing made for the purpose of reimbursing a drawing under any Letter of
Credit, (A) the aggregate amount of such Revolving Credit Borrowing shall
be not less than $1.0 million and (B) if the aggregate amount of such Revolving
Credit Borrowing is less than $5.0 million, such Revolving Credit Borrowing
shall consist solely of Base Rate Loans. 
Except as set forth in clause (B) of the preceding sentence, each
Revolving Credit Borrowing shall consist of Loans of the same Type made on the
same day by the Lenders ratably according to their respective Commitments.  Within the limits of each Lender’s
Commitment, Company from time to time may borrow under this Section 2.1,
prepay pursuant to Section 2.6 and reborrow under this Section 2.1.


 


(ii)                                  The
Letters of Credit.  On the Closing Date each Existing Letter of
Credit shall be deemed for all purposes of this Agreement to be a Letter of
Credit issued and outstanding under the terms of this Agreement; provided that, at such time, the aggregate
amount of the Existing Letters of Credit and the outstanding Letters of Credit
issued hereunder does not exceed the amount of the Letter of Credit Facility at
such time.  Each Issuing Bank agrees, on
the terms and conditions hereinafter set forth, to issue letters of credit (the
“Letters of Credit”)
for the account of Company or any of its Subsidiaries from time to time on any
Business Day during the period from the date hereof until 30 days before the
Maturity Date in an aggregate Available Amount (i) for all Letters of
Credit not to exceed at any time the lesser of (x) the Letter of Credit
Facility at such time and (y) such Issuing Bank’s Letter of Credit Commitment
at such time and (ii) for each such Letter of Credit not to exceed the
Unused Revolving Credit Commitment of the Lenders at such time.  Except as otherwise provided in Section 2.1(b),
no Letter of Credit shall have an expiration date (including all rights of
Company or the beneficiary to require renewal) later than the earlier of seven
days before the Maturity Date and one year after the date of issuance thereof.


 


(b)                                 Procedures for
Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.


 


(i)                                     Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request Company delivered to the Issuing Bank (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by an Authorized Officer of the
Company.  Such Letter of Credit
Application must be received by the Issuing Bank and the Administrative Agent
not later than 11:00 a.m. at least two Business Days (or such later date
and time as the Administrative Agent and the Issuing Bank may agree in a
particular instance in their sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. 
In the case of a request for an initial issuance of a Letter of Credit,
such Letter of Credit Application shall specify in form and detail satisfactory
to the Issuing Bank:  (A) the
proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the
name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; and (G) such other matters as the Issuing Bank may
require.  In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the Issuing Bank (1) the


 


35





















 


Letter of Credit to be amended; (2) the
proposed date of amendment thereof (which shall be a Business Day); (3) the
nature of the proposed amendment; and (4) such other matters as the
Issuing Bank may require.  Additionally,
Company shall furnish to the Issuing Bank and the Administrative Agent such
other documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any L/C Related Documents, as the Issuing Bank
or the Administrative Agent may require.


 


(ii)                                  Promptly
after receipt of any Letter of Credit Application, the Issuing Bank will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application
from Company and, if not, the Issuing Bank will provide the Administrative
Agent with a copy thereof.  Unless the
Issuing Bank has received written notice from any Lender, the Administrative
Agent or any Credit Party, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one or
more applicable conditions contained in Section 3 shall not then be
satisfied, then, subject to the terms and conditions hereof, the Issuing Bank
shall, on the requested date, issue a Letter of Credit for the account of
Company or enter into the applicable amendment, as the case may be, in each
case in accordance with the Issuing Bank’s usual and customary business
practices.  Immediately upon the issuance
of each Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Issuing Bank a
risk participation in such Letter of Credit in an amount equal to the product
of such Lender’s Applicable Percentage times the amount of such Letter of
Credit.


 


(iii)                               If
Company so requests in any applicable Letter of Credit Application, the Issuing
Bank may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the Issuing
Bank to prevent any such extension at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior
notice to the beneficiary thereof not later than a day (the “Non-renewal Notice Date”)
in each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued.  Unless otherwise
directed by the Issuing Bank, Company shall not be required to make a specific
request to the Issuing Bank for any such extension.  Once an Auto-Extension Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not
require) the Issuing Bank to permit the extension of such Letter of Credit at
any time to an expiry date not later than the Letter of Credit Expiration Date;
provided, however, that the Issuing Bank shall not permit any such extension if
(A) the Issuing Bank has determined that it would not be permitted, or
would have no obligation at such time to issue such Letter of Credit in its
revised form (as extended) under the terms hereof, or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is
five Business Days before the Non-renewal Notice Date (1) from the
Administrative Agent that the Requisite Lenders have elected not to permit such
extension or (2) from the Administrative Agent, any Lender or Company that
one or more of the applicable conditions specified in Section 3.2 is not
then satisfied, and in each such case directing the Issuing Bank not to permit
such extension.


 


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(iv)                              Promptly
after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof,
the Issuing Bank will also deliver to Company and the Administrative Agent a
true and complete copy of such Letter of Credit or amendment.


 


(v)                                 The
Issuing Bank shall not be under any obligation to issue any Letter of Credit
if:


 


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


 


(B)                                the
issuance of such Letter of Credit would violate one or more policies of the
Issuing Bank;


 


(C)                                except
as otherwise agreed by the Administrative Agent and the Issuing Bank, such
Letter of Credit is in an initial stated amount less than $100,000, in the case
of a commercial Letter of Credit, or $500,000, in the case of a standby Letter
of Credit;


 


(D)                               such
Letter of Credit is to be denominated in a currency other than Dollars;


 


(E)                                 a
default of any Lender’s obligations to fund under Section 2.3(b) exists
or any Lender is at such time a Defaulting Lender hereunder, unless the Issuing
Bank has entered into satisfactory arrangements with Company or such Lender to
eliminate the Issuing Bank’s risk with respect to such Lender.


 


(vi)                              The
Issuing Bank shall not amend any Letter of Credit if the Issuing Bank would not
be permitted at such time to issue such Letter of Credit in its amended form
under the terms hereof.


 


(vii)                           The
Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the
Issuing Bank would have no obligation at such time to issue such Letter of
Credit in its amended form under the terms hereof, or (B) the beneficiary
of such Letter of Credit does not accept the proposed amendment to such Letter
of Credit.


 


(viii)                        The
Issuing Bank shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and the Issuing


 


37





















 


Bank shall have all of the benefits and immunities (A) provided
to the Administrative Agent in Section 9 with respect to any acts taken or
omissions suffered by the Issuing Bank in connection with Letters of Credit
issued by it or proposed to be issued by it and L/C Related Documents
pertaining to such Letters of Credit as fully as if the term “Administrative
Agent” as used in Section 9 included the Issuing Bank with respect to such
acts or omissions, and (B) as additionally provided herein with respect to
the Issuing Bank.


 


(c)                                  Revolving Credit
Borrowing Mechanics.


 


(i)                                     Each
Revolving Credit Borrowing shall be made on notice, given not later than (x)
11:00 A.M. (New York City time) on the same Business Day as the date of a
proposed Revolving Credit Borrowing comprised of Base Rate Loans, or (y) 1:00 P.M.
(New York City time) on the third Business Day prior to the date of a proposed
Revolving Credit Borrowing comprised of Eurocurrency Rate Loans, by Company to
Administrative Agent which shall give to each Lender prompt notice thereof by
telecopier.  Each such notice of a
Revolving Credit Borrowing (a “Funding Notice”) shall be by telecopier, or by
telephone, confirmed immediately by telecopier, in substantially the form of Exhibit A-1
hereto, specifying therein the requested (i) date of such Revolving Credit
Borrowing (which shall be a Business Day), (ii) Type of Loans comprising
such Revolving Credit Borrowing, (iii) aggregate amount of such Revolving
Credit Borrowing, and (iv) in the case of a Revolving Credit Borrowing
comprised of Eurocurrency Rate Loans, initial Interest Period and currency for
each such Loan.  Each Lender shall,
before (A) 1:00 P.M. (New York City time) on the date of such Revolving
Credit Borrowing, make available for the account of its Principal Office to
Administrative Agent at Administrative Agent’s Account, in same day funds, such
Lender’s ratable portion of such Revolving Credit Borrowing.  After Administrative Agent’s receipt of such
funds and upon fulfillment of the applicable conditions set forth in Section 3.2,
Administrative Agent will make such funds available to Company at the office
where Administrative Agent’s Account is maintained.


 


(ii)                                  Anything
in subsection (a) above to the contrary notwithstanding, Company may
not select Eurocurrency Rate Loans for any Revolving Credit Borrowing if the
aggregate amount of such Revolving Credit Borrowing is less than $5.0 million
or if the obligation of the Lenders to make Eurocurrency Rate Loans shall be
suspended at such time pursuant to Section 2.14.


 


(iii)                               Each
Funding Notice shall be irrevocable and binding on Company.  In the case of any Revolving Credit Borrowing
which the related Funding Notice specifies as to be comprised of Eurocurrency
Rate Loans, Company shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Funding Notice for such Revolving Credit
Borrowing the applicable conditions set forth in Section 3.2, including,
without limitation, any loss, cost or expense incurred by reason of the
liquidation or redeployment of deposits or other funds acquired by such Lender
to fund the Loan to be made by such Lender as part of such Revolving Credit
Borrowing when such Loan, as a result of such failure, is not made on such
date.


 


38





















 


(iv)                              Unless
Administrative Agent shall have received notice from a Lender prior to the date
of any Revolving Credit Borrowing that such Lender will not make available to
Administrative Agent such Lender’s ratable portion of such Revolving Credit
Borrowing, Administrative Agent may assume that such Lender has made such
portion available to Administrative Agent on the date of such Revolving Credit
Borrowing in accordance with subsection (b)(i) of this Section 2.1(b) and
Administrative Agent may, in reliance upon such assumption, make available to
Company on such date a corresponding amount. 
If and to the extent that any Lender shall not have so made such ratable
portion available to Administrative Agent, such Lender agrees to pay to
Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to Company until the date such amount is paid to Administrative Agent, at the
Federal Funds Rate; provided, however, that (i) within two Business
Days after any Lender shall fail to make such ratable portion available to
Administrative Agent, Administrative Agent shall notify Company of such failure
and (ii) if such Lender shall not have paid such corresponding amount to
Administrative Agent within two Business Days after such demand is made of such
Lender by Administrative Agent, Company agrees to repay to Administrative Agent
forthwith, upon demand by Administrative Agent to Company, such corresponding
amount together with interest thereon, for each day from the date such amount
is made available to Company until the date such amount is repaid to
Administrative Agent, at the interest rate applicable at the time to Loans
comprising such Revolving Credit Borrowing. 
If and to the extent such corresponding amount shall be paid by such
Lender to Administrative Agent in accordance with this Section 2.1(b)(iv),
such amount so paid shall constitute such Lender’s Loan as part of such
Revolving Credit Borrowing for all purposes of this Agreement.


 


(v)                                 The
failure of any Lender to make the Loan to be made by it as part of any Revolving
Credit Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Loan on the date of such Revolving Credit Borrowing, but
no Lender shall be responsible for the failure of any other Lender to make the
Loan to be made by such other Lender on the date of any Revolving Credit
Borrowing.


 


Section 2.2  Termination/Reduction/Repayments of
Commitments.  (a)  Termination/Reduction.
Company shall have the right, upon at least three Business Days’ notice to
Administrative Agent, to terminate in whole or reduce ratably in part the
unused portions of the respective Commitments of the Lenders; provided that each partial reduction shall
be in the aggregate amount of $5.0 million or an integral multiple of $1.0
million in excess thereof and; provided,
further, that after giving effect
to any such partial reduction, the total Commitments shall not be less than the
sum of (i) the then outstanding aggregate amount of Loans and (ii) the
greater of (x) Letter of Credit Liability or (y) aggregate amount of Letter of
Credit Commitments.  Once terminated,
such Commitments may not be reinstated.


 


(b)                                 Repayment.  Company shall repay to Administrative Agent
for the ratable account of the Revolving Credit Lenders on the Maturity Date
the aggregate principal amount of the Revolving Credit Borrowings then
outstanding, together with interest accrued thereon.


 


39





















 


Section 2.3  Issuance of and Drawings and Reimbursement
Under Letters of Credit.  (a)  Request
for Issuance.  Each Letter of Credit
shall be issued upon notice, given not later than 11:00 A.M. (New York
time) on the second Business Day (or such later date and time as the
Administrative Agent and the Issuing Bank may agree in a particular instance in
their sole discretion) prior to the date of the proposed issuance of such
Letter of Credit, by Company to the relevant Issuing Bank, which shall give to
Administrative Agent prompt notice thereof by telecopier.  The Administrative Agent shall promptly
thereafter notify each Lender of such proposed issuance.  Each such notice of issuance of a Letter of
Credit (a “Notice of
Issuance”) shall be by telephone, confirmed immediately in
writing or telecopier, in substantially the form of Exhibit A-2 hereto, specifying
therein the requested (A) date of such issuance (which shall be a Business
Day), (B) Available Amount of such Letter of Credit, (C) expiration
date of such Letter of Credit, (D) name and address of the beneficiary of
such Letter of Credit and (E) form of such Letter of Credit, and shall be
accompanied by such application and agreement for letter of credit as the
applicable Issuing Bank may specify to Company for use in connection with such
requested Letter of Credit (such applications and agreements, a “Letter of Credit Agreement”).  If (x) the requested form of such Letter of
Credit is acceptable to the relevant Issuing Bank in its sole discretion and
(y) it has not received notice of objection to such issuance from the Requisite
Lenders, such Issuing Bank will, upon fulfillment of the applicable conditions
set forth in Section 3.2, make such Letter of Credit available to Company
at its office referred to in Section 10.1 or as otherwise agreed with
Company in connection with such issuance. 
In the event and to the extent that the provisions of any Letter of
Credit Agreement shall conflict with this Agreement, the provisions of this
Agreement shall govern.


 


(b)                                 Letter of Credit
Reports.  Each
Issuing Bank (other than Bank of America) shall furnish (A) to
Administrative Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit issued during
the previous week and drawings during such week under all Letters of Credit, (B) to
each Lender on the first Business Day of each month a written report
summarizing issuance and expiration dates of Letters of Credit issued during
the preceding month and drawings during such month under all Letters of Credit
and (C) to Administrative Agent and each Lender on the first Business Day
of each calendar quarter a written report setting forth the average daily
aggregate Available Amount during the preceding calendar quarter of all Letters
of Credit.


 


(c)                                  Drawing and
Reimbursement.  The
payment by the relevant Issuing Bank of a draft drawn under any Letter of
Credit shall constitute for all purposes of this Agreement the making by such
Issuing Bank of a Letter of Credit Loan, which shall be a Base Rate Loan, in
the amount of such draft.  Upon written
demand by the Issuing Bank to the Administrative Agent, the Administrative
Agent shall promptly notify each Lender of such demand and each Lender shall
purchase from the Issuing Bank, and the Issuing Bank shall sell and assign to
each such Lender, such Lender’s Pro Rata Share of such outstanding Letter of
Credit Loan as of the date of such purchase, by making available for the
account of its Principal Office to Administrative Agent for the account of the
Issuing Bank, by deposit to Administrative Agent’s Account, in same day funds,
an amount equal to the portion of the outstanding principal amount of such
Letter of Credit Loan to be purchased by such Lender.  Promptly after receipt thereof,
Administrative Agent shall transfer such funds to the Issuing Bank.  Company hereby agrees to each such sale and
assignment.  Each Lender agrees to
purchase its Pro Rata Share of an outstanding Letter of Credit Loan on (i) the
Business Day on which demand therefor is made by


 


40





















 


the Issuing Bank, provided
that notice of such demand is given not later than 11:00 A.M. (New York
time) on such Business Day, or (ii) the first Business Day next succeeding
such demand if notice of such demand is given after such time.  Upon any such assignment by the Issuing Bank
to any Lender of a portion of a Letter of Credit Loan, the Issuing Bank
represents and warrants to such other Lender that the Issuing Bank is the legal
and beneficial owner of such interest being assigned by it, free and clear of
any Liens, but makes no other representation or warranty and assumes no
responsibility with respect to such Letter of Credit Loan, the Credit Documents
or any Loan Party.  If and to the extent
that any Lender shall not have so made the amount of such Letter of Credit Loan
available to Administrative Agent, such Lender agrees to pay to Administrative
Agent forthwith on demand such amount together with interest thereon, for each
day from the date of demand by the Issuing Bank until the date such amount is
paid to Administrative Agent, at the Federal Funds Rate for its account or the
account of the Issuing Bank, as applicable. 
If such Lender shall pay to Administrative Agent such amount for the
account of the Issuing Bank on any Business Day, such amount so paid in respect
of principal shall constitute a Letter of Credit Loan made by such Lender on
such Business Day for purposes of this Agreement, and the outstanding principal
amount of the Letter of Credit Loan made by the Issuing Bank shall be reduced
by such amount on such Business Day.


 


(d)                                 Failure to Make
Letter of Credit Loans.  The failure of any Lender to make the Letter
of Credit Loan to be made by it on the date specified in Section 2.3(c) shall
not relieve any other Lender of its obligation hereunder to make its Letter of
Credit Loan on such date, but no Lender shall be responsible for the failure of
any other Lender to make the Letter of Credit Loan to be made by such other
Lender on such date.


 


(e)                                  Letter of Credit
Obligations.  The
Obligations of Company under this Agreement, any Letter of Credit Agreement and
any other agreement or instrument relating to any Letter of Credit shall be
unconditional and irrevocable, and shall be paid strictly in accordance with
the terms of this Agreement, such Letter of Credit Agreement and such other
agreement or instrument under all circumstances, including, without limitation,
the following circumstances:


 


(i)                                     any
lack of validity or enforceability of any Credit Document, any Letter of Credit
Agreement, any Letter of Credit or any other agreement or instrument relating
thereto (all of the foregoing being, collectively, the “L/C Related Documents”);


 


(ii)                                  any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Obligations of Company in respect of any L/C Related Document or
any other amendment or waiver of or any consent to departure from all or any of
the L/C Related Documents;


 


(iii)                               the
existence of any claim, set-off, defense or other right that Company may have
at any time against any beneficiary or any transferee of a Letter of Credit (or
any Persons for which any such beneficiary or any such transferee may be
acting), any Issuing Bank or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any unrelated
transaction;


 


41





















 


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


 


(v)                                 payment
by any Issuing Bank under a Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such Letter of
Credit;


 


(vi)                              any
exchange, release or non-perfection of any Collateral or other collateral, or
any release or amendment or waiver of or consent to departure from the
Guaranties or any other guarantee, for all or any of the Obligations of Company
in respect of the L/C Related Documents; or


 


(vii)                           any
other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including, without limitation, any other circumstance that might
otherwise constitute a defense available to, or a discharge of, Company or a
guarantor;


 


provided,
however, that Company shall have a
claim against any Issuing Bank and such Issuing Bank shall be liable to
Company, to the extent of any direct, but not consequential, damages suffered
by Company that Company proves were caused by (i) such Issuing Bank’s
willful misconduct, determined in a final non-appealable judgment by a court of
competent jurisdiction in determining whether documents presented under such
Letter of Credit comply with the terms of the Letter of Credit or (ii) such
Issuing Bank’s willful failure to make lawful payment under a Letter of Credit
after the presentation to it of a draft and certificates strictly complying
with the terms and conditions of such Letter of Credit.


 


(f)                                    Applicability of
ISP and UCP. 
Unless otherwise expressly agreed by the Issuing Bank and Company when a
Letter of Credit is issued (including any such agreement applicable to an
Existing Letter of Credit), (i) the rules of the ISP shall apply to
each standby Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance shall apply to each
commercial Letter of Credit.


 


Section 2.4  Use of Proceeds.  The proceeds of the Loans and issuances of
Letters of Credit shall be applied by Company for working capital and general
corporate purposes.  No portion of the
proceeds of any Loan shall be used in any manner that causes or might cause
such Loan or the application of such proceeds to violate Regulation T,
Regulation U or Regulation X of the Board of Governors of the Federal Reserve
System or any other regulation thereof or to violate the Exchange Act.


 


Section 2.5  Evidence of Debt; Register; Lenders’ Books
and Records; Notes.  (a)  Lenders’
Evidence of Debt.  Each Lender shall
maintain on its internal records an account or accounts evidencing the
Indebtedness of Company to such Lender, including the amounts of the Loans made
by it and each repayment and prepayment in respect thereof.  Any such recordation shall be conclusive and
binding on Company, absent manifest error; provided,
failure to make any such recordation, or any error in such recordation, shall
not affect Company’s Obligations in


 


42





















 


respect of any applicable Loans; and provided further, in the event of any
inconsistency between the Register and any Lender’s records, the recordations
in the Register shall govern.


 


(b)                                 Register.  Administrative Agent, acting on behalf of
Company, shall maintain at its Principal Office a register for the recordation
of the names and addresses of Lenders and the Loans of each Lender from time to
time (the “Register”).  The Register shall be available for
inspection by Company or any Lender at any reasonable time and from time to
time upon reasonable prior notice. 
Administrative Agent shall record in the Register the Loans, and each
repayment or prepayment in respect of the principal amount of the Loans, and any
such recordation shall be conclusive and binding on Company and each Lender,
absent manifest error; provided,
failure to make any such recordation, or any error in such recordation, shall
not affect Company’s Obligations in respect of any Loan.  Company hereby designates Administrative
Agent to serve as Company’s agent solely for purposes of maintaining the
Register as provided in this Section 2.5, and Company hereby agrees that,
to the extent Administrative Agent serves in such capacity, Administrative
Agent and its officers, directors, employees, agents and affiliates shall
constitute “Indemnitees.”


 


(c)                                  Notes.  If so requested by any Lender by written
notice to Company (with a copy to Administrative Agent) at least two Business
Days prior to the Closing Date, or at any time thereafter, Company shall
execute and deliver to such Lender (and/or, if applicable and if so specified
in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6)
on the Closing Date (or, if such notice is delivered after the Closing Date, promptly
after Company’s receipt of such notice) a Note or Notes to evidence such Lender’s
Loan.


 


Section 2.6  Prepayments of Loans.  (a) Optional.  Company may, upon not less than (i) the
same Business Day’s notice to Administrative Agent received not later than
11:00 A.M. (New York City time) in the case of Revolving Credit Borrowings
consisting of Base Rate Loans, or (ii) three Business Days’ notice to
Administrative Agent received not later than 1:00 P.M. (New York City
time) in the case of Revolving Credit Borrowings consisting of Eurocurrency
Rate Loans, stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given Company shall, prepay the outstanding
principal amounts of the Loans constituting part of the same Revolving Credit
Borrowings in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however,
that (x) each partial prepayment shall be in an aggregate principal amount of
$5.0 million or an integral multiple of $1.0 million in excess thereof, and (y)
in the case of any such prepayment of Eurocurrency Rate Loans, Company shall be
obligated to reimburse the Lenders in respect thereof pursuant to Section 2.17.


 


(b)                                 Mandatory.  The Borrower shall, on each Business Day,
prepay an aggregate principal amount of the Revolving Credit Loans and the
Letter of Credit Loans in an amount equal to the amount by which (A) the
sum of the aggregate principal amount of (x) the Revolving Credit Loans and (y)
the Letter of Credit Loans then outstanding plus the aggregate Available Amount
of all Letters of Credit then outstanding exceeds (B) the aggregate
Revolving Credit Commitments on such Business Day, provided, that, for the avoidance of doubt, in the case of
any prepayment required under this Section 2.06(b) pursuant to the
proviso set forth in the definition of “Revolving Credit Commitment” Company
shall not be required to cash collateralize any Letter of Credit that is issued
and undrawn at the time of such prepayment.


 


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Section 2.7  Interest on Loans.  (a)  Except as otherwise set forth
herein, each Loan shall bear interest on the unpaid principal amount thereof
from the date made through repayment (whether by acceleration or otherwise)
thereof as follows:


 


(i)            if a
Base Rate Loan, at the Base Rate plus the Applicable Margin; or


 


(ii)           if a
Eurocurrency Rate Loan, at the Eurocurrency Rate plus the Applicable Margin.


 


(b)           The
basis for determining the rate of interest with respect to any Loan, and the
Interest Period with respect to any Eurocurrency Rate Loan, shall be selected
by Company and notified to Administrative Agent and Lenders pursuant to the
applicable Funding Notice or Conversion/Continuation Notice, as the case may
be.


 


(c)           In
connection with Eurocurrency Rate Loans there shall be no more than seven (7) Interest
Periods outstanding at any time.  In the
event Company fails to specify between a Base Rate Loan or a Eurocurrency Rate
Loan in the applicable Funding Notice or Conversion/Continuation Notice, such
Loan (if outstanding as a Eurocurrency Rate Loan) will be automatically
converted into a Base Rate Loan on the last day of the then-current Interest
Period for such Loan (or if outstanding as a Base Rate Loan will remain as, or
(if not then outstanding) will be made as, a Base Rate Loan).  In the event Company fails to specify an
Interest Period for any Eurocurrency Rate Loan in the applicable Funding Notice
or Conversion/Continuation Notice, Company shall be deemed to have selected an
Interest Period of one month.  As soon as
practicable after 10:00 a.m. (New York City time) on each Interest Rate
Determination Date, Administrative Agent shall determine (which determination
shall, absent manifest error, be final, conclusive and binding upon all
parties) the interest rate that shall apply to the Eurocurrency Rate Loans for
which an interest rate is then being determined for the applicable Interest
Period and shall promptly give notice thereof (in writing or by telephone
confirmed in writing) to Company and each Lender.


 


(d)           Interest
payable pursuant to Section 2.7(a) shall be computed (i) in the
case of Base Rate Loans on the basis of a 365-day or 366-day year, as the case
may be, and (ii) in the case of Eurocurrency Rate Loans and of fees and
Letter of Credit commissions, on the basis of a 360-day year, in each case for
the actual number of days elapsed in the period during which it accrues.  In computing interest on any Loan, the date
of the making of such Loan or the first day of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted from a
Eurocurrency Rate Loan, the date of conversion of such Eurocurrency Rate Loan
to such Base Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted to a
Eurocurrency Rate Loan, the date of conversion of such Base Rate Loan to such
Eurocurrency Rate Loan, as the case may be, shall be excluded; provided, if a Loan is repaid on the same
day on which it is made, one day’s interest shall be paid on that Loan.


 


(e)           Except
as otherwise set forth herein, interest on each Loan shall be payable in
arrears on and to (i) each Interest Payment Date applicable to that Loan; (ii) any
prepayment of that Loan, whether voluntary or mandatory, to the extent accrued
on the amount being prepaid;


 


44





















 


and (iii) at
maturity, including final maturity; provided,
however, with respect to any voluntary prepayment of a Base Rate
Loan, accrued interest shall instead be payable on the applicable Interest
Payment Date.


