exv10w11



 




Exhibit 10.11


 




CREDIT AGREEMENT


dated as of


December 21, 2005


among


CCE SPINCO, INC.,


SFX ENTERTAINMENT, INC. and

THE FOREIGN BORROWERS PARTY HERETO,

as Borrowers,


THE LENDERS PARTY HERETO,


JPMORGAN CHASE BANK, N.A.,

as Administrative Agent,


JPMORGAN CHASE BANK, N.A., TORONTO BRANCH,

as Canadian Agent,


J.P. MORGAN EUROPE LIMITED,

as London Agent,


and


BANK OF AMERICA, N.A.,

as Syndication Agent


 




J.P. MORGAN SECURITIES INC.                      BANC OF AMERICA SECURITIES LLC

as Co-Lead Arrangers and Joint Bookrunners


 










 



 




TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I

	 
	 	 	 	 	 	 
	Definitions

	 
	 	 	 	 	 	 
	SECTION 1.01.
	 	Defined Terms	 	 	2	 
	SECTION 1.02.
	 	Classification of Loans and Borrowings	 	 	36	 
	SECTION 1.03.
	 	Terms Generally	 	 	36	 
	SECTION 1.04.
	 	Accounting Terms; GAAP; Pro Forma Calculations	 	 	36	 
	SECTION 1.05.
	 	Effectuation of Transfers	 	 	37	 
	SECTION 1.06.
	 	Exchange Rates	 	 	37	 
	SECTION 1.07.
	 	Redenomination of Certain Foreign Currencies	 	 	37	 
	 
	 	 	 	 	 	 
	ARTICLE II

	 
	 	 	 	 	 	 
	The Credits

	 
	 	 	 	 	 	 
	SECTION 2.01.
	 	Commitments	 	 	38	 
	SECTION 2.02.
	 	Loans and Borrowings	 	 	38	 
	SECTION 2.03.
	 	Requests for Borrowings	 	 	39	 
	SECTION 2.04.
	 	Swingline Loans	 	 	40	 
	SECTION 2.05.
	 	Letters of Credit	 	 	42	 
	SECTION 2.06.
	 	Funding of Borrowings and B/A Drawings	 	 	47	 
	SECTION 2.07.
	 	Interest Elections	 	 	48	 
	SECTION 2.08.
	 	Termination and Reduction of Commitments	 	 	50	 
	SECTION 2.09.
	 	Repayment of Loans and B/As; Evidence of Debt	 	 	51	 
	SECTION 2.10.
	 	Amortization of Term Loans	 	 	52	 
	SECTION 2.11.
	 	Prepayment of Loans and B/As	 	 	52	 
	SECTION 2.12.
	 	Fees	 	 	55	 
	SECTION 2.13.
	 	Interest	 	 	57	 
	SECTION 2.14.
	 	Alternate Rate of Interest	 	 	57	 
	SECTION 2.15.
	 	Increased Costs; Illegality	 	 	58	 
	SECTION 2.16.
	 	Break Funding Payments	 	 	61	 
	SECTION 2.17.
	 	Taxes	 	 	62	 
	SECTION 2.18.
	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	 	 	63	 
	SECTION 2.19.
	 	Mitigation Obligations; Replacement of Lenders	 	 	65	 
	SECTION 2.20.
	 	Canadian Bankers’ Acceptances	 	 	66	 
	SECTION 2.21.
	 	Incremental Commitments	 	 	69	 
	SECTION 2.22.
	 	Additional Reserve Costs	 	 	71	 
	SECTION 2.23.
	 	Foreign Borrowers	 	 	71	 












 



 


	 	 	 	 	 	 	 
	ARTICLE III

	 
	 	 	 	 	 	 
	Representations and Warranties

	 
	 	 	 	 	 	 
	SECTION 3.01.
	 	Organization; Powers	 	 	72	 
	SECTION 3.02.
	 	Authorization; Enforceability	 	 	72	 
	SECTION 3.03.
	 	Governmental Approvals; No Conflicts	 	 	72	 
	SECTION 3.04.
	 	Financial Condition; No Material Adverse Change	 	 	73	 
	SECTION 3.05.
	 	Properties	 	 	73	 
	SECTION 3.06.
	 	Litigation and Environmental Matters	 	 	74	 
	SECTION 3.07.
	 	Compliance with Laws and Agreements	 	 	74	 
	SECTION 3.08.
	 	Investment and Holding Company Status	 	 	74	 
	SECTION 3.09.
	 	Taxes	 	 	74	 
	SECTION 3.10.
	 	ERISA	 	 	75	 
	SECTION 3.11.
	 	Disclosure	 	 	75	 
	SECTION 3.12.
	 	Subsidiaries and Joint Ventures	 	 	75	 
	SECTION 3.13.
	 	Insurance	 	 	75	 
	SECTION 3.14.
	 	Labor Matters	 	 	76	 
	SECTION 3.15.
	 	Solvency	 	 	76	 
	SECTION 3.16.
	 	Status of Obligations	 	 	76	 
	SECTION 3.17.
	 	Collateral Matters	 	 	76	 
	SECTION 3.18.
	 	Immunities, Etc	 	 	77	 
	 
	 	 	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 	 	 
	Conditions

	 
	 	 	 	 	 	 
	SECTION 4.01.
	 	Effective Date	 	 	78	 
	SECTION 4.02.
	 	Each Credit Event	 	 	80	 
	SECTION 4.03.
	 	First Credit Extension to a Foreign Borrower	 	 	80	 
	 
	 	 	 	 	 	 
	ARTICLE V

	 
	 	 	 	 	 	 
	Affirmative Covenants

	 
	 	 	 	 	 	 
	SECTION 5.01.
	 	Financial Statements and Other Information	 	 	81	 
	SECTION 5.02.
	 	Notices of Material Events	 	 	83	 
	SECTION 5.03.
	 	Information Regarding Collateral	 	 	84	 
	SECTION 5.04.
	 	Existence; Conduct of Business	 	 	85	 
	SECTION 5.05.
	 	Payment of Obligations	 	 	85	 
	SECTION 5.06.
	 	Maintenance of Properties	 	 	85	 
	SECTION 5.07.
	 	Insurance	 	 	85	 
	SECTION 5.08.
	 	Casualty and Condemnation	 	 	86	 
	SECTION 5.09.
	 	Books and Records; Inspection and Audit Rights	 	 	86	 
	SECTION 5.10.
	 	Compliance with Laws	 	 	86	 
	SECTION 5.11.
	 	Additional Subsidiaries	 	 	86	 
	SECTION 5.12.
	 	Further Assurances	 	 	86	 












 



 


	 	 	 	 	 	 	 
	SECTION 5.13.
	 	Interest Rate Protection	 	 	87	 
	SECTION 5.14.
	 	Ownership of Foreign Borrowers	 	 	87	 
	 
	 	 	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 	 	 
	Negative Covenants

	 
	 	 	 	 	 	 
	SECTION 6.01.
	 	Indebtedness; Certain Equity Securities	 	 	87	 
	SECTION 6.02.
	 	Liens	 	 	89	 
	SECTION 6.03.
	 	Fundamental Changes	 	 	90	 
	SECTION 6.04.
	 	Investments, Loans, Advances, Guarantees and Acquisitions	 	 	91	 
	SECTION 6.05.
	 	Asset Sales	 	 	94	 
	SECTION 6.06.
	 	Sale and Leaseback Transactions	 	 	95	 
	SECTION 6.07.
	 	Swap Agreements	 	 	95	 
	SECTION 6.08.
	 	Restricted Payments; Certain Payments of Indebtedness	 	 	95	 
	SECTION 6.09.
	 	Transactions with Affiliates	 	 	97	 
	SECTION 6.10.
	 	Restrictive Agreements	 	 	98	 
	SECTION 6.11.
	 	Amendment of Material Documents	 	 	98	 
	SECTION 6.12.
	 	Use of Proceeds and Letters of Credit	 	 	98	 
	SECTION 6.13.
	 	Interest Expense Coverage Ratio	 	 	99	 
	SECTION 6.14.
	 	Leverage Ratio	 	 	99	 
	SECTION 6.15.
	 	Senior Leverage Ratio	 	 	99	 
	SECTION 6.16.
	 	Capital Expenditures	 	 	99	 
	SECTION 6.17.
	 	Accounting Changes	 	 	100	 
	 
	 	 	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 	 	 
	Events of Default

	 
	 	 	 	 	 	 
	SECTION 7.01.
	 	Events of Default	 	 	100	 
	SECTION 7.02.
	 	CAM	 	 	103	 
	 
	 	 	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 	 	 
	The Agents

	 
	 	 	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 	 	 
	Miscellaneous

	 
	 	 	 	 	 	 
	SECTION 9.01.
	 	Notices	 	 	107	 
	SECTION 9.02.
	 	Waivers; Amendments	 	 	108	 
	SECTION 9.03.
	 	Expenses; Indemnity; Damage Waiver	 	 	109	 
	SECTION 9.04.
	 	Successors and Assigns	 	 	111	 
	SECTION 9.05.
	 	Survival	 	 	115	 
	SECTION 9.06.
	 	Counterparts; Integration; Effectiveness	 	 	115	 
	SECTION 9.07.
	 	Severability	 	 	116	 












 



 


	 	 	 	 	 	 	 
	SECTION 9.08.
	 	Right of Setoff	 	 	116	 
	SECTION 9.09.
	 	Governing Law; Jurisdiction; Consent to Service of Process	 	 	116	 
	SECTION 9.10.
	 	WAIVER OF JURY TRIAL	 	 	117	 
	SECTION 9.11.
	 	Headings	 	 	117	 
	SECTION 9.12.
	 	Confidentiality	 	 	117	 
	SECTION 9.13.
	 	Interest Rate Limitation	 	 	118	 
	SECTION 9.14.
	 	Release of Liens and Guarantees	 	 	118	 
	SECTION 9.15.
	 	Conversion of Currencies	 	 	119	 
	SECTION 9.16.
	 	USA Patriot Act Notice	 	 	119	 












 



 


SCHEDULES:




Schedule 1.01 — Consolidated EBITDA Adjustments

Schedule 2.01 — Commitments

Schedule 2.05 — Existing Letters of Credit

Schedule 3.06 — Disclosed Matters

Schedule 3.12 — Subsidiaries and Joint Ventures

Schedule 3.13 — Insurance

Schedule 3.17 — Filings

Schedule 6.01 — Existing Indebtedness

Schedule 6.02 — Existing Liens

Schedule 6.03 — Holdco #1 Real Property

Schedule 6.04(b) — Existing Investments

Schedule 6.04(m) — Required Investments

Schedule 6.08 — Existing Holding Company Obligations

Schedule 6.09 — Existing Affiliate Transactions

Schedule 6.10 — Existing Restrictions




EXHIBITS:




Exhibit A — Form of Assignment and Assumption

Exhibit B — Form of Domestic Collateral Agreement

Exhibit C — Form of Foreign Borrower Agreement

Exhibit D — Form of Foreign Borrower Termination

Exhibit E — Form of Perfection Certificate

Exhibit F — Permitted Subordinated Indebtedness Terms

Exhibit G — Mandatory Costs Rate Formula

Exhibit H-1 — Form of Opinion of US Borrower Counsel

Exhibit H-2 — Form of Opinion of Local Counsel

Exhibit I — Form of Financial Officer Solvency Certificate










 



 



     CREDIT AGREEMENT dated as of December 21, 2005 (this
“Agreement”), among CCE SPINCO, INC., SFX ENTERTAINMENT, INC., the
FOREIGN BORROWERS party hereto, the LENDERS party hereto, JPMORGAN CHASE
BANK, N.A., as Administrative Agent, JPMORGAN CHASE BANK, N.A., TORONTO
BRANCH, as Canadian Agent, J.P. MORGAN EUROPE LIMITED, as London Agent,
and BANK OF AMERICA, N.A., as Syndication Agent.



          WHEREAS, Clear Channel Communications, Inc., a Texas corporation (“CCU”) and the owner
of all of the issued and outstanding capital stock of CCE Spinco, Inc., a Delaware corporation
(“Parent”), will effect a spin-off (the “Spin-Off”) of its live entertainment and
live entertainment-related businesses (collectively, the “Business”) through (a) the
contribution of assets and subsidiaries relating to the Business to Parent and/or one or more
Subsidiaries and (b) the distribution of 100% of the shares of common stock of Parent to the
holders of common stock of CCU, as described in the Information Statement attached as an exhibit to
the Form 10 filed by Parent with the Securities and Exchange Commission on October 18, 2005 (as
amended from time to time prior to the consummation of the Spin-Off, the “Form 10”).