 


Section 2.8  Conversion/Continuation.  (a)  Company may on any Business
Day, upon notice given to Administrative Agent not later than (i) 11:00 A.M.
(New York City time) on the same Business Day as the date of the proposed
Conversion in the case of a Conversion of Eurocurrency Rate Loans into Base
Rate Loans, and (ii) 1:00 P.M. (New York City time) on the third
Business Day prior to the date of the proposed Conversion in the case of a
Conversion of Base Rate Loans into Eurocurrency Rate Loans or of Eurocurrency
Rate Loans of one Interest Period into Eurocurrency Rate Loans of another
Interest Period or the continuation of Eurocurrency Rate Loans as Eurocurrency
Rate Loans with the same Interest Period, as the case may be, and subject to
the provisions of Sections 2.7, 2.14 and 2.15, Convert all Loans of one Type
comprising the same Revolving Credit Borrowing into Loans of the other Type; provided, however,
that any Conversion of any Eurocurrency Rate Loans into Base Rate Loans or into
Eurocurrency Rate Loans of another Interest Period shall be made on, and only
on, the last day of an Interest Period for such Eurocurrency Rate Loans.  Promptly upon receipt from Company of a
notice of a proposed Conversion hereunder, Administrative Agent shall give
notice of such proposed Conversion to each Lender.  Each such notice of a Conversion shall,
within the restrictions set forth above, specify (x) the date of such
Conversion (which shall be a Business Day), (y) the Loans to be Converted, and
(z) if such Conversion is into Eurocurrency Rate Loans, the duration of the
initial Interest Period for each such Loan. 
Company may Convert all Eurocurrency Rate Loans of any one Lender into
Base Rate Loans of such Lender in accordance with the provisions of Section 2.14
by complying with the procedures set forth therein and in this Section 2.8
as though each reference in this Section 2.8 to Loans of any Type was to
such Loans of such Lender.  Each such
notice of Conversion shall, subject to the provisions of Sections 2.7 and 2.14,
be irrevocable and binding on Company.


 


Section 2.9  Default Interest.  Upon the occurrence and during the
continuance of an Event of Default, the principal amount of all Loans
outstanding and, to the extent permitted by applicable law, any interest
payments on the Loans or any fees or other amounts owed hereunder, shall during
such period bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable on
demand at a rate that is 2.0% per annum in excess of the interest rate
otherwise payable hereunder with respect to the applicable Loans (or, in the
case of any such fees and other amounts, at a rate which is 2.0% per annum in
excess of the interest rate otherwise payable hereunder for Base Rate Loans); provided, in the case of Eurocurrency Rate
Loans, upon the expiration of the Interest Period in effect at the time any
such increase in interest rate is effective such Eurocurrency Rate Loans shall
thereupon become Base Rate Loans and shall thereafter bear interest payable
upon demand at a rate which is 2.0% per annum in excess of the interest rate
otherwise payable hereunder for Base Rate Loans.  Payment or acceptance of the increased rates
of interest provided for in this Section 2.9 is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of
Administrative Agent or any Lender.


 


Section 2.10  Fees. 
(a)  Commitment Fee. 
Company shall pay to Administrative Agent for the account of the Lenders
a commitment fee, from the date hereof in the case of each 


 


45





















 


Initial Lender
and from the effective date specified in the Assignment and Acceptance pursuant
to which it became a Lender in the case of each other Lender until the Maturity
Date, payable in arrears quarterly on the first Business Day of each January,
April, July and October, commencing January 3, 2006, and on the
Maturity Date, at the rate set forth under the heading “Commitment Fee” in the
definition of “Applicable Margin”, on the sum of the average daily Unused
Revolving Credit Commitment of such Lender.


 


(b)           Letter
of Credit Fees, Etc.  (i)  Company shall pay to Administrative
Agent for the account of each Lender a commission, payable in arrears quarterly
on the last day of each December, March, June and September, commencing January 3,
2006, and on the earliest to occur of the full drawing, expiration, termination
or cancellation of any Letter of Credit and on the Maturity Date, on such
Lender’s Pro Rata Share of the average daily aggregate Available Amount during
such quarter of all Letters of Credit outstanding from time to time at a rate
per annum equal to the Applicable Margin in respect of Eurocurrency Rate Loans
applicable from time to time in respect of the Revolving Credit Facility.


 


(ii)           Company
shall pay to the Issuing Bank, for its own account, an issuance fee annually
for each Letter of Credit in an amount equal to 1/4% per annum of the Available
Amount of such Letter of Credit on the date of issuance of such Letter of Credit,
payable on such date and on each anniversary of such date, and such other
commissions, transfer fees and other fees and charges in connection with the
issuance or administration of each Letter of Credit as Company and the Issuing
Bank shall agree.


 


(c)           Utilization
Fee.  Company
agrees to pay to Administrative Agent for the account of each Lender a
utilization fee, accruing, during all periods from and after the date hereof
when the aggregate amount of outstanding Revolving Credit Loans and Letter of
Credit Liability exceeds 50% of the aggregate Commitments (without regard to
any usage thereof), at the rate of 0.25% per annum on the aggregate amount of
Revolving Credit Loans and Letter of Credit Liability by such Lender
outstanding from time to time during such periods, payable quarterly in arrears
on the first Business Day of each January, April, July and October and
on the Maturity Date.


 


(d)           Other
Fees.  Company
agrees to pay to Agents such other fees in the amounts and at the times
separately agreed upon.


 


Section 2.11  General Provisions Regarding Payments.  (a)  All payments by Company of
principal, interest, fees and other Obligations shall be made in Dollars in
same day funds, without defense, setoff or counterclaim, free of any
restriction or condition, and delivered to Administrative Agent not later than
12:00 p.m. (New York City time) on the date due at Administrative Agent’s
Principal Office for the account of Lenders; funds received by Administrative
Agent after that time on such due date shall be deemed to have been paid by
Company on the next succeeding Business Day.


 


(b)           All
payments in respect of the principal amount of any Loan shall include payment
of accrued and unpaid interest and premium, if any is due, on the principal
amount being repaid or prepaid, and all such payments (and, in any event, any
payments in respect of any


 


46





















 


Loan on a date when interest is due and payable with
respect to such Loan) shall be applied to the payment of any premium and
interest before application to principal.


 


(c)           Administrative
Agent shall promptly distribute to each Lender at such address as such Lender
shall indicate in writing, such Lender’s applicable Pro Rata Share of all
payments and prepayments of principal, premium and interest due hereunder,
together with all other amounts due thereto, to the extent received by
Administrative Agent.


 


(d)           Notwithstanding
the foregoing provisions hereof, if any Conversion/Continuation Notice is
withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate
Loans in lieu of its Pro Rata Share of any Eurocurrency Rate Loans,
Administrative Agent shall give effect thereto in apportioning payments
received thereafter.


 


(e)           Subject
to the provisos set forth in the definition of “Interest Period”, whenever any payment
to be made hereunder shall be stated to be due on a day that is not a Business
Day, such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder.


 


(f)            Company
hereby authorizes Administrative Agent to charge Company’s accounts with
Administrative Agent in order to cause timely payment to be made to
Administrative Agent of all principal, premium, interest, fees and expenses due
hereunder (subject to sufficient funds being available in its accounts for that
purpose).


 


(g)           Administrative
Agent shall deem any payment by or on behalf of Company hereunder that is not
made in same day funds prior to 12:00 p.m. (New York City time) to be a
non-conforming payment.  Any such payment
shall not be deemed to have been received by Administrative Agent until the
later of (i) the time such funds become available funds, and (ii) the
applicable next Business Day.  Administrative
Agent shall give prompt telephonic notice to Company and each applicable Lender
(confirmed in writing) if any payment is non-conforming.  Any non-conforming payment may constitute or
become a Default or Event of Default in accordance with the terms of Section 8.1(a).  Interest shall continue to accrue on any
premium and principal as to which a non-conforming payment is made until such
funds become available funds (but in no event less than the period from the
date of such payment to the next succeeding applicable Business Day) at the
rate determined pursuant to Section 2.9 from the date such amount was due
and payable until the date such amount is paid in full.


 


(h)           If
an Event of Default shall have occurred and not otherwise been cured or waived,
and the maturity of the Obligations shall have been accelerated pursuant to Section 8.1,
all payments or proceeds received by Agents hereunder in respect of any of the
Obligations, shall be applied in accordance with the application arrangements
described in Section 7.2 of the Pledge and Security Agreement.


 


Section 2.12  Ratable Sharing.  Lenders hereby agree among themselves that,
except as otherwise provided in the Collateral Documents with respect to
amounts realized from the exercise of rights with respect to Liens on the
Collateral, if any of them shall, whether by voluntary payment (other than a
voluntary prepayment of Loans made and applied in accordance with the terms
hereof), through the exercise of any right of set-off or banker’s lien, by


 


47





















 


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


 


Section 2.13  Taxes. 
(a)  Payments Free of Taxes. 
Any and all payments by or on account of any obligation of any Credit
Party hereunder or under any other Credit Document to the Administrative Agent,
any Lender or the Issuing Bank or any other recipient of a payment arising
hereunder shall be made free and clear of and without reduction or withholding
for any Indemnified Taxes, provided
that if Company shall be required by applicable law to deduct any Indemnified
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, any Lender or the 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) such
Credit Party shall make such deductions and (iii) such Credit Party shall
timely pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.


 


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


 


(c)           Indemnification
by the Credit Parties.  The Credit Parties shall, jointly and
severally, indemnify the Administrative Agent, each Lender and the Issuing
Bank, within 10 days after demand therefor, for the full amount of any
Indemnified Taxes (including Indemnified Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the Issuing Bank, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified 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 Company by a


 


48





















 


Lender or the Issuing Bank (with a copy to the
Administrative Agent), 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)           Evidence
of Payments.  As
soon as practicable after any payment of Indemnified Taxes by any Credit Party
to a Governmental Authority, such Credit Party 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)           Status
of Lenders.  Any
Foreign Lender shall deliver to such Credit Party and the Administrative Agent
(in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the request of such Credit Party or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do
so), whichever of the following is applicable:


 


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


 


(ii)           duly
completed copies of Internal Revenue Service Form W-8ECI,


 


(iii)          in
the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Internal Revenue Code,
(A) a certificate to the effect that such Foreign Lender is not (1) a
“bank” within the meaning of section 881(c)(3)(A) of the Internal
Revenue Code, (2) a “10 percent shareholder” of such Credit Party within
the meaning of section 881(c)(3)(B) of the Internal Revenue Code, or (3) a
“controlled foreign corporation” described in section 881(c)(3)(C) of
the Internal Revenue Code and (B) duly completed copies of Internal
Revenue Service Form W-8BEN, or


 


(iv)          any
other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together
with such supplementary documentation as may be prescribed by applicable law to
permit Company to determine the withholding or deduction required to be made.


 


(f)            Treatment
of Certain Refunds.  If the Administrative Agent, any Lender or
the Issuing Bank determines, in its sole discretion, that it has received a
refund of any Indemnified Taxes as to which it has been indemnified by any
Credit Party or with respect to which Company has paid additional amounts
pursuant to this Section, it shall pay to such Credit Party an amount equal to
such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by such Credit Party under this Section with respect to the
Indemnified Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or the Issuing Bank, as the
case may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that such Credit Party, upon the request of the
Administrative Agent, such Lender or the Issuing Bank, agrees to repay


 


49





















 


the amount paid over to the Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative
Agent, such Lender or the Issuing Bank if the Administrative Agent, such Lender
or the Issuing Bank is required to repay such refund to such Governmental
Authority.  This subsection shall
not be construed to require the Administrative Agent, any Lender or the Issuing
Bank to make available its tax returns (or any other information relating to
its taxes that it deems confidential) to any Credit Party or any other Person.


 


Section 2.14  Illegality.  If any Lender determines that any applicable
Law has made it unlawful, or that any Governmental Authority has asserted that
it is unlawful, for any Lender or its applicable Lending Office to make,
maintain or fund Eurocurrency Rate Loans, or to determine or charge interest
rates based upon the Eurocurrency Rate, or any Governmental Authority has
imposed material restrictions on the authority of such Lender to purchase or
sell, or to take deposits of, Dollars in the London interbank market, then, on
notice thereof by such Lender to Company through the Administrative Agent, any
obligation of such Lender to make or continue Eurocurrency Rate Loans or to
convert Base Rate Loans to Eurocurrency Rate Loans shall be suspended until
such Lender notifies the Administrative Agent and Company that the
circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, Company shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurocurrency Rate Loans of such Lender to Base
Rate Loans, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such
day, or immediately, if such Lender may not lawfully continue to maintain such
Eurocurrency Rate Loans.  Upon any such
prepayment or conversion, Company shall also pay accrued interest on the amount
so prepaid or converted.


 


Section 2.15  Inability to Determine Rates.  If the Requisite Lenders determine that for
any reason in connection with any request for a Eurocurrency Rate Loan or a
conversion to or continuation thereof that (a) Dollar deposits are not
being offered to banks in the London interbank eurocurrency market for the
applicable amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate
and reasonable means do not exist for determining the Eurocurrency Rate for any
requested Interest Period with respect to a proposed Eurocurrency Rate Loan, or
(c) the Eurocurrency Rate for any requested Interest Period with respect
to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the
cost to such Lenders of funding such Loan, the Administrative Agent will
promptly so notify Company and each Lender. 
Thereafter, the obligation of the Lenders to make or maintain
Eurocurrency Rate Loans shall be suspended until the Administrative Agent (upon
the instruction of the Requisite Lenders) revokes such notice.  Upon receipt of such notice, Company may
revoke any pending request for a Revolving Credit Borrowing of, conversion to
or continuation of Eurocurrency Rate Loans or, failing that, will be deemed to
have converted such request into a request for a Revolving Credit Borrowing of
Base Rate Loans in the amount specified therein.


 


Section 2.16  Increased Costs.  (a)  Increased Costs Generally.  If any Change in Law shall:


 


(i)            impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with


 


50





















 


or for the
account of, or credit extended or participated in by, any Lender (except any
reserve requirement reflected in the Eurocurrency Rate) or the Issuing Bank;


 


(ii)           subject
any Lender or Issuing Bank to any tax of any kind whatsoever with respect to
this Agreement, any Letter of Credit, any participation in a Letter of Credit
or any Eurocurrency Rate Loan made by it, or change the basis of taxation of
payments to such Lender or the Issuing Bank in respect thereof (except for
Indemnified Taxes covered by Section 2.13 and the imposition of, or any
change in the rate of, any Excluded Tax payable by such Lender or the Issuing
Bank); or


 


(iii)          impose
on any Lender or the Issuing Bank or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans
made by such Lender or any Letter of Credit or participation therein;


 


and the result of any of the foregoing shall
be to increase the cost to such Lender of making or maintaining any
Eurocurrency Rate Loan (or of maintaining its obligation to make any such
Loan), or to increase the cost to such Lender or the Issuing Bank of
participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue 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 any other amount)
then, upon request of such Lender or the Issuing Bank, Company 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)           Capital
Requirements.  If
any Lender or the Issuing Bank determines that any Change in Law affecting such
Lender or the Issuing Bank or any Lending Office of such Lender or such Lender’s
or the Issuing Bank’s holding company, if any, 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, the
Commitments of such Lender or the Loans made by, or participations in Letters
of Credit held by, 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 Company 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.


 


(c)           Certificates
for Reimbursement.  A certificate of a Lender or the Issuing Bank
setting forth in reasonable detail the amount or amounts necessary to
compensate such Lender or the Issuing Bank or its holding company, as the case
may be, and the basis therefor as specified in subsection (a) or (b) of
this Section and delivered to Company shall be conclusive absent manifest
error.  Company shall pay such Lender or
the Issuing Bank, as the case may be, the amount shown as due on any such certificate
within 30 days after receipt thereof.


 


51





















 


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


 


Section 2.17  Compensation for Losses.  Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, Company shall promptly compensate such
Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:


 


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


 


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


 


(c)           any
assignment of a Eurocurrency Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by Company pursuant to Section 10.6;


 


including any loss of anticipated profits and
any loss or expense arising from the liquidation or reemployment of funds
obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. 
Company shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.


 


For purposes of calculating amounts payable
by Company to the Lenders under this Section 2.17, each Lender shall be
deemed to have funded each Eurocurrency Rate Loan made by it at the
Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the
London interbank eurocurrency market for a comparable amount and for a
comparable period, whether or not such Eurocurrency Rate Loan was in fact so
funded.


 


Section 2.18  Mitigation Obligations.  If any Lender requests compensation under Section 2.16,
or Company is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.13,
or if any Lender gives a notice pursuant to Section 2.14, 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 2.13 or 2.16, as
the case may be, in the future, or eliminate the need


 


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for the notice
pursuant to Section 2.14, as applicable, and (ii) in each case, would
not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. 
Company hereby agrees to pay all reasonable costs and expenses incurred
by any Lender in connection with any such designation or assignment.


 


Section 2.19  Removal or Replacement of a Lender.  Anything contained herein to the contrary
notwithstanding, in the event that: (a) any Lender (an “Increased-Cost Lender”)
shall give notice to Company that such Lender is entitled to receive payments
under Section 2.13 or 2.16, or pursuant to Section 2.14 is unable to
make Eurocurrency Rate Loans, the circumstances which have caused such Lender
to be unable to make Eurocurrency Rate Loans or which entitle such Lender to
receive such payments shall remain in effect, and such Lender shall fail to
withdraw such notice within five (5) Business Days after Company’s request
for such withdrawal; (b) any Lender is a Defaulting Lender; or (c) in
connection with any proposed amendment, modification, termination, waiver or
consent with respect to any of the provisions hereof as contemplated by Section 10.5(b),
the consent of Requisite Lenders shall have been obtained but the consent of
one or more of such other Lenders (each a “Non-Consenting Lender”) whose consent is
required shall not have been obtained; then, with respect to each such
Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (the “Terminated Lender”),
Company may, by giving written notice to Administrative Agent and any
Terminated Lender of its election to do so, elect to cause such Terminated
Lender (and such Terminated Lender hereby irrevocably agrees) to assign its
outstanding Loans in full to one or more Eligible Assignees (each a “Replacement Lender”)
in accordance with the provisions of Section 10.6 and Terminated Lender
shall pay any fees payable thereunder in connection with such assignment; provided, (1) on the date of such
assignment, the Replacement Lender shall pay to Terminated Lender an amount
equal to the principal of, and all accrued interest on, all outstanding Loans
of the Terminated Lender (and, other than as specified in clause (2) below,
no premium shall be payable in connection therewith); (2) on the date of
such assignment, Company shall pay any amounts payable to such Terminated
Lender pursuant to Section 2.13 or 2.16 or otherwise and Company shall
reimburse the Terminated Lender for any fees paid by such Terminated Lender
pursuant to Section 10.6 and in connection with the assignment; and (3) in
the event such Terminated Lender is a Non-Consenting Lender, each Replacement
Lender shall consent, at the time of such assignment, to each matter in respect
of which such Terminated Lender was a Non-Consenting Lender.  Upon the prepayment of all amounts owing to
any Terminated Lender, such Terminated Lender shall no longer constitute a “Lender”
for purposes hereof; provided,
any rights of such Terminated Lender to indemnification hereunder shall survive
as to such Terminated Lender.


 


Section 2.20  Survival.  All of Company’s obligations under these
Sections 2.13 through 2.17 shall survive termination of the Commitments and
repayment of all other Obligations hereunder.


 


Section 2.21  Non-Continuing Lenders.  Company hereby acknowledges and agrees that
any Existing Lender that is not a Lender under this Agreement on and from the
Closing Date shall have no further obligations to make Loans or other
extensions of credit under the Existing Credit Agreement or this Agreement or
under any other Credit Document.


 


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SECTION 3. CONDITIONS
PRECEDENT


 


Section 3.1  Closing Date.  The effectiveness of this Agreement on the
Closing Date is subject to the satisfaction, or waiver in accordance with Section 10.5,
of the following conditions on or before December 16, 2005:


 


(a)           Credit
Documents. 
Administrative Agent shall have received sufficient copies of each
Closing Document originally executed and delivered by each applicable Credit
Party for each Lender.


 


(b)           Organizational
Documents; Incumbency.  Administrative Agent shall have received (i) sufficient
copies of each Organizational Document and, to the extent applicable, certified
as of a recent date by the appropriate governmental official, for each Credit
Party, each dated the Closing Date or a recent date prior thereto; (ii) signature
and incumbency certificates of the officers of such Person executing the
Closing Documents to which it is a party; (iii) resolutions of the Board
of Directors or similar governing body of each Credit Party approving and
authorizing the execution, delivery and performance of this Agreement and the
other Closing Documents to which it is a party or by which it or its assets may
be bound as of the Closing Date, certified as of the Closing Date by its
secretary or an assistant secretary as being in full force and effect without
modification or amendment; (iv) a good standing certificate from the
applicable Governmental Authority of each Credit Party’s jurisdiction of
incorporation, organization or formation and in each jurisdiction in which it
is qualified as a foreign corporation or other entity to do business, each
dated a recent date prior to the Closing Date; and (v) such other
documents as Administrative Agent may reasonably request.


 


(c)           Organizational
and Capital Structure.  The organizational structure and capital
structure of Company and its Subsidiaries shall be as set forth in Schedule 4.1
of the Disclosure Letter.


 


(d)           Governmental
Authorizations and Consents.  Each Credit Party shall have obtained all
Governmental Authorizations and all consents of other Persons, in each case
that are necessary or advisable in connection with the transactions
contemplated by the Closing Documents and each of the foregoing shall be in
full force and effect and in form and substance reasonably satisfactory to
Syndication Agent and Administrative Agent. 
All applicable waiting periods shall have expired without any action
being taken or threatened by any competent authority which would restrain,
prevent or otherwise impose adverse conditions on the transactions contemplated
by the Closing Documents or the financing thereof and no action, request for
stay, petition for review or rehearing, reconsideration, or appeal with respect
to any of the foregoing shall be pending, and the time for any applicable
agency to take action to set aside its consent on its own motion shall have
expired.


 


(e)           Opinions
of Counsel to Credit Parties.  Lenders and their respective counsel shall
have received originally executed copies of the favorable written opinions of
counsel for Credit Parties, in the form of Exhibit D and as to such other
matters as Administrative Agent may reasonably request, dated as of the Closing
Date and otherwise in form and substance


 


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reasonably satisfactory to Administrative Agent (and
each Credit Party hereby instructs such counsel to deliver such opinions to
Agents and Lenders).


 


(f)            Fees.  Company shall have paid to Administrative
Agent, Collateral Agent and Lead Arrangers, all fees payable on the Closing
Date.


 


(g)           Solvency
Certificate.  On
the Closing Date, Administrative Agent shall have received a Solvency
Certificate from Company in form, scope and substance satisfactory to
Administrative Agent demonstrating that Company and its Subsidiaries are
Solvent.


 


(h)           Closing
Date Certificate.  Company shall have delivered to
Administrative Agent an originally executed Closing Date Certificate, together
with all attachments thereto.


 


(i)            Credit
Rating.  The Company
shall have been assigned a credit rating by each of S&P and Moody’s.


 


(j)            No
Litigation. 
There shall not exist any action, suit, investigation, litigation or
proceeding or other legal or regulatory developments, pending or threatened in
any court or before any arbitrator or Governmental Authority that, in the
reasonable opinion of Administrative Agent materially impairs any of the
transactions contemplated by the Closing Documents, or that could have a
Material Adverse Effect.


 


(k)           Fees
and Expenses; Existing Credit Agreement.  Company shall have paid all accrued fees,
costs and expenses due in connection with this Agreement to the extent due and
payable on or prior to the execution of this Agreement and any and all amounts
due and payable under the Existing Credit Agreement.


 


Each Lender, by delivering its signature page to
this Agreement, shall be deemed to have acknowledged receipt of, and consented
to and approved, each Closing Document and each other document required to be
approved by any Agent, Requisite Lenders or Lenders, as applicable on the
Closing Date.


 


Section 3.2  Conditions to Each Loan or Issuance or
Renewal.  The obligation of each
Lender to make any Loan or of the Issuing Banks to issue or renew any Letter of
Credit on any Credit Date is subject to the satisfaction, or waiver in
accordance with Section 10.5, of the following conditions precedent:


 


(a)           Administrative
Agent shall have received a fully executed and delivered Funding Notice or
Notice of Issuance;


 


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


 


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(c)           as
of such Credit Date, no event shall have occurred and be continuing or would
result from the consummation of the applicable Loan or the issuance or renewal
of the applicable Letter of Credit that would constitute an Event of Default or
a Default.


 


Any Agent or Requisite Lenders or Issuing
Bank, as applicable, shall be entitled, but not obligated to, request and
receive, prior to the making of any Loan or issuing or renewing any Letter of
Credit, additional information reasonably satisfactory to the requesting party
confirming the satisfaction of any of the foregoing if, in the good faith
judgment of such Agent or Requisite Lenders or Issuing Bank, such request is
warranted under the circumstances.


 


SECTION 4.
REPRESENTATIONS AND WARRANTIES


 


In order to induce Lender
Parties to enter into this Agreement and to make each Loan to be made thereby
and to issue each Letter of Credit hereunder, each Credit Party represents and
warrants to each Lender Party that the following statements are true and
correct:


 


Section 4.1  Organization; Requisite Power and
Authority; Qualification.  Each of
Company and its Subsidiaries (a) is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization (which is,
as of the Closing Date, identified in Schedule 4.1 of the Disclosure
Letter), (b) has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Credit Documents to which it is a party and to
carry out the transactions contemplated thereby, and (c) is qualified to
do business and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, except
in jurisdictions where the failure to be so qualified or in good standing has
not had, and could not be reasonably expected to have, a Material Adverse
Effect.  Set forth on Schedule 4.1
of the Disclosure Letter is a complete and accurate list of Company and all of
its Subsidiaries, showing as of the date hereof (as to each such entity) the
jurisdiction of its incorporation, the address of its principal place of
business and its U.S. taxpayer identification number or, in the case of any
Foreign Subsidiary that does not have a U.S. taxpayer identification number,
its unique identification number issued to it by its jurisdiction of
incorporation.  As of the date hereof,
the copy of the charter of each Credit Party and each amendment thereto
provided pursuant to Section 3.1 is a true and correct copy of each such
document, each of which is valid and in full force and effect.


 


Section 4.2  Capital Stock and Ownership.  The Capital Stock of each of Company and its
Subsidiaries has been duly authorized and validly issued and is fully paid and
non-assessable.  Except as set forth in Schedule 4.2
of the Disclosure Letter, as of the date hereof, there is no existing option,
warrant, call, right, commitment or other agreement to which any of Company’s
Subsidiaries is a party requiring, and there is no membership interest or other
Capital Stock of Company or any of its Subsidiaries outstanding which upon
conversion or exchange would require, the issuance by any of Company’s Subsidiaries
of any additional membership interests or other Capital Stock of any of Company’s
Subsidiaries or other Securities convertible into, exchangeable for or
evidencing the right to subscribe for or purchase, a membership interest or
other Capital Stock of any of Company’s Subsidiaries.  Schedule 4.2 of the Disclosure Letter
correctly sets forth the ownership interest of Company and each of its


 


56





















 


Subsidiaries
in their respective Subsidiaries as of the Closing Date and indicates which
Subsidiaries are First Tier Foreign Subsidiaries.


 


Section 4.3  Due Authorization.  The execution, delivery and performance of
the Credit Documents have been duly authorized by all necessary action on the
part of each Credit Party that is a party thereto.


 


Section 4.4  No Conflict.  The execution, delivery and performance by
Credit Parties of the Credit Documents to which they are parties and the
consummation of the transactions contemplated by the Credit Documents do not and
will not (a) violate any provision of any law or any governmental rule or
regulation applicable to Company or any of its Subsidiaries, any of the
Organizational Documents of Company or any of its Subsidiaries, or any order,
judgment or decree of any court or other agency of government binding on
Company or any of its Subsidiaries; (b) conflict with, result in a breach
of or constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Company or any of its Subsidiaries; (c) result
in or require the creation or imposition of any Lien upon any of the properties
or assets of Company or any of its Subsidiaries (other than any Liens created
under any of the Credit Documents in favor of Collateral Agent, on behalf of
Secured Parties); or (d) require any approval of stockholders, members or
partners or any approval or consent of any Person under any Contractual
Obligation of Company or any of its Subsidiaries, except for such approvals or
consents which will be obtained on or before the Closing Date and disclosed in
writing to Lenders.


 


Section 4.5  Governmental Consents.  The execution, delivery and performance by
Credit Parties of the Credit Documents to which they are parties and the
consummation of the transactions contemplated by the Credit Documents do not
and will not require any registration with, consent or approval of, or notice
to, or other action to, with or by, any Governmental Authority except for those
previously obtained and filings and recordings with respect to the Collateral
to be made, or otherwise delivered to Collateral Agent for filing and/or
recordation, as of the Closing Date and any filings and/or recordations
required in connection with the pledge of First Tier Foreign Subsidiaries to be
made in accordance with the Pledge and Security Agreement.


 


Section 4.6  Binding Obligation.  Each Credit Document has been duly executed
and delivered by each Credit Party that is a party thereto and is the legally
valid and binding obligation of such Credit Party, enforceable against such
Credit Party in accordance with its respective terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors’ rights generally or by equitable principles (regardless
of whether enforcement is sought in equity or at law).


 


Section 4.7  Historical Financial Statements.  The Historical Financial Statements were
prepared in conformity with GAAP and fairly present, in all material respects,
the financial position, on a consolidated basis, of Company and its
Subsidiaries as at the respective dates thereof and the results of operations
and cash flows, on a consolidated basis, of Company and its Subsidiaries for
each of the periods then ended, subject, in the case of any such unaudited
financial statements, to changes resulting from audit and normal year-end
adjustments and the absence of footnotes in the case of interim period
financial statements.  As of the Closing
Date,


 


57





















 


neither
Company nor any of its Subsidiaries has any contingent liability or liability
for taxes, long-term lease or unusual forward or long-term commitment that is
not reflected in the Historical Financial Statements or the notes thereto and
which in any such case is material in relation to the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Company
and any of its Subsidiaries taken as a whole.


 


Section 4.8  Projections.  On and as of the Closing Date, the
Projections of Company and its Subsidiaries for the period Fiscal Year 2006
through and including Fiscal Year 2008 (the “Projections”) are based on good faith
estimates and assumptions made by the management of Company; provided, the Projections are not to be
viewed as facts and that actual results during the period or periods covered by
the Projections may differ from such Projections and that the differences may
be material; provided further, as
of the Closing Date, management of Company believed that the Projections were
reasonable and attainable.


 


Section 4.9  No Material Adverse Change.  Since October 2, 2004, no event,
circumstance or change has occurred that has caused or evidences, either in any
case or in the aggregate, a Material Adverse Effect.


 


Section 4.10  No Restricted Junior Payments.  Since October 2, 2004 neither Company nor
any of its Subsidiaries has directly or indirectly declared, ordered, paid or
made, or set apart any sum or property for, any Restricted Junior Payment or
agreed to do so except as permitted pursuant to Section 6.5.


 


Section 4.11  Adverse Proceedings, Etc.  There are no Adverse Proceedings,
individually or in the aggregate, that could reasonably be expected to have a
Material Adverse Effect.  Neither Company
nor any of its Subsidiaries (a) is in violation of any applicable laws
(including Environmental Laws) that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect or result in a
material impairment of the value of the Mortgaged Properties taken as a whole,
or (b) is subject to or in default with respect to any applicable final
judgments, writs, injunctions, decrees, rules or regulations of any court
or any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.


 


Section 4.12  Payment of Taxes.  Except as otherwise permitted under Section 5.3,
all tax returns and reports of Company and its Subsidiaries required to be
filed by any of them have been timely filed, and all Taxes required to be paid
by Company and its Subsidiaries or imposed upon their respective properties,
assets, income, businesses and franchises have been paid when due and payable,
other than any such Taxes for reserves which have been established in
conformity with GAAP.  There are no
written proposed Tax assessments against Company or any of its Subsidiaries
which are not being actively contested by Company or such Subsidiary in good
faith and by appropriate proceedings (unless Company or its applicable
Subsidiary intends to pay such assessment and the liability in respect of such
assessment has been reserved for in conformity with GAAP).


 


Section 4.13  Properties.  (a)  Title.  Each of Company and its Subsidiaries has (i) good,
sufficient and legal title to (in the case of fee interests in real property), (ii) valid
leasehold


 


58





















 


interests in
(in the case of leasehold interests in real or personal property), and (iii) good
title to (in the case of all other personal property), all of their respective
properties and assets reflected in their respective Historical Financial
Statements referred to in Section 4.7 and in the most recent financial
statements delivered pursuant to Section 5.1, in each case except for
assets disposed of since the date of such financial statements in the ordinary
course of business or as otherwise permitted under Section 6.8.  Except as permitted by this Agreement and
except for Permitted Liens, all such properties and assets are free and clear
of Liens.


 


(b)           Real
Estate.  As of the
Closing Date, Schedule 4.13(b) of the Disclosure Letter contains a
true, accurate and complete list of all Real Estate Assets.  Each lease, sublease and assignment of leases
(together with all amendments, modifications, supplements, renewals or
extensions of any thereof) to which any Credit Party is party with respect to
such Real Estate Assets, regardless of whether such Credit Party is the
landlord or tenant (whether directly or as an assignee or successor in
interest) under such lease, sublease or assignment, is in full force and effect
and Company does not have knowledge of any default that has occurred and is
continuing thereunder, and each such agreement constitutes the legally valid
and binding obligation of each applicable Credit Party, enforceable against
such Credit Party in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors’ rights generally or by equitable principles
(regardless of whether enforcement is sought in equity or at law).


 


(c)           Environmental
Matters.  Except as
set forth in Schedule 4.13(c)(i) of the Disclosure Letter, neither
Company nor any of its Subsidiaries nor any of their respective Real Estate
Assets or operations are subject to any outstanding order, consent decree or
settlement agreement with any Person relating to any Environmental Law or any
Environmental Claim that could reasonably be expected to result in liability
for Company or its Subsidiaries. Neither Company nor any of its Subsidiaries
nor any of their respective Real Estate Assets or operations are subject to any
Hazardous Materials Activity that, individually or in the aggregate, could
reasonably be expected to (i) have a Material Adverse Effect or (ii),
except as set forth in Schedule 4.13(c)(ii) of the Disclosure Letter,
result in a material impairment of the value of the Mortgaged Properties taken
as a whole.  Except as set forth in Schedule 4.13(c)(iii) of
the Disclosure Letter, neither Company nor any of its Subsidiaries has received
any letter or request for information under Section 104 of the
Comprehensive Environmental Response, Compensation, and Liability Act (42
U.S.C. § 9604) or any comparable state law that could reasonably be
expected to result in liability for Company or any of its Subsidiaries.  There are and, to each of Company’s and its
Subsidiaries’ knowledge, have been, no conditions, occurrences, or Hazardous
Materials Activities which could reasonably be expected to form the basis of an
Environmental Claim against Company or any of its Subsidiaries that, individually
or in the aggregate, could reasonably be expected to (i) have a Material
Adverse Effect or (ii), except as set forth in Schedule 4.13(c)(iv) of
the Disclosure Letter, result in a material impairment of the value of the
Mortgaged Properties taken as a whole. 
Company and its Subsidiaries are not subject to any Environmental Laws
requiring the performance of site assessments for Hazardous Materials, or the
removal or remediation of Hazardous Materials, or the giving of notice to any
governmental agency or the recording or delivery to other persons or an
environmental disclosure document or statement by virtue of the transactions
set forth herein and contemplated hereby, or as a condition to the
effectiveness of any transactions contemplated hereby.  Compliance with all current or reasonably
foreseeable future requirements pursuant to


 


59





















 


or under Environmental Laws could not be reasonably
expected to, individually or in the aggregate, (i) have a Material Adverse
Effect or (ii), except as set in Schedule 4.13(c)(v) of the
Disclosure Letter, result in a material impairment of the value of the
Mortgaged Properties taken as a whole. 
No event or condition has occurred or is occurring with respect to
Company or any of its Subsidiaries relating to any Environmental Law, any
Release of Hazardous Materials, or any Hazardous Materials Activity which
individually or in the aggregate (i) has had, or could reasonably be
expected to have, a Material Adverse Effect or (ii), except as set forth in Schedule 4.13(c)(vi) of
the Disclosure Letter, that could result in a material impairment of the value
of the Mortgaged Properties taken as a whole.


 


Section 4.14  No Defaults.  Neither Company nor any of its Subsidiaries
is in default in the performance, observance or fulfillment of any of its
obligations, covenants or conditions contained in any of its Contractual
Obligations, and no condition exists which, with the giving of notice or the
lapse of time or both, could constitute such a default, except where the
consequences, direct or indirect, of such default or defaults, if any, could
not reasonably be expected to have a Material Adverse Effect.


 


Section 4.15  Material Contracts.  Schedule 4.15 of the Disclosure Letter
contains a true, correct and complete list of all the Material Contracts in
effect on the Closing Date, and except as described thereon, all such Material
Contracts are in full force and effect and no defaults currently exist
thereunder, except where the consequences of such defaults could not reasonably
be expected to have a Material Adverse Effect.


 


Section 4.16  Governmental Regulation.  Neither Company nor any of its Subsidiaries
is subject to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the
Obligations unenforceable.  Neither
Company nor any of its Subsidiaries is a “registered investment company” or a
company “controlled” by a “registered investment company” or a “principal
underwriter” of a “registered investment company” as such terms are defined in
the Investment Company Act of 1940.


 


Section 4.17  Margin Stock.  Neither Company nor any of its Subsidiaries
is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying any Margin
Stock.  No part of the proceeds of the
Loans made to such Credit Party will be used to purchase or carry any such
margin stock or to extend credit to others for the purpose of purchasing or
carrying any such margin stock or for any purpose that violates, or is
inconsistent with, the provisions of Regulation T, U or X of said Board of
Governors.


 


Section 4.18  Employee Matters.  Neither Company nor any of its Subsidiaries
is engaged in any unfair labor practice that could reasonably be expected to
have a Material Adverse Effect.  There is
(a) no unfair labor practice complaint pending against Company or any of
its Subsidiaries, or to the best knowledge of Company, threatened against any
of them before the National Labor Relations Board and no grievance or
arbitration proceeding arising out of or under any collective bargaining
agreement that is so pending against Company or any of its Subsidiaries or, to
the best knowledge of Company, threatened against any of them, (b) no
strike


 


60





















 


or work stoppage in
existence or, to the best knowledge of Company, threatened involving Company or
any of its Subsidiaries that could reasonably be expected to have a Material
Adverse Effect, and (c) to the best knowledge of Company, no union representation
question existing with respect to the employees of Company or any of its
Subsidiaries and, to the best knowledge of Company, no union organization
activity that is taking place, except (with respect to any matter specified in
clause (a), (b) or (c) above, either individually or in the
aggregate) such as is not reasonably likely to have a Material Adverse Effect.


 


Section 4.19  Employee Benefit Plans.  Company, each of its Subsidiaries and each of
their respective ERISA Affiliates (a) are in compliance with all
applicable provisions and requirements of ERISA and the Internal Revenue Code
and the regulations and published interpretations thereunder with respect to
each Employee Benefit Plan, except as, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect, and (b) have
performed in all material respects all their obligations under each Employee
Benefit Plan.  Each Employee Benefit Plan
which is intended to qualify under Section 401(a) of the Internal Revenue
Code has received a favorable determination or opinion letter from the Internal
Revenue Service indicating that such Employee Benefit Plan is so qualified and,
to Company’s knowledge, nothing has occurred subsequent to the issuance of such
determination or opinion letter which would cause such Employee Benefit Plan to
lose its qualified status.  No liability
to the PBGC (other than required premium payments) has been or is expected to
be incurred by Company, any of its Subsidiaries or any of their ERISA
Affiliates.  No liability to the Internal
Revenue Service, any Employee Benefit Plan or any trust established under Title
IV of ERISA has been or is expected to be incurred by Company, any of its
Subsidiaries or any of their ERISA Affiliates except as, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
No ERISA Event has occurred or is reasonably expected to occur except as,
individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.  Except as set forth in Schedule 4.19
to the Disclosure Letter and to the extent required under Section 4980B of
the Internal Revenue Code or similar state laws, no Employee Benefit Plan
provides health or welfare benefits (through the purchase of insurance or
otherwise) for any retired or former employee of Company, any of its
Subsidiaries or any of their respective ERISA Affiliates.  The present value of the aggregate benefit
liabilities under each Pension Plan sponsored, maintained or contributed to by
Company, any of its Subsidiaries or any of their ERISA Affiliates, (determined
as of the end of the most recent plan year on the basis of the actuarial
assumptions specified for funding purposes in the most recent actuarial
valuation for such Pension Plan), did not exceed the aggregate current value of
the assets of such Pension Plan except as could not reasonably be expected to
have a Material Adverse Effect.  As of
the most recent valuation date for each Multiemployer Plan for which the
actuarial report is available, the potential liability of Company, its
Subsidiaries and their respective ERISA Affiliates for a complete withdrawal
from such Multiemployer Plan (within the meaning of Section 4203 of
ERISA), when aggregated with such potential liability for a complete withdrawal
from all such Multiemployer Plans, based on information available pursuant to Section 4221(e) of
ERISA is zero.  Company, each of its
Subsidiaries and each of their ERISA Affiliates have complied with the requirements
of Section 515 of ERISA with respect to each such Multiemployer Plan and
are not in material “default” (as defined in Section 4219(c)(5) of
ERISA) with respect to payments to a Multiemployer Plan.


 


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Section 4.20  Certain Fees.  No broker’s or finder’s fee or commission
will be payable with respect hereto or any of the transactions contemplated
hereby.


 


Section 4.21  Solvency.  Each Credit Party is and, upon the incurrence
of any Obligation by such Credit Party on any date on which this representation
and warranty is made, will be, Solvent.


 


Section 4.22  Compliance with Statutes, Etc.  Each of Company and its Subsidiaries is in
compliance with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all Governmental Authorities, in respect of
the conduct of its business and the ownership of its property (including
compliance with all applicable Environmental Laws with respect to any Real
Estate Asset or governing its business and the requirements of any permits
issued under such Environmental Laws with respect to any such Real Estate Asset
or the operations of Company or any of its Subsidiaries), except such
non-compliance that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect or result in a material
impairment of the value of the Mortgaged Properties taken as a whole.


 


Section 4.23  Disclosure.  No statement, information, report,
certification, representation or warranty made by Company or any of its
Subsidiaries or any Authorized Officer of Company or any of its Subsidiaries
contained in any Credit Document or in any other documents, certificates or
written statements furnished to Lenders by or on behalf of Company or any of
its Subsidiaries for use in connection with the transactions contemplated
hereby, when taken together with Company’s filings with the Securities and
Exchange Commission, contains any untrue statement of a material fact or omits
to state a material fact (known to Company, in the case of any document not
furnished by either of them) necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made.  Any
projections and pro forma financial information contained in such materials are
based upon good faith estimates and assumptions believed by Company to be
reasonable at the time made, it being recognized by Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
from the projected results (it being understood that forecasts and projections
by their nature involve approximations and uncertainties).  There are no facts known (or which should
upon the reasonable exercise of diligence be known) to Company (other than
matters of a general economic nature) that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect and that
have not been disclosed herein, in Company’s filings with the Securities and
Exchange Commission or in such other documents, certificates and statements
furnished to Lenders for use in connection with the transactions contemplated
hereby.


 


Section 4.24  Senior Indebtedness.  Company has taken all actions necessary for
the Obligations to constitute “Senior Indebtedness” and “Designated Senior
Indebtedness” for the purposes of and as defined in each indenture governing
Subordinated Indebtedness.


 


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SECTION 5. AFFIRMATIVE
COVENANTS


 


Each Credit Party covenants and
agrees that until the termination of all Commitments and payment in full of all
Obligations (other than inchoate indemnity obligations), each Credit Party
shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 5.


 


Section 5.1  Financial Statements and Other Reports.  Company will deliver to Administrative Agent
and (except as otherwise specifically provided below) Lender Parties (and
additionally, in the case of Sections 5.1(k) and 5.1(l) to Collateral Agent):


 


(a)           Quarterly
Financial Statements.  As soon as available, and in any event within
forty five (45) days after the end of each of the first three Fiscal Quarters
of each Fiscal Year, the consolidated balance sheets of Company and its
Subsidiaries as at the end of such Fiscal Quarter and the related consolidated
statements of income, stockholders’ equity and cash flows of Company and its Subsidiaries
for such Fiscal Quarter and for the period from the beginning of the then
current Fiscal Year to the end of such Fiscal Quarter, setting forth in each
case in comparative form the corresponding figures for the corresponding
periods of the previous Fiscal Year, all in reasonable detail, together with a
Financial Officer Certification (which requirement shall be satisfied by the
certification provided in Exhibit 31 to Company’s Quarterly Report on Form 10-Q)
and a Narrative Report (which requirements shall be satisfied by the Management’s
Discussion and Analysis in Company’s Quarterly Report on Form 10-Q for the
Fiscal Quarter then ended) with respect thereto;


 


(b)           Annual
Financial Statements.  As soon as available, and in any event within
ninety (90) days after the end of each Fiscal Year, (i) the consolidated
balance sheets of Company and its Subsidiaries as at the end of such Fiscal
Year and the related consolidated statements of income, stockholders’ equity
and cash flows of Company and its Subsidiaries for such Fiscal Year, setting
forth in each case in comparative form the corresponding figures for the
previous Fiscal Year, in reasonable detail, together with a Financial Officer
Certification (which requirement shall be satisfied by the certification
provided in Exhibit 31 to Company’s Annual Report on Form 10-K) and a
Narrative Report (which requirements shall be satisfied by the Management’s
Discussion and Analysis in Company’s Annual Report on Form 10-K for the
Fiscal Year then ended) with respect thereto; and (ii) with respect to
such consolidated financial statements a report thereon of KPMG LLP or other
independent certified public accountants of recognized national standing
selected by Company, and reasonably satisfactory to Administrative Agent (which
report shall be unqualified as to going concern and scope of audit, and shall
state that such consolidated financial statements fairly present, in all
material respects, the consolidated financial position of Company and its
Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated in conformity with GAAP and that the
audit by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing
standards in the United States) together with a written statement by such
independent certified public accountants stating that, in connection with their
audit, nothing has come to their attention which would cause them to believe
that Company was not in compliance with the terms of Section 6.7 of this
Agreement, and, if such a condition or event has come to their attention,
specifying the nature thereof;


 


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(c)           Compliance
Certificate. 
Within five (5) days after each delivery of financial statements of
Company and its Subsidiaries pursuant to Sections 5.1(a) and 5.1(b),
deliver to Administrative Agent a duly executed and completed Compliance
Certificate;


 


(d)           Statements
of Reconciliation after Change in Accounting Principles.  If, as a result of any change in accounting
principles and policies from those used in the preparation of the Historical
Financial Statements, the consolidated financial statements of Company and its
Subsidiaries delivered pursuant to Section 5.1(a) or 5.1(b) will
differ in any material respect from the consolidated financial statements that
would have been delivered pursuant to such subdivisions had no such change in
accounting principles and policies been made, then, together with the first
delivery of such financial statements after such change, one or more a
statements of reconciliation (with respect to those items relevant to
calculating the covenants in Section 6.7) for all such prior financial
statements in form and substance satisfactory to Administrative Agent;


 


(e)           Notice
of Default. 
Promptly upon any Authorized Officer of Company obtaining knowledge (i) of
any condition or event that constitutes a Default or an Event of Default or
that notice has been given to Company with respect thereto; (ii) that any
Person has given any notice to Company or any of its Subsidiaries or taken any
other action with respect to any event or condition set forth in Section 8.1(b);
or (iii) of the occurrence of any event or change that has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect, a
certificate of its Authorized Officers specifying the nature and period of
existence of such condition, event or change, or specifying the notice given
and action taken by any such Person and the nature of such claimed Event of
Default, Default, default, event or condition, and what action Company has
taken, is taking and proposes to take with respect thereto;


 


(f)            Notice
of Litigation. 
Promptly upon any Authorized Officer of Company obtaining knowledge of (i) the
institution of, or non-frivolous threat of, any Adverse Proceeding not
previously disclosed in writing by Company to Lenders, or (ii) any
material development in any Adverse Proceeding that, in the case of either (i) or
(ii) if adversely determined, could be reasonably expected to have a
Material Adverse Effect, or seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result of, the
transactions contemplated hereby, written notice thereof together with such
other information as may be reasonably available to Company to enable Lenders
and their counsel to evaluate such matters (subject to the preservation of
attorney-client privileges and other applicable privileges);


 


(g)           ERISA.  Promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred, could reasonably be
expected to result in a liability of Company and its Subsidiaries in an
aggregate amount exceeding $10.0 million, a written notice specifying the
nature thereof, what action Company, any of its Subsidiaries or any of their
respective ERISA Affiliates has taken, is taking or proposes to take with
respect thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with respect thereto;


 


(h)           Insurance
Report.  As soon as
practicable and in any event by the last day of each Fiscal Year, a report in
form and substance satisfactory to Administrative Agent outlining


 


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all material insurance coverage maintained as of the
date of such report by Company and its Subsidiaries and all material insurance
coverage planned to be maintained by Company and its Subsidiaries in the
immediately succeeding Fiscal Year;


 


(i)            Environmental
Reports and Audits.  As soon as practicable following receipt
thereof, copies of all environmental audits and reports with respect to
environmental matters at any Real Estate Facility or which relate to any
environmental liabilities of Company or its Subsidiaries which, in any such
case, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect;


 


(j)            Opinions
to Second Lien Collateral Trustee.  As soon as practicable following receipt
thereof, an executed copy of each opinion of counsel issued to the Second Lien
Collateral Trustee pursuant to the terms of the Senior Secured Notes Documents;


 


(k)           Information
Regarding Collateral.  Company will furnish to Collateral Agent
written notice of changes required pursuant to the terms of the Pledge and
Security Agreement at the times prescribed therefor in the applicable provisions
of the Pledge and Security Agreement; and


 


(l)            Other
Information.  (i) Promptly
upon their becoming available, copies of (A) all financial statements,
reports, notices and proxy statements sent or made available generally by
Company to its security holders acting in such capacity or by any Subsidiary of
Company to its security holders other than Company or another Subsidiary of
Company, and (B) all regular and periodic reports and all registration
statements and prospectuses, if any, filed by Company or any of its
Subsidiaries with any securities exchange or with the Securities and Exchange
Commission or any governmental or private regulatory authority, and (ii) such
other information and data with respect to Company or any of its Subsidiaries
as from time to time may be reasonably requested by Administrative Agent or any
Lender Party.


 


Section 5.2  Existence.  Except as otherwise permitted under Section 6.8,
each Credit Party will, and will cause each of its Subsidiaries to, at all
times preserve and keep in full force and effect its existence and all rights
and franchises, licenses and permits material to its business; provided, no Credit Party or any of its
Subsidiaries shall be required to preserve any such existence, right or
franchise, licenses and permits if the preservation thereof is no longer
desirable in the conduct of the business of such Person and that the loss
thereof is not disadvantageous in any material respect to such Person or to
Lender Parties.


 


Section 5.3  Payment of Taxes and Claims.  Each Credit Party will, and will cause each
of its Subsidiaries to, pay all Taxes imposed upon it or any of its properties
or assets or in respect of any of its income, businesses or franchises before
any penalty or fine accrues thereon, and all claims (including claims for
labor, services, materials and supplies) for sums that have become due and
payable and that by law have or may become a Lien upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; provided, no
such Tax or claim need be paid, so long as (a) adequate reserves or other
appropriate provision, as shall be required in conformity with GAAP shall have
been made therefor, and (b) in the case of a written charge or claim which
has or may become a Lien against any of the Collateral, it is being contested
in good faith by appropriate proceedings and such


 


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contest
proceedings conclusively operate to stay the sale of any portion of the
Collateral to satisfy such Tax or claim. 
No Credit Party will, nor will it permit any of its Subsidiaries to,
file or consent to the filing of any consolidated income Tax return with any
Person (other than Company or any of its Subsidiaries).


 


Section 5.4  Maintenance of Properties.  Each Credit Party will, and will cause each
of its Subsidiaries to, maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear excepted, all material
properties used or useful in the business of Company and its Subsidiaries and
from time to time will make or cause to be made all appropriate repairs,
renewals and replacements thereof except, in each case, where the failure to do
so could not reasonably be expected to result in a Material Adverse Effect.