          WHEREAS, on or prior to the Effective Date, (a) each Loan Party shall execute and deliver the
Loan Documents to which it is a party, the Term Loans shall be made, and certain Letters of Credit
shall be issued, (b) CCE Holdco #2, Inc., a Delaware corporation (“Holdco #2”) that is an
indirect wholly owned subsidiary of Parent and that will become the owner of all of the issued and
outstanding capital stock of the US Borrower, will issue shares of its Series A redeemable
preferred stock (the “Series A Preferred Stock”) with an aggregate liquidation preference
of US$20,000,000 to third-party investors for aggregate net cash proceeds to Holdco #2 of not less
than US$20,000,000, (c) Holdco #2 will issue shares of its Series B redeemable preferred stock (the
“Series B Preferred Stock” and, together with the Series A Preferred Stock, the
“Preferred Stock”) with an aggregate liquidation preference of US$20,000,000 to Parent in
exchange for the capital stock of the US Borrower and (d) Parent, the Borrowers and the other
Subsidiaries will apply a portion of the proceeds of the Term Loans and the issuance of the Series
A Preferred Stock to (i) repay approximately US$220,000,000 of outstanding intercompany
indebtedness owed by Parent, the Borrowers and the other Subsidiaries (the “Intercompany Debt
Repayment”) and (ii) pay fees and expenses incurred in connection with the foregoing (the
“Transaction Costs”). The transactions described in clauses (a) through (d) of the
immediately preceding sentence are collectively referred to herein as the “Transactions”.




          WHEREAS, in connection with the foregoing, the Borrowers have requested that the Lenders
extend credit in the form of Term Loans, Revolving Loans and B/As and the Issuing Banks issue
Letters of Credit, in each case in the manner and subject to the conditions set forth herein.




          NOW, THEREFORE, in connection therewith, the parties hereto agree as follows:










 



2




ARTICLE I




Definitions




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




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




          “Act” has the meaning set forth in Section 9.16.




          “Adjusted Eurocurrency Rate” means, (a) with respect to any Eurocurrency Borrowing for
any Interest Period that is denominated in US Dollars, an interest rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to (i) the LIBO Rate for such Interest Period
multiplied by (ii) the Statutory Reserves and (b) with respect to any Eurocurrency Borrowing for
any Interest Period that is denominated in a Foreign Currency, an interest rate per annum equal to
(i) for any Eurocurrency Borrowing denominated in Euros, the EURIBO Rate or (ii) for any other
Eurocurrency Borrowing, the LIBO Rate, in each case in effect for such Interest Period and subject
to Section 2.22.




          “Administrative Agent” means JPMCB, in its capacity as administrative agent for the
Lenders hereunder, or any successor thereto appointed in accordance with Article VIII.




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




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




          “Agents” means, collectively, the Administrative Agent, the Canadian Agent, the London
Agent, the Collateral Agent and any other affiliate of the Administrative Agent appointed in
accordance with Article VIII.




          “Agreement” has the meaning set forth in the preamble hereto.




“Agreement Currency” has the meaning set forth in Section 9.15




          “Alternate Base Rate” means, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.










 



3




          “Applicable Agent” means (a) with respect to a Loan or Borrowing denominated in US
Dollars or a Letter of Credit denominated in US Dollars or any Foreign Currency, or with respect to
any payment that does not relate to any Loan, Borrowing or Letter of Credit, the Administrative
Agent, (b) with respect to a Loan or Borrowing denominated in Canadian Dollars or a B/A, the
Canadian Agent and (c) with respect to a Loan or Borrowing denominated in any other Foreign
Currency, the London Agent.




          “Applicable Creditor” has the meaning set forth in Section 9.15.




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




          “Applicable Rate” means, for any day (a) with respect to any Term Loan, (i) 1.25% per
annum, in the case of an ABR Loan, or (ii) 2.25% per annum, in the case of a Eurocurrency Loan, and
(b) with respect to any ABR Revolving Loan or Canadian Base Rate Revolving Loan, Eurocurrency
Revolving Loan or B/A Drawing, or with respect to the commitment fees payable hereunder, as the
case may be, the applicable rate per annum set forth below under the caption “ABR and Canadian Base
Rate Spread”, “Eurocurrency and B/A Spread” or “Commitment Fee Rate”, as the case may be, based
upon the Leverage Ratio as of the most recent determination date, provided that until the
delivery of Parent’s consolidated financial statements as of, and for the periods ending on
December 31, 2005, pursuant to Section 5.01(a), the “Applicable Rate” for purposes of clause (b)
shall be the applicable rate per annum set forth below in Category 6:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	ABR and Canadian	 	 	 	 
	 	 	 	 	Base Rate	 	Eurocurrency and B/A	 	Commitment Fee
	 	 	Leverage Ratio:	 	Spread	 	Spread	 	Rate
	Category 1

	 	Less than or equal
to 1.25 to 1.00
	 	 	0.000	%	 	 	0.750	%	 	 	0.250	%
	Category 2

	 	Less than or equal
to 1.75 to 1.00 but
greater than 1.25
to 1.00
	 	 	0.000	%	 	 	1.000	%	 	 	0.250	%
	Category 3

	 	Less than or equal
to 2.25 to 1.00 but
greater than 1.75
to 1.00
	 	 	0.250	%	 	 	1.250	%	 	 	0.250	%
	Category 4

	 	Less than or equal
to 2.75 to 1.00 but
greater than 2.25
to 1.00
	 	 	0.500	%	 	 	1.500	%	 	 	0.250	%
	Category 5

	 	Less than 3.00 to
1.00 but greater
than 2.75 to 1.00
	 	 	0.750	%	 	 	1.750	%	 	 	0.250	%
	Category 6

	 	Greater than or
equal to 3.00 to
1.00
	 	 	0.750	%	 	 	1.750	%	 	 	0.375	%






          For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of the end
of each fiscal quarter of Parent’s fiscal year based upon Parent’s consolidated financial
statements delivered pursuant to Section 5.01(a) or (b) and (ii)










 



4



each change in the Applicable Rate resulting from a change in the Leverage Ratio shall be
effective during the period commencing on and including the Business Day following the date of
delivery to the Administrative Agent of such consolidated financial statements indicating such
change and ending on the date immediately preceding the effective date of the next such change,
provided that the Leverage Ratio shall be deemed to be in Category 6 (A) at any time that
an Event of Default has occurred and is continuing or (B) at the option of the Administrative Agent
or at the request of the Required Lenders if Parent fails to timely deliver the consolidated
financial statements required to be delivered by it pursuant to Section 5.01(a) or (b), during the
period from the last day on which such statements are permitted to be delivered in conformity with
Section 5.01(a) or (b), as the case may be, until such consolidated financial statements are
delivered.




          “Approved Fund” has the meaning assigned to such term in Section 9.04.




          “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.




          “B/A” means a bill of exchange, including a depository bill issued in accordance with
the Depository Bills and Notes Act (Canada), denominated in Canadian Dollars, drawn by a Canadian
Borrower and accepted by a Revolving Lender in accordance with the terms of this Agreement.




          “B/A Drawing” means B/As accepted and purchased on the same date and as to which a
single Contract Period is in effect including any B/A Equivalent Loans accepted and purchased on
the same date and as to which a single Contract Period is in effect. For greater certainty, all
provisions of this Agreement which are applicable to B/As are also applicable, mutatis
mutandis, to B/A Equivalent Loans.




          “B/A Equivalent Loan” has the meaning set forth in Section 2.20(k).




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




          “Borrowers” means, collectively, the US Borrower and the Foreign Borrowers.




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




          “Borrowing Minimum” means (a) in the case of a Borrowing denominated in US Dollars,
US$5,000,000 and (b) in the case of a Borrowing denominated in any Foreign Currency, the smallest
amount of such Foreign Currency that is a multiple of 1,000,000 units of such currency that has a
US Dollar Equivalent in excess of US$5,000,000.










 



5




          “Borrowing Multiple” means (a) in the case of a Borrowing denominated in US Dollars,
US$1,000,000 and (b) in the case of a Borrowing denominated in any Foreign Currency, 1,000,000
units of such currency.




          “Borrowing Request” means a request by a Borrower for a Borrowing in accordance with
Section 2.03.




          “Business” has the meaning set forth in the recitals hereto.




          “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed,
provided that (a) when used in connection with a Eurocurrency Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in deposits in the applicable
currency in the London interbank market, (b) when used in connection with a Loan denominated in
Euros, the term “Business Day” shall also exclude any day on which the TARGET payment system is not
open for the settlement of payments in Euros, (c) when used in connection with a Loan denominated
in Canadian Dollars or a B/A, the term “Business Day” shall also exclude any day on which banks are
not open for dealings in deposits in Canadian Dollars in Toronto and (d) when used in connection
with a Loan denominated in any Foreign Currency other than Euros and Canadian Dollars, the term
“Business Day” shall also exclude any day on which banks are not open for dealings in deposits in
the applicable currency in the principal financial center of the country of such currency.




          “Calculation Date” means (a) the last Business Day of each calendar quarter and (b)
solely with respect to any Foreign Currency for a requested new Borrowing for which an Exchange
Rate was not established on the immediately preceding Calculation Date, (i) in the case of Canadian
Base Rate Borrowings or B/As, the Business Day immediately preceding the date on which such
Borrowing is to be made and (ii) in the case of other Borrowings, the third Business Day preceding
the date on which such Borrowing is to be made, provided that the Administrative Agent may
in addition designate the last day of any other month as a Calculation Date if it reasonably
determines that there has been significant volatility in the foreign currency markets.




          “CAM” means the mechanism for the allocation and exchange of interests in Loans and
other extensions of credit under this Agreement and collections thereunder established in Section
7.02.




          “CAM Exchange” has the meaning set forth in Section 7.02(a).




          “CAM Exchange Date” means the first date on which there shall occur (a) any Event of
Default referred to in Section 7.01(h) or (i) in respect of any Borrower or (b) an acceleration of
Loans pursuant to Section 7.01.




          “CAM Percentage” means, as to each Lender, a fraction, expressed as a decimal, of
which (a) the numerator shall be the aggregate US Dollar Equivalent (determined on the basis of
Exchange Rates prevailing on the CAM Exchange Date) of the Designated Obligations owed to such
Lender (whether or not at the time due and










 



6



payable) immediately prior to the CAM Exchange Date and (b) the denominator shall be the
aggregate US Dollar Equivalent (determined on the basis of Exchange Rates prevailing on the CAM
Exchange Date) of the Designated Obligations owed to all the Lenders (whether or not at the time
due and payable) immediately prior to the CAM Exchange Date.




          “Canadian Agent” means JPMorgan Chase Bank, N.A., Toronto Branch, in its capacity as
Canadian agent for the Lenders hereunder, or any successor thereto appointed in accordance with
Article VIII.




          “Canadian Base Rate” means, for any day, the rate of interest per annum (rounded
upwards, if necessary, to the next 1/100 or 1%) equal to the greater of (a) the interest rate per
annum publicly announced from time to time by the Canadian Agent as its reference rate in effect on
such day at its principal office in Toronto for determining interest rates applicable to commercial
loans denominated in Canadian Dollars in Canada (each change in such reference rate being effective
from and including the date such change is publicly announced as being effective) and (b) the
interest rate per annum equal to the sum of (i) the CDOR Rate on such day (or, if such rate is not
so reported on the Reuters Screen CDOR Page, the average of the rate quotes for bankers’
acceptances denominated in Canadian Dollars with a term of 30 days received by the Canadian Agent
at approximately 10:00 a.m., Toronto time, on such day (or, if such day is not a Business Day, on
the next preceding Business Day) from one or more banks of recognized standing selected by it) and
(ii) 0.50% per annum.




          “Canadian Borrower” means the US Borrower or any Subsidiary that is incorporated or
otherwise organized under the laws of Canada or any political subdivision thereof that has been
designated as a Foreign Borrower pursuant to Section 2.23 and that has not ceased to be a Foreign
Borrower as provided in such Section.




          “Canadian Dollars” or “C$” means the lawful money of Canada.




          “Canadian Lending Office” means, as to any Revolving Lender, the applicable branch,
office or Affiliate of such Revolving Lender designated by such Revolving Lender to make Loans in
Canadian Dollars and to accept and purchase or arrange for the purchase of B/As.




          “Capital Expenditures” means, for any period, (a) the additions to property, plant and
equipment and other capital expenditures of Parent and its consolidated Subsidiaries that are (or
should be) set forth in a consolidated statement of cash flows of Parent for such period prepared
in accordance with GAAP and (b) Capital Lease Obligations incurred by Parent and its consolidated
Subsidiaries during such period.




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










 



7



Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.




          “CCU” has the meaning set forth in the recitals hereto.




          “CDOR Rate” means, on any date, an interest rate per annum equal to the average
discount rate applicable to bankers’ acceptances denominated in Canadian Dollars with a term of 30
days (for purposes of the definition of the term “Canadian Base Rate”) or with a term equal to the
Contract Period of the relevant B/As (for purposes of the definition of the term “Discount Rate”)
appearing on the Reuters Screen CDOR Page (or on any successor or substitute page of such Screen,
or any successor to or substitute for such Screen, providing rate quotations comparable to those
currently provided on such page of such Screen, as determined by the Canadian Agent from time to
time) at approximately 10:00 a.m., Toronto time, on such date (or, if such date is not a Business
Day, on the next preceding Business Day).




          “Change of Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially, by any Person or group (within the meaning of the Securities and Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder but excluding any employee
benefit plan of such Person or its subsidiaries, and any Person acting in its capacity as trustee,
agent or other fiduciary or administrator of such plan), of securities representing more than 35%
of the aggregate ordinary voting power represented by the issued and outstanding securities of
Parent; (b) if, during any period of up to 12 consecutive months, commencing on the Effective Date,
individuals who at the beginning of such period (together with any new directors whose election or
whose nomination for election by the stockholders was approved by a vote of 66- 2/3% of the directors
then still in office who were either directors at the beginning of such period or whose election or
nomination was previously so approved) were directors of Parent shall cease for any reason to
constitute a majority of the Board of Directors of Parent; (c) any other event that constitutes a
“change of control” or similar event with respect to Parent, however denominated, under any other
agreement or instrument evidencing or governing any Material Indebtedness or (d) the US Borrower
ceasing to be a wholly owned Subsidiary of Parent.