 


Section 5.5  Insurance.  Company will maintain or cause to be
maintained, with financially sound and reputable insurers, such public
liability insurance, third party property damage insurance, business
interruption insurance and casualty insurance with respect to liabilities,
losses or damage in respect of the assets, properties and businesses of Company
and its Subsidiaries as may customarily be carried or maintained under similar
circumstances by Persons of established reputation engaged in similar
businesses, in each case in such amounts (giving effect to self-insurance),
with such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for such Persons.  Without limiting the generality of the
foregoing, Company will maintain or cause to be maintained (a) flood
insurance with respect to each Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program, in each
case in compliance with any applicable regulations of the Board of Governors of
the Federal Reserve System, and (b) replacement value property insurance
on the Collateral under such policies of insurance, with such insurance
companies, in such amounts, with such deductibles, and covering such risks as
are at all times carried or maintained under similar circumstances by Persons
of established reputation engaged in similar businesses.  Each such policy of insurance shall (i) name
Collateral Agent, on behalf of Lenders, as an additional insured thereunder as
its interests may appear and (ii) in the case of each property insurance
policy, contain a loss payable clause or endorsement, satisfactory in form and
substance to Collateral Agent, that names Collateral Agent, on behalf of Lenders,
as the loss payee thereunder and provides for at least thirty (30) days’ prior
written notice to Collateral Agent of any cancellation of such policy.  Company shall provide at least thirty (30)
days’ prior written notice to Collateral Agent of any material modification of
each such policy requested or made by Company or any of its Subsidiaries.  Company shall provide written notice to
Collateral Agent of any material modification of each such policy not requested
or made by Company or any of its Subsidiaries promptly upon its receipt of
notice thereof.  So long as no Default or
Event of Default has occurred and is continuing, Company shall be entitled to
collect and use (in compliance with this Agreement and the other Credit
Documents) all proceeds of any insurance policy insuring against any loss of
title with respect to any property of Company or any of its Subsidiaries or any
loss of or damage to or destruction of, any such property and any condemnation
awards and payments for deeds in lieu of condemnation.


 


Section 5.6  Inspections; Maintaining Books and Records.  Each Credit Party will, and will cause each
of its Subsidiaries to, permit any authorized representatives designated by any
Lender to visit and inspect any of the properties of any Credit Party and any
of its respective Subsidiaries, to inspect, copy and take extracts from its and
their financial and accounting


 


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records, and
to discuss its and their affairs, finances and accounts with its and their
officers and independent public accountants, all upon reasonable notice and at
such reasonable times during normal business hours and as often as may
reasonably be requested.  Notwithstanding
anything to the contrary in this Section 5.6, while no Event of Default
exists, no Credit Party will be required to disclose, permit the inspection,
examination or making of extracts, or discussion of, any document, information
or other matter that (i) constitutes non-financial trade secrets or
non-financial proprietary information, (ii) in respect of which disclosure
to Collateral Agent (or its designated representative) is then prohibited by
Law or any agreement binding on such Credit Party or any of its Subsidiaries or
(iii) is subject to attorney-client or similar privilege or constitutes
attorney work product. Each Credit Party will, and will cause each of its
Subsidiaries to, maintain proper books of record and account, in which entries
correct and accurate in all material respects and sufficient to prepare
financial statements in accordance with GAAP shall be made.


 


Section 5.7  Compliance with Laws.  Each Credit Party will comply, and shall
cause each of its Subsidiaries to comply, with the requirements of all
applicable laws, rules, regulations and orders of any governmental authority
(including all Environmental Laws, the Patriot Act and all other laws and
regulations relating to money laundering and terrorist activities),
noncompliance with which could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect and except where compliance is being
contested in good faith and a bona fide dispute exists with respect thereto.


 


Section 5.8  Environmental.  (a)  Environmental Disclosure.  Company will
deliver to Administrative Agent and Lender Parties:


 


(i)            promptly
upon request, copies of all environmental audits, investigations, analyses and
reports of any kind or character, whether prepared by personnel of Company or
any of its Subsidiaries or by independent consultants, Governmental Authorities
or any other Persons, with respect to significant environmental matters at any
Real Estate Asset or with respect to any significant Environmental Claim;


 


(ii)           promptly
upon the occurrence thereof, written notice describing in reasonable detail (A) any
Release that could constitute a violation of Environmental Laws that could
reasonably be expected to result in enforcement or corrective action, or that
is above applicable thresholds for corrective or remedial action, for which
penalties or fines could reasonably be expected to exceed $100,000 in any one
instance, or corrective action could reasonably be expected to exceed $1.0
million and, (B) any remedial action taken by Company or any other Person
in response to (1) any Hazardous Materials Activities the existence of
which could reasonably be expected to result in one or more Environmental
Claims having, individually or in the aggregate, a Material Adverse Effect or a
material impairment of the value of the Mortgaged Properties taken as a whole,
or (2) any Environmental Claims that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect or in a
material impairment of the value of the Mortgaged Properties taken as a whole,
and (C) Company’s discovery of any occurrence or condition on any real
property adjoining or in the vicinity of any Real Estate Asset that could cause
such Real Estate Asset or any part thereof to be subject to


 


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any material
restrictions on the ownership, occupancy, transferability or use thereof under
any Environmental Laws;


 


(iii)          as
soon as practicable following the sending or receipt thereof by Company or any
of its Subsidiaries, a copy of any and all written communications with respect
to (A) any Environmental Claims that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect or in a
material impairment of the value of the Mortgaged Properties taken as a whole, (B) any
Release that could constitute a violation of Environmental Laws that could
reasonably be expected to result in enforcement or corrective action, or that
is above applicable thresholds for corrective or remedial action, for which
penalties or fines could reasonably be expected to exceed $100,000 in any one
instance, or corrective action could reasonably be expected to exceed $1.0
million, and (C) any request for information from any governmental agency
that suggests such agency is investigating whether Company or any of its
Subsidiaries may be potentially responsible for any Release of Hazardous
Material that could constitute a violation of Environmental Law or that is
above applicable thresholds for corrective or remedial action, any violation or
alleged violation of Environmental Laws or any remedial or other corrective
action pursuant to Environmental Laws, for which penalties or fines could
reasonably be expected to exceed $100,000 in any one instance, or corrective
action could reasonably be expected to exceed $1.0 million;


 


(iv)          prompt
written notice describing in reasonable detail (A) any proposed
acquisition of stock, assets, or property by Company or any of its Subsidiaries
that could reasonably be expected to (1) expose Company or any of its
Subsidiaries to, or result in, Environmental Claims that could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
or that could result in a material impairment of the value of the Mortgaged
Properties taken as a whole or (2) affect the ability of Company or any of
its Subsidiaries to maintain in full force and effect all material Governmental
Authorizations required under any Environmental Laws for their respective
operations and (B) any proposed action to be taken by Company or any of
its Subsidiaries to modify current operations in a manner that could reasonably
be expected to subject Company or any of its Subsidiaries to any additional
material obligations or requirements under any Environmental Laws; and


 


(v)           with
reasonable promptness, such other documents and information as from time to
time may be reasonably requested by Collateral Agent in relation to any matters
disclosed pursuant to this Section 5.8.


 


(b)           Hazardous
Materials Activities, Etc.  Company shall promptly take, and shall cause
each of its Subsidiaries promptly to take, any and all actions necessary to (i) cure
any violation of applicable Environmental Laws by Company or its Subsidiaries
that could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or result in a material impairment of the value of the
Mortgaged Properties taken as a whole, and (ii) make an appropriate
response to any Environmental Claim against Company or any of its Subsidiaries
and discharge any obligations it may have to any Person thereunder where
failure to do so could reasonably be expected to have, individually or in the
aggregate, a Material Adverse 


 


68





















 


Effect or result in a material impairment of the
value of the Mortgaged Properties taken as a whole.


 


(c)           Nothing
in this Agreement is intended, or shall be deemed, to relieve Company of its
obligations under Environmental Laws, or to condone or encourage any disregard
of such obligations.  Company shall
retain all responsibility for compliance with Environmental Laws, including
proper management of all Hazardous Materials. 
Nothing herein shall, or shall be construed in any manner to, subject
any Agent, any Lender Party or any other Indemnitee to liability under any
Environmental Laws as an owner, operator or other liable party for the
environmental compliance or conditions or contamination at or from or with
respect to in any manner, the Mortgaged Properties, and no act by the
Collateral Agent shall be deemed or construed as outside or not protected by
any secured party safe harbor protections under any Environmental Laws or
otherwise be considered as participation by any Agent, any Lender Party or any
other Indemnitee in the management of the Mortgaged Properties or as an owner
or operator of the Mortgaged Properties.


 


Section 5.9  Subsidiaries.  In the event that any Person becomes a
Domestic Subsidiary (other than a Domestic Subsidiary created for purposes of a
Permitted Acquisition until the time of the closing of such transaction and for
so long as it has only nominal assets) of Company, Company shall (a) promptly
cause such Subsidiary to become a Guarantor hereunder and a Grantor under the
Pledge and Security Agreement by executing and delivering to Administrative
Agent and Collateral Agent a Counterpart Agreement, and (b) take all such
actions and execute and deliver, or cause to be executed and delivered, all
such documents, instruments, agreements, and certificates deemed reasonably
necessary or desirable by the Administrative Agent to grant and perfect a First
Priority Lien in favor of Collateral Agent, for the benefit of Secured Parties,
under the Pledge and Security Agreement on such Domestic Subsidiary’s assets
and to become a Guarantor hereunder, in each case as though it had been a
Credit Party on the Closing Date. 
Subject to the terms of the Pledge and Security Agreement, in the event
that any Person becomes a Foreign Subsidiary of Company, and the ownership
interests of such Foreign Subsidiary are owned by Company or by any Domestic
Subsidiary thereof, Company shall, or shall cause such Domestic Subsidiary to,
deliver, all such documents, instruments, agreements, and certificates as are
similar to those described in Sections 3.1(b), and Company shall take, or shall
cause such Domestic Subsidiary to take, all of the actions deemed reasonably
necessary or desirable by the Administrative Agent to grant and to perfect a
First Priority Lien in favor of Collateral Agent, for the benefit of Secured
Parties, under the Pledge and Security Agreement in such ownership
interests.  With respect to each such
Subsidiary, Company shall promptly send to Administrative Agent written notice
setting forth with respect to such Person (i) the date on which such
Person became a Subsidiary of Company, and (ii) all of the data required
to be set forth in the Disclosure Letter pursuant to Section 4.1 and 4.2
with respect to all Subsidiaries of Company; provided,
such written notice shall be deemed to supplement the Disclosure Letter for all
purposes hereof.


 


Section 5.10  Real Estate Assets.  In the event that any Credit Party acquires a
Material Real Estate Asset or a Real Estate Asset owned on the Closing Date
becomes a Material Real Estate Asset and such interest has not otherwise been
made subject to the Lien of the Collateral Documents in favor of Collateral
Agent, for the benefit of Secured Parties, then such Credit Party shall (i) take
all such actions and execute and deliver, or cause to be executed and


 


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delivered, all
such mortgages, documents, instruments, agreements, opinions and certificates
with respect to each such Material Real Estate Asset that Collateral Agent
shall reasonably request to create in favor of Collateral Agent, for the
benefit of Secured Parties, a valid and, subject to any filing and/or recording
referred to herein, perfected First Priority security interest in such Material
Real Estate Assets; and (ii) update Schedule 4.13 to the Disclosure
Letter with respect to any such Material Real Estate Asset; provided however, that such Credit Party
shall only be entitled to update as to matters that may constitute a material
impairment to the value of that Material Real Estate Asset, and shall not be
entitled to add matters that would have a Material Adverse Effect.  In addition to the foregoing, Company shall,
at the request of Requisite Lenders, deliver, from time to time, to
Administrative Agent such appraisals as are required by applicable law or
regulation of Real Estate Assets with respect to which Collateral Agent has
been granted a Lien.


 


Section 5.11  Further Assurances.  At any time or from time to time upon the
request of Administrative Agent, each Credit Party will, at its expense,
promptly execute, acknowledge and deliver such further documents and do such
other acts and things as Administrative Agent or Collateral Agent may
reasonably request in order to effect fully the purposes of the Credit
Documents.  In furtherance and not in
limitation of the foregoing, each Credit Party shall take such actions as
Administrative Agent or Collateral Agent may reasonably request from time to
time to ensure that the Obligations are guarantied by the Guarantors and are
secured by substantially all of the assets of the Credit Parties and all of the
outstanding Capital Stock of Company and its Subsidiaries (subject to
limitations contained in the Credit Documents with respect to Foreign
Subsidiaries).  Notwithstanding anything
to the contrary contained herein, if an Event of Default has occurred and is
continuing, Administrative Agent and Collateral Agent shall have the right to
require any Credit Party to execute and deliver documentation, consents,
authorizations, approvals and orders in form and substance reasonably
satisfactory to Administrative Agent as Administrative Agent shall deem
necessary to grant to Collateral Agent, for the benefit of the Secured Parties,
a valid and perfected First Priority Lien on such assets and properties not
otherwise required hereunder, except to the extent such requirements are
illegal under applicable law, and no reasonable alternative structure can be
devised having substantially the same effect as such actions that would not be
illegal under applicable law.


 


Section 5.12  Senior Indebtedness.  The Obligations are hereby designated as “Senior
Indebtedness”, “Designated Senior Indebtedness”, “Guarantor Senior Indebtedness”
and “Designated Guarantor Senior Indebtedness” for the purposes of and as
defined in each indenture governing Subordinated Indebtedness.  Company shall take all additional actions
that may be necessary for the Obligations to continue at all times to
constitute “Senior Indebtedness”, “Designated Senior Indebtedness”, “Guarantor
Senior Indebtedness” and “Designated Guarantor Senior Indebtedness” (to the
extent applicable) under all Subordinated Indebtedness and otherwise be
entitled to all the benefits of any Senior Indebtedness under all Subordinated
Indebtedness.


 


Section 5.13  Reestablishment of Security.  If, from time to time following any release
of any portion of the Collateral by the Collateral Agent pursuant to Section 9.11(b)(i) or
(ii) Company’s corporate credit rating by S&P (or the equivalent
rating for similar obligations as may be used by S&P from time to time)
shall be less than BB- or Company’s family rating by


 


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Moody’s (or
the equivalent rating for similar obligations as may be used by Moody’s from
time to time) shall be less than Ba2, Company shall, and shall cause the other
Credit Parties to, within 30 days (or 90 days in the case of actions with
respect to any Material Real Estate Assets) following such decline in ratings
(or such longer period as the Administrative Agent may agree, in its sole
discretion), execute and deliver such documentation, consents, authorizations,
approvals and orders in form and substance reasonably satisfactory to
Administrative Agent and take such other actions, in each case, as
Administrative Agent shall deem necessary to grant to Collateral Agent, for the
benefit of the Secured Parties, a valid and perfected First Priority Lien on
all assets and properties that would at that time comprise the Collateral if
the Collateral Documents were still in effect, provided
that if Company’s corporate credit rating by S&P (or the
equivalent rating for similar obligations as may be used by S&P from time
to time) shall be BB or better and Company’s family rating by Moody’s (or the
equivalent rating for similar obligations as may be used by Moody’s from time
to time) shall be Ba3 or better, the requirements of this Section 5.13
shall not apply.


 


SECTION 6. NEGATIVE
COVENANTS


 


Each Credit Party covenants and
agrees that, until the termination of all Commitments and payment in full of
all Obligations (other than inchoate indemnity obligations), such Credit Party
shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 6.


 


Section 6.1  Indebtedness.  No Credit Party shall, nor shall it permit
any of its Subsidiaries to, directly or indirectly, create, incur, assume or
guaranty, or otherwise become or remain directly or indirectly liable with
respect to any Indebtedness, except:


 


(a)           the
Obligations;


 


(b)           (i) Intercompany
Indebtedness of any Credit Party payable to Company or any of its Subsidiaries
or Intercompany Indebtedness of any Subsidiary of Company payable to any Credit
Party, provided that,
simultaneously with the incurrence of such Indebtedness Company shall cause (A) all
such Intercompany Indebtedness to be unsecured and subject to a perfected First
Priority Lien pursuant to the Pledge and Security Agreement (other than any
Intercompany Indebtedness payable to a Subsidiary of Company that is not a
Credit Party), and (B) all such Intercompany Indebtedness of any Credit
Party to be subordinated in right of payment to the payment in full of the
Obligations pursuant to the terms of the Interco Subordination Agreement; provided further, that no such
Intercompany Indebtedness shall be evidenced by any note or other instrument
unless such note is substantially in the form of Exhibit L and (except
with respect to any such note payable to a Subsidiary of Company that is not a
Credit Party) the payee thereunder shall immediately endorse and deliver the
same to Collateral Agent; and (ii) Indebtedness of any Foreign Subsidiary
payable to any other Foreign Subsidiary;


 


(c)           Indebtedness
with respect to (i) the Convertible Securities and any Permitted
Refinancings thereof; (ii) the Senior Secured Notes in an aggregate
principal amount not to exceed at any time outstanding $750.0 million and any
Permitted Refinancings thereof; and (iii) the New Senior Subordinated
Notes and any Permitted Refinancings thereof, in each case including successive
Permitted Refinancings provided,
that the net proceeds of any Indebtedness


 


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incurred as a Permitted Refinancing prior to the
purchase, redemption, exchange or repayment of the Indebtedness subject to such
Permitted Refinancing shall be immediately deposited in the Designated Proceeds
Account;


 


(d)           Indebtedness
incurred by Company or any of its Subsidiaries arising from agreements
providing for indemnification, adjustment of purchase price or similar obligations,
or from guaranties or letters of credit, surety bonds or performance bonds
securing the performance of Company or any such Subsidiary pursuant to such
agreements, in connection with Permitted Acquisitions or permitted dispositions
of any business, assets or Subsidiary of Company or any of its Subsidiaries;


 


(e)           Indebtedness
which may be deemed to exist pursuant to any guaranties, performance, surety,
statutory, appeal or similar obligations incurred in the ordinary course of
business;


 


(f)            guaranties
in the ordinary course of business of the obligations owed to or of suppliers,
customers, franchisees and licensees of Company and its Subsidiaries;


 


(g)           (i) guaranties
by Company of Indebtedness of a Guarantor or guaranties by a Subsidiary of
Company of Indebtedness of Company or a Guarantor with respect, in each case,
to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1,
and (ii) guaranties by Company or a Guarantor of Indebtedness of Foreign
Subsidiaries, which Indebtedness of Foreign Subsidiaries exists on the Closing
Date and is listed in Schedule 6.1 of the Disclosure Letter; (iii) guaranties
by the Company or any Subsidiary of the customary indemnification obligations
of its Foreign Subsidiaries and interest, fees and expenses arising under sales
of receivables owned by such Foreign Subsidiaries permitted by Section 6.8(d);
and (iv) guaranties by Company or any Guarantor of customary
indemnification obligations and interest, fees and expenses arising under sales
of receivables permitted by Section 6.8(e);


 


(h)           Indebtedness
(other than the Indebtedness with respect to Convertible Securities) existing
on the Closing Date described in Schedule 6.1 of the Disclosure Letter (or
other non-material Indebtedness of Company and its Subsidiaries existing on the
Closing Date and not described in the Disclosure Letter in an aggregate
principal amount not to exceed at any time $5.0 million), but not any
extensions, renewals or replacements of such Indebtedness except Permitted
Refinancings of any such Indebtedness;


 


(i)            Indebtedness
with respect to Capital Leases entered into after the Closing Date in an
aggregate principal amount not to exceed at any time outstanding $75.0 million
plus any amount permitted by and not utilized pursuant to Section 6.1(j),
but in no event shall the aggregate outstanding principal amount of
Indebtedness under this Section 6.1(i) and Section 6.1(j) below
exceed at any time $150.0 million;


 


(j)            purchase
money Indebtedness in an aggregate principal amount not to exceed at any time
outstanding $75.0 million plus any amount permitted by and not utilized
pursuant to Section 6.1(i), but in no event shall the aggregate
outstanding principal amount of Indebtedness under this Section 6.1(j) and
Section 6.1(i) above exceed at any time $150.0 million; provided, any such Indebtedness (i) shall
be secured only by the asset (and any accession, addition or


 


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improvement thereto, any replacement thereof and the
proceeds thereof) acquired in connection with the incurrence of such
Indebtedness and customary cash security deposits, and (ii) shall not
exceed 100.0% of the aggregate consideration paid with respect to such asset;


 


(k)           non-recourse
(other than certain limited, customary provisions for recourse) Indebtedness
secured by the Corporate Head Office Campus in a principal amount not to exceed
the greater of (a) $50.0 million and (b) the fair market value of the
Corporate Head Office Campus;


 


(l)            Indebtedness
of Foreign Subsidiaries in an aggregate principal amount not to exceed at any
time 7.5% of Consolidated Tangible Foreign Assets;


 


(m)          Indebtedness
under Hedge Agreements entered into from time to time by Company or any of its
Subsidiaries in accordance with Section 6.6(j) and Secured Hedge
Agreements;


 


(n)           the
Existing Letters of Credit;


 


(o)           reimbursement
obligations in respect of letters of credit, bank guarantees and banker’s
acceptances in an aggregate face amount not to exceed $25.0 million at any
time;


 


(p)           Indebtedness
of a Subsidiary outstanding on the date such Subsidiary was acquired by Company
or any of its Subsidiaries or assumed in connection with the acquisition of
assets from a Person (other than Indebtedness incurred as consideration in, or
to provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of transactions pursuant to which such
Subsidiary became a Subsidiary of Company or was otherwise acquired by
Company); provided that the
aggregate principal amount (or accreted value, as applicable) of all such
Indebtedness incurred pursuant to this clause (p) at any time outstanding shall
not exceed $50.0 million;


 


(q)           customary
indemnification obligations pursuant to factoring or similar arrangements
permitted under Section 6.8(d) or Section 6.8(e) hereof;


 


(r)            other
unsecured Indebtedness of Company and its Subsidiaries in an aggregate
principal amount not to exceed at any time $100.0 million; and


 


(s)           Indebtedness
(including guaranties) incurred pursuant to Permitted Securitizations.


 


Section 6.2  Liens. 
No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or permit to exist any Lien on or
with respect to any property or asset of any kind (including any document or
instrument in respect of goods or accounts receivable) of Company or any of its
Subsidiaries, whether now owned or hereafter acquired, or any income or profits
therefrom, or file or permit the filing of, or permit to remain in effect, any
financing statement or other similar notice of any Lien with respect to any
such property, asset, income or profits under the UCC of any State or under any
similar recording or notice statute, except:


 


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(a)           Liens in favor of Collateral
Agent for the benefit of Secured Parties granted pursuant to any Credit
Document;


 


(b)           Liens for Taxes not yet due and
payable, or if obligations with respect to such Taxes are being contested in
good faith by appropriate proceedings promptly instituted and diligently
conducted and the existence of such Lien would not violate Section 5.3
hereof;


 


(c)           statutory, common law or
contractual Liens of landlords, creditor depository institutions or
institutions holding securities accounts (including rights of set-off or
similar rights and remedies), carriers, warehousemen, mechanics, repairmen,
workmen and materialmen, and other Liens imposed by law (other than any such
Lien imposed pursuant to Section 401 (a)(29) or 412(n) of the Internal
Revenue Code or by ERISA), in each case incurred in the ordinary course of
business (i) for amounts not yet overdue or (ii) for amounts that are
overdue and that (in the case of any such amounts overdue for a period in
excess of ten days) are being contested in good faith by appropriate
proceedings, so long as such reserves or other appropriate provisions, if any,
as shall be required by GAAP shall have been made for any such contested
amounts;


 


(d)           Liens incurred in the ordinary
course of business in connection with workers’ compensation, unemployment
insurance and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, contracts for the purchase of property,
performance and return-of-money bonds, and other similar obligations (exclusive
of obligations for the payment of borrowed money or other Indebtedness), so
long as no foreclosure, sale or similar proceedings have been commenced with
respect to any portion of the Collateral on account thereof;


 


(e)           easements, rights-of-way,
restrictions, encroachments, and other minor defects or irregularities in
title, in each case which do not and are not reasonably expected to interfere
in any material respect with the ordinary conduct of the business of Company or
any of its Subsidiaries;


 


(f)            any interest or title of a
lessor or sublessor under any lease of real estate not prohibited hereby;


 


(g)           Liens solely on any cash earnest
money deposits made by Company or any of its Subsidiaries in connection with
any letter of intent or purchase agreement permitted hereunder;


 


(h)           purported Liens evidenced by the
filing of precautionary UCC financing statements relating solely to operating
leases of personal property entered into in the ordinary course of business;


 


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


 


(j)            any zoning or similar law or
right reserved to or vested in any governmental office or agency to control or
regulate the use of any real property;


 


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(k)           licenses or sublicenses of
patents, trademarks, copyrights and other intellectual property rights granted
by Company or any of its Subsidiaries in the ordinary course of business and
not interfering in any respect with the ordinary conduct of the business of
Company or such Subsidiary;


 


(l)            Liens described in Schedule 6.2
of the Disclosure Letter (or other non-material Liens of Company and its
Subsidiaries existing on the Closing Date and not described in the Disclosure
Letter in an aggregate principal amount not to exceed at any time $2.0 million)
or on a title report in form and substance reasonably satisfactory to
Collateral Agent and delivered pursuant to Section 3.1(e)(iii) or Section 5.10
and any renewals or extensions thereof, provided
that the property covered thereby is not increased and any renewal or extension
of the obligations secured or benefited thereby constitutes a Permitted
Refinancing;


 


(m)          Liens securing Indebtedness
permitted pursuant to Section 6.1(i) or 6.1(j); provided, any such Lien shall encumber
only the asset acquired with the proceeds of such Indebtedness and any
accessions, additions, parts, replacements, fixtures, improvements and
attachments thereto, and the proceeds thereof and customary cash security
deposits;


 


(n)           Liens securing Indebtedness
permitted pursuant to Section 6.1(k); provided,
any such Lien shall encumber only the Corporate Head Office Campus and such
other property relating to the Corporate Head Office Campus as is normally
described in a mortgage or deed of trust and, in connection with the incurrence
of such Indebtedness, Collateral Agent shall (upon the request of Company)
release its Liens encumbering the Corporate Head Office Campus;


 


(o)           Liens encumbering assets of
Foreign Subsidiaries securing Indebtedness permitted pursuant to Section 6.1(l)
or other obligations not prohibited hereby in an aggregate amount not to exceed
at any time 5.0% of Consolidated Tangible Foreign Assets; and Liens encumbering
assets of Foreign Subsidiaries securing their obligations arising under sales
of receivables owned by such Foreign Subsidiaries permitted by Section 6.8(d);


 


(p)           Liens securing Indebtedness with
respect to the Senior Secured Notes or Refinancing Senior Secured Notes
permitted pursuant to Section 6.1(c)(ii) on (except as otherwise
permitted under any Credit Document and so long as such Liens are at all times
subject to the terms of the Intercreditor Agreement) assets subject to the Lien
in favor of Collateral Agent for the benefit of Secured Parties granted
pursuant to any Credit Document;


 


(q)           Liens consisting of pledges of
cash collateral (i) to secure the Existing Letters of Credit, and (ii) to
secure letters of credit, bank guarantees and banker’s acceptances in an
aggregate amount not to exceed $10.0 million to the extent permitted hereunder;


 


(r)            Liens consisting of pledges of
cash collateral to secure Hedge Agreements entered into with any Lender or any
Affiliate of any Lender (other than Secured Hedge Agreements) in an aggregate
amount not to exceed $100.0 million to the extent permitted hereunder;


 


(s)           Liens on Property at the time
Company or any Subsidiary acquired such Property in a transaction permitted by Section 6.8,
including any acquisition by means of a merger, amalgamation or consolidation
with or into Company or any Subsidiary; provided,


 


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however, that such Lien may
not extend to any other Property of Company or any Subsidiary; provided further that such Liens shall not
have been created in anticipation of or in connection with the transaction or
series of transactions pursuant to which such Property was acquired by Company
or any Subsidiary;


 


(t)            Liens on the Property of a
Person existing at the time such Person becomes a Subsidiary of Company in a
transaction permitted by Section 6.8; provided,
however that any such Lien may not extend to any other Property of
Company or any other Subsidiary that is not a direct Subsidiary of such Person;
provided further that any such
Lien was not created in anticipation of or in connection with the transaction
or series of transactions pursuant to which such Person became a Subsidiary of
Company;


 


(u)           Liens securing judgments, writs,
warrants or similar processes not constituting an Event of Default under Section 8.1(h);


 


(v)           Liens on specific items of
inventory or other goods and the proceeds thereof securing such Person’s
obligations in respect of bankers’ acceptances issued or credited for the
account of such Person to facilitate the purchase, shipment or storage of such
inventory or goods;


 


(w)          Liens arising under consignment
or similar arrangements for the sale of goods in the ordinary course of
business;


 


(x)            Liens on insurance proceeds
securing the payment of financed insurance premiums;


 


(y)           Liens (and any renewals or
extensions thereof, provided that
the property covered thereby is not increased) encumbering assets of Foreign
Subsidiaries securing Indebtedness of Foreign Subsidiaries, which Indebtedness
exists on the Closing Date and is listed in Schedule 6.1 of the Disclosure
Letter (and any renewals or extensions thereof constituting Permitted
Refinancings, provided that the
property covered thereby is not increased);


 


(z)            leases or subleases granted to
others in the ordinary course of business which do not interfere in any
material respect with the business operations of Company and its Subsidiaries
taken as a whole;


 


(aa)         customary Liens granted in favor
of a trustee to secure fees and other amounts owing to such trustee under an
indenture or other agreement pursuant to which Indebtedness permitted by Section 6.1
is issued;


 


(bb)         other Liens on assets (including
the Collateral), securing Indebtedness or other obligations not prohibited
hereunder in an aggregate amount not to exceed $25.0 million at any time
outstanding; provided that the
collateral agent or other representative of the holders of such Indebtedness or
other obligations have entered into a joinder to the Intercreditor Agreement
substantially in the form attached hereto as Exhibit M (and Collateral
Agent is hereby authorized to enter into and perform under any such joinders,
amendments, modifications, supplements and restatements of the Credit Documents
to effect the foregoing); and


 


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(cc)         other Liens on assets, other
than the Collateral, securing Indebtedness or other obligations in an aggregate
amount not to exceed $10.0 million at any time outstanding;


 


(dd)         the interest of a purchaser (or
an agent for such purchaser) of Permitted Receivables acquired pursuant to, or
any Lien on the asset of a Securitization Subsidiary granted pursuant to, one
or more Permitted Securitizations; and


 


(ee)         Liens in respect of deposit
accounts for the collection of receivables sold pursuant to Sections 6.8(d) or
(e).


 


Section 6.3  No Further Negative Pledges.  Except with respect to (a) specific
property encumbered to secure payment of particular Indebtedness or to be sold
pursuant to an executed agreement with respect to a permitted Asset Sale or
other sale or disposition of property not constituting an Asset Sale and
permitted hereunder; (b) restrictions by reason of customary provisions
restricting assignments, subletting or other transfers contained in leases,
licenses and other agreements entered into in the ordinary course of business (provided that such restrictions are
limited to the property or assets secured by such Liens or the property or
assets subject to such leases, licenses or similar agreements, as the case may
be); (c) restrictions imposed by the Senior Secured Note Documents, the
New Senior Subordinated Notes Documents or any documents relating to any
Permitted Refinancing of any Convertible Securities; (d) restrictions and
conditions applicable to any Subsidiary acquired after the date hereof if such
restrictions and conditions existed at the time such Subsidiary was acquired,
were not created in anticipation of such acquisition and apply solely to such
acquired Subsidiary; (e) restrictions contained in any agreements
evidencing Indebtedness permitted by Section 6.1(l) and applying solely to
such Subsidiary and its Subsidiaries; (f) restrictions disclosed in Schedule 6.3
of the Disclosure Letter; (g) restrictions in agreements entered into in
connection with the incurrence of Permitted Liens, to the extent they
condition, prohibit or limit the ability of the Agents or the Lenders from
obtaining a Lien on the property, rights and assets subject to such Permitted
Lien; and (h) restrictions imposed in connection with Permitted
Securitizations or sales of receivables permitted by Section 6.8(d) or
Section 6.8(e), no Credit Party nor any of its Subsidiaries shall enter
into any agreement prohibiting the creation or assumption of any Lien upon any
of its properties or assets, whether now owned or hereafter acquired.


 


Section 6.4  Restricted Junior Payments.  No Credit Party shall, nor shall it permit
any of its Subsidiaries through any manner or means or through any other Person
to, declare, order, pay, make or set apart, any sum for any Restricted Junior
Payment other than:


 


(a)           Company may make regularly
scheduled payments of interest and payments of principal and accreted value as
regularly scheduled, at scheduled maturity or upon mandatory redemption
(including accrued interest) in respect of any Subordinated Indebtedness in
accordance with the terms of, and only to the extent required by, and subject
to the subordination provisions contained in, the indenture or other agreement
pursuant to which such Subordinated Indebtedness was issued;


 


(b)           so long as no Default or Event
of Default has occurred and is continuing or would result therefrom,
repurchases of common stock of Company in an amount not to exceed the lesser of
(i) $35.0 million in the aggregate over the term of this Agreement or (ii) the
greater


 


77





















 


of (A) $10.0
million and (B) 50% of the aggregate amount of Net Income accrued during
the period (treated as one accounting period) from the beginning of the Fiscal
Quarter during which the Closing Date occurs to the end of the most recent
Fiscal Quarter for which financial statements have been made publicly available
at the time of such repurchase;


 


(c)           acquisitions of Capital Stock of
Company in connection with the exercise of stock options or stock appreciation
rights by way of cashless exercise or in connection with the satisfaction of
withholding tax obligations;


 


(d)           purchases of fractional shares
of the Capital Stock of Company arising out of stock dividends, splits or
combinations or business combinations;


 


(e)           Company may honor any conversion
request by a holder of any Convertible Indebtedness of Company or any of its
Subsidiaries and make cash payments in lieu of fractional shares in connection
with any conversion of any Convertible Indebtedness;


 


(f)            so long as no Default or Event
of Default has occurred and is continuing or would result therefrom, purchase,
repurchase, redeem, defease, acquire or retire for value (i) Capital Stock
of Company or any of its Subsidiaries from any officer, director, employee or
consultant of Company or its Subsidiaries in an aggregate amount not to exceed
$5.0 million during any year and (ii) any non-cash rights distributed in
connection with any stockholder rights plan;


 


(g)           make any payment on or with
respect to, or repurchase, redeem, defease or acquire or retire for value, any
Convertible Indebtedness of Company in connection with (i) an optional
redemption of such Convertible Indebtedness pursuant to the terms thereof; provided that the current market price per
share of Company’s common stock (calculated based upon the average closing
price as reported on the Nasdaq National Market) (or any national securities
exchange on which such common stock is listed) for the 30-trading day period
immediately preceding the date any notice of redemption is sent or published)
into which such Convertible Indebtedness is convertible equals or exceeds 150%
of the conversion price in effect for such Convertible Indebtedness on the date
of such notice; and (ii) the payment by Company of cash in lieu of
fractional shares deliverable upon conversion of any Convertible Indebtedness
in compliance with the terms of the instruments governing such Convertible
Indebtedness;


 


(h)           so long as the Permitted
Convertible Securities Refinancing Conditions are satisfied, voluntarily
purchase or voluntarily redeem the Convertible Securities with, or voluntarily
exchange the Convertible Securities for, or otherwise make any voluntary
principal or premium payment in respect of Convertible Securities with, any
combination of securities and cash;


 


(i)            make payments not in violation of
the Interco Subordination Agreement in respect of Intercompany Indebtedness
permitted by Section 6.1(b);


 


(j)            transactions disclosed in Schedule 6.4
of the Disclosure Letter; and


 


(k)           in connection with any Permitted
Acquisition, (i) receive or accept the return to Company or any of its
Subsidiaries of Capital Stock of Company or any of its Subsidiaries


 


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constituting a
portion of the purchase price consideration in settlement of indemnification
claims or (ii) make payments or distributions to dissenting stockholders
pursuant to applicable law.


 


Section 6.5  Restrictions
on Subsidiary Distributions.  Except
as provided herein, no Credit Party shall, nor shall it permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Subsidiary of Company to (a) pay dividends or make any other
distributions on any of such Subsidiary’s Capital Stock owned by Company or any
other Subsidiary of Company, (b) repay or prepay any Indebtedness owed by
such Subsidiary to Company or any other Subsidiary of Company, (c) make
loans or advances to Company or any other Subsidiary of Company, or (d) transfer
any of its property or assets to Company or any other Subsidiary of Company, in
each case other than restrictions (i) in agreements evidencing
Indebtedness permitted by Section 6.1(i) or Section 6.1(j) that
impose restrictions on the property so acquired; (ii) by reason of
customary provisions restricting assignments, subletting or other transfers
contained in leases, licenses, joint venture agreements and other agreements
entered into in the ordinary course of business; (iii) that are or were
created by virtue of any transfer of, agreement to transfer or option or right
with respect to any property, assets or Capital Stock not otherwise prohibited
under this Agreement; (iv) in the Senior Secured Note Documents, the New
Senior Subordinated Notes Documents or any documents relating to any Permitted
Refinancing of any Convertible Securities; (v) contained in agreements or
documents evidencing Indebtedness or other obligations permitted by Section 6.1(l)
so long as any such encumbrance or restriction applies only the Foreign
Subsidiary issuing such Indebtedness or other obligation; (vi) imposed on
a Subsidiary and existing at the time it became a Subsidiary if such
restrictions were not created in connection with or in anticipation of the
transaction or series of transactions pursuant to which such Subsidiary became
a Subsidiary or was acquired by Company and only to the extent applying to such
Subsidiary; (vii) under or in connection with any joint venture
agreements, partnership agreement, stock sale agreements and other similar
agreements; provided that (A) any
such agreements are entered into in the ordinary course of business and in good
faith, and (B) such restrictions are reasonably customary for such
agreements; (viii) under any agreement, instrument or contract affecting
property or a Person at the time such property or Person was acquired by
Company or any of its Subsidiaries, so long as such restriction relates solely
to the property or Person so acquired and was not created in connection with or
in anticipation of such acquisition; (ix) existing by virtue of, or
arising under, applicable law, regulation, order, approval, license, permit,
grant or similar restriction, in each case issued or imposed by a Governmental
Authority; (x) set forth in Schedule 6.5 of the Disclosure Letter or that
result from the Permitted Refinancing or subsequent Permitted Refinancing of
any Indebtedness pursuant to an agreement, instrument or contract set forth in Schedule 6.5
of the Disclosure Letter or referred to in clause (iv), (v), (vi), (vii) or
(viii) of this Section 6.5; provided
that the restrictions existing under or by reason of any such agreement,
instrument or contract are not materially less favorable, taken as a whole, to
the Lenders that those under the agreement evidencing the Indebtedness being
refinanced; (xi) customary subrogation waivers in guaranties permitted under
this Agreement, and (xii) contained in agreements or documents entered into in
connection with Permitted Securitizations or sales of receivables permitted by Section 6.8(d) or
Section 6.8(e).


 


Section 6.6  Investments.  No Credit Party shall, nor shall it permit
any of its Subsidiaries to, directly or indirectly, make or own any Investment
in any Person, including without limitation any Joint Venture, except:


 


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(a)           Cash Equivalents;


 


(b)           (i) equity investments in
Foreign Subsidiaries to the minimum extent required to comply with the local
minimum capitalization requirements of foreign jurisdictions and (ii) conversions
of Intercompany Indebtedness between any Credit Party and Foreign Subsidiaries
permitted hereunder into equity, with the amount of all Indebtedness so
converted not to exceed $30.0 million in the aggregate;


 


(c)           equity Investments owned as of
the Closing Date in any Subsidiary and Investments made after the Closing Date
in wholly-owned Subsidiaries (which Investments shall not be in an amount in
excess of $25.0 million in the aggregate in the case of Investments by any
Credit Party or any First Tier Foreign Subsidiary in any other Foreign
Subsidiary);


 


(d)           Investments (i) in any
Securities received in satisfaction or partial satisfaction thereof from
financially troubled account debtors (whether in connection with a foreclosure,
bankruptcy, workout or otherwise) and (ii) deposits, prepayments and other
credits to suppliers made in the ordinary course of business consistent with
the past practices of Company and its Subsidiaries;


 


(e)           intercompany loans to the extent
permitted under Section 6.1(b);


 


(f)            Consolidated Capital
Expenditures;


 


(g)           loans and advances to employees
of Company and its Subsidiaries made in the ordinary course of business and to
the extent permitted by the Sarbanes-Oxley Act of 2002, in an aggregate
principal amount not to exceed $10.0 million in the aggregate;


 


(h)           Investments made in connection
with Permitted Acquisitions permitted pursuant to Section 6.8 or in
connection with the acquisitions described in a letter delivered to the Lenders
on or prior to the date hereof (and Investments of such acquired Person, if
any, which Investments existed at the time of such acquisition and were not
created in contemplation with such acquisition);


 


(i)            Investments described in Schedule 6.6
of the Disclosure Letter and commitments described in Schedule 6.6 of the
Disclosure Letter required by agreements listed in such Schedule;


 


(j)            Company and its Subsidiaries may
enter into and perform its obligations under Hedge Agreements entered into in
the ordinary course of business;


 


(k)           Investments consisting of
extensions of credit in the nature of accounts receivable, prepaid royalties or
expenses or notes receivable arising from the sale or lease of goods or
services in the ordinary course of business, or performance or similar deposits
arising in the ordinary course of business, and Investments received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors to the extent reasonably necessary to prevent or limit loss;


 


(l)            guaranty and similar obligations
permitted by Section 6.1;


 


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(m)          commission, entertainment,
relocation, 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;


 


(n)           Investments acquired by Company
or any of its Subsidiaries (i) in exchange for any other Investments held
by Company or such Subsidiary in connection with or as a result of bankruptcy,
workout, reorganization or recapitalization of the issuer of such Investment or
(ii) as result of a foreclosure by Company or any of its Subsidiaries with
respect to any secured Investment or other transfer of title with respect to
any secured Investment in default;


 


(o)           Investments permitted by Section 6.8
and Investments representing the non-cash portion of the consideration received
in connection with a transaction described in clause (xi) of the definition of “Asset
Sale”;


 


(p)           other Investments in an
aggregate amount not to exceed at any time $50.0 million; and


 


(q)           equity Investments in
Subsidiaries solely to the extent made to effect transactions permitted
pursuant to Section 6.8(c) hereof.


 


Notwithstanding
the foregoing, in no event shall any Credit Party make any Investment which
results in or facilitates in any manner any Restricted Junior Payment not
otherwise permitted under the terms of Section 6.4.  For purposes of determining compliance with
the provisions of this Section 6.6, equity Investments made by Company or
any of its Subsidiaries (the “contributor”) in any Subsidiary that are effected
pursuant to one or more equity contributions made contemporaneously or in
prompt succession by the contributor and/or any of its Subsidiaries shall be
deemed one Investment by the contributor.


 


Section 6.7  Financial
Covenants.  (a)  Fixed Charge
Coverage Ratio.  Company shall not
permit the Fixed Charge Coverage Ratio as of the last day of any Fiscal
Quarter, beginning with the Fiscal Quarter ending December 2005, to be
less than 1.75:1.00.


 


(b)           Leverage Ratio.  Company shall not permit the Leverage Ratio
as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter
ending December 2005, to exceed the correlative ratio indicated:


 


	
  Fiscal
  Quarter Ending

  	
   

  	
  Ratio

  
	
  December 2005

  	
   

  	
  5.00:1.00

  
	
  April 2006

  	
   

  	
  5.00:1.00

  
	
  July 2006

  	
   

  	
  4.75:1.00

  
	
  September 2006

  	
   

  	
  4.75:1.00

  
	
  December 2006

  	
   

  	
  4.50:1.00

  
	
  March 2007

  	
   

  	
  4.50:1.00

  
	
  June 2007

  	
   

  	
  4.00:1.00

  
	
  September 2007

  	
   

  	
  4.00:1.00

  
	
  December 2007 and thereafter

  	
   

  	
  3.50:1.00

  



 


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Section 6.8  Fundamental
Changes; Disposition of Assets; Acquisitions.  No Credit Party shall, nor shall it permit
any of its Subsidiaries to, consummate any transaction of merger or
consolidation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or
sublessor), transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, assets or property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible,
whether now owned or hereafter acquired, or acquire by purchase or otherwise
(other than purchases or other acquisitions of inventory, materials and
equipment in the ordinary course of business) the business, property or fixed
assets of, or stock or other evidence of beneficial ownership of, any Person or
any division or line of business or other business unit of any Person, except:


 


(a)           any Subsidiary of Company may be
merged with or into Company or any Guarantor, or be liquidated, wound up or
dissolved, or all or any part of its or Company’s business, property or assets
may be conveyed, sold, leased, transferred or otherwise disposed of, in one
transaction or a series of transactions, to Company or any Guarantor; provided, in the case of such a merger,
Company or such Guarantor, as applicable, shall be the continuing or surviving
Person;


 


(b)           sales or other dispositions of
assets that do not constitute Asset Sales;


 


(c)           (i) any Foreign Subsidiary
of Company may be merged, consolidated or amalgamated with or into any other
Foreign Subsidiary or be liquidated, wound up or dissolved; provided, in the case of such a merger,
consolidation or amalgamation involving a First Tier Foreign Subsidiary, a
First Tier Foreign Subsidiary shall be the continuing or surviving Person, or (ii) all
or any part of the business, property or assets of any Foreign Subsidiary of
Company may be conveyed, sold, leased, transferred or otherwise disposed of in
one transaction or a series of transactions, (A) in the case of a Foreign
Subsidiary that is a First Tier Foreign Subsidiary, to any other First Tier
Foreign Subsidiary, Company or any Guarantor, 
(B) in the case of a First Tier Foreign Subsidiary, to any other
Foreign Subsidiary to the extent only that the gross fair market value of all
such property and assets conveyed, sold, leased, transferred or otherwise
disposed of during the term hereof pursuant to this clause (B) shall not
exceed an amount equal to $100.0 million in the aggregate, and (C) in the
case of any other Foreign Subsidiary not provided for in clause (A) above,
to any other Foreign Subsidiary, Company or Guarantor (either directly or
indirectly, including through any First Tier Foreign Subsidiary, pursuant to
transactions occurring contemporaneously or in prompt succession involving
another Subsidiary or Company);


 


(d)           sales of receivables by any
Foreign Subsidiary pursuant to a factoring or similar arrangement; provided, that (i) the cash
consideration for any such sale shall be for an amount equal to at least 95% of
the face amount of such receivables and (ii) the face amount of all
receivables sold and outstanding at any time shall not exceed $400.0 million;


 


(e)           sales of receivables by Company
or any Guarantor pursuant to a factoring or similar arrangement; provided, that (i) at the time of
such sale, such receivables do not comprise part of the Collateral held by the
Collateral Agent hereunder and under the Collateral


 


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Documents and (ii) the
cash consideration for any such sale shall be for an amount equal to at least
95% of the face amount of such receivables;


 


(f)            Permitted Acquisitions; provided, that (i) in the case of a
Permitted Acquisition in which the purchase price (including the cash
component, notes issued and debt assumed, the “Purchase Price”) is greater than
$25.0 million, the outstanding principal amount of the Loans on the day
preceding and at the close of business on the day following the closing of such
Acquisition shall be $50.0 million or less, (ii) Company and its
Subsidiaries shall not be required to comply with the foregoing clause (i) for
any Permitted Acquisition in which the Purchase Price is less than or equal to
$25.0 million; provided that the
aggregate Purchase Price for all Permitted Acquisitions made pursuant to this
clause (ii) shall not exceed $200.0 million, and (iii) in no event
shall the proceeds of any Loan made hereunder be used as consideration for any
Permitted Acquisition;


 


(g)           the acquisitions described in a
letter delivered to the Lenders on or prior to the date hereof;


 


(h)           the sale or transfer of
Permitted Receivables pursuant to one or more Permitted Securitizations;


 


(i)            the sale, assignment or transfer
of intellectual property assets by any Credit Party to any First Tier Foreign
Subsidiary with an aggregate value of up to $125.0 million; and


 


(j)            Investments made in accordance
with Section 6.6.


 


Section 6.9  Disposal of
Subsidiary Interests.  Except for (i) any
sale of its interests in the Capital Stock of any of its Subsidiaries in
compliance with the provisions of Section 6.8, (ii) any sale,
assignment, transfer or other disposition of its interests in compliance with
the provisions of Section 6.8(a) or Section 6.8(c) and (iii) Liens
permitted pursuant to Section 6.2(a) and Section 6.2(p), no
Credit Party shall, nor shall it permit any of its Subsidiaries to, (a) directly
or indirectly sell, assign, pledge or otherwise encumber or dispose of any
Capital Stock of any of its Subsidiaries, except to qualify directors if
required by applicable law; or (b) permit any of its Subsidiaries directly
or indirectly to sell, assign, pledge or otherwise encumber or dispose of any
Capital Stock of any of its Subsidiaries, except to another Credit Party
(subject to the restrictions on such disposition otherwise imposed hereunder),
or to qualify directors if required by applicable law.


 


Section 6.10  Sales and
Lease-Backs.  Unless otherwise
permitted hereunder, no Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, become or remain liable as lessee or
as a guarantor or other surety with respect to any lease of any property
(whether real, personal or mixed) (other than in connection with a sale and
lease-back of the Corporate Head Office Campus otherwise permitted hereunder),
whether now owned or hereafter acquired, which such Credit Party or Subsidiary (a) has
sold or transferred or is to sell or to transfer to any other Person (other
than Company or any of its Subsidiaries), or (b) intends to use for
substantially the same purpose as any other property which has been or is to be
sold or transferred by such Credit Party or Subsidiary to any Person (other
than Company or any of its


 


83





















 


Subsidiaries) in connection with such lease, if in
either case, the obligations of such Credit Party or Subsidiary under such
lease, when aggregated with all other obligations of the Credit Parties and
such Subsidiaries incurred pursuant to this Section 6.10, shall exceed
$50.0 million.


 


Section 6.11  Transactions
with Shareholders and Affiliates.  No
Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, enter into or permit to exist any transaction (including the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any holder of 5% or more of any class of Capital Stock of Company
or any of its Subsidiaries or with any Affiliate of Company or of any such
holder, on terms that are less favorable to Company or that Subsidiary, as the
case may be, than those that might be obtained at the time from a Person who is
not such a holder or Affiliate; provided,
the foregoing restriction shall not apply to (a) any transaction between
Company and any of its Subsidiaries or between any of such Subsidiaries; (b) reasonable
and customary fees paid to members of the board of directors (or similar
governing body) of Company and its Subsidiaries; (c) compensation
arrangements and benefit plans for officers and other employees of Company and
its Subsidiaries entered into or maintained or established in the ordinary
course of business; (d) any Restricted Junior Payment permitted by Section 6.4;
and (e) any Investment made in accordance with Section 6.6.


 


Section 6.12  Conduct of
Business.  From and after the Closing
Date, no Credit Party shall, nor shall it permit any of its Subsidiaries to,
engage in any business other than (i) the businesses engaged in by Company
and its Subsidiaries on the Closing Date and any Permitted Business and (ii) such
other lines of business as may be consented to by Requisite Lenders.


 


Section 6.13  Amendments,
Waivers or Prepayments with respect to Senior Indebtedness or Subordinated
Indebtedness.  No Credit Party shall,
nor shall it permit any of its Subsidiaries to, amend or otherwise change the
terms of any Senior Indebtedness or Subordinated Indebtedness, or make any
payment consistent with an amendment thereof or change thereto, if the effect
of such amendment or change is to increase the interest rate on such Senior
Indebtedness or Subordinated Indebtedness, change (to earlier dates) any dates
upon which payments of principal or interest are due thereon, change any event
of default or condition to an event of default with respect thereto (other than
to eliminate any such event of default or increase any grace period related
thereto), change the redemption, prepayment or defeasance provisions thereof,
change the subordination provisions of such Subordinated Indebtedness (or of
any guaranty thereof), or if the effect of such amendment or change, together
with all other amendments or changes made, is to increase materially the
obligations of the obligor thereunder or to confer any additional rights on the
holders of such Senior Indebtedness or Subordinated Indebtedness (or a trustee
or other representative on their behalf) which would be adverse to any Credit
Party or Lenders and provided that
in respect of any refinancing, purchase, redemption, exchange or other
principal or premium payment in respect of the Senior Secured Notes or
Refinancing Senior Secured Notes, as the case may be (other than a mandatory
prepayment thereunder), each of the Senior Refinancing Conditions has been
satisfied; and provided, further that in the event that Company
makes any mandatory prepayment under the Senior Secured Notes or Refinancing
Senior Secured Notes, as the case may be, at a time when it cannot satisfy the
Senior Refinancing Conditions, Company shall immediately prepay all Loans
outstanding hereunder.


 


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Section 6.14  Fiscal Year.  No Credit Party shall, nor shall it permit
any of its Subsidiaries to change its Fiscal Year-end from the Saturday nearest
September 30 of each year.


 


SECTION 7. GUARANTY


 


Section 7.1  Guaranty of
the Obligations.  Subject to the
provisions of Section 7.2, Guarantors jointly and severally hereby
irrevocably and unconditionally guaranty to Administrative Agent for the
ratable benefit of the Beneficiaries the due and punctual payment in full of
all Obligations when the same shall become due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise (including
amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a))
(collectively, the “Guaranteed
Obligations”).