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




          “Charges” has the meaning set forth in Section 9.13.




          “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Limited Currency










 



8



Revolving Loans, Multicurrency Revolving Loans, US Dollar Revolving Loans, Term Loans or
Swingline Loans and, when used in reference to any Commitment, refers to whether such Commitment is
a Limited Currency Revolving Commitment, Multicurrency Revolving Commitment, US Dollar Revolving
Commitment or Term Commitment.




          “Class”, when used in reference to any Lender, refers to whether such Lender has a
Loan or Commitment with respect to a particular Class.




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




          “Collateral” has the meaning set forth in the definition of the term “Collateral and
Guarantee Requirement”.




          “Collateral Agent” means JPMCB, in its capacity as collateral agent for the Lenders
hereunder, or any successor thereto appointed in accordance with Article VIII.




          “Collateral and Guarantee Requirement” means, at any time, the requirement that:




          (a) the Administrative Agent shall have received each Security Document, duly executed by each
Loan Party required to be party thereto in order that the requirements set forth in clauses (b) and
(c) below shall be satisfied;




          (b) (i) all Obligations shall be unconditionally guaranteed (the “US Guarantees”) by
Parent and the Material Subsidiaries that are Domestic Subsidiaries (the “US Guarantors”),
and (ii) all Foreign Obligations shall be unconditionally guaranteed (the “Foreign
Guarantees” and, together with the US Guarantees, the “Obligations Guarantees”) by the
Material Subsidiaries that are Foreign Subsidiaries (the “Foreign Guarantors” and, together
with the US Guarantors, the “Obligations Guarantors”);




          (c) (i) the Obligations and the US Guarantees shall have been secured by a first-priority
security interest in (A) all the Equity Interests held by each US Guarantor, provided that
pledges of Equity Interests of each Foreign Subsidiary shall be limited to 66.5% of the Equity
Interests of such Foreign Subsidiary to the extent that the pledge of any greater percentage would
result in adverse tax consequences and (B) substantially all tangible and intangible assets of each
US Guarantor, including, accounts, inventory, equipment, commercial tort claims, intellectual
property, intercompany indebtedness, general intangibles, cash and proceeds of the foregoing, but
excluding the Excluded Assets of each US Guarantor (collectively, the “US Collateral”), and
(ii) the Foreign Obligations and the Foreign Guarantees shall have been secured by a first-priority
security interest in (X) all the Equity Interests held by each Foreign Guarantor and (Y)
substantially all tangible and intangible assets of each Foreign Guarantor, including accounts,
inventory, equipment, commercial tort claims, intellectual property, intercompany indebtedness,
general intangibles, cash and proceeds of the foregoing, but excluding the Excluded Assets of each
Foreign Guarantor (collectively, the “Foreign Collateral” and, together with the US
Collateral, the “Collateral”);










 



9




          (d) none of the Collateral shall be subject to any Lien other than Liens permitted under
Section 6.02;




          (e) the Administrative Agent shall have received, as reasonably requested by it to be so
delivered, certificates or other instruments representing all Equity Interests constituting
Collateral, together with stock powers or other instruments of transfer with respect thereto
endorsed in blank;




          (f) all Indebtedness of Parent, any Borrower or any other Subsidiary that is evidenced by a
promissory note, is owing to any Loan Party and constitutes Collateral shall be delivered to the
Administrative Agent, together with instruments of transfer with respect thereto endorsed in blank;




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




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




provided that the foregoing definition shall not require the creation or perfection of
pledges of or security interests in particular assets of the Loan Parties or Guarantees from
particular Subsidiaries if and for so long as, the Administrative Agent, in consultation with the
US Borrower, reasonably determines that the cost to any Borrower of creating or perfecting such
pledges or security interests in such assets or obtaining such Guarantees (in each case, taking
into account any adverse tax consequences to Parent, the Borrowers and the other Subsidiaries
(including the imposition of withholding or other material taxes on Lenders)) shall be commercially
unreasonable in view of the benefits to be obtained by the Lenders therefrom.




          “Commitment” means a Limited Currency Revolving Commitment, Multicurrency Revolving
Commitment, US Dollar Revolving Commitment, Term Commitment, or any combination thereof (as the
context requires).




          “Consolidated Cash Interest Expense” means, for any period, the excess of (a) the sum
of (i) the interest expense (including imputed interest expense in respect of Capital Lease
Obligations) of Parent, the Borrowers and the other Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP, plus (ii) any interest accrued during such period in
respect of Indebtedness of Parent, any Borrower or any other Subsidiary that is required to be
capitalized rather than included in consolidated interest expense for such period in accordance
with GAAP, plus (iii) any cash payments made during such period in respect of obligations referred
to in clause (b)(ii) below that







 



10




were amortized or accrued in a previous period, plus (iv) the aggregate amount of all
Restricted Payments (other than Restricted Payments made pursuant to Sections 6.08(a)(v), (vi) and
(vii)) made by the Holding Companies to Persons other than Holding Companies during such period
minus (b) the sum of (i) to the extent included in such consolidated interest expense for such
period, non-cash amounts attributable to amortization of financing costs paid in a previous period,
plus (ii) to the extent included in such consolidated interest expense for such period, non-cash
amounts attributable to amortization of debt discounts or accrued interest payable in kind for such
period, provided that Consolidated Cash Interest Expense with respect to any period shall
be determined after giving pro forma effect to all acquisitions, investments, sales, dispositions,
mergers, incurrences of Indebtedness or similar events (including, as applicable, the application
of the proceeds therefrom) during such period.




          “Consolidated EBITDA” means, for any period, Consolidated Net Income for such period
plus (a) without duplication and to the extent deducted in determining such Consolidated
Net Income, the sum of (i) consolidated interest expense for such period, (ii) consolidated income
tax expense for such period, (iii) all amounts attributable to depreciation and amortization for
such period, (iv) any extraordinary charges or losses for such period and (v) the one-time
adjustments with respect to the fiscal quarters ended March 31, 2005, September 30, 2005 and
December 31, 2005 that are set forth on Schedule 1.01, minus (b) without duplication and to
the extent included in determining such Consolidated Net Income, any extraordinary gains for such
period, all determined on a consolidated basis in accordance with GAAP and after giving pro forma
effect to all acquisitions, investments, sales, dispositions, mergers, incurrences of Indebtedness
or similar events (including, as applicable, the application of the proceeds therefrom) during such
period.




          “Consolidated Net Income” means, for any period, the net income or loss of Parent, the
Borrowers and the other Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP (adjusted to reflect any charge, tax or expense incurred or accrued by Parent
during such period as though such charge, tax or expense had been incurred by Parent, to the extent
that Parent has made or would be entitled under the Loan Documents to make any payment to or for
the account of Parent in respect thereof) and after giving pro forma effect to all acquisitions,
investments, sales, dispositions, mergers, incurrences of Indebtedness or similar events
(including, as applicable, the application of the proceeds therefrom) during such period,
provided that, to the extent not included therein, the foregoing shall include the income
of any Person (other than any Subsidiary) in which any other Person (other than any Borrower or any
other Subsidiary or any director holding qualifying shares in compliance with applicable law) owns
an Equity Interest, to the extent of the amount of cash or cash equivalent dividends or other cash
or cash equivalent distributions actually paid to Parent, any Borrower or any other Subsidiary
during such period.




          “Consolidated Revenues” means, with respect to Parent, any Subsidiary or any group of
Subsidiaries for any period, the revenues of Parent, such Subsidiary or such group of Subsidiaries
for such period determined on a consolidated basis in accordance with GAAP excluding any revenues
attributable to Permitted Acquisition Subsidiaries.










 



11




          “Consolidated Tangible Assets” means, at any time, the value of the tangible assets of
Parent, the Borrowers and the other Subsidiaries determined on a consolidated basis in accordance
with GAAP, as set forth in the most recent Financial Officer’s certificate delivered pursuant to
Section 5.01(c).




          “Contract Period” means, with respect to any B/A, the period commencing on the date
such B/A is issued and accepted and ending on the date 30, 60, 90 or 180 days thereafter, as the
applicable Canadian Borrower may elect (in each case subject to availability), provided
that if such Contract Period would end on a day other than a Business Day, such Contract Period
shall be extended to the next succeeding Business Day.




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




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




          “Designated Obligations” means all obligations of the Borrowers with respect to (a)
principal of and interest on the Loans, (b) amounts payable in respect of B/As at the maturity
thereof, (c) unreimbursed LC Disbursements and interest thereon and (d) accrued and unpaid fees
under the Loan Documents.




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




          “Discount Proceeds” means, with respect to any B/A, an amount (rounded upward, if
necessary, to the nearest C$.01) calculated by multiplying (a) the face amount of such B/A by (b)
the quotient obtained by dividing (i) one by (ii) the sum of (A) one and (B) the product of (x) the
Discount Rate (expressed as a decimal) applicable to such B/A and (y) a fraction of which the
numerator is the Contract Period applicable to such B/A and the denominator is 365, with such
quotient being rounded upward or downward to the fifth decimal place and .000005 being rounded
upward.




          “Discount Rate” means, with respect to a B/A being accepted and purchased on any day,
(a) for a Lender which is a Schedule I Lender, (i) the CDOR Rate applicable to such B/A or, (ii) if
the discount rate for a particular Contract Period is not quoted on the Reuters Screen CDOR Page,
the arithmetic average (as determined by the Canadian Agent) of the percentage discount rates
(expressed as a decimal and rounded upward, if necessary, to the nearest 1/100 of 1%) quoted to the
Canadian Agent by the Schedule I Reference Lenders as the percentage discount rate at which each
such bank would, in accordance with its normal practices, at approximately 10:00 a.m., Toronto
time, on such day, be prepared to purchase bankers’ acceptances accepted by such bank







 



12




having a face amount and term comparable to the face amount and Contract Period of such B/A,
and (b) for a lender which is a Schedule II Lender or a Schedule III Lender, the lesser of (i) the
CDOR Rate applicable to such B/A plus 0.10% per annum and (ii) the arithmetic average (as
determined by the Canadian Agent) of the percentage discount rates (expressed as a decimal and
rounded upward, if necessary, to the nearest 1/100 of 1%) quoted to the Canadian Agent by the
Schedule II Reference Lenders as the percentage discount rate at which each such bank would, in
accordance with its normal practices, at approximately 10:00 a.m., Toronto time, on such day, be
prepared to purchase bankers’ acceptances accepted by such bank having a face amount and term
comparable to the face amount and Contract Period of such B/A.




          “Domestic Collateral Agreement” means the Guarantee and Collateral Agreement among
Parent, the US Borrower, the other US Guarantors and the Administrative Agent, substantially in the
form of Exhibit B.




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




          “Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).




          “Effective Date Excess Cash” means the amount, if any, by which the aggregate amount
of consolidated cash and cash equivalents of Parent, the Borrowers and the other Subsidiaries on
the Effective Date exceeds the US Dollar Equivalent of US$150,000,000, provided that the
Effective Date Excess Cash shall not exceed US$125,000,000.




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




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




          “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of
Parent, any Borrower or any other Subsidiary directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the environment or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.










 



13




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




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




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




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




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




          “EURIBO Rate” means, with respect to any Eurocurrency Borrowing denominated in Euros
for any Interest Period, the rate appearing on page 248 of the Dow Jones Market Service (or on any
successor or substitute page of such Service, or any successor to or substitute for such Service,
providing rate quotations comparable to those currently provided on such page of such Service, as
determined by the London Agent from time to time for purposes of providing quotations of interest
rates applicable to Euro deposits in the European interbank market) at approximately 11:00 a.m.,
Paris time, two Business Days prior to the commencement of such Interest Period, as the rate for
Euro deposits with a maturity comparable to such Interest Period. In the event that such rate is
not available at such time for any reason, then the EURIBO Rate with respect to such Eurocurrency
Borrowing for such Interest Period shall be the rate at which Euro deposits







 



14




in an amount the US Dollar Equivalent of which is approximately equal to US$5,000,000 and for
a maturity comparable to such Interest Period is offered by the London Agent in immediately
available funds in the European interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.




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




          “Event of Default” has the meaning assigned to such term in Section 7.01.




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




          “Excluded Acquisition” means any purchase or other acquisition, in one transaction or
a series of related transactions, of assets, properties and/or Equity Interests with an aggregate
fair market value not exceeding US$500,000 (or the US Dollar Equivalent thereof).




          “Excluded Assets” means, with respect to Parent, any Borrower or any other Subsidiary,
(a) any real property or interests therein of such Person and (b) any Permitted Deposits of such
Person.