 


Section 7.2  Contribution
by Guarantors.  All Guarantors desire
to allocate among themselves (collectively, the “Contributing Guarantors”), in a fair and
equitable manner, their obligations arising under this Guaranty.  Accordingly, in the event any payment or
distribution is made on any date by a Guarantor (a “Funding Guarantor”)
under this Guaranty that exceeds its Fair Share as of such date, to the extent
permitted by applicable law, such Funding Guarantor shall be entitled to a
contribution from each of the other Contributing Guarantors in the amount of
such other Contributing Guarantor’s Fair Share Shortfall as of such date, with
the result that all such contributions will cause each Contributing Guarantor’s
Aggregate Payments to equal its Fair Share as of such date.  “Fair Share” means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (a) the
ratio of (i) the Fair Share Contribution Amount with respect to such
Contributing Guarantor to (ii) the aggregate of the Fair Share
Contribution Amounts with respect to all Contributing Guarantors multiplied by (b) the
aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations Guaranteed.  “Fair Share Shortfall” means, with respect to
a Contributing Guarantor as of any date of determination, the excess, if any,
of the Fair Share of such Contributing Guarantor over the Aggregate Payments of
such Contributing Guarantor.  “Fair Share Contribution Amount”
means, with respect to a Contributing Guarantor as of any date of
determination, the maximum aggregate amount of the obligations of such
Contributing Guarantor under this Guaranty that would not render its
obligations hereunder or thereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the United States
Code or any comparable applicable provisions of state law; provided, solely for purposes of
calculating the “Fair
Share Contribution Amount” with respect to any Contributing
Guarantor for purposes of this Section 7.2, any assets or liabilities of
such Contributing Guarantor arising by virtue of any rights to subrogation,
reimbursement or indemnification or any rights to or obligations of
contribution hereunder shall not be considered as assets or liabilities of such
Contributing Guarantor.  “Aggregate Payments”
means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (1) the aggregate amount of all payments
and distributions made on or before such date by such Contributing Guarantor in
respect of this Guaranty (including, without limitation, in respect of this Section 7.2),
minus (2) the aggregate amount of all payments received on or before such
date by such Contributing Guarantor from the other Contributing Guarantors as
contributions under this Section 7.2. 
The amounts payable as contributions hereunder shall be determined as of
the date on which the related payment or distribution is made by the applicable
Funding Guarantor.  The


 


85





















 


allocation among Contributing Guarantors of their
obligations as set forth in this Section 7.2 shall not be construed in any
way to limit the liability of any Contributing Guarantor hereunder.  Each Guarantor is a third party beneficiary
to the contribution agreement set forth in this Section 7.2.


 


Section 7.3  Payment by
Guarantors.  Subject to Section 7.2,
Guarantors hereby jointly and severally agree, in furtherance of the foregoing
and not in limitation of any other right which any Beneficiary may have at law
or in equity against any Guarantor by virtue hereof, that upon the failure of
Company to pay any of the Guaranteed Obligations when and as the same shall
become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. § 362(a)), Guarantors will upon demand pay, or
cause to be paid, in Cash, to Administrative Agent for the ratable benefit of
Beneficiaries, an amount equal to the sum of the unpaid principal amount of all
Guaranteed Obligations then due as aforesaid, accrued and unpaid interest on
such Guaranteed Obligations (including interest which, but for Company’s
becoming the subject of a case under the Bankruptcy Code, would have accrued on
such Guaranteed Obligations, whether or not a claim is allowed against Company
for such interest in the related bankruptcy case) and all other Guaranteed Obligations
then owed to Beneficiaries as aforesaid.


 


Section 7.4  Liability of
Guarantors Absolute.  Each Guarantor
agrees that its obligations hereunder are irrevocable, absolute, independent
and unconditional and shall not be affected by any circumstance which
constitutes a legal or equitable discharge of a guarantor or surety other than
payment in full of the Guaranteed Obligations. 
In furtherance of the foregoing and without limiting the generality
thereof, each Guarantor agrees as follows:


 


(a)           this Guaranty is a guaranty of
payment when due and not of collectability. 
This Guaranty is a primary obligation of each Guarantor and not merely a
contract of surety;


 


(b)           Administrative Agent may enforce
this Guaranty upon the occurrence of an Event of Default notwithstanding the
existence of any dispute between Company and any Beneficiary with respect to
the existence of such Event of Default;


 


(c)           the obligations of each
Guarantor hereunder are independent of the obligations of Company and the
obligations of any other guarantor (including any other Guarantor) of the
obligations of Company, and a separate action or actions may be brought and
prosecuted against such Guarantor whether or not any action is brought against
Company or any of such other guarantors and whether or not Company or such
other guarantors are joined in any such action or actions;


 


(d)           payment by any Guarantor of a
portion, but not all, of the Guaranteed Obligations shall in no way limit,
affect, modify or abridge any Guarantor’s liability for any portion of the
Guaranteed Obligations which has not been paid. 
Without limiting the generality of the foregoing, if Administrative
Agent is awarded a judgment in any suit brought to enforce any Guarantor’s
covenant to pay a portion of the Guaranteed Obligations, such judgment shall
not be deemed to release such Guarantor from its covenant to pay the portion of
the Guaranteed Obligations that is not the subject of such suit, and such
judgment shall not, except to the extent


 


86





















 


satisfied by such
Guarantor, limit, affect, modify or abridge any other Guarantor’s liability
hereunder in respect of the Guaranteed Obligations;


 


(e)           any Beneficiary, upon such terms
as it deems appropriate, without notice or demand and without affecting the
validity or enforceability hereof or giving rise to any reduction, limitation,
impairment, discharge or termination of any Guarantor’s liability hereunder,
from time to time may (i) renew, extend, accelerate, increase the rate of
interest on, or otherwise change the time, place, manner or terms of payment of
the Guaranteed Obligations; (ii) settle, compromise, release or discharge,
or accept or refuse any offer of performance with respect to, or substitutions
for, the Guaranteed Obligations or any agreement relating thereto and/or
subordinate the payment of the same to the payment of any other obligations; (iii) request
and accept other guaranties of the Guaranteed Obligations and take and hold
security for the payment hereof or the Guaranteed Obligations; (iv) release,
surrender, exchange, substitute, compromise, settle, rescind, waive, alter,
subordinate or modify, with or without consideration, any security for payment
of the Guaranteed Obligations, any other guaranties of the Guaranteed
Obligations, or any other obligation of any Person (including any other
Guarantor) with respect to the Guaranteed Obligations; (v) enforce and
apply any security now or hereafter held by or for the benefit of such
Beneficiary in respect hereof or the Guaranteed Obligations and direct the
order or manner of sale thereof, or exercise any other right or remedy that
such Beneficiary may have against any such security, in each case as such
Beneficiary in its discretion may determine consistent herewith or the
applicable Hedge Agreement and any applicable security agreement, including
foreclosure on any such security pursuant to one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable, and even though such action operates to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of any Guarantor
against Company or any security for the Guaranteed Obligations; and (vi) exercise
any other rights available to it under the Credit Documents or the Hedge
Agreements; and


 


(f)            this Guaranty and the
obligations of Guarantors hereunder shall be valid and enforceable and shall
not be subject to any reduction, limitation, impairment, discharge or
termination for any reason (other than payment in full of the Guaranteed
Obligations), including the occurrence of any of the following, whether or not
any Guarantor shall have had notice or knowledge of any of them: (i) any
failure or omission to assert or enforce or agreement or election not to assert
or enforce, or the stay or enjoining, by order of court, by operation of law or
otherwise, of the exercise or enforcement of, any claim or demand or any right,
power or remedy (whether arising under the Credit Documents or the Hedge Agreements,
at law, in equity or otherwise) with respect to the Guaranteed Obligations or
any agreement relating thereto, or with respect to any other guaranty of or
security for the payment of the Guaranteed Obligations; (ii) any
rescission, waiver, amendment or modification of, or any consent to departure
from, any of the terms or provisions (including provisions relating to events
of default) hereof, any of the other Credit Documents, any of the Hedge
Agreements or any agreement or instrument executed pursuant thereto, or of any
other guaranty or security for the Guaranteed Obligations, in each case whether
or not in accordance with the terms hereof or such Credit Document, such Hedge
Agreement or any agreement relating to such other guaranty or security; (iii) the
Guaranteed Obligations, or any agreement relating thereto, at any time being
found to be illegal, invalid or unenforceable in any respect; (iv) the
application of payments received from any source (other than payments received
pursuant to the other Credit Documents or any of the Hedge Agreements


 


87





















 


or from the proceeds
of any security for the Guaranteed Obligations, except to the extent such
security also serves as collateral for indebtedness other than the Guaranteed
Obligations) to the payment of indebtedness other than the Guaranteed
Obligations, even though any Beneficiary might have elected to apply such
payment to any part or all of the Guaranteed Obligations; (v) any
Beneficiary’s consent to the change, reorganization or termination of the
corporate structure or existence of Company or any of its Subsidiaries and to
any corresponding restructuring of the Guaranteed Obligations; (vi) any
failure to perfect or continue perfection of a security interest in any
collateral which secures any of the Guaranteed Obligations; (vii) any
defenses, set-offs or counterclaims which Company may allege or assert against
any Beneficiary in respect of the Guaranteed Obligations, including failure of
consideration, breach of warranty, payment, statute of frauds, statute of
limitations, accord and satisfaction and usury; and (viii) any other act
or thing or omission, or delay to do any other act or thing, which may or might
in any manner or to any extent vary the risk of any Guarantor as an obligor in
respect of the Guaranteed Obligations.


 


Section 7.5  Waivers by
Guarantors.  Each Guarantor hereby
waives, to the fullest extent permitted by law, for the benefit of
Beneficiaries: (a) any right to require any Beneficiary, as a condition of
payment or performance by such Guarantor, to (i) proceed against Company,
any other guarantor (including any other Guarantor) of the Guaranteed
Obligations or any other Person, (ii) proceed against or exhaust any
security held from Company, any such other guarantor or any other Person, (iii) proceed
against or have resort to any balance of any Deposit Account or credit on the
books of any Beneficiary in favor of Company or any other Person, or (iv) pursue
any other remedy in the power of any Beneficiary whatsoever; (b) any
defense arising by reason of the incapacity, lack of authority or any
disability or other defense of Company or any other Guarantor including any
defense based on or arising out of the lack of validity or the unenforceability
of the Guaranteed Obligations or any agreement or instrument relating thereto
or by reason of the cessation of the liability of Company or any other
Guarantor from any cause other than payment in full of the Guaranteed
Obligations; (c) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than that of the principal; (d) any
defense based upon any Beneficiary’s errors or omissions in the administration
of the Guaranteed Obligations, except behavior which amounts to gross
negligence or bad faith; (e) (i) any principles or provisions of law,
statutory or otherwise, which are or might be in conflict with the terms hereof
and any legal or equitable discharge of such Guarantor’s obligations hereunder,
(ii) the benefit of any statute of limitations affecting such Guarantor’s
liability hereunder or the enforcement hereof, (iii) any rights to
set-offs, recoupments and counterclaims, and (iv) promptness, diligence
and any requirement that any Beneficiary protect, secure, perfect or insure any
security interest or lien or any property subject thereto; (f) notices,
demands, presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance hereof, notices of
default hereunder, the Hedge Agreements or any agreement or instrument related
thereto, notices of any renewal, extension or modification of the Guaranteed
Obligations or any agreement related thereto, notices of any extension of
credit to Company and notices of any of the matters referred to in Section 7.4
and any right to consent to any thereof; and (g) any defenses or benefits
that may be derived from or afforded by law which limit the liability of or
exonerate guarantors or sureties, or which may conflict with the terms hereof.


 


As used in this paragraph, any reference to “the principal” includes
Company, and any reference to “the creditor” includes Administrative Agent and
each other Beneficiary.  In


 


88





















 


accordance with Section 2856 of the California
Civil Code (a) each Guarantor waives any and all rights and defenses
available to it by reason of Sections 2787 to 2855, inclusive, 2899 and 3433 of
the California Civil Code, including without limitation any and all rights or
defenses such Guarantor may have by reason of protection afforded to the
principal with respect to any of the Guaranteed Obligations, or to any other
guarantor of any of the Guaranteed Obligations with respect to any of such
guarantor’s obligations under its guaranty, in either case pursuant to the
antideficiency or other laws of the State of California limiting or discharging
the principal’s indebtedness or such guarantor’s obligations, including without
limitation Section 580a, 580b, 580d, or 726 of the California Code of
Civil Procedure; and (b) each Guarantor waives all rights and defenses
arising out of an election of remedies by the creditor, even though that
election of remedies, such as a nonjudicial foreclosure with respect to
security for a Guaranteed Obligation, has destroyed such Guarantor’s rights of
subrogation and reimbursement against the principal by the operation of Section 580d
of the Code of Civil Procedure or otherwise; and even though that election of
remedies by the creditor, such as nonjudicial foreclosure with respect to
security for an obligation of any other guarantor of any of the Guaranteed
Obligations, has destroyed such Guarantor’s rights of contribution against such
other guarantor.  No other provision of
this Guaranty shall be construed as limiting the generality of any of the
covenants and waivers set forth in this paragraph.  As provided below, this Guaranty shall be
governed by, and shall be construed and enforced in accordance with, the
internal laws of the State of New York. 
This paragraph is included solely out of an abundance of caution, and
shall not be construed to mean that any of the above-referenced provisions of
California law are in any way applicable to this Guaranty or to any of the
Guaranteed Obligations.


 


Section 7.6  Guarantors’
Rights of Subrogation, Contribution, Etc. 
Until the Guaranteed Obligations shall have been indefeasibly paid in
full, each Guarantor hereby waives any claim, right or remedy, direct or
indirect, that such Guarantor now has or may hereafter have against Company or
any other Guarantor or any of its assets in connection with this Guaranty or
the performance by such Guarantor of its obligations hereunder, in each case
whether such claim, right or remedy arises in equity, under contract, by
statute, under common law or otherwise and including without limitation (a) any
right of subrogation, reimbursement or indemnification that such Guarantor now
has or may hereafter have against Company with respect to the Guaranteed
Obligations, (b) any right to enforce, or to participate in, any claim,
right or remedy that any Beneficiary now has or may hereafter have against
Company, and (c) any benefit of, and any right to participate in, any
collateral or security now or hereafter held by any Beneficiary.  In addition, until the Guaranteed Obligations
shall have been indefeasibly paid in full, each Guarantor shall withhold
exercise of any right of contribution such Guarantor may have against any other
guarantor (including any other Guarantor) of the Guaranteed Obligations,
including, without limitation, any such right of contribution as contemplated
by Section 7.2.  Each Guarantor
further agrees that, to the extent the waiver or agreement to withhold the
exercise of its rights of subrogation, reimbursement, indemnification and
contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any rights of subrogation, reimbursement
or indemnification such Guarantor may have against Company or against any
collateral or security, and any rights of contribution such Guarantor may have
against any such other guarantor, shall be junior and subordinate to any rights
any Beneficiary may have against Company, to all right, title and interest any
Beneficiary may have in any such collateral or security, and to any right any
Beneficiary may have against such other guarantor.  If any amount shall be paid to any Guarantor
on account of any such subrogation, reimbursement,


 


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indemnification or contribution rights at any time
when all Guaranteed Obligations shall not have been finally and indefeasibly
paid in full, such amount shall be held in trust for Administrative Agent on
behalf of Beneficiaries and shall forthwith be paid over to Administrative
Agent for the benefit of Beneficiaries to be credited and applied against the
Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms hereof.


 


Section 7.7  Subordination
of Other Obligations.  Any
Indebtedness of Company or any Guarantor now or hereafter held by any Guarantor
(the “Obligee Guarantor”)
is hereby subordinated in right of payment to the Guaranteed Obligations, and
any such indebtedness collected or received by the Obligee Guarantor after an
Event of Default has occurred and is continuing shall be held in trust for
Administrative Agent on behalf of Beneficiaries and shall forthwith be paid
over to Administrative Agent for the benefit of Beneficiaries to be credited
and applied against the Guaranteed Obligations but without affecting, impairing
or limiting in any manner the liability of the Obligee Guarantor under any
other provision hereof.


 


Section 7.8  Continuing
Guaranty.  This Guaranty is a
continuing guaranty and shall remain in effect until all of the Guaranteed
Obligations shall have been paid in full. 
Each Guarantor hereby irrevocably waives any right to revoke this
Guaranty as to future transactions giving rise to any Guaranteed Obligations.


 


Section 7.9  Authority of
Guarantors or Company.  It is not
necessary for any Beneficiary to inquire into the capacity or powers of any
Guarantor or Company or the officers, directors or any agents acting or
purporting to act on behalf of any of them.


 


Section 7.10  Financial
Condition of Company.  Any Loan may
be made to Company or continued from time to time, and any Hedge Agreements may
be entered into from time to time, in each case without notice to or
authorization from any Guarantor regardless of the financial or other condition
of Company at the time of any such grant or continuation or at the time such
Hedge Agreement is entered into, as the case may be.  No Beneficiary shall have any obligation to
disclose or discuss with any Guarantor its assessment, or any Guarantor’s
assessment, of the financial condition of Company.  Each Guarantor has adequate means to obtain
information from Company on a continuing basis concerning the financial
condition of Company and its ability to perform its obligations under the
Credit Documents and the Hedge Agreements, and each Guarantor assumes the
responsibility for being and keeping informed of the financial condition of
Company and of all circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations.  Each Guarantor
hereby waives and relinquishes any duty on the part of any Beneficiary to
disclose any matter, fact or thing relating to the business, operations or
conditions of Company now known or hereafter known by any Beneficiary.


 


Section 7.11  Bankruptcy,
Etc.  (a)  So long as any
Guaranteed Obligations remain outstanding, no Guarantor shall, without the
prior written consent of Administrative Agent acting pursuant to the
instructions of Requisite Lenders, commence or join with any other Person in
commencing any bankruptcy, reorganization or insolvency case or proceeding of
or against Company or any other Guarantor. 
The obligations of Guarantors hereunder shall not be reduced, limited,
impaired, discharged, deferred, suspended or terminated by any case or
proceeding, voluntary or involuntary, involving the bankruptcy, insolvency,
receivership, reorganization, liquidation or arrangement of Company or any
other Guarantor or by any defense


 


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which Company or any other Guarantor may have by
reason of the order, decree or decision of any court or administrative body
resulting from any such proceeding.


 


(b)           Each Guarantor acknowledges and
agrees that any interest on any portion of the Guaranteed Obligations which
accrues after the commencement of any case or proceeding referred to in clause (a) above
(or, if interest on any portion of the Guaranteed Obligations ceases to accrue
by operation of law by reason of the commencement of such case or proceeding,
such interest as would have accrued on such portion of the Guaranteed
Obligations if such case or proceeding had not been commenced) shall be
included in the Guaranteed Obligations because it is the intention of Guarantors
and Beneficiaries that the Guaranteed Obligations which are guaranteed by
Guarantors pursuant hereto should be determined without regard to any rule of
law or order which may relieve Company of any portion of such Guaranteed
Obligations.  Guarantors will permit any
trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit
of creditors or similar person to pay Administrative Agent, or allow the claim
of Administrative Agent in respect of, any such interest accruing after the
date on which such case or proceeding is commenced.


 


(c)           In the event that all or any
portion of the Guaranteed Obligations are paid by Company, the obligations of
Guarantors hereunder shall continue and remain in full force and effect or be
reinstated, as the case may be, in the event that all or any part of such
payment(s) are rescinded or recovered directly or indirectly from any
Beneficiary as a preference, fraudulent transfer or otherwise, and any such
payments which are so rescinded or recovered shall constitute Guaranteed
Obligations for all purposes hereunder.


 


Section 7.12  Discharge
of Guaranty Upon Sale of Guarantor.  If
all of the Capital Stock of any Guarantor or any of its successors in interest
hereunder shall be sold or otherwise disposed of (including by merger or
consolidation) in accordance with the terms and conditions hereof, the Guaranty
of such Guarantor or such successor in interest, as the case may be, hereunder
shall automatically be discharged and released without any further action by any
Beneficiary or any other Person effective as of the time of such Asset Sale.


 


SECTION 8. EVENTS OF DEFAULT


 


Section 8.1  Events of
Default.  If any one or more of the
following conditions or events shall occur:


 


(a)           Failure to Make Payments When
Due.  Failure by Company to pay (i) when due
the principal of, or premium on, any Loan, whether at stated maturity, by
acceleration, by notice of voluntary prepayment or otherwise; or (ii) any
interest on any Loan or any fee or any other amount due hereunder within three (3) Business
Days after the date due; or


 


(b)           Default in Other Agreements.  (i) Failure of any Credit Party or any
of their respective Subsidiaries to pay when due any principal of or interest
on or any other amount payable in respect of one or more items of Indebtedness
(other than Indebtedness referred to in Section 8.1(a)) having an
aggregate principal amount of $50.0 million or more, in each case beyond the
grace period, if any, provided therefor; or (ii) breach or default by any
Credit Party


 


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with respect to any
other material term of (1) one or more items of Indebtedness in the
individual or aggregate principal amounts referred to in clause (i) above
or (2) any loan agreement, mortgage, indenture or other agreement relating
to such item(s) of Indebtedness, in each case beyond the grace period, if any,
provided therefor, if the effect of such breach or default is to cause, or to
permit the holder or holders of that Indebtedness (or a trustee on behalf of
such holder or holders), to cause, that Indebtedness to become or be declared
due and payable (or redeemable) prior to its stated maturity or the stated
maturity of any underlying obligation, as the case may be; or


 


(c)           Breach of Certain Covenants.  Failure of any Credit Party to perform or
comply with any term or condition contained in Section 5.2, Section 5.13
or Section 6; or


 


(d)           Breach of Representations, Etc.  Any representation, warranty, certification
or other statement made or deemed made by any Credit Party in any Credit
Document or in any statement or certificate at any time given by any Credit
Party or any of its Subsidiaries in writing pursuant hereto or thereto or in
connection herewith or therewith shall be false in any material respect as of
the date made or deemed made; or


 


(e)           Other Defaults Under Credit
Documents.  Any Credit Party shall default in the
performance of or compliance with any term contained herein or any of the other
Credit Documents, other than any such term referred to in any other Section of
this Section 8.1, and such default shall not have been remedied or waived
within thirty (30) days after the earlier of (i) an Authorized Officer of
such Credit Party becoming aware of such default or (ii) receipt by
Company of notice from Administrative Agent or any Lender of such default; or


 


(f)            Involuntary Bankruptcy;
Appointment of Receiver, Etc.  (i) A court of
competent jurisdiction shall enter a decree or order for relief in respect of
Company or any of its Subsidiaries (other than an Insignificant Subsidiary) in
an involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be
commenced against Company or any of its Subsidiaries (other than an
Insignificant Subsidiary) under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect; or
a decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Company or any of its Subsidiaries
(other than an Insignificant Subsidiary), or over all or a substantial part of
its property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other custodian of
Company or any of its Subsidiaries (other than an Insignificant Subsidiary) for
all or a substantial part of its property; or a warrant of attachment,
execution or similar process shall have been issued against any substantial
part of the property of Company or any of its Subsidiaries (other than an
Insignificant Subsidiary), and any such event described in this clause (ii) shall
continue for sixty (60) days without having been dismissed, bonded or
discharged; or


 


(g)           Voluntary Bankruptcy;
Appointment of Receiver, Etc.  (i) Company or
any of its Subsidiaries (other than an Insignificant Subsidiary) shall have an
order for relief entered with respect to it or shall commence a voluntary case
under the Bankruptcy Code or under any other


 


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applicable bankruptcy, insolvency or similar law now
or hereafter in effect, or shall consent to the entry of an order for relief in
an involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or Company or any of its Subsidiaries (other than an
Insignificant Subsidiary) shall make any assignment for the benefit of
creditors; or (ii) Company or any of its Subsidiaries (other than an
Insignificant Subsidiary) shall be unable, or shall fail generally, or shall
admit in writing its inability, to pay its debts as such debts become due; or
the board of directors (or similar governing body) of Company or any of its
Subsidiaries (other than an Insignificant Subsidiary) (or any committee
thereof) shall adopt any resolution or otherwise authorize any action to
approve any of the actions referred to herein or in Section 8.1(f); or


 


(h)           Judgments and Attachments.  Any money judgment, writ or warrant of
attachment or similar process involving an amount in excess of $50.0 million
(to the extent not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or
filed against Company or any of its Subsidiaries (other than an Insignificant
Subsidiary) or any of their respective assets and shall remain undischarged,
unvacated, unbonded or unstayed for a period of sixty (60) days (or in any
event later than five days prior to the date of any proposed sale thereunder);
or


 


(i)            Dissolution.  Any order, judgment or decree shall be
entered against any Credit Party decreeing the dissolution or split up of such
Credit Party and such order shall remain undischarged or unstayed for a period
in excess of thirty (30) days; or


 


(j)            Employee Benefit Plans.  (i) There shall occur one or more ERISA
Events which individually or in the aggregate results in or might reasonably be
expected to result in liability of Company, any of its Subsidiaries or any of
their respective ERISA Affiliates in excess of $40.0 million during the term
hereof; or (ii) there exists any fact or circumstance that reasonably
could be expected to result in the imposition of a Lien or security interest
under Section 412(n) of the Internal Revenue Code or under ERISA; or


 


(k)           Change of Control.  A Change of Control shall occur; or


 


(l)            Guaranties, Collateral Documents
and other Credit Documents.  At any time after
the execution and delivery thereof, (i) the Guaranty for any reason, other
than the satisfaction in full of all Obligations, shall cease to be in full
force and effect (other than in accordance with its terms) or shall be declared
to be null and void or any Guarantor shall repudiate its obligations
thereunder, (ii) this Agreement or any Collateral Document ceases to be in
full force and effect (other than by reason of a release of Collateral in
accordance with the terms hereof or thereof or the satisfaction in full of the
Obligations in accordance with the terms hereof) or shall be declared null and
void, or Collateral Agent shall not have or shall cease to have a valid and
perfected Lien in any Collateral purported to be covered by the Collateral
Documents with the priority required by the relevant Collateral Document, in
each case for any reason other than the failure of Collateral Agent or any
Secured Party to take any action within its control, or (iii) any Credit
Party shall contest the validity or enforceability of any Credit Document in
writing or deny in writing that it has any further liability, including with
respect to future advances by Lenders, under any Credit Document to which it is
a party;


 


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THEN, (1) upon the
occurrence of any Event of Default described in Section 8.1(f) or
8.1(g), automatically, and (2) upon the occurrence of any other Event of
Default, at the request of (or with the consent of) Requisite Lenders, upon
notice to Company by Administrative Agent, (A) each of the following shall
immediately become due and payable, in each case without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by each Credit Party: (I) the unpaid principal amount of and accrued
interest on the Loans and (II) all other Obligations; and (B) Administrative
Agent may cause Collateral Agent to enforce any and all Liens and security
interests created pursuant to Collateral Documents.


 


Section 8.2  Actions in
Respect of the Letters of Credit upon Default.  If any Event of Default shall have occurred
and be continuing, Administrative Agent may, or shall at the request of the
Requisite Lenders, irrespective of whether it is taking any of the actions
described in Section 8.1 or otherwise, make demand upon Company to, and
forthwith upon such demand Company will, pay to Collateral Agent on behalf of
Lender Parties in same day funds at Collateral Agent’s office designated in
such demand, for deposit in the L/C Cash Collateral Account, an amount equal to
the aggregate Available Amount of all Letters of Credit then outstanding.  If at any time Administrative Agent or
Collateral Agent determines that any funds held in the L/C Cash Collateral
Account are subject to any right or claim of any Person other than Agents and
Lender Parties or that the total amount of such funds is less than the
aggregate Available Amount of all Letters of Credit, Company will, forthwith
upon demand by Administrative Agent or Collateral Agent, pay to Collateral
Agent, as additional funds to be deposited and held in the L/C Cash Collateral
Account, an amount equal to the excess of (a) such aggregate Available
Amount over (b) the total amount of funds, if any, then held in the L/C
Cash Collateral Account that Administrative Agent or Collateral Agent, as the
case may be, determines to be free and clear of any such right and claim.  Upon the drawing of any Letter of Credit for
which funds are on deposit in the L/C Cash Collateral Account, such funds shall
be applied to reimburse the Issuing Banks or Lenders, as applicable, to the
extent permitted by applicable law.


 


SECTION 9. AGENTS


 


Section 9.1  Appointment
of Agents.  Each of Administrative
Agent, the Syndication Agent, the Collateral Agent, the Lead Arranger and the
Co-Documentation Agents are hereby appointed hereunder and under the other
Credit Documents and each Lender Party hereby authorizes each Agent to act as
its agent in accordance with the terms hereof and the other Credit
Documents.  Each Agent hereby agrees to
act upon the express conditions contained herein and the other Credit
Documents, as applicable.  Except with
respect to Section 9.8, the provisions of this Section 9 are solely
for the benefit of Agents and Lender Parties and no Credit Party shall have any
rights as a third party beneficiary of any of the provisions thereof.  In performing its functions and duties
hereunder, each Agent shall act solely as an agent of Lender Parties and does
not assume and shall not be deemed to have assumed any obligation towards or
relationship of agency or trust with or for Company or any of its
Subsidiaries.  As of the Closing Date,
none of the Syndication Agent, the Lead Arrangers nor the Co-Documentation
Agents shall have any obligations but shall be entitled to all benefits of this
Section 9.


 


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Section 9.2  Powers and
Duties.  (a) Agents
Generally.  Each Lender Party
irrevocably authorizes each Agent to take such action on such Lender Party’s
behalf and to exercise such powers, rights and remedies hereunder and under the
other Credit Documents as are specifically delegated or granted to such Agent
by the terms hereof and thereof, together with such powers, rights and remedies
as are reasonably incidental thereto. 
Each Agent shall have only those duties and responsibilities that are
expressly specified herein and the other Credit Documents.  Each Agent may exercise such powers, rights
and remedies and perform such duties by or through its agents or
employees.  No Agent shall have, by
reason hereof or any of the other Credit Documents, a fiduciary relationship in
respect of any Lender Party; and nothing herein or any of the other Credit Documents,
expressed or implied, is intended to or shall be so construed as to impose upon
any Agent any obligations in respect hereof or any of the other Credit
Documents except as expressly set forth herein or therein.


 


(b)           (i) The Collateral Agent.  Subject to the terms and conditions of this
Agreement, the Collateral Agent shall follow the reasonable written
instructions of the Administrative Agent from time to time, subject to and
consistent with the Collateral Agent’s rights and obligations expressed in the
Collateral Documents and in accordance with applicable law.  No direction given to the Collateral Agent
(whether given by the Administrative Agent or otherwise by any Person) which
imposes, or purports to impose, upon the Collateral Agent any obligation not
set forth in this Agreement or any other Collateral Document shall be binding
upon the Collateral Agent unless the Collateral Agent elects, at its sole
option, to accept direction pursuant to the instructions of the Administrative
Agent.  Notwithstanding any other
provision contained in this Agreement or in any Collateral Document, the
Collateral Agent shall not be required to take any action permitted, or
exercise any discretion granted, under the Collateral Documents without
specific instruction from the Administrative Agent.


 


(ii)           Except to the extent otherwise provided in this Section 9.2,
the duties of the Collateral Agent hereunder and under the Collateral Documents
shall be ministerial and administrative in nature.  For the limited purpose of holding and
distributing or applying proceeds of Collateral, the Collateral Agent shall
hold such proceeds in trust for the benefit of the Secured Parties in
accordance with their rights as provided for herein and in the Collateral
Documents.


 


(iii)          The Collateral Agent:


 


(A)          Shall not be required to expend or risk any of its own funds or
otherwise incur any financial or other liability in the performance of any of
its duties hereunder or under any Collateral Document;


 


(B)           May resign at any time in accordance with the provisions of Section 8
of the Pledge and Security Agreement; and


 


(C)           Submits to the terms of indemnification set forth in Section 9.8
hereof, which indemnification expressly covers any and all indemnifications
granted by the Collateral Agent to any third party under any Control Agreement
or other Collateral Document.


 


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Section 9.3  Exculpatory
Provisions.  No Agent shall have any
duties or obligations except those expressly set forth herein and in the other
Credit Documents.  Without limiting the
generality of the foregoing, no Agent:


 


(a)           shall be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing;


 


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


 


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


 


No Agent nor any of its officers, partners, directors, employees or
agents shall be liable to Lender Parties for any action taken or omitted by any
Agent under or in connection with any of the Credit Documents except to the
extent caused by such Agent’s gross negligence or willful misconduct.  Each Agent shall be entitled to refrain from
any act or the taking of any action (including the failure to take an action)
in connection herewith or any of the other Credit Documents or from the
exercise of any power, discretion or authority vested in it hereunder or
thereunder unless and until such Agent shall have received instructions in respect
thereof from Requisite Lenders (or such other Lender Parties as may be required
to give such instructions under Section 10.5) and, upon receipt of such
instructions from Requisite Lenders (or such other Lender Parties, as the case
may be), such Agent shall be entitled to act or (where so instructed) refrain
from acting, or to exercise such power, discretion or authority, in accordance
with such instructions.  Without
prejudice to the generality of the foregoing, (i) each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper Person or Persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Company and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender
Party shall have any right of action whatsoever against any Agent as a result
of such Agent acting or (where so instructed) refraining from acting hereunder
or any of the other Credit Documents in accordance with the instructions of
Requisite Lenders (or such other Lender Parties as may be required to give such
instructions under Section 10.5).


 


Section 9.4  Reliance by
Administrative Agent.  The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) reasonably
believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person.  The


 


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Administrative Agent also may rely upon any statement
made to it orally or by telephone and reasonably believed by it to have been
made by the proper Person, and shall not incur any liability for relying
thereon.  In determining compliance with
any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or
the Issuing Bank, the Administrative Agent may presume that such condition is
satisfactory to such Lender or the Issuing Bank unless the Administrative Agent
shall have received notice to the contrary from such Lender or the Issuing Bank
prior to the making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult with
legal counsel (who may be counsel for Company), 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.


 


Section 9.5  Delegation
of Duties.  The Administrative Agent
may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Credit Document by or through any one or more
sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.


 


Section 9.6  Agents
Entitled to Act as Lender.  The
agency hereby created shall in no way impair or affect any of the rights and
powers of, or impose any duties or obligations upon, any Agent in its
individual capacity as a Lender hereunder. 
With respect to its participation in the Loans, each Agent shall have
the same rights and powers hereunder as any other Lender and may exercise the
same as if it were not performing the duties and functions delegated to it
hereunder, and the term “Lender” shall, unless the context clearly otherwise
indicates, include each Agent in its individual capacity.  Any Agent and its Affiliates may accept
deposits from, lend money to, own securities of, and generally engage in any
kind of banking, trust, financial advisory or other business with Company or
any of its Affiliates as if it were not performing the duties specified herein,
and may accept fees and other consideration from Company for services in
connection herewith and otherwise without having to account for the same to
Lenders.


 


Section 9.7  Lender
Parties’ Representations, Warranties and Acknowledgment.  (a)  Each Lender Party represents and
warrants that it has made its own independent investigation of the financial
condition and affairs of Company and its Subsidiaries in connection with Loans
hereunder and that it has made and shall continue to make its own appraisal of
the creditworthiness of Company and its Subsidiaries.  No Agent shall have any duty or responsibility,
either initially or on a continuing basis, to make any such investigation or
any such appraisal on behalf of Lender Parties or to provide any Lender Party
with any credit or other information with respect thereto, whether coming into
its possession before the making of the Loans or at any time or times
thereafter, and no Agent shall have any responsibility with respect to the
accuracy of or the completeness of any information provided to Lender Parties.


 


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(b)           Each Lender Party, by delivering
its signature page to this Agreement, shall be deemed to have acknowledged
receipt of, and consented to and approved, each Credit Document and each other
document required to be approved by any Agent, Requisite Lenders or Lender
Parties, as applicable on the Closing Date.


 


Section 9.8  Right to
Indemnity.  (a)  Each Lender
Party, in proportion to its Pro Rata Share, severally agrees to indemnify each
Agent, to the extent that such Agent shall not have been reimbursed by any
Credit Party, for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
counsel fees and disbursements) or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against such Agent
in exercising its powers, rights and remedies or performing its duties
hereunder or under the other Credit Documents or otherwise in its capacity as
such Agent in any way relating to or arising out hereof or the other Credit
Documents; provided, no Lender
Party shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent’s gross negligence or willful misconduct.  If any indemnity furnished to any Agent for
any purpose shall, in the opinion of such Agent, be insufficient or become
impaired, such Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished; provided, in no event
shall this sentence require any Lender Party to indemnify any Agent against any
liability, obligation, loss, damage, penalty, action, judgment, suit, cost,
expense or disbursement in excess of such Lender Party’s Pro Rata Share
thereof; and provided further,
this sentence shall not be deemed to require any Lender Party to indemnify any
Agent against any liability, obligation, loss, damage, penalty, action,
judgment, suit, cost, expense or disbursement described in the proviso in the
immediately preceding sentence.


 


(b)           Each Lender Party severally
agrees to indemnify the Issuing Banks (to the extent not promptly reimbursed by
Company) from and against such Lender Party’s ratable share (determined as
provided below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever arising in connection with its role as Issuing Bank
that may be imposed on, incurred by, or asserted against the Issuing Banks in
any way relating to or arising out of the Credit Documents or any action taken
or omitted by the Issuing Banks under the Credit Documents; provided, however, that no Lender Party
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from any Issuing Banks’ gross negligence or willful misconduct as
found in a final, non-appealable judgment by a court of competent jurisdiction.  Without limitation of the foregoing, each
Lender Party agrees to reimburse each Issuing Bank promptly upon demand for its
ratable share of any costs and expenses (including, without limitation, fees
and expenses of counsel) payable by Company under Section 10.4, to the
extent that such Issuing Bank is not promptly reimbursed for such costs and
expenses by Company.


 


(c)           For purposes of this Section 9.8,
the Lender Parties’ respective ratable shares of any amount shall be
determined, at any time, according to the sum of (i) the aggregate
principal amount of the Loans outstanding at such time and owing to the
respective Lender Parties, (ii) their respective Pro Rata Shares of the
aggregate Available Amount of all Letters of Credit outstanding at such time, and
(iii) their respective Unused Revolving Credit Commitments


 


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at such time; provided that the aggregate principal
amount of Letter of Credit Loans owing to the Issuing Banks shall be considered
to be owed to the Lenders ratably in accordance with their respective Revolving
Credit Commitments.  The failure of any
Lender Party to reimburse any Agent or the Issuing Bank, as the case may be,
promptly upon demand for its ratable share of any amount required to be paid by
the Lender Parties to such Agent or any Issuing Bank, as the case may be, as
provided herein shall not relieve any other Lender Party of its obligation
hereunder to reimburse such Agent or such Issuing Bank, as the case may be, for
its ratable share of such amount, but no Lender Party shall be responsible for
the failure of any other Lender Party to reimburse such Agent or such Issuing
Bank, as the case may be, for such other Lender Party’s ratable share of such
amount.  Without prejudice to the
survival of any other agreement of any Lender Party hereunder, the agreement
and obligations of each Lender Party contained in this Section 9.8 shall
survive the payment in full of principal, interest and all other amounts
payable hereunder and under the other Credit Documents.


 


Section 9.9  Successor
Administrative Agent.  The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the Issuing Bank and Company. 
Upon receipt of any such notice of resignation, the Requisite Lenders
shall have the right, in consultation with Company, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States.  If no such successor shall have been so
appointed by the Requisite 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 meeting
the qualifications set forth above; provided
that if the Administrative Agent shall notify Company and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (a) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Credit Documents (except that in the
case of any collateral security held by the Administrative Agent on behalf of
the Lenders or the Issuing Bank under any of the Credit Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such
time as a successor Administrative Agent is appointed) and (b) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the Issuing
Bank directly, until such time as the Requisite Lenders appoint a successor
Administrative Agent as provided for above in this Section.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder or
under the other Credit Documents (if not already discharged therefrom as
provided above in this Section).  The
fees payable by Company to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between Company and
such successor.  After the retiring
Administrative Agent’s resignation hereunder and under the other Credit
Documents, the provisions of this Section 9 and Sections 10.2 and 10.3
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.


 


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Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as Issuing Bank.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, (i) such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring Issuing Bank, (ii) the retiring Issuing Bank shall
be discharged from all of its duties and obligations hereunder or under the
other Credit Documents, and (iii) the successor Issuing Bank shall issue
letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangement
satisfactory to the retiring Issuing Bank to effectively assume the obligations
of the retiring Issuing Bank with respect to such Letters of Credit.


 


Section 9.10  Administrative
Agent May File Proofs of Claim. 
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Credit Party, the Administrative Agent
(irrespective of whether the principal of any Loan or any Letter of Credit
Liability shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise:


 


(a)           to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, any Letter of Credit Liability and all
other Obligations that are owing and unpaid and to file such other documents as
may be necessary or advisable in order to have the claims of the Lenders, the
Issuing Bank and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders,
the Issuing Bank and the Administrative Agent and its agents and counsel and
all other amounts due the Lenders, the Issuing Bank and the Administrative
Agent under Sections 2.3, 2.10 and 7.4) allowed in such judicial proceeding;
and


 


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


 


and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the
Issuing Bank to make such payments to the Administrative Agent and, if the
Administrative Agent shall consent to the making of such payments directly to
the Lenders and the Issuing Bank, to pay to the Administrative Agent any amount
due for the reasonable compensation, expenses, disbursements and advances of
the Administrative Agent and its agents and counsel, and any other amounts due
the Administrative Agent under Sections 2.10 and 7.4.


 


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


 


Section 9.11  Collateral
Documents and Guaranty.  (a)  Agents
Under Collateral Documents and Guaranty. 
Each Lender hereby further authorizes Administrative Agent, on behalf of
and for the benefit of Lenders, to be the agent for and representative of
Lenders with


 


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respect to the Guaranty.  Each Lender hereby further authorizes
Collateral Agent, on behalf of and for the benefit of Lenders, to (i) be
the agent for and representative of Lenders with respect to the Collateral, the
Intercreditor Agreement and the Collateral Documents and (ii) without
further written consent or authorization from Lenders, execute and perform
under the Collateral Documents, the Intercreditor Agreement, any joinders to
the Intercreditor Agreement referred to in Section 6.2(bb) hereof and any
amendments, modifications, supplements and restatements of the Credit Documents
in connection with such joinders referred to in Section 6.2(bb) (which
shall include, without limitation, implementation of any pro rata sharing of
collateral proceeds contemplated under any such joinders), and each Lender
hereby further agrees to be bound by the terms of any such joinders,
amendments, modifications, supplements and restatements.  Subject to Section 10.5, without further
written consent or authorization from Lenders, Administrative Agent or
Collateral Agent, as applicable, may execute any documents or instruments
necessary to (i) release any Lien encumbering any item of Collateral that
is the subject of a sale or other disposition of assets permitted hereby or to
which Requisite Lenders (or such other Lenders as may be required to give such
consent under Section 10.5) have otherwise consented or (ii) release
any Guarantor from the Guaranty pursuant to Section 7.12 or with respect
to which Requisite Lenders (or such other Lenders as may be required to give
such consent under Section 10.5) have otherwise consented.


 


(b)           Release
of Portions of Collateral.  (i) 
In the event that (A) Company has, from the gross proceeds of an issuance
of public equity, notes or other securities, satisfied and discharged not less
than 85% of the total principal amount of the Senior Secured Notes in
accordance with the terms thereof in each case, (B) Company has, following
the satisfaction and discharge under sub-clause (A) above, amended the
Senior Secured Note Agreement in respect of any remaining Senior Secured Notes
or Refinancing Senior Secured Notes, as the case may be, to irrevocably and permanently
delete any security interest requirements therein and release in full any and
all existing Liens granted in connection therewith, (C) Company is in pro
forma compliance with the covenants set forth in Section 6.7 hereof in
respect of the immediately succeeding Fiscal Quarter of Company and (D) Company’s
corporate credit rating by S&P (or the equivalent rating for similar
obligations as may be used by S&P from time to time) shall be not less than
BB- and Company’s family rating by Moody’s (or the equivalent rating for
similar obligations as may be used by Moody’s from time to time) shall not be
less than Ba2 (or not less than BB by S&P and Ba3 by Moody’s), the
Collateral Agent shall, at Company’s request and expense within 45 days of the
date upon which the Collateral Agent receives notice from Company that the
conditions in (A) through (D) above have been satisfied, release all
of its security interests in the accounts receivable of the Credit Parties
under the Collateral Documents and any deposit accounts of Company or any
Subsidiary specifically designated solely for the collection of receivables
that are the subject of a transaction permitted by Section 6.8(e) hereof,
and the Lenders hereby authorize the Collateral Agent to execute and file any documents
appropriate in connection therewith.


 


(ii)           In
the event that (A) Company has satisfied and discharged not less than 85%
of the total principal amount of the 3% Notes in accordance with the terms
thereof, (B) the conditions set forth in Section 9.11(b)(i) have
been met, (C) Company is in pro forma compliance with the covenants set
forth in Section 6.7 hereof in respect of the immediately succeeding
Fiscal Quarter of Company and (D) Company’s corporate credit rating by
S&P (or the equivalent rating for similar obligations as may be used by
S&P


 


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from time to time) shall be not less than BB-
and Company’s family rating by Moody’s (or the equivalent rating for similar
obligations as may be used by Moody’s from time to time) shall not be less than
Ba2 (or not less than BB by S&P and Ba3 by Moody’s), the Collateral Agent
shall, at Company’s request and expense within 45 days of the date upon which
the Collateral Agent receives notice from Company that the conditions in (A) through
(D) above have been satisfied, release all of its security interests in
the Collateral (other than any pledges of Capital Stock and any other
collateral which Company requests not to be released) under the Collateral
Documents and terminate the applicable Collateral Documents (which for the
avoidance of doubt shall not include the Pledge and Security Agreement to the
extent that it applies to pledges of Capital Stock).  Following any release of security interests
pursuant to this Section 9.11(b)(ii) (but subject to the provisions
of Section 5.13), the obligations of the Credit Parties pursuant to Section 5.9,
5.10 and 5.11 shall no longer apply and the Lenders hereby authorize the
Collateral Agent to execute and file any documents appropriate in connection
therewith.


 


(c)           Right
to Realize on Collateral and Enforce Guaranty.  Anything contained in any of the Credit
Documents to the contrary notwithstanding, Company, Administrative Agent,
Collateral Agent and each Lender hereby agree that (i) no Lender shall
have any right individually to realize upon any of the Collateral or to enforce
the Guaranty, it being understood and agreed that all powers, rights and
remedies hereunder may be exercised solely by Administrative Agent, on behalf of
Lenders in accordance with the terms hereof and all powers, rights and remedies
under the Collateral Documents may be exercised solely by Collateral Agent, and
(ii) in the event of a foreclosure by Collateral Agent on any of the
Collateral pursuant to a public or private sale, Collateral Agent or any Lender
may be the purchaser of any or all of such Collateral at any such sale and
Collateral Agent, as agent for and representative of Secured Parties (but not
any Lender or Lenders in its or their respective individual capacities unless
Requisite Lenders shall otherwise agree in writing) shall be entitled, for the
purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Collateral sold at any such public sale, to use and
apply any of the Obligations as a credit on account of the purchase price for
any collateral payable by Collateral Agent at such sale.


 


SECTION 10. MISCELLANEOUS


 


Section 10.1  Notices.  (a)  All notices and other
communications provided for hereunder shall be either (x) in writing (including
telecopier communication) and mailed, telecopied, or delivered or (y) as and to
the extent set forth in Section 10.1(b) and in the proviso to this Section 10.1(a),
if to Company, at its address at 2700 North First Street, San Jose, CA 95134,
Attention:  Corporate Treasurer;
Facsimile: (408) 964-3644; if to any Initial Lender, at its Domestic Lending
Office specified opposite its name on Appendix B hereto; if to any other
Lender, at its Domestic Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Lender; if to the Agent, at its
address at 315 Montgomery Street, San Francisco, CA 94014-1866, Attention:  Sugeet Manchanda Madan; Facsimile: (415) 622-4057;
if to the Collateral Agent, at its address at Agency & Trust, 388
Greenwich Street, 14th Floor, New York , NY 10013, Attention: Miriam
Molina; Facsimile: (212) 657-2762, or, as to Company or any Agent, at such
other address as shall be designated by such party in a written notice to the
other parties and, as to each other party at such other address as shall be
designated by such party


 


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in a written notice to Company and the Administrative
Agent, provided that materials
required to be delivered pursuant to Section 5.1(a), (b), (i) or (l)(i) shall
be delivered to the Administrative Agent as specified in Section 10.1(b) or
as otherwise specified to Company by the Administrative Agent.  All such notices and communications shall,
when mailed or e-mailed, be effective when deposited in the mails, telecopied,
or confirmed by e-mail, respectively, except that notices and communications to
the Agent pursuant to Sections 2, 3 or 8 shall not be effective until received
by the Agent.  Delivery by telecopier of
an executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and
delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.


 


(b)           So
long as Bank of America or any of its Affiliates is the Administrative Agent,
materials required to be delivered pursuant to Section 5.1(a), (b), (i) and
(l)(i) shall be delivered to the Administrative Agent in an electronic
medium in a format acceptable to the Administrative Agent and the Lenders by
e-mail at liliana.claar@bankofamerica.com. 
Company agrees that (A) the Administrative Agent may make such
materials, as well as any other written information, documents, instruments and
other material relating to Company, any of its Subsidiaries or any other
materials or matters relating to this Agreement, the Notes or any of the
transactions contemplated hereby (collectively, the “Communications”) available to the
Lenders by posting such notices on Intralinks, “e-Disclosure”, or a
substantially similar electronic system (the “Platform”) and (B) certain
of the Lenders may be “public-side” Lenders (i.e.,
Lenders that do not wish to receive material non-public information with
respect to Company or its securities) (each, a “Public Lender”).  Company hereby agrees that (w) all
Communications that are to be made available to Public Lenders shall be clearly
and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word
“PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Communications “PUBLIC,” the Company shall be deemed to have authorized
the Administrative Agent, the Arrangers, the Issuing Bank and the Lenders to
treat such Communications as either publicly available information or not
material information (although it may be sensitive and proprietary) with
respect to the Company or its securities for purposes of United States Federal
and state securities laws; (y) all Communications marked “PUBLIC” are permitted
to be made available through a portion of the Platform designated “Public
Investor”; and (z) the Administrative Agent and the Arrangers shall be entitled
to treat any Communications that are not marked “PUBLIC” as being suitable for
posting only on a portion of the Platform not designated “Public Investor”.  Company acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided “as is” and “as available” and
(iii) neither the Administrative Agent nor any of its Affiliates warrants
the accuracy, adequacy or completeness of the Communications or the Platform
and each expressly disclaims liability for errors or omissions in the
Communications or the Platform.  No
warranty of any kind, express, implied or statutory, including, without
limitation, any warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other code
defects, is made by the Administrative Agent or any of its Affiliates in
connection with the Platform.


 


(c)           Each
Lender agrees that notice to it (as provided in the next sentence) (an “E-Communications
Notice”)
specifying that any Communications have been posted to the Platform shall
constitute effective delivery of such information, documents or other materials
to


 


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such Lender for
purposes of this Agreement; provided
that if requested by any Lender the Administrative Agent shall deliver a copy
of the Communications to such Lender by email or telecopier.  Each Lender agrees (i) to notify the
Administrative Agent in writing of such Lender’s e-mail address to which an
E-Communications Notice may be sent by electronic transmission (including by
electronic communication) on or before the date such Lender becomes a party to
this Agreement (and from time to time thereafter to ensure that the
Administrative Agent has on record an effective e-mail address for such Lender)
and (ii) that any E-Communications Notice may be sent to such e-mail
address.


 


Section 10.2  Expenses.  Whether or not the transactions contemplated
hereby shall be consummated, Company agrees to pay promptly (a) all the
actual and reasonable costs and expenses of preparation of the commitment
package, the Credit Documents and any consents, amendments, waivers or other
modifications thereto; (b) all the costs of furnishing all opinions by
counsel for Company and the other Credit Parties; (c) the reasonable fees,
expenses and disbursements of counsel to Agents (in each case including
allocated costs of internal counsel) in connection with the negotiation,
preparation, execution and administration of the Credit Documents and any
consents, amendments, waivers or other modifications thereto and any other
documents or matters requested by Company; (d) all the actual costs and
reasonable expenses of creating and perfecting Liens in favor of Collateral
Agent, for the benefit of Lenders pursuant hereto, including filing and
recording fees, expenses and taxes, stamp or documentary taxes, search fees,
title insurance premiums and reasonable fees, expenses and disbursements of
counsel to each Agent and of counsel providing any opinions that any Agent or
Requisite Lenders may request in respect of the Collateral or the Liens created
pursuant to the Collateral Documents; (e) all the actual costs and
reasonable fees, expenses and disbursements of any auditors, accountants,
consultants or appraisers; (f) all the actual costs and reasonable
expenses (including the reasonable fees, expenses and disbursements of any
appraisers, consultants, advisors and agents employed or retained by Collateral
Agent and its counsel) in connection with the custody or preservation of any of
the Collateral; (g) all other actual and reasonable costs and expenses
incurred by each Agent in connection with the syndication of the Loans and
Commitments and the negotiation, preparation and execution of the Credit Documents
and any consents, amendments, waivers or other modifications thereto and the
transactions contemplated thereby; and (h) after the occurrence of a
Default or an Event of Default, all costs and expenses, including reasonable
financial consultant and attorneys’ fees (including allocated costs of internal
counsel) and costs of settlement, incurred by any Agent and Lenders in
enforcing any Obligations of or in collecting any payments due from any Credit
Party hereunder or under the other Credit Documents by reason of such Default
or Event of Default (including in connection with the sale of, collection from,
or other realization upon any of the Collateral or the enforcement of the
Guaranty) or in connection with any refinancing or restructuring of the credit arrangements
provided hereunder in the nature of a “work-out” or pursuant to any insolvency
or bankruptcy cases or proceedings.