          “Excluded Subsidiaries” means, at any time, a group of Subsidiaries the Consolidated
Revenues of which for the most recently ended fiscal year of Parent equal less than 10% of the
Consolidated Revenues of Parent for such fiscal year, provided that (a) no Permitted
Acquisition Subsidiary may be an Excluded Subsidiary (and all revenues attributable to Permitted
Acquisition Subsidiaries shall be disregarded for purposes of determining the Excluded
Subsidiaries) and (b) if at any time it is known to a Financial Officer that, as a result of an
acquisition, disposition or transfer of assets (including Equity Interests), the aggregate
Consolidated Revenues of the Excluded Subsidiaries for the most recent fiscal year of Parent shall
equal 10% or more of the Consolidated Revenues of Parent for such period, Parent shall designate
sufficient Excluded










 



15



Subsidiaries as Material Subsidiaries to eliminate such condition, such designation to occur
not later than the 20th Business Day after the condition requiring such designation is known to a
Financial Officer (and if Parent shall fail to designate such Subsidiaries by such time, Excluded
Subsidiaries shall automatically be deemed to be Material Subsidiaries in descending order based on
the amounts of their Consolidated Revenues until such condition shall have been eliminated).
Excluded Subsidiaries designated or deemed designated as Material Subsidiaries pursuant to the
preceding sentence shall for all purposes of this Agreement constitute Material Subsidiaries upon
such designation or deemed designation.




          “Excluded Taxes” means, with respect to any Agent, any Lender or any Issuing Bank or
any other recipient of any payment to be made by or on account of any obligation of any Borrower
hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
lending office is located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which a Lender is located, and (c) in the case
of a Foreign Lender making loans denominated in US Dollars (other than an assignee pursuant to a
request by the US Borrower under Section 2.19(b)), any withholding tax that is imposed by the
United States of America on amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office) or is attributable to such
Foreign Lender’s failure to comply with Section 2.17(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office
(or assignment), to receive additional amounts from the Borrowers with respect to such withholding
tax pursuant to Section 2.17(a), provided that the term “Excluded Taxes” shall not include
taxes imposed on amounts payable to an Agent, a Lender or an Issuing Bank that result from a
failure by Parent, any Borrower or any other Subsidiary to take any action that would allow such
amounts to be paid free of such taxes.




          “Existing Letters of Credit” means the letters of credit outstanding on the Effective
Date and set forth on Schedule 2.05.




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




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










 



16




          “Foreign Borrower Agreement” means a Foreign Borrower Agreement substantially in the
form of Exhibit C hereto.




          “Foreign Borrower Termination” means a Foreign Borrower Termination substantially in
the form of Exhibit D hereto.




          “Foreign Borrowers” means any Wholly Owned Foreign Subsidiary designated as a Foreign
Borrower in accordance with Section 2.23, provided that the status of any of the foregoing
as a Foreign Borrower shall terminate if and when a Foreign Borrower Termination is delivered to
the Administrative Agent in accordance with Section 2.23.




          “Foreign Collateral” has the meaning set forth in the definition of the term
“Collateral and Guarantee Requirement”.




          “Foreign Collateral Agreement” means each pledge, security or guarantee agreement
among an Agent and one or more Foreign Guarantors and that is reasonably acceptable to the
Administrative Agent.




          “Foreign Currency” means Canadian Dollars, Euros, Norwegian Kronor, Sterling, Swedish
Kronor, Swiss Francs and any other currency reasonably acceptable to the Administrative Agent that
is freely available, freely transferable and freely convertible into US Dollars.




          “Foreign Currency Borrowing” means a Borrowing denominated in a Foreign Currency.




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




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




          “Foreign Currency Revolving Exposure” means, with respect to any Lender at any time,
the sum of (a) the US Dollar Equivalent of the outstanding principal amount of such Lender’s
Foreign Currency Revolving Loans, (b) the US Dollar Equivalent of the aggregate face amount of the
B/As accepted by the such Lender and outstanding at such time and (c) its Foreign Currency LC
Exposure at such time.




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










 



17




          “Foreign Currency Sublimit” means, at any time, the lesser of (a) US$100,000,000 and
(b) the aggregate amount of the Revolving Commitments at such time. The Foreign Currency Sublimit
is part of, and not in addition to, the Revolving Commitments.




          “Foreign Guarantees” has the meaning set forth in the definition of the term
“Collateral and Guarantee Requirement”.




          “Foreign Guarantors” has the meaning set forth in the definition of the term
“Collateral and Guarantee Requirement”.




          “Foreign Lender” means any Lender that is not organized under the laws the United
States of America or any State thereof or the District of Columbia.




          “Foreign Obligations” means the Obligations of the Foreign Borrowers.




          “Foreign Subsidiary” means any Subsidiary that is not organized under the laws of the
United States of America or any State thereof or the District of Columbia, provided that,
for purposes of the Collateral and Guarantee Requirement, a Subsidiary that is not a “controlled
foreign corporation” under Section 957 of the Code shall not constitute a Foreign Subsidiary.




          “Form 10” has the meaning set forth in the recitals hereto.




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




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




          “Granting Bank” has the meaning set forth in Section 9.04(d).




          “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof (including pursuant to any “synthetic lease” financing), (c) to
maintain working capital, equity capital or any other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation or (d) as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or







 



18




obligation, provided that the term “Guarantee” shall not include endorsements for
collection or deposit in the ordinary course of business.




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




          “Holdco #1” means CCE Holdco #1, Inc., a Delaware corporation.




          “Holdco #2” has the meaning set forth in the recitals hereto.




          “Holding Companies” means, collectively, Parent, Holdco #1 and Holdco #2.




          “Increased Amount Date” has the meaning set forth in Section 2.21 (a).




          “Incremental Amount” means, at any time, the excess, if any, of (a) US$250,000,000
over (b) the aggregate amount of all Incremental Term Commitments and Incremental Revolving
Commitments established prior to such time pursuant to Section 2.21.




          “Incremental Assumption Agreement” means an Incremental Assumption Agreement in form
and substance reasonably satisfactory to the Administrative Agent, among the Borrowers, the Agents
and one or more Incremental Term Lenders and/or Incremental Revolving Lenders.




          “Incremental Documents” has the meaning set forth in Section 2.21(b).




          “Incremental Revolving Commitment” means the commitment of any Lender, established
pursuant to Section 2.21, to make Incremental Revolving Loans to the Borrowers.




          “Incremental Revolving Lender” means a Lender with an Incremental Revolving Commitment
or an outstanding Incremental Revolving Loan.




          “Incremental Revolving Loans” means Revolving Loans made by one or more Lenders to a
Borrower pursuant to Section 2.01.




          “Incremental Term Commitment” means the commitment of any Lender, established pursuant
to Section 2.21, to make Incremental Term Loans to the US Borrower.




          “Incremental Term Lender” means a Lender with an Incremental Term Commitment or an
outstanding Incremental Term Loan.










 



19




          “Incremental Term Loans” means Term Loans made by one or more Lenders to the US
Borrower pursuant to Section 2.01.




          “Indebtedness” of any Person means, without duplication, the following:




          (a) all obligations of such Person for borrowed money or with respect to deposits or advances
of any kind made to such Person,




          (b) all obligations of such Person evidenced by bonds, debentures, notes or similar
instruments,




          (c) all obligations of such Person which customarily bear interest irrespective of whether a
default has occurred,




          (d) all obligations of such Person under conditional sale or other title retention agreements
(other than customary reservations or retentions of title under supply agreements entered into in
the ordinary course of business) relating to property acquired by such Person,




          (e) all obligations of such Person in respect of the deferred purchase price of property or
services (excluding trade accounts payable incurred in the ordinary course of business to the
extent not more than 90 days overdue),




          (f) all obligations of others of the type referred to in clauses (a) through (e) and (g)
through (k) of this definition secured by (or for which the holder of such obligations has an
existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired
by such Person, whether or not such obligations secured thereby have been assumed,




          (g) all Guarantees by such Person of obligations of others of the type referred to in clauses
(a) through (f) and (h) through (k) of this definition,




(h) all Capital Lease Obligations of such Person,




          (i) all obligations, contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty,




(j) all obligations of such Person with respect to any Swap Agreement and




          (k) all obligations, contingent or otherwise, of such Person in respect of bankers’
acceptances.



The Indebtedness of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person’s ownership interest in or other relationship with such entity, except
to the extent the terms of such Indebtedness provide that such Person is not liable therefor.










 



20




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




          “Information” has the meaning set forth in Section 9.12.




          “Information Memorandum” means the Confidential Information Memorandum dated November,
2005 relating to Parent, the US Borrower and the Transactions.




          “Intercompany Debt Repayment” has the meaning set forth in the recitals hereto.




          “Interest Election Request” means a request by a Borrower to convert or continue a
Revolving Borrowing, Term Borrowing or B/A Drawing in accordance with Section 2.07.




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




          “Interest Period” means, with respect to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter (or, with the consent of each
Lender, nine or twelve months), as the applicable Borrower may elect, provided that (a) if
any Interest Period would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the next preceding
Business Day and (b) any Interest Period that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the last calendar month
of such Interest Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.




          “Issuing Bank” means a US Dollar Issuing Bank or a Multicurrency Issuing Bank.




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




          “JPME” means J.P. Morgan Europe Limited and its successors.




          “Judgment Currency” has the meaning set forth in Section 9.15.










 



21




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




          “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit denominated in US Dollars at such time, (b) the US Dollar Equivalent
of the aggregate undrawn amount of all outstanding Foreign Currency Letters of Credit at such time,
(c) the aggregate amount of all LC Disbursements made in US Dollars that have not yet been
reimbursed by or on behalf of the applicable Borrower at such time and (d) the US Dollar Equivalent
of the aggregate amount of all LC Disbursements made in a Foreign Currency that have not yet been
reimbursed by or on behalf of the applicable Borrower at such time. The LC Exposure of any
Revolving Lender at any time shall be its Applicable Percentage of the total LC Exposure at such
time.




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




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




          “Leverage Ratio” means, on any relevant date of determination, the ratio of (a) Total
Indebtedness as of such date minus Unrestricted Cash and Cash Equivalents as of such date to (b)
Consolidated EBITDA for the period of four consecutive fiscal quarters of Parent ended on such
date.




          “LIBO Rate” means, with respect to any Eurocurrency Borrowing for any Interest Period,
the rate appearing on page 3750 (or, in the case of a Eurocurrency Foreign Currency Borrowing, the
rate appearing on the applicable page for such Foreign Currency) of the Dow Jones Market Service
(or on any successor or substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on such page of such
Service, as determined by the Applicable Agent from time to time for purposes of providing
quotations of interest rates applicable to dollar deposits (or, in the case of a Eurocurrency
Foreign Currency Borrowing, deposits in the applicable Foreign Currency) in the London interbank
market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period (or, in the case of Interest Periods with respect to any Loan denominated in
Sterlings, on the Business Day on which such Interest Period commences), as the rate for dollar (or
the applicable Foreign Currency) deposits with a maturity comparable to such Interest Period. In
the event that such rate is not available at such time for any reason, then the LIBO Rate with
respect to such Eurocurrency Borrowing for such Interest Period shall be the rate at which US
Dollar deposits of US$5,000,000 (or, in the case of a Eurocurrency Foreign Currency Borrowing,
deposits in the applicable Foreign Currency in an amount the US Dollar Equivalent of which is
approximately equal to US$5,000,000) and for a maturity comparable to such Interest







 



22




Period are offered by the London Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period.




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




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




          “Limited Currency LC Exposure” means, at any time, the LC Exposure attributable to the
Limited Currency Revolving Commitments. The Limited Currency LC Exposure of any Limited Currency
Revolving Lender at any time shall be its Limited Currency Applicable Percentage of the total
Limited Currency LC Exposure at such time.




          “Limited Currency Revolving Commitment” means, with respect to each Lender, the
commitment, if any, of such Lender to make Limited Currency Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender’s Limited Currency Revolving Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b)
reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender’s Limited Currency Revolving Commitment is set
forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall
have assumed its Limited Currency Revolving Commitment, as applicable. The initial aggregate
amount of the Lenders’ Limited Currency Revolving Commitments is US$75,000,000.




          “Limited Currency Revolving Exposure” means, with respect to any Lender at any time,
the sum of (a) the outstanding principal amount of such Lender’s Limited Currency Revolving Loans
denominated in US Dollars at such time, (b) the US Dollar Equivalent of the outstanding principal
amount of such Lender’s Limited Currency Revolving Loans denominated in Euros or Sterling at such
time, (c) such Lender’s Limited Currency LC Exposure at such time and (d) such Lender’s Limited
Currency Swingline Exposure at such time.










 



23




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




          “Limited Currency Revolving Loan” means a Loan made pursuant to clause (b) of Section
2.01.




          “Limited Currency Swingline Exposure” means, at any time, the Swingline Exposure
attributable to the Limited Currency Revolving Commitments. The Limited Currency Swingline
Exposure of any Limited Currency Revolving Lender at any time shall be its Limited Currency
Applicable Percentage of the total Limited Currency Swingline Exposure at such time.




          “Loan Documents” means this Agreement, any letter of credit applications referred to
in Section 2.05(a) or (b), any promissory notes delivered pursuant to Section 2.09(e), the Domestic
Collateral Agreement and the other Security Documents.




          “Loan Parties” means Parent, the Borrowers and the other Subsidiary Loan Parties.




          “Loans” means the loans made by the Lenders to the Borrowers pursuant to this
Agreement.




          “Local Time” means (a) with respect to a Loan or Borrowing denominated in US Dollars,
New York City time, (b) with respect to a Loan or Borrowing denominated in Canadian Dollars or a
B/A, Toronto time and (c) with respect to a Loan or Borrowing denominated in any other Foreign
Currency, London time.




          “London Agent” means JPME, in its capacity as London agent for the Lenders hereunder,
or any successor thereto appointed in accordance with Article VIII.




          “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations, properties, condition (financial or otherwise), liabilities (including contingent
liabilities), material agreements or prospects of Parent, the Borrowers and the other Subsidiaries,
taken as a whole, (b) the ability of any Loan Party to perform any of its obligations under any
Loan Document or (c) the rights of or remedies available to the Lenders under any Loan Document.




          “Material Indebtedness” means (without duplication) Indebtedness (other than the
Loans, Letters of Credit and B/As), or obligations in respect of one or more Swap Agreements, of
any one or more of Parent, the Borrowers and the other Subsidiaries in an aggregate outstanding
principal amount exceeding US$10,000,000, determined on a consolidated basis, provided that
for purposes of Section 7.01(f), Material Indebtedness shall not include the Preferred Stock. For
purposes of determining Material Indebtedness in respect of any Swap Agreement, the “amount” of the
outstanding principal amount of the obligations of Parent, any Borrower or any other Subsidiary in
respect of such Swap Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that Parent, such Borrower or










 



24



such Subsidiary would be required to pay if such Swap Agreement were terminated at such time.




          “Material Subsidiary” means (a) any Subsidiary that is not an Excluded Subsidiary or
(b) any Permitted Acquisition Subsidiary.




          “Maturity Date” means the Revolving Maturity Date or the Term Maturity Date (as the
context requires).




          “Maximum Rate” has the meaning set forth in Section 9.13.




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




          “Multicurrency Issuing Bank” means JPMCB and Bank of America, N.A. and each other
Person designated a Multicurrency Issuing Bank pursuant to Section 2.05(i), in each case in its
capacity as an issuer of Letters of Credit denominated in US Dollars, Euros and Sterling hereunder,
and its successors in such capacity as provided in Section 2.05(i). A Multicurrency Issuing Bank
may, in its discretion, arrange for any Letter of Credit to be issued by Affiliates of such
Multicurrency Issuing Bank by providing notice thereof to the US Borrower on or prior to the date
on which the request for such Letter of Credit is delivered or telecopied to such Multicurrency
Issuing Bank in accordance with Section 2.05(b), in which case the term “Multicurrency Issuing
Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.




          “Multicurrency Revolving Commitment” means, with respect to each Lender, the
commitment, if any, of such Lender to make Multicurrency Revolving Loans and to accept and purchase
or arrange for the purchase of B/As pursuant to Section 2.20, expressed as an amount representing
the maximum aggregate amount of such Lender’s Multicurrency Revolving Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.
The initial amount of each Lender’s Multicurrency Revolving Commitment is set forth on Schedule
2.01, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its
Multicurrency Revolving Commitment, as applicable. The initial aggregate amount of the Lenders’
Multicurrency Revolving Commitments is US$25,000,000.




          “Multicurrency Revolving Exposure” means, with respect to any Lender at any time, the
sum of (a) the outstanding principal amount of such Lender’s Multicurrency Revolving Loans
denominated in US Dollars at such time, (b) the US Dollar Equivalent of the outstanding principal
amount of such Lender’s Multicurrency Revolving Loans denominated in Foreign Currencies at such
time and (c) the US Dollar Equivalent of the aggregate face amount of the B/As accepted by such
Lender and outstanding at such time.




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










 



25




          “Multicurrency Revolving Loan” means a Loan made pursuant to clause (c) of Section
2.01.




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




          “Net Proceeds” means, with respect to any event (a) the cash proceeds received in
respect of such event including (i) any cash received in respect of any non-cash proceeds, but only
as and when received, (ii) in the case of a casualty, insurance proceeds, and (iii) in the case of
a condemnation or similar event, condemnation awards and similar payments, net of (b) the sum of
(i) all reasonable fees and out-of-pocket expenses paid by Parent, the Borrowers and the other
Subsidiaries to third parties (other than Parent and the Subsidiaries) in connection with such
event, (ii) in the case of a sale, transfer or other disposition of an asset (including pursuant to
a sale and leaseback transaction or a casualty or a condemnation or similar proceeding), the amount
of all payments required to be made by Parent, the Borrowers and the other Subsidiaries as a result
of such event to repay Indebtedness (other than Loans) secured by such asset and (iii) the amount
of all taxes paid (or reasonably estimated to be payable) by Parent, the Borrowers and the other
Subsidiaries, and the amount of any reserves established by Parent, the Borrowers and the other
Subsidiaries to fund contingent liabilities reasonably estimated to be payable, in each case during
the year that such event occurred or the next succeeding year and that are directly attributable to
such event (as determined reasonably and in good faith by a Financial Officer).




          “Norwegian Kronor” or “Nkr” means the lawful money of Norway.




          “Obligations” means the following:




          (a) the due and punctual payment by the Borrowers of (i) the principal of and interest
(including interest accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the
Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise, (ii) each payment required to be made by any Borrower in respect of any
Letter of Credit, when and as due, including payments in respect of reimbursement of LC
Disbursements, interest thereon (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in
such proceeding) and obligations to provide cash collateral, (iii) all reimbursement obligations of
the Canadian Borrowers in respect of B/As accepted hereunder and (iv) all other monetary
obligations of the Borrowers under this Agreement and each of the other Loan Documents, including
obligations to pay fees, expense reimbursement obligations and indemnification obligations, whether
primary, secondary, direct, contingent, fixed or otherwise, arising under the Loan Documents
(including monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such
proceeding),










 



26




          (b) the due and punctual payment of all the monetary obligations of each other Loan Party
under or pursuant to this Agreement and each of the other Loan Documents, and




          (c) the due and punctual payment of all monetary obligations of each Loan Party under each
Swap Agreement that (i) is in effect on the Effective Date with a counterparty that is a Lender or
an Affiliate of a Lender as of the Effective Date or (ii) is entered into after the Effective Date
with any counterparty that is a Lender or an Affiliate of a Lender at the time such Swap Agreement
is entered into (other than Swap Agreements entered into after (A) the principal of and interest on
each Loan and all fees payable hereunder have been paid in full, (B) the Lenders have no further
commitment to lend hereunder, (C) the LC Exposures have been reduced to zero and (D) the Issuing
Banks have no further obligations to issue Letters of Credit).




          “Obligations Guarantees” has the meaning set forth in the definition of the term
“Collateral and Guarantee Requirement”.




          “Obligations Guarantors” has the meaning set forth in the definition of the term
“Collateral and Guarantee Requirement”.




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




          “Parent” has the meaning set forth in the recitals hereto.




          “Participant” has the meaning set forth in Section 9.04(c)(i).




          “Participating Revolving Commitment” means a Limited Currency Revolving Commitment, US
Dollar Revolving Commitment, or any combination thereof (as the context requires).




          “Participating Revolving Exposure” means, with respect to any Lender at any time, the
sum of such Lender’s Limited Currency Revolving Exposure and US Dollar Revolving Exposure at such
time.




          “Participating Revolving Lender” means a Limited Currency Revolving Lender, US Dollar
Revolving Lender or any combination thereof (as the context requires).




          “Participating Revolving Loan” means a Limited Currency Revolving Loan, US Dollar
Revolving Loan or any combination thereof (as the context requires).




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










 



27




          “Perfection Certificate” means a certificate in the form of Exhibit E or any other
form approved by the Collateral Agent.




          “Permitted Acquisition” has the meaning set forth in Section 6.04(f).




          “Permitted Acquisition Subsidiary” means any Subsidiary that becomes a Subsidiary
through a Permitted Acquisition (other than an Excluded Acquisition).




          “Permitted Deposits” means, with respect to Parent, any Borrower or any other
Subsidiary, cash or cash equivalents (and all accounts and other depositary arrangements with
respect thereto) securing customary obligations of such Person that are incurred in the ordinary
course of business in connection with promoting or producing live entertainment events.




          “Permitted Encumbrances” means:




          (a) Liens imposed by law for taxes, assessments, governmental charges, levies or
claims that are not yet delinquent or are being contested in compliance with Section 5.05;




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




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




          (d) Permitted Deposits and deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of business;




          (e) awards or judgment liens in respect of awards or judgments that do not constitute
an Event of Default under clause (k) of Section 7.01;




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




          (g) Liens created by lease agreements in respect of the leasehold interests leased by
Parent, any Borrower or any other Subsidiary thereunder to secure the payments of rental
amounts and other sums not yet due thereunder;










 



28




          (h) Liens on leasehold interests of Parent or any Subsidiary created by the lessor in
favor of any mortgagee of the leased premises,



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




          “Permitted Investments” means:




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




          (b) investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, a credit rating of at least
A-1 or P-1 from S&P or from Moody’s, respectively;




          (c) investments in certificates of deposit, banker’s acceptances and time deposits
denominated in US Dollars and maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts denominated in US
Dollars issued or offered by, any commercial bank organized under the laws of the United
States of America or any State thereof or any member nation of the Organization for
Economic Cooperation and Development which has a combined capital and surplus and undivided
profits of not less than US$500,000,000 (or the US Dollar Equivalent thereof) or any Lender
or Affiliate of any Lender;




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




          (e) money market funds that (i) (A) comply with the criteria set forth in Securities
and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940 (or, in the case
of money market funds offered by any commercial bank organized under the laws of any member
nation of the Organization for Economic Cooperation and Development, the applicable
criteria of such member nation to the extent substantially comparable to the criteria set
forth in such Rule 2a-7), (B) are rated AAA by S&P and Aaa by Moody’s or a comparable
rating by any other nationally recognized rating agency and (C) have portfolio assets of at
least US$5,000,000,000 (or the US Dollar Equivalent thereof) or (ii) are offered by any
Lender or Affiliate of any Lender.




          “Permitted Restricted Payment Amount” means, for any fiscal year, the sum of (a) the
aggregate amount of dividends required by the terms of the Preferred Stock as of the Effective Date
to be paid during such fiscal year in respect of the Preferred Stock outstanding as of the
Effective Date (to the extent such Preferred Stock remains outstanding after the Effective Date)
and (b) US$1,000,000.










 



29




          “Permitted Subordinated Indebtedness” means Indebtedness of Parent, any Borrower or
any other Subsidiary that (a) is subordinated to the Obligations on terms no less favorable to the
Lenders than the terms set forth in Exhibit F hereto and (ii) matures on or after the date that is
one year after the Term Maturity Date.




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




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




          “Preferred Stock” has the meaning set forth in the recitals hereto.




          “Prepayment Account” has the meaning set forth in Section 2.11(f).




          “Prepayment Event” means:




          (a) any sale, transfer or other disposition (including pursuant to a sale and
leaseback transaction) of any property or asset of Parent, any Borrower or any other
Subsidiary, other than dispositions described in clauses (a), (b), (c), (d), (e), (f), (g),
(h), (i), (j) and (k) of Section 6.05; or




          (b) any casualty or other insured damage to, or any taking under power of eminent
domain or by condemnation or similar proceeding of, any property or asset of Parent, any
Borrower or any other Subsidiary; or




          (c) the incurrence by Parent, any Borrower or any other Subsidiary of any
Indebtedness, other than Indebtedness permitted under Section 6.01(a), if after giving pro
forma effect to such incurrence, the Leverage Ratio would be greater than 3.0 to 1.0.




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




          “Register” has the meaning set forth in Section 9.04.




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




          “Remaining Excess Cash” means, at any time, an amount equal to the Effective Date
Excess Cash less the sum of (a) the aggregate amount of investments,







 



30




loans and advances made, and payments in respect of purchases and acquisitions consummated,
pursuant to Section 6.04(n) prior to such time, (b) the aggregate amount of Restricted Payments
made pursuant to Section 6.08(a)(vii) prior to such time and (c) the aggregate amount of cash and
cash equivalents transferred pursuant to Section 6.09(i) prior to such time.




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




          “Reset Date” has the meaning assigned to such term in Section 1.06(a).




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




          “Revolving Availability Period” means the period from and including the Effective Date
to but excluding the earlier of the Revolving Maturity Date and the date of termination of the
Revolving Commitments.




          “Revolving Commitment” means a Limited Currency Revolving Commitment, Multicurrency
Revolving Commitment, US Dollar Revolving Commitment or any combination thereof (as the context
requires).




          “Revolving Exposure” means, with respect to any Lender at any time, the sum of such
Lender’s Limited Currency Revolving Exposure, Multicurrency Revolving Exposure and US Dollar
Revolving Exposure at such time.




          “Revolving Lender” means a Limited Currency Revolving Lender, Multicurrency Revolving
Lender, US Dollar Revolving Lender or any combination thereof (as the context requires).




          “Revolving Loan” means a Limited Currency Revolving Loan, Multicurrency Revolving
Loan, US Dollar Revolving Loan or any combination thereof (as the context requires).




“Revolving Maturity Date” means June 21, 2012. 




          “Rollover Amount” has the meaning set forth in Section 6.16.




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










 



31




          “Schedule I Lender” means any Lender named on Schedule I to the Bank Act (Canada).




          “Schedule I Reference Lenders” means any Schedule I Lender as may be agreed by the
Canadian Borrowers and the Canadian Agent from time to time.




          “Schedule II Lender” means any Lender named on Schedule II to the Bank Act (Canada).




          “Schedule II Reference Lender” means JPMorgan Chase Bank, N.A., Toronto Branch, and
any other Schedule II Lender or Schedule III Lender as may be agreed by the Canadian Borrowers and
the Canadian Agent from time to time.




          “Schedule III Lender” means any Lender named on Schedule III to the Bank Act (Canada).




          “Secured Party” means each applicable “Secured Party”, as defined in any applicable
Security Document.




          “Security Documents” means the Domestic Collateral Agreement, the Foreign Collateral
Agreements and each other security agreement or other instrument or document executed and delivered
pursuant to Section 5.11 or 5.12 to secure any of the Obligations.




          “Senior Indebtedness” means Indebtedness of Parent, any Borrower or any other
Subsidiary that is not expressly subordinated in right of payment to any other Indebtedness of
Parent, any Borrower or any other Subsidiary.




          “Senior Leverage Ratio” means, on any relevant date of determination, the ratio of (a)
Total Senior Indebtedness as of such date minus Unrestricted Cash and Cash Equivalents as of such
date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters of Parent ended
on such date.




          “Series A Preferred Stock” has the meaning set forth in the recitals hereto.




          “Series B Preferred Stock” has the meaning set forth in the recitals hereto.




          “SPC” has the meaning set forth in Section 9.04(d).




          “Spin-Off” has the meaning set forth in the recitals hereto.




          “Statutory Reserves” means a fraction (expressed as a decimal), the numerator of which
is the number one and the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is subject, with respect to
the Adjusted Eurocurrency Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). Such reserve percentages shall include those







 



32




imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without benefit of or credit
for proration, exemptions or offsets that may be available from time to time to any Lender under
such Regulation D or any comparable regulation. Statutory Reserves shall be adjusted automatically
on and as of the effective date of any change in any reserve percentage.




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




          “Subordinated Indebtedness” means Indebtedness of Parent, any Borrower or any other
Subsidiary that is expressly subordinated in right of payment to the Obligations.




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




          “Subsidiary” means any subsidiary of Parent.




          “Subsidiary Loan Party” means (a) each Borrower and (b) each Subsidiary that is
required to execute a Security Document under the Collateral and Guarantee Requirement.




          “Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions, provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of Parent, any Borrower or any Subsidiary
shall be a Swap Agreement.




          “Swedish Kronor” or “Sk” means the lawful money of Sweden.




          “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender







 



33




at any time shall be its Applicable Percentage of the total Swingline Exposure at such time.




          “Swingline Lender” means JPMCB, in its capacity as lender of Swingline Loans
hereunder.




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




          “Swiss Francs” and “CHF” means the lawful money of Switzerland.




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




          “Term Commitment” means, with respect to each Lender, the commitment, if any, of such
Lender to make a Term Loan hereunder on the Effective Date, expressed as an amount representing the
maximum principal amount of the Term Loan to be made by such Lender hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial
amount of each Lender’s Term Commitment is set forth on Schedule 2.01, or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Term Commitment, as applicable.
The initial aggregate amount of the Lenders’ Term Commitments is US$325,000,000.




          “Term Lender” means a Lender with a Term Commitment or an outstanding Term Loan.




          “Term Loan” means a Loan made pursuant to clause (a) of Section 2.01.




          “Term Maturity Date” means June 21, 2013.




          “Total Indebtedness” means, as of any relevant date of determination, the sum of (a)
the aggregate principal amount of Indebtedness of Parent, the Borrowers and the other Subsidiaries
outstanding as of such date, in the amount that would be reflected on a balance sheet prepared as
of such date on a consolidated basis in accordance with GAAP, plus (b) the aggregate principal
amount of Indebtedness of Parent, the Borrowers and the other Subsidiaries outstanding as of such
date that is not required to be reflected on a balance sheet in accordance with GAAP, determined on
a consolidated basis, provided that Total Indebtedness shall exclude all Indebtedness of
Parent, the Borrowers and the other Subsidiaries permitted under Sections 6.01(a)(vii) and (ix).




          “Total Senior Indebtedness” means, as of any relevant date of determination, the sum
of (a) the aggregate principal amount of Senior Indebtedness of Parent, the Borrowers and the other
Subsidiaries outstanding as of such date, in the amount that would be reflected on a balance sheet
prepared as of such date on a consolidated basis in accordance with GAAP, plus (b) the aggregate
principal amount of Senior Indebtedness of Parent, the Borrowers and the other Subsidiaries
outstanding as of such date that is not required to be reflected on a balance sheet in accordance
with







 



34




GAAP, determined on a consolidated basis, provided that Total Senior Indebtedness
shall exclude all Senior Indebtedness of Parent, the Borrowers and the other Subsidiaries permitted
under Sections 6.01(a)(vii) and (ix).




          “Tranche” means a category of Commitments and extensions of credits thereunder. For
purposes hereof, each of the following comprises a separate Tranche: (a) the Term Commitments and
the Term Loans, (b) the Letters of Credit issued to, and the Swingline Loans and Revolving Loans
made to, the US Borrower and (c) the Letters of Credit issued to, the Revolving Loans made to, and
the B/As accepted and purchased on behalf of each Foreign Borrower.




          “Transaction Costs” has the meaning set forth in the recitals hereto.




          “Transactions” has the meaning set forth in the recitals hereto.




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




          “Unrestricted Cash and Cash Equivalents” means, as of any date, an amount equal to (a)
the aggregate amount of consolidated cash and cash equivalents of Parent, the Borrowers and the
other Subsidiaries as of such date less (b) the Remaining Excess Cash as of such date,
provided that for all purposes hereunder, Unrestricted Cash and Cash Equivalents shall not
exceed US$150,000,000.




          “US Borrower” means SFX Entertainment, Inc., a Delaware corporation.




          “US Collateral” has the meaning set forth in the definition of the term “Collateral
and Guarantee Requirement”.




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




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




          “US Dollar Issuing Bank” means each Person designated a US Dollar Issuing Bank
pursuant to Section 2.05(i), in each case in its capacity as an issuer of Letters of Credit
denominated in US Dollars hereunder, and its successors in such capacity as provided in Section
2.05(i). An US Dollar Issuing Bank may, in its










 



35



discretion, arrange for any Letter of Credit to be issued by Affiliates of such US Dollar
Issuing Bank by providing notice thereof to the US Borrower on or prior to the date on which the
request for such Letter of Credit is delivered or telecopied to such US Dollar Issuing Bank in
accordance with Section 2.05(b), in which case the term “US Dollar Issuing Bank” shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.




          “US Dollar LC Exposure” means, at any time, the LC Exposure attributable to the US
Dollar Revolving Commitments. The US Dollar LC Exposure of any US Dollar Revolving Lender at any
time shall be its US Dollar Applicable Percentage of the total US Dollar LC Exposure at such time.




          “US Dollar Revolving Commitment” means, with respect to each Lender, the commitment,
if any, of such Lender to make US Dollar Revolving Loans and to acquire participations in Letters
of Credit denominated in US Dollars and Swingline Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender’s US Dollar Revolving Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.
The initial amount of each Lender’s US Dollar Revolving Commitment is set forth on Schedule 2.01,
or in the Assignment and Assumption pursuant to which such Lender shall have assumed its US Dollar
Revolving Commitment, as applicable. The initial aggregate amount of the Lenders’ US Dollar
Revolving Commitments is US$185,000,000.




          “US Dollar Revolving Exposure” means, with respect to any Lender at any time, the sum
of (a) the outstanding principal amount of such Lender’s US Dollar Revolving Loans at such time,
(b) such Lender’s US Dollar LC Exposure at such time and (c) such Lender’s US Dollar Swingline
Exposure at such time.




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




          “US Dollar Revolving Loan” means a Loan made pursuant to clause (d) of Section 2.01.




          “US Dollar Swingline Exposure” means, at any time, the Swingline Exposure attributable
to the US Dollar Revolving Commitments. The US Dollar Swingline Exposure of any US Dollar
Revolving Lender at any time shall be its US Dollar Applicable Percentage of the total US Dollar
Swingline Exposure at such time.




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




          “US Guarantees” has the meaning set forth in the definition of the term “Collateral
and Guarantee Requirement”.










 



36




          “US Guarantors” has the meaning set forth in the definition of the term “Collateral
and Guarantee Requirement”.




          “US Obligations” means the Obligations of the US Borrower.




          “Wholly Owned Foreign Subsidiary” means any Foreign Subsidiary all the Equity
Interests in which, other than directors’ qualifying shares and/or other nominal amounts of Equity
Interests that are required to be held by Persons under applicable law, are owned, directly or
indirectly, by the US Borrower.




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




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




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




          SECTION 1.04. Accounting Terms; GAAP; Pro Forma Calculations. (a) Except as
otherwise expressly provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time, provided that if the US
Borrower notifies the Administrative Agent that the US Borrower requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or
in the application thereof on the operation of such provision (or if the Administrative Agent
notifies the US Borrower that the







 



37




Required Lenders request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.




          (b) All pro forma computations required to be made hereunder giving effect to any acquisition,
investment, sale, disposition, merger, incurrence of Indebtedness or similar event (including, as
applicable, the application of the proceeds therefrom) shall reflect on a pro forma basis such
event assuming that such event had occurred at the beginning of the most recently ended period of
four consecutive fiscal quarters for which financial statements have been delivered pursuant to
Section 5.01(a) or (b) and, to the extent applicable and permitted under Regulation S-X promulgated
under the Securities Act of 1933, as amended, the historical earnings and cash flows associated
with the assets acquired or disposed of, any related incurrence or reduction of Indebtedness, and
any projected synergies or similar benefits expected to be realized as a result of such event.




          SECTION 1.05. Effectuation of Transactions. Each of the representations and
warranties of Parent and the Borrowers contained in this Agreement (and all corresponding
definitions) are made after giving effect to the Transactions, unless the context otherwise
requires.




          SECTION 1.06. Exchange Rates. (a) Not later than 1:00 p.m., New York City time, on
each Calculation Date, the Administrative Agent shall determine the Exchange Rate as of such
Calculation Date with respect to each currency (i) in which any Lender or Lenders shall be
committed to make Loans, (ii) in which any Loan or Loans shall be outstanding or (iii) in which any
undrawn Letter of Credit may be denominated. The Exchange Rates so determined shall become
effective on the first Business Day immediately following the relevant Calculation Date (a
“Reset Date”), shall remain effective until the next succeeding Reset Date and shall for
all purposes of this Agreement (other than Section 2.15(f), 7.02, 9.15 or any other provision
expressly requiring the use of a current Exchange Rate) be the Exchange Rates employed in
converting any amounts between US Dollars and Foreign Currencies.




          (b) Not later than 5:00 p.m., New York City time, on each Reset Date and each date of a
Borrowing hereunder with respect to Foreign Currency Loans, the Administrative Agent shall
determine the aggregate amount of the US Dollar Equivalents of the principal amounts of the Foreign
Currency Loans and Foreign Currency Letters of Credit then outstanding (after giving effect to any
Foreign Currency Loans or Foreign Currency Letters of Credit made, issued, repaid or canceled on
such date).




          SECTION 1.07. Redenomination of Certain Foreign Currencies. (a) Each
obligation of any party to this Agreement to make a payment denominated in the national currency
unit of any member state of the European Union that adopts the Euro as its lawful currency after
the date hereof shall be redenominated into Euros at the










 



38



time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of
any such member state, the basis of accrual of interest expressed in this Agreement in respect of
that currency shall be inconsistent with any convention or practice in the London Interbank Market
for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced
by such convention or practice with effect from the date on which such member state adopts the Euro
as its lawful currency, provided that if any Borrowing in the currency of such member state
is outstanding immediately prior to such date, such replacement shall take effect, with respect to
such Borrowing, at the end of the then-current Interest Period.




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




ARTICLE II




The Credits




          SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each
Lender agrees (a) to make a Term Loan in US Dollars to the US Borrower on the Effective Date in a
principal amount not exceeding its Term Commitment, (b) (i) to make Limited Currency Revolving
Loans denominated in US Dollars, Euros or Sterling to any Borrower from time to time during the
Revolving Availability Period in an aggregate principal amount that will not result in (A) such
Lender’s Limited Currency Revolving Exposure exceeding such Lender’s Limited Currency Revolving
Commitment or (B) the aggregate amount of Foreign Currency Revolving Exposures exceeding the
Foreign Currency Sublimit, (c) (i) to make Multicurrency Revolving Loans denominated in US Dollars
or any Foreign Currency to any Borrower from time to time during the Revolving Availability Period
and (ii) to cause its Canadian Lending Office to accept and purchase or arrange for the acceptance
and purchase of drafts drawn by the Canadian Borrowers in Canadian Dollars as B/As, in each case in
an aggregate principal amount that will not result in (A) such Lender’s Multicurrency Revolving
Exposure exceeding such Lender’s Multicurrency Revolving Commitment or (B) the aggregate amount of
Foreign Currency Revolving Exposure exceeding the Foreign Currency Sublimit and (d) to make US
Dollar Revolving Loans denominated in US Dollars to any Borrower from time to time during the
Revolving Availability Period in an aggregate principal amount that will not result in such
Lender’s US Dollar Revolving Exposure exceeding such Lender’s US Dollar Revolving Commitment.
Within the foregoing limits and subject to the terms and conditions set forth herein, each Borrower
may borrow, prepay and reborrow Revolving Loans. Amounts repaid in respect of Term Loans may not
be reborrowed.




          SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a Swingline Loan)
shall be made as part of a Borrowing consisting of Loans of the same







 



39




Class and Type, and denominated in the same currency, made by the Lenders ratably in
accordance with their respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of its obligations
hereunder, provided that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender’s failure to make Loans as required.




          (b) Subject to Section 2.14, (i) each Borrowing denominated in US Dollars shall be comprised
entirely of Eurocurrency Loans or ABR Loans, as the applicable Borrower may request in accordance
herewith, provided that (i) all Borrowings made on the Effective Date must be denominated
in US Dollars; (ii) each Revolving Borrowing denominated in Canadian Dollars shall be comprised
entirely of Canadian Base Rate Loans; and (iii) each Revolving Borrowing denominated in any other
Foreign Currency shall be comprised entirely of Eurocurrency Loans. Each Swingline Loan shall be
denominated in US Dollars and be an ABR Loan. Each Lender at its option may make any Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such Loan,
provided that any exercise of such option shall not affect the obligation of any Borrower
to repay such Loan in accordance with the terms of this Agreement.




          (c) At the commencement of each Interest Period for any Eurocurrency Borrowing, such Borrowing
shall be an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum.
At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is
an integral multiple of US$1,000,000 and not less than US$5,000,000, provided that an ABR
Borrowing may be in an aggregate amount that is equal to the entire unused balance of the total
Revolving Commitments or that is required to finance the reimbursement of a LC Disbursement as
contemplated by Section 2.05(e). At the time that each Canadian Base Rate Borrowing is made, such
Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple
and not less than the Borrowing Minimum, provided that a Canadian Base Rate Borrowing may
be in an aggregate amount that is equal to the entire unused balance of the Revolving Commitments.
Each Swingline Loan shall be in an amount that is an integral multiple of US$500,000 and not less
than US$1,000,000. Borrowings of more than one Type and Class may be outstanding at the same time,
provided that there shall not at any time be outstanding more than a total of (i) 10
Eurocurrency Revolving Borrowings denominated in US Dollars or (ii) 3 Eurocurrency Revolving
Borrowings denominated in any single Foreign Currency.




          (d) Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to
request, or to elect to convert or continue, any Revolving Borrowing if the Interest Period
requested with respect thereto would end after the Revolving Maturity Date.




          SECTION 2.03. Requests for Borrowings. To request a Revolving Borrowing or Term
Borrowing, the applicable Borrower shall notify the Applicable Agent of such request by telephone
or by telecopy (a) in the case of a Eurocurrency Borrowing, not later than 11:00 a.m., Local Time,
three Business Days before the date of







 



40




the proposed Borrowing, (b) in the case of an ABR Borrowing, not later than noon, Local Time,
on the date of the proposed Borrowing or (c) in the case of a Canadian Base Rate Borrowing, not
later than 11:00 a.m., Local Time one Business Day before the date of the proposed Borrowing. Each
such Borrowing Request shall be irrevocable and, if telephonic, shall be confirmed promptly by hand
delivery or telecopy to the Applicable Agent of a written Borrowing Request in a form agreed to by
the Applicable Agent and the applicable Borrower and signed by the applicable Borrower. Each such
telephonic and written Borrowing Request shall specify the following information in compliance with
Section 2.02:





     (i) the Borrower requesting such Borrowing;




     (ii) whether the requested Borrowing is to be a Limited Currency Revolving Borrowing,
Multicurrency Revolving Borrowing, US Dollar Revolving Borrowing or Term Borrowing;




     (iii) the currency and aggregate amount of the requested Borrowing;




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




     (v) the Type of the requested Borrowing;




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




     (vii) the location and number of the applicable Borrower’s account to which funds are
to be disbursed, which shall comply with the requirements of Section 2.06.


If no currency is specified with respect to any requested Borrowing, then the applicable Borrower
shall be deemed to have selected US Dollars. If no election as to the Type of Revolving Borrowing
is specified, then the requested Revolving Borrowing shall be (A) in the case of a Borrowing
denominated in US Dollars, an ABR Borrowing, (B) in the case of a Borrowing denominated in Canadian
Dollars, a Canadian Base Rate Borrowing and (C) in the case of a Borrowing denominated in any other
Foreign Currency, a Eurocurrency Borrowing. If no Interest Period is specified with respect to any
requested Eurocurrency Borrowing, then the applicable Borrower shall be deemed to have selected an
Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Applicable Agent shall advise each Lender of the details thereof
and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.




          SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans denominated in US Dollars to the US
Borrower from time to time during the Revolving Availability Period, in an aggregate principal
amount at any time outstanding that will not result in (i) the aggregate principal amount of
outstanding Swingline Loans exceeding










 



41



US$25,000,000 or (ii) the sum of the total Participating Revolving Exposures exceeding the
total Participating Revolving Commitments, provided that the Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing
limits and subject to the terms and conditions set forth herein, the US Borrower may borrow, prepay
and reborrow Swingline Loans.




          (b) To request a Swingline Loan, the US Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the
day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received from the
US Borrower. The Swingline Lender shall make each Swingline Loan available to the US Borrower by
means of a credit to the general deposit account of the US Borrower with the Swingline Lender by
3:00 p.m., New York City time, on the requested date of such Swingline Loan.




          (c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., New York City time, on any Business Day require the Participating Revolving
Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans
outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which
Participating Revolving Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Participating Revolving Lender, specifying in
such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each
Participating Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice
as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Participating Revolving
Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Participating Revolving Lender shall comply
with its obligation under this paragraph by wire transfer of immediately available funds, in the
same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06
shall apply, mutatis mutandis, to the payment obligations of the Participating
Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Participating Revolving Lenders. The Administrative Agent shall
notify the US Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender
from the US Borrower (or other party on behalf of the US Borrower) in respect of a Swingline Loan
after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the










 



42



Participating Revolving Lenders that shall have made their payments pursuant to this paragraph
and to the Swingline Lender, as their interests may appear, provided that any such payment
so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable,
if and to the extent such payment is required to be refunded to the US Borrower for any reason.
The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the
US Borrower of any default in the payment thereof.




          SECTION 2.05. Letters of Credit. (a) General. Prior to the Effective Date,
Bank of America, N.A. issued the Existing Letters of Credit, which on and after the Effective Date
shall constitute Letters of Credit issued by Bank of America, N.A. under this Agreement. Subject
to the terms and conditions set forth herein, any Borrower may request the issuance of Letters of
Credit for its own account, in a form reasonably acceptable to the Applicable Agent and the
applicable Issuing Bank, at any time and from time to time during the Revolving Availability Period
and prior to the date that is five Business Days prior to the Revolving Maturity Date. In the
event of any inconsistency between the terms and conditions of this Agreement and the terms and
conditions of any form of letter of credit application or other agreement submitted by a Borrower
to, or entered into by a Borrower with, an Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Agreement shall control.




          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the applicable Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the applicable Issuing Bank) to
an Issuing Bank and the Applicable Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount
of such Letter of Credit, the currency in which such Letter of Credit shall be denominated (which
shall comply with paragraph (c) of this Section), the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or extend such Letter of
Credit. If requested by the applicable Issuing Bank, such Borrower also shall submit a letter of
credit application on such Issuing Bank’s standard form in connection with any request for a Letter
of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrowers shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment, renewal or extension,
it will not result in (i) the LC Exposure exceeding US$235,000,000, (ii) the Foreign Currency LC
Exposure exceeding US$25,000,000, (iii) the sum of the aggregate Participating Revolving Exposures
exceeding the sum of the aggregate Participating Revolving Commitments and (iv) the sum of the
aggregate Limited Currency Revolving Exposures exceeding the sum of the aggregate Limited Currency
Revolving Commitments.










 



43




          (c) Expiration Date; Foreign Currency Letters of Credit. Each Letter of Credit shall
expire at or prior to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one
year after such renewal or extension) and (ii) the date that is five Business Days prior to the
Revolving Maturity Date. Notwithstanding any other provision of this Agreement, (A) each US Dollar
Issuing Bank shall only be required to issue Letters of Credit denominated in US Dollars, (B) each
Multicurrency Issuing Bank shall only be required to issue Letters of Credit denominated in US
Dollars, Euros and Sterling and (C) no Issuing Bank shall be required to issue a Letter of Credit,
including a Foreign Currency Letter of Credit, if such issuance would violate any applicable laws
or one or more policies of such Issuing Bank (including policies regarding Foreign Currencies in
which letters of credit may be issued as well as maximum amounts of letters of credit issued in
Foreign Currencies).




          (d) Participations. By the issuance of a Letter of Credit denominated in US Dollars
(or an amendment to a Letter of Credit denominated in US Dollars increasing the amount thereof) and
without any further action on the part of the applicable Issuing Bank or the Lenders, the
applicable Issuing Bank hereby grants to each Participating Revolving Lender, and each
Participating Revolving Lender hereby acquires from such Issuing Bank, a participation in such
Letter of Credit equal to such Lender’s Applicable Percentage from time to time of the aggregate
amount available to be drawn under such Letter of Credit. By the issuance of a Letter of Credit
denominated in Sterling or Euros (or an amendment to a Letter of Credit denominated in Sterling or
Euros increasing the amount thereof) and without any further action on the part of the applicable
Issuing Bank or the Lenders, and with respect to the immediately succeeding clause (ii), on each
Reset Date, (i) the applicable Issuing Bank hereby grants to each Limited Currency Revolving
Lender, and each Limited Currency Revolving Lender hereby acquires from such Issuing Bank, a
participation in such Letter of Credit equal to such Lender’s Limited Currency Applicable
Percentage from time to time of the aggregate amount available to be drawn under such Letter of
Credit and (ii) each Participating Revolving Lender hereby grants to each other Participating
Revolving Lender, and each Participating Revolving Lender hereby acquires from each other
Participating Revolving Lender, participations in each Letter of Credit denominated in US Dollars
held by such Participating Revolving Lender such that each Participating Revolving Lender’s LC
Exposure is equal to such Lender’s Applicable Percentage of the LC Exposure. In consideration and
in furtherance of the foregoing, each Participating Revolving Lender hereby absolutely and
unconditionally agrees to pay to the Applicable Agent, for the account of the applicable Issuing
Bank, such Lender’s Applicable Percentage or Limited Currency Applicable Percentage, as the case
may be (in each case, determined as of the date of the notice from the Applicable Agent referred to
in paragraph (e) of this Section), of each LC Disbursement made by such Issuing Bank in respect of
a Letter of Credit in which such Lender has acquired a participation that is not reimbursed by the
applicable Borrower on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment in respect of a Letter of Credit in which such Lender has acquired a
participation required to be refunded to the applicable Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be affected by any










 



44



circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit
or the occurrence and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever.




          (e) Reimbursement. If any Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the applicable Borrower shall reimburse such LC Disbursement by paying to the
Applicable Agent an amount equal to such LC Disbursement not later than 12:00 noon, Local Time, on
the date that such LC Disbursement is made, if the applicable Borrower shall have received notice
of such LC Disbursement prior to 10:00 a.m., Local Time, on such date, or, if such notice has not
been received by the applicable Borrower prior to such time on such date, then not later than 12:00
noon, Local Time, on (i) the Business Day that the applicable Borrower receives such notice, if
such notice is received prior to 10:00 a.m., Local Time, on the day of receipt, or (ii) the
Business Day immediately following the day that the applicable Borrower receives such notice, if
such notice is not received prior to such time on the day of receipt. If the applicable Borrower
fails to make such payment when due, the Applicable Agent shall notify each Participating Revolving
Lender that has acquired a participation in the applicable Letter of Credit of the applicable LC
Disbursement, the payment then due from such Borrower in respect thereof and such Lender’s
Applicable Percentage or Limited Currency Applicable Percentage, as the case may be, thereof.
Promptly following receipt of such notice, each Participating Revolving Lender that has acquired a
participation in the applicable Letter of Credit shall pay to the Applicable Agent its Applicable
Percentage or Limited Currency Applicable Percentage, as the case may be, of the payment then due
from the applicable Borrower, in the same manner as provided in Section 2.06 with respect to Loans
made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the Participating Revolving Lenders), and the Applicable Agent shall promptly pay to
the applicable Issuing Bank the amounts so received by it from the Participating Revolving Lenders.
Promptly following receipt by the Applicable Agent of any payment from the applicable Borrower
pursuant to this paragraph, the Applicable Agent shall distribute such payment to the applicable
Issuing Bank or, to the extent that Participating Revolving Lenders have made payments pursuant to
this paragraph to reimburse the applicable Issuing Bank, then to such Lenders and the applicable
Issuing Bank as their interests may appear. Any payment made by a Participating Revolving Lender
pursuant to this paragraph to reimburse an Issuing Bank for any LC Disbursement shall not
constitute a Loan and shall not relieve the applicable Borrower of its obligation to reimburse such
LC Disbursement.




          (f) Obligations Absolute. Each Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by an
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the










 



45



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




          (g) Disbursement Procedures. Each Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. Each Issuing Bank shall promptly notify the Applicable Agent and the applicable Borrower
by telephone (confirmed by telecopy) of such demand for payment and whether such Issuing Bank has
made or will make a LC Disbursement thereunder, provided that any failure to give or delay
in giving such notice shall not relieve any Borrower of its obligation to reimburse the applicable
Issuing Bank and the Participating Revolving Lenders with respect to any such LC Disbursement.




          (h) Interim Interest. If any Issuing Bank shall make any LC Disbursement, then,
unless the applicable Borrower shall reimburse such LC Disbursement in full on the date such LC
Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that the applicable
Borrower reimburses such LC Disbursement, (i) in the case of a LC Disbursement with respect to a
Letter of Credit denominated in US Dollars, at the rate per annum then applicable to ABR Loans,
(ii) in the case of a LC Disbursement with respect to a Letter of Credit denominated in





 









 








46



Canadian Dollars, at the rate per annum then applicable to Canadian Base Rate Loans and (iii)
in the case of a LC Disbursement with respect to a Letter of Credit denominated in any other
Foreign Currency, at the rate per annum then applicable to Eurocurrency Borrowings in such Foreign
Currency having an Interest Period of one month, provided that if the applicable Borrower
fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then
Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be for the account
of the applicable Issuing Bank, except that interest accrued on and after the date of payment by
any Participating Revolving Lender pursuant to paragraph (e) of this Section to reimburse the
applicable Issuing Bank shall be for the account of such Lender to the extent of such payment.




          (i) Replacement of an Issuing Bank. An Issuing Bank may be replaced at any time by
written agreement among the US Borrower, the Administrative Agent, the replaced Issuing Bank and
the successor Issuing Bank, which agreement shall set forth whether such Issuing Bank is a US
Dollar Issuing Bank or a Multicurrency Issuing Bank. The Administrative Agent shall notify the
Participating Revolving Lenders of any such replacement of an Issuing Bank. At the time any such
replacement shall become effective, the Borrowers shall pay all unpaid fees accrued for the account
of the replaced Issuing Bank pursuant to Section 2.12(c). From and after the effective date of any
such replacement, the successor Issuing Bank shall have all the rights and obligations of the
applicable replaced Issuing Bank under this Agreement with respect to Letters of Credit to be
issued thereafter. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank
shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing
Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement,
but shall not be required to issue additional Letters of Credit.




          (j) Cash Collateralization. If any Event of Default shall occur and be continuing, on
the Business Day that the US Borrower receives notice from any Agent or the Required Lenders (or,
if the maturity of the Loans has been accelerated, Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrowers shall deposit in an account with (i) the Administrative Agent, in the name
of the Administrative Agent and for the benefit of the Revolving Lenders, an amount in cash and in
US Dollars equal to the LC Exposure as of such date plus any accrued and unpaid interest thereon,
in each case attributable to Letters of Credit denominated in US Dollars and (ii) the London Agent,
in the name of the London Agent and for the benefit of the Revolving Lenders, an amount in cash and
in the applicable Foreign Currency equal to the LC Exposure (expressed in the applicable Foreign
Currency) as of such date plus any accrued and unpaid interest thereon, in each case attributable
to Letters of Credit denominated in Foreign Currencies, provided that the obligations set
forth in the immediately preceding clauses (i), (ii) and (iii) shall become effective immediately,
and such deposits shall become immediately due and payable, without demand or other notice of any
kind, upon the occurrence of any Event of Default with respect to a Borrower described in clause
(h) or (i) of Section 7.01. Each Borrower also shall deposit cash collateral pursuant to this
paragraph as and to the extent required by Section 2.11(b) or (d). Each such deposit pursuant to
this paragraph or Section 2.11(b) or (d) shall be held by the Applicable Agent







 



47




as collateral for the payment and performance of the obligations of each Borrower under this
Agreement. Each Applicable Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole discretion of the
Applicable Agent and at the Borrowers’ risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Applicable Agent to reimburse each Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held
for the satisfaction of the reimbursement obligations of the Borrowers for the LC Exposure at such
time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders
with LC Exposure representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Borrowers under this Agreement. If any Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to such Borrower within three
Business Days after all Events of Default have been cured or waived. If a Borrower is required to
provide an amount of cash collateral hereunder pursuant to Section 2.11(b) or (d), such amount (to
the extent not applied as aforesaid) shall be returned to such Borrower as and to the extent that,
after giving effect to such return, such Borrower would remain in compliance with Section 2.11(b)
or (d), as applicable, and no Default shall have occurred and be continuing.




          SECTION 2.06. Funding of Borrowings and B/A Drawings. (a) Each Lender shall make
each Loan to be made by it and disburse the Discount Proceeds (net of applicable acceptance fees)
of each B/A to be accepted and purchased by it hereunder on the proposed date thereof by wire
transfer of immediately available funds in the applicable currency by 1:00 p.m., Local Time, to the
account of the Applicable Agent most recently designated by it for such purpose by notice to the
applicable Lenders. The Applicable Agent will make such Loans or Discount Proceeds (net of
applicable acceptance fees) available to the applicable Borrower by promptly crediting the amounts
so received, in like funds, to an account of such Borrower previously identified to the Applicable
Agent (i) in New York City, in the case of Loans denominated in US Dollars, (ii) in Toronto, in the
case of Loans denominated in Canadian Dollars or B/As and (iii) in London, in the case of Loans
denominated in any Foreign Currency other than Canadian Dollars.




          (b) Unless the Applicable Agent shall have received notice from a Lender prior to the proposed
date of any Borrowing or acceptance and purchase of B/As that such Lender will not make available
to the Applicable Agent such Lender’s share of such Borrowing or the applicable Discount Proceeds
(net of applicable acceptance fees), the Applicable Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section and may, in reliance
upon such assumption, make available to the applicable Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing or the applicable
Discount Proceeds (net of applicable acceptance fees) available to the Applicable Agent, then the
applicable Lender and the Borrowers severally agree to pay to the Applicable Agent forthwith on
demand such corresponding amount with interest







 



48




thereon, for each day from and including the date such amount is made available to the
applicable Borrower to but excluding the date of payment to the Applicable Agent, at (i) in the
case of such Lender, the greater of (x)(A) the Federal Funds Effective Rate, in the case of Loans
denominated in US Dollars and (B) the rate reasonably determined by the Applicable Agent to be the
cost to it of funding such amount, in the case of Loans denominated in a Foreign Currency, and (y)
a rate determined by the Applicable Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of a Borrower, the interest rate applicable to such Borrowing or
the applicable Discount Rate, as the case may be. If such Lender pays such amount to the
Applicable Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing
or such Lender’s purchase of B/As.




          SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing initially shall be of
the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Revolving
Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Each B/A
Drawing shall have a Contract Period as specified in the applicable request therefor. Thereafter,
the applicable Borrower may elect to convert such Borrowing or B/A Drawing to a different Type or
to continue such Borrowing or B/A Drawing and, in the case of a Eurocurrency Revolving Borrowing,
may elect Interest Periods therefor, all as provided in this Section, it being understood that no
B/A Drawing may be converted or continued other than at the end of the Contract Period applicable
thereto. The applicable Borrower may elect different options with respect to different portions of
the affected Borrowing or B/A Drawing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing or accepting the B/As comprising such
B/A Drawing, as the case may be, and any Loans or B/As resulting from an election made with respect
to any such portion shall be considered a separate Borrowing or B/A Drawing. Notwithstanding any
other provision of this Section, no Revolving Borrowing or B/A Drawing may be converted into or
continued as a Revolving Borrowing or B/A Drawing with an Interest Period or Contract Period,
respectively, ending after the Revolving Maturity Date.




          (b) To make an election pursuant to this Section, a Borrower shall notify the Applicable Agent
of such election by telephone or by telecopy (i) in the case of an election that would result in a
Borrowing, by the time and date that a Borrowing Request would be required under Section 2.03 if
such Borrower were requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election, and (ii) in the case of an election that would result
in a B/A Drawing or the continuation of a B/A Drawing, by the time and date that a request would be
required under Section 2.20 if such Borrower were requesting an acceptance and purchase of B/As to
be made on the effective date of such election. Each such Interest Election Request shall be
irrevocable and, if telephonic, shall be confirmed promptly by hand delivery or telecopy to the
Applicable Agent of a written Interest Election Request in a form approved by the Applicable Agent
and signed by the applicable Borrower. Notwithstanding any other provision of this Section, no
Borrower shall be permitted to (i) change the currency of any Borrowing, (ii) elect an Interest
Period for Eurocurrency Loans that does not comply with Section 2.02(d) or a Contract Period for
B/As that does not comply with Section 2.20(c) or (iii) convert any Borrowing to a different Class.










 



49




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





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




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




    (iii) whether the resulting Borrowing is to be an ABR Borrowing, a Eurocurrency
Borrowing, a Canadian Base Rate Borrowing or a B/A Drawing; and




    (iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”, and in the case of an
election of a B/A Drawing, the Contract Period to be applicable thereto, which shall be a
period contemplated by the definition of the term “Contract Period”.


If any such Interest Election Request requests a Eurocurrency Borrowing or a B/A Drawing but does
not specify an Interest Period or a Contract Period, then the applicable Borrower shall be deemed
to have selected an Interest Period or Contract Period of one month’s or 30 days’ duration, as
applicable.




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




          (e) If a Borrower fails to deliver a timely Interest Election Request with respect to a
Eurocurrency Borrowing or B/A Drawing prior to the end of the Interest Period or Contract Period
applicable thereto, then, unless such Borrowing or B/A Drawing is repaid as provided herein, at the
end of such Interest Period or Contract Period, such Borrowing or B/A Drawing shall (i) in the case
of a Borrowing denominated in US Dollars, be converted to an ABR Borrowing, (ii) in the case of a
Borrowing or B/A Drawing denominated in Canadian Dollars, be converted to a Canadian Base Rate
Borrowing, and (iii) in the case of any other Eurocurrency Borrowing, be converted to a
Eurocurrency Borrowing with an Interest Period of one month. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the US Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing denominated in US Dollars may be
converted to or continued as a Eurocurrency Borrowing, (ii) unless repaid, each Eurocurrency
Borrowing denominated in US Dollars shall be converted to an ABR Borrowing at the end of the
Interest Period







 



50




applicable thereto and (iii) all other Eurocurrency Borrowings and all B/A Drawings must be
repaid in full at the end of the Interest Period or Contract Period, respectively, applicable
thereto.




          (f) Upon the conversion of any Borrowing denominated in Canadian Dollars (or portion thereof),
or the continuation of any B/A Drawing (or portion thereof), to or as a B/A Drawing, the net amount
that would otherwise be payable to a Borrower by each Lender pursuant to Section 2.20(f) in respect
of such new B/A Drawing shall be applied against the principal of the Revolving Loan made by such
Lender as part of such Borrowing (in the case of a conversion), or the reimbursement obligation
owed to such Lender under Section 2.20(i) in respect of the B/As accepted by such Lender as part of
such maturing B/A Drawing (in the case of a continuation), and such Borrower shall pay to such
Lender an amount equal to the difference between the principal amount of such Revolving Loan or the
aggregate face amount of such maturing B/As, as the case may be, and such net amount.




          SECTION 2.08. Termination and Reduction of Commitments. (a) Unless previously
terminated, (i) the Term Commitments shall terminate at 5:00 p.m., New York City time, on the
Effective Date and (ii) the Revolving Commitments shall terminate on the Revolving Maturity Date.




          (b) The US Borrower may at any time terminate, or from time to time reduce, the Commitments of
any Class, provided that (i) each reduction of the Commitments of any Class shall be in an
amount that is an integral multiple of US$5,000,000 and not less than US$5,000,000, (ii) the US
Borrower shall not terminate or reduce the Limited Currency Revolving Commitments if, after giving
effect to any concurrent prepayment of the Limited Currency Revolving Loans in accordance with
Section 2.11, (A) the sum of the Limited Currency Revolving Exposures would exceed the total
Limited Currency Revolving Commitments or (B) the sum of the Foreign Currency Revolving Exposures
would exceed the Foreign Currency Sublimit, (iii) the US Borrower shall not terminate or reduce the
Multicurrency Revolving Commitments if, after giving effect to any concurrent prepayment of the
Multicurrency Revolving Loans in accordance with Section 2.11, (A) the sum of the Multicurrency
Revolving Exposures would exceed the total Multicurrency Revolving Commitments or (B) the sum of
the Foreign Currency Revolving Exposures would exceed the Foreign Currency Sublimit and (iv) the US
Borrower shall not terminate or reduce the US Dollar Revolving Commitments if, after giving effect
to any concurrent prepayment of the US Dollar Revolving Loans in accordance with Section 2.11, the
sum of the US Dollar Revolving Exposures would exceed the total US Dollar Revolving Commitments,.




          (c) The US Borrower shall notify the Administrative Agent of any election to terminate or
reduce the Commitments under paragraph (b) of this Section at least three Business Days prior to
the effective date of such termination or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the US Borrower pursuant to this Section
shall be irrevocable, provided that a notice