 


Section 10.3  Indemnity.  (a)  In addition to the payment of
expenses pursuant to Section 10.2, whether or not the transactions
contemplated hereby shall be consummated, each Credit Party agrees to defend
(subject to Indemnitees’ selection of counsel), indemnify, pay and hold
harmless, each Agent and Lender and the officers, partners, directors,
trustees, employees, advisors, agents and Affiliates of each Agent and each
Lender (each, an “Indemnitee”),
from and against any and all Indemnified Liabilities; provided, no Credit Party shall have any
obligation to


 


104





















 


any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise from
the gross negligence or willful misconduct of that Indemnitee.  To the extent that the undertakings to
defend, indemnify, pay and hold harmless set forth in this Section 10.3
may be unenforceable in whole or in part because they are violative of any law
or public policy, the applicable Credit Party shall contribute the maximum
portion that it is permitted to pay and satisfy under applicable law to the
payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees
or any of them.  To the extent permitted
by applicable law, no Credit Party 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, any Credit
Document or any agreement or instrument or transaction contemplated hereby.


 


(b)           To
the extent permitted by applicable law, neither Company nor any of its
Subsidiaries or Affiliates shall assert, and hereby waives, any claim against
any Lender or any of their Affiliates, directors, employees, attorneys or
agents, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) (whether or not the
claim therefor is based on contract, tort or duty imposed by any applicable
legal requirement) arising out of, in connection with, arising out of, as a
result of, or in any way related to, this Agreement or any Credit Document or
any agreement or instrument contemplated hereby or thereby, the transactions
contemplated hereby or thereby, any Loan or the use of the proceeds thereof or
any act or omission or event occurring in connection therewith, and Company
hereby waives, releases and agrees not to sue upon any such claim or any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.


 


Section 10.4  Set-Off.  In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence and during the continuance of any Event of Default each
Lender and any of its Affiliates is hereby authorized by each Credit Party at
any time or from time to time subject to the consent of Administrative Agent
(such consent not to be unreasonably withheld or delayed), without notice to
any Credit Party or to any other Person (other than Administrative Agent), any
such notice being hereby expressly waived, to set off and to appropriate and to
apply any and all deposits (general or special, including Indebtedness
evidenced by certificates of deposit, whether matured or unmatured, but not
including trust accounts) and any other Indebtedness at any time held or owing
by such Lender or such Affiliate to or for the credit or the account of any
Credit Party against and on account of the obligations and liabilities of any
Credit Party to such Lender or such Affiliate hereunder and under the other
Credit Documents, including all claims of any nature or description arising out
of or connected hereto or with any other Credit Document, irrespective of
whether or not (a) such Lender or such Affiliate shall have made any
demand hereunder or (b) the principal of or the interest on the Loans or
any other amounts due hereunder shall have become due and payable pursuant to Article II
or Article VIII, as the case may be, and although such obligations and
liabilities, or any of them, may be contingent or unmatured.  Each Credit Party hereby further grants to
Administrative Agent, Collateral Agent, each Lender and each of the Lenders’
Affiliates a security interest in all Deposit Accounts maintained with
Administrative Agent, such Lender or any of such Lenders’ Affiliates as
security for the Obligations.


 


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Section 10.5  Amendments
and Waivers.  (a)  Requisite
Lenders’ Consent.  Subject to Section 10.5(b) and
10.5(c), no amendment, modification, termination or waiver of any provision of
the Credit Documents, or consent to any departure by any Credit Party
therefrom, shall in any event be effective without the written concurrence of
the Requisite Lenders.


 


(b)           All
Lenders’ Consent.  Without the written
consent of all Lenders, no amendment, modification, termination, or consent
shall be effective if the effect thereof would:


 


(i)            extend
the scheduled final maturity of any Loan or any Note;


 


(ii)           waive,
reduce or postpone any scheduled repayment (but not prepayment);


 


(iii)          reduce
the rate of interest on any Loan (other than any waiver of any increase in the
interest rate applicable to any Loan pursuant to Section 2.7) or any fee
payable hereunder;


 


(iv)          extend
the time for payment of any such interest or fees;


 


(v)           reduce
the principal amount of any Loan or increase the Commitment of any Lender;


 


(vi)          amend,
modify, terminate or waive any provision of this Section 10.5(b) or Section 10.5(c);


 


(vii)         amend
the definition of “Requisite
Lenders” or “Pro Rata Share”; provided, with the consent of Requisite
Lenders, additional extensions of credit pursuant hereto may be included in the
determination of “Requisite
Lenders” or “Pro Rata Share” on
substantially the same basis as the Commitments and the Loans are included on
the Closing Date;


 


(viii)        release
a material portion of the Collateral or any material Guarantor from the
Guaranty except as expressly provided in the Credit Documents; or


 


(ix)           consent
to the assignment or transfer by any Credit Party of any of its rights and
obligations under any Credit Document.


 


(c)           Other
Consents.  No amendment,
modification, termination or waiver of any provision of the Credit Documents,
or consent to any departure by any Credit Party therefrom, shall amend, modify,
terminate or waive any provision of Section 9 as the same applies to any
Agent, or any other provision hereof as the same applies to the rights or
obligations of any Agent, in each case without the consent of such Agent.


 


(d)           Execution
of Amendments, Etc.  Administrative
Agent may, but shall have no obligation to, with the concurrence of any Lender,
execute amendments, modifications, waivers or consents on behalf of such
Lender.  Any waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it was given.  No notice to or demand on
any Credit Party in any case shall entitle any Credit Party to any other or
further notice or


 


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demand in similar or other circumstances.  Any amendment, modification, termination,
waiver or consent effected in accordance with this Section 10.5 shall be
binding upon each Lender at the time outstanding, each future Lender and, if
signed by a Credit Party, on such Credit Party.


 


Section 10.6  Successors
and Assigns; Participations.  (a) 
Generally.  This Agreement shall
be binding upon the parties hereto and their respective successors and assigns
and shall inure to the benefit of the parties hereto and the successors and
assigns of Lenders and the permitted successors and assigns of the Credit
Parties.  No Credit Party’s rights or
obligations hereunder nor any interest therein may be assigned or delegated by
any Credit Party without the prior written consent of all Lenders.  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 and, to the
extent expressly contemplated hereby, Affiliates of each of the Agents and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.


 


(b)           Register.  Company, Administrative Agent and Lenders
shall deem and treat the Persons listed as Lenders in the Register as the
holders and owners of the corresponding Loans listed therein for all purposes
hereof, and no assignment or transfer of any such Loan shall be effective, in
each case, unless and until an Assignment Agreement effecting the assignment or
transfer thereof shall have been delivered to and accepted by Administrative
Agent and recorded in the Register as provided in Section 10.6(e).  Prior to such recordation, all amounts owed
with respect to the applicable Loan shall be owed to the Lender listed in the
Register as the owner thereof, and any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is listed in the Register as a Lender shall be conclusive and binding
on any subsequent holder, assignee or transferee of the corresponding Loans.


 


(c)           Right
to Assign.  Each Lender shall have
the right at any time to sell, assign or transfer all or a portion of its
rights and obligations under this Agreement, including, without limitation, all
or a portion of its Loans owing to it or other Obligation (provided, however, that each such
assignment shall be of a uniform, and not varying, percentage of all rights and
obligations under and in respect of any Loan):


 


(i)            to
any Person meeting the criteria of clause (iv) of the definition of the
term of “Eligible Assignee” upon the giving of notice to Company, each Issuing
Bank and Administrative Agent; and


 


(ii)           to
any Person meeting the criteria of any other clause of the definition of the
term of “Eligible Assignee” with the consent of Administrative Agent, the
Issuing Bank and, if no Default or Event of Default has occurred and is
continuing, Company (each such consent not to be unreasonably withheld or
delayed); provided that each such
assignment pursuant to this Section 10.6(c) shall be in an aggregate
amount of not less than $1.0 million (or such lesser amount as may be agreed to
by Administrative Agent and, if no Default has occurred and is continuing,
Company, or as shall constitute the aggregate amount of the Loans of the
assigning Lender) with respect to the assignment of Loans.


 


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(d)           Mechanics.  The assigning Lender and the assignee thereof
shall execute and deliver to Administrative Agent an Assignment Agreement,
together with such forms, certificates or other evidence, if any, with respect
to United States federal income tax withholding matters as the assignee under
such Assignment Agreement may be required to deliver to Administrative Agent
pursuant to Section 2.13.


 


(e)           Notice
of Assignment.  Upon its receipt of a
duly executed and completed Assignment Agreement, together with any forms,
certificates or other evidence required by this Agreement in connection
therewith, Administrative Agent shall record the information contained in such
Assignment Agreement in the Register, shall give prompt notice thereof to
Company (but in no event shall Administrative Agent be required to give such
notice more frequently than once per week) and shall maintain a copy of such
Assignment Agreement.


 


(f)            Representations
and Warranties of Assignee.  Each
Lender, upon execution and delivery hereof or upon executing and delivering an
Assignment Agreement, as the case may be, represents and warrants as of the
Closing Date or as of the applicable Effective Date (as defined in the
applicable Assignment Agreement) that (i) it is an Eligible Assignee; (ii) it
has experience and expertise in the making of or investing in loans such as the
applicable Loans; and (iii) it will make or invest in, as the case may be,
its Loans for its own account in the ordinary course of its business and
without a view to distribution of such Loans within the meaning of the
Securities Act or the Exchange Act or other federal securities laws (it being
understood that, subject to the provisions of this Section 10.6, the
disposition of such Loans or any interests therein shall at all times remain
within its exclusive control).


 


(g)           Effect
of Assignment.  Subject to the terms
and conditions of this Section 10.6, as of the “Effective
Date”
specified in the applicable Assignment Agreement: (i) the assignee
thereunder shall have the rights and obligations of a “Lender” or “Issuing
Bank”
hereunder, as the case may be, to the extent such rights and obligations
hereunder have been assigned to it pursuant to such Assignment Agreement and
shall thereafter be a party hereto and a “Lender” or “Issuing
Bank”
for all purposes hereof; (ii) the assigning Lender or Issuing Bank
thereunder shall, to the extent that rights and obligations hereunder have been
assigned thereby pursuant to such Assignment Agreement, relinquish its rights
(other than any rights which survive the termination hereof under Section 10.8)
and be released from its obligations hereunder (and, in the case of an
Assignment Agreement covering all or the remaining portion of an assigning
Lender’s or Issuing Bank’s rights and obligations hereunder, such Lender or
Issuing Bank shall cease to be a party hereto; provided,
anything contained in any of the Credit Documents to the contrary notwithstanding,
such assigning Lender or Issuing Bank shall continue to be entitled to the
benefit of all indemnities hereunder as specified herein with respect to
matters arising out of the prior involvement of such assigning Lender or
Issuing Bank as a Lender or Issuing Bank hereunder); and (iii) if any such
assignment occurs after the issuance of any Note hereunder, the assigning
Lender shall, upon the effectiveness of such assignment or as promptly
thereafter as practicable, surrender its applicable Notes to Administrative
Agent for cancellation, and thereupon Company shall issue and deliver new
Notes, if so requested by the assignee and/or assigning Lender, to such
assignee and/or to such assigning Lender, with appropriate insertions, to
reflect the outstanding Loans of the assignee and/or the assigning Lender.  Notwithstanding the foregoing, an assignee,
including an Eligible Assignee, shall not be entitled to receive any greater
payment under Section 2.13 or Section 2.16 than the applicable


 


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Lender making such assignment would have been entitled
to receive with respect to the assigned portion of the rights and obligations
under this Agreement.


 


(h)           The
Issuing Bank may assign to an Eligible Assignee all of its rights and
obligations under the undrawn portion of its Letter of Credit Commitment at any
time; provided, however, that (i) each
such assignment shall be to an Eligible Assignee and (ii) the parties to
each such assignment shall execute and deliver to Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance,
together with a processing and recordation fee of $3,500.


 


(i)            Participations.  Each Lender, without notice to or consent of
Administrative Agent or Company, shall have the right at any time to sell one
or more participations to any Person (other than Company, any of its
Subsidiaries or any of its Affiliates) in all or any part of its Commitments,
Loans or in any other Obligation.  The
holder of any such participation, other than an Affiliate of the Lender
granting such participation, shall not be entitled to require such Lender to
take or omit to take any action hereunder except with respect to any amendment,
modification or waiver that would (i) extend the final scheduled maturity
of any Loan or Note in which such participant is participating, or reduce the
rate or extend the time of payment of interest or fees thereon (except in
connection with a waiver of applicability of any post-default increase in interest
rates) or reduce the principal amount thereof, or increase the amount of the
participant’s participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default shall not
constitute a change in the terms of such participation, and that an increase in
any Loan shall be permitted without the consent of any participant if the
participant’s participation is not increased as a result thereof), (ii) consent
to the assignment or transfer by any Credit Party of any of its rights and
obligations under this Agreement or (iii) release a material portion of
the Collateral under the Collateral Documents or any material Guarantor from
the Guaranty (except as expressly provided in the Credit Documents) supporting
the Loans hereunder in which such participant is participating.  Company agrees that each participant shall be
entitled to the benefits of Sections 2.13 and 2.16 and 2.18 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (c) of this Section; provided,
(i) a participant shall not be entitled to receive any greater payment
under Section 2.13 or 2.16 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 Company’s
prior written consent, including consent to greater payment under Section 2.13
and (ii) a participant that would be a Non-US Lender if it were a Lender
shall not be entitled to any of the benefits of Section 2.13 unless
Company is notified of the participation sold to such participant and such
participant agrees, for the benefit of Company, to comply with Section 2.13
as though it were a Lender.  To the
extent permitted by law, each participant also shall be entitled to the
benefits of Section 10.4 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.12 as though it were a Lender.


 


(j)            Certain
Other Assignments.  In addition to any
other assignment permitted pursuant to this Section 10.6, any Lender may
assign and/or pledge (without notice to or the consent of Administrative Agent
or Company) all or any portion of its Loans, the other Obligations owed by or
to such Lender, and its Notes, if any, to secure obligations of such Lender
including, without limitation, to any Federal Reserve Bank as collateral
security pursuant


 


109





















 


to Regulation A of
the Board of Governors of the Federal Reserve System and any operating circular
issued by such Federal Reserve Bank; provided,
no Lender, as between Company and such Lender, shall be relieved of any of its
obligations hereunder as a result of any such assignment and pledge, and provided further, in no event shall the
applicable Federal Reserve Bank or trustee be considered to be a “Lender” or be
entitled to require the assigning Lender to take or omit to take any action
hereunder.  In the case of any Lender
that is a fund that invests in bank loans, such Lender may, without the consent
of Company or Administrative Agent, assign or pledge all or any portion of its
rights under this Agreement, including the Loans and Notes or any other
instrument evidencing its rights as a Lender under this Agreement, to any
holder of, trustee for, or any other representative of holders of, obligations
owed or securities issued, by such fund, as security for such obligations or
securities; provided that any
foreclosure or similar action by such trustee or representative shall be
subject to the provisions of Section 10.6(c) concerning assignments.


 


Section 10.7  Independence
of Covenants.  All covenants
hereunder shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or would otherwise be within the limitations of,
another covenant shall not avoid the occurrence of a Default or an Event of
Default if such action is taken or condition exists.


 


Section 10.8  Survival of
Representations, Warranties and Agreements. 
All representations, warranties and agreements made herein shall survive
the execution and delivery hereof and the making of any Loan.  Notwithstanding anything herein or implied by
law to the contrary, the agreements of each Credit Party set forth in Sections
2.13, 2.16, 2.18, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth
in Sections 2.12, 9.6 and 10.18 shall survive the payment of the Loans.


 


Section 10.9  No Waiver;
Remedies Cumulative.  No failure or
delay on the part of any Agent or any Lender in the exercise of any power,
right or privilege hereunder or under any other Credit Document shall impair
such power, right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise thereof or of any
other power, right or privilege.  The
rights, powers and remedies given to each Agent and each Lender hereby are
cumulative and shall be in addition to and independent of all rights, powers
and remedies existing by virtue of any statute or rule of law or in any of
the other Credit Documents or any of the Hedge Agreements.  Any forbearance or failure to exercise, and
any delay in exercising, any right, power or remedy hereunder shall not impair
any such right, power or remedy or be construed to be a waiver thereof, nor
shall it preclude the further exercise of any such right, power or remedy.


 


Section 10.10  Marshalling;
Payments Set Aside.  Neither any
Agent nor any Lender shall be under any obligation to marshal any assets in
favor of any Credit Party or any other Person or against or in payment of any
or all of the Obligations.  To the extent
that any Credit Party makes a payment or payments to Administrative Agent or
Lenders (or to Administrative Agent, on behalf of Lenders), or Administrative
Agent or Lenders enforce any security interests or exercise their rights of
setoff, and such payment or payments or the proceeds of such enforcement or
setoff or any part thereof are subsequently invalidated, declared to be


 


110





















 


fraudulent or preferential, set aside and/or required
to be repaid to a trustee, receiver or any other party under any bankruptcy
law, any other state or federal law, common law or any equitable cause, then,
to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied, and all Liens, rights and remedies therefor or
related thereto, shall be revived and continued in full force and effect as if
such payment or payments had not been made or such enforcement or setoff had
not occurred.


 


Section 10.11  Patriot
Act Notice.  Each of the Agents and
Lender Parties hereby notify the Credit Parties that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record
information that identifies each Credit Party, which information includes names
and addresses and other information that will allow it to identify each Credit
Party in accordance with the Patriot Act.


 


Section 10.12  Severability.  In case any provision in or obligation
hereunder or any Note shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.


 


Section 10.13  Obligations
Several; Independent Nature of Lenders’ Rights.  The obligations of Lenders hereunder are
several and no Lender shall be responsible for the obligations or Commitment of
any other Lender hereunder.  Nothing
contained herein or in any other Credit Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out hereof and it shall not be necessary for any other Lender to
be joined as an additional party in any proceeding for such purpose.


 


Section 10.14  Headings.  Section headings herein are included
herein for convenience of reference only and shall not constitute a part hereof
for any other purpose or be given any substantive effect.


 


Section 10.15  APPLICABLE
LAW.  THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK); PROVIDED THAT
EACH AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.


 


Section 10.16  CONSENT TO
JURISDICTION.  ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY CREDIT PARTY ARISING OUT OF OR RELATING HERETO
OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN
ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND
CITY OF NEW YORK.  BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION WITH
ITS PROPERTIES, IRREVOCABLY (a) ACCEPTS


 


111





















 


GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS; (b) WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS; (c) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING
IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN
ACCORDANCE WITH SECTION 10.1; (d) AGREES THAT SERVICE AS PROVIDED IN
CLAUSE (c) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE
APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE
CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (e) AGREES
AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS
OF ANY OTHER JURISDICTION.


 


Section 10.17  WAIVER OF
JURY TRIAL.  EACH OF THE PARTIES
HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE
OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT
MATTER OF THIS LOAN TRANSACTION OR THE LENDER/COMPANY RELATIONSHIP THAT IS
BEING ESTABLISHED.  THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS.  EACH
PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER
INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN
ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS
WAIVER IN ITS RELATED FUTURE DEALINGS. 
EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT
BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
SPECIFICALLY REFERRING TO THIS SECTION 10.17 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT
DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE
HEREUNDER.  IN THE EVENT OF LITIGATION,
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.


 


Section 10.18  Confidentiality.  Each Lender and each Agent shall hold all
non-public information regarding Company and its business identified as such by
Company and obtained by such Lender or such Agent pursuant to the requirements
hereof in accordance with such Lender’s customary procedures for handling
confidential information of such nature, it being understood and agreed by
Company that, in any event, a Lender or an Agent may make (i)


 


112





















 


disclosures of such information on a need-to-know basis
to Affiliates of such Lender and to their respective agents and advisors (and
to other persons authorized by a Lender or Agent to organize, present or
disseminate such information in connection with disclosures otherwise made in
accordance with this Section 10.18), (ii) disclosures of such
information reasonably required by any bona fide or potential assignee,
transferee or participant in connection with the contemplated assignment,
transfer or participation by such Lender of any Loans or any participations
therein or by any direct or indirect contractual counterparties (or the
professional advisors thereto) in Hedge Agreements (provided, such counterparties and advisors are advised of
and agree to be bound by the provisions of this Section 10.18), (iii) disclosure
to any rating agency when required by it, provided
that, prior to any disclosure, such rating agency shall undertake in writing to
preserve the confidentiality of any confidential information relating to the
Credit Parties received by it from any of the Agents or any Lender, and (iv) disclosures
required or requested by any governmental agency or representative thereof or
by the NAIC or pursuant to legal or judicial process; provided, unless specifically prohibited
by applicable law or court order, each Lender and each Agent shall make
reasonable efforts to notify Company of any request by any governmental agency
or representative thereof (other than any such request in connection with any
examination of the financial condition or other routine examination of such
Lender by such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information.


 


Section 10.19  Usury
Savings Clause.  Notwithstanding any
other provision herein, the aggregate interest rate charged with respect to any
of the Obligations, including all charges or fees in connection therewith
deemed in the nature of interest under applicable law shall not exceed the
Highest Lawful Rate.  If the rate of interest
(determined without regard to the preceding sentence) under this Agreement at
any time exceeds the Highest Lawful Rate, the outstanding amount of the Loans
made hereunder shall bear interest at the Highest Lawful Rate until the total
amount of interest due hereunder equals the amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect.  In
addition, if when the Loans made hereunder are repaid in full the total interest
due hereunder (taking into account the increase provided for above) is less
than the total amount of interest which would have been due hereunder if the
stated rates of interest set forth in this Agreement had at all times been in
effect, then to the extent permitted by law, Company shall pay to
Administrative Agent an amount equal to the difference between the amount of
interest paid and the amount of interest which would have been paid if the
Highest Lawful Rate had at all times been in effect.  Notwithstanding the foregoing, it is the intention
of Lenders and Company to conform strictly to any applicable usury laws.  Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be cancelled automatically
and, if previously paid, shall at such Lender’s option be applied to the
outstanding amount of the Loans made hereunder or be refunded to Company.


 


Section 10.20  Counterparts.  This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed
an original, but all such counterparts together shall constitute but one and
the same instrument.


 


Section 10.21  No
Liability of the Issuing Banks.  Company
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its


 


113





















 


use of such Letter of Credit.  None of the Issuing Banks nor any of their
officers or directors shall be liable or responsible for:  (a) the use that may be made of any
Letter of Credit or any acts or omissions of any beneficiary or transferee in
connection therewith; (b) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove
to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment
by any Issuing Bank against presentation of documents that do not comply with
the terms of a Letter of Credit, including failure of any documents to bear any
reference or adequate reference to the Letter of Credit; or (d) any other
circumstances whatsoever in making or failing to make payment under any Letter
of Credit, except that Company shall have a claim against any Issuing Bank, and
such Issuing Bank shall be liable to Company, to the extent of any direct, but
not consequential, damages suffered by Company that Company proves were caused
by (i) such Issuing Bank’s willful misconduct or gross negligence as
determined in a final non-appealable judgment by a court of a competent
jurisdiction in determining whether documents presented under any Letter of
Credit comply with the terms of the Letter of Credit or (ii) such Issuing
Bank’s willful failure to make lawful payment under a Letter of Credit after
the presentation to it of a draft and certificates strictly complying with the
terms and conditions of the Letter of Credit. 
In furtherance and not in limitation of the foregoing, the Issuing Banks
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.


 


Section 10.22  Effectiveness.  Subject to Section 3.1, this Agreement
shall become effective upon the execution of a counterpart hereof by each of
the parties hereto and receipt by Company and Administrative Agent of written
or telephonic notification of such execution and authorization of delivery
thereof.


 


Section 10.23  Amendment
and Restatement.  This Agreement
amends and restates the Existing Credit Agreement in its entirety.


 


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114





















 


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


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  SANMINA-SCI CORPORATION,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 





















 


	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  HADCO CORPORATION

  
	
   

  	
  HADCO SANTA CLARA, INC.

  
	
   

  	
  SCI TECHNOLOGY, INC.

  
	
   

  	
  VIKING INTERWORKS INC.

  
	
   

  	
  COMPATIBLE MEMORY, INC.

  
	
   

  	
  SCI SYSTEMS, INC.

  
	
   

  	
  SANMINA-SCI SYSTEMS (ALABAMA) INC.

  
	
   

  	
  SANMINA-SCI SYSTEMS HOLDINGS, INC.

  
	
   

  	
  INTERAGENCY, INC.

  
	
   

  	
  SANMINA-SCI SYSTEMS
  ENCLOSURES

  (DENTON) INC.

  
	
   

  	
  SCIMEX, INC.

  
	
   

  	
  NEWISYS, INC.

  
	
   

  	
  SANMINA-SCI ENCLOSURES USA INC.

  
	
   

  	
  SANMINA-SCI USA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  All
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 





















 


	
   

  	
  SCI PLANT No. 5, L.L.C.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SANMINA-SCI
  SYSTEMS (ALABAMA) INC.,

  
	
   

  	
  its
  Sole Member

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 





















 


	
   

  	
  SCI PLANT No. 22, L.L.C.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SCI
  TECHNOLOGY, INC.,

  	
   

  
	
   

  	
  its
  Sole Member

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 





















 


	
   

  	
  SANMINA GENERAL, L.L.C.

  	
   

  
	
   

  	
  SANMINA LIMITED, L.L.C.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  All
  by:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SANMINA-SCI
  CORPORATION,

  	
   

  
	
   

  	
  their
  Sole Member

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 





















 


	
   

  	
  SANMINA TEXAS, L.P.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  SANMINA
  GENERAL, L.L.C.,

  
	
   

  	
   

  	
  its
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  SANMINA-SCI
  CORPORATION,

  
	
   

  	
   

  	
   

  	
  its
  Sole Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
						



 





















 


	
   

  	
  ADMINISTRATIVE AGENT:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 





















 


	
   

  	
  COLLATERAL AGENT:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CITIBANK, N.A.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 





















 


	
   

  	
  SYNDICATION AGENT:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CITICORP USA, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 





















 


	
   

  	
  CO-DOCUMENTATION AGENTS:

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NOVA SCOTIA

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK TRUST COMPANY

  AMERICAS

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  KEYBANK NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 





















 


	
   

  	
  INITIAL ISSUING BANKS:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CITIBANK, N.A.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 





















 


	
   

  	
  LENDERS:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CITIBANK, N.A.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NOVA SCOTIA

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK TRUST COMPANY

  AMERICAS

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  KEYBANK NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 





















 


	
   

  	
  SUNTRUST BANK

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, N.A.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title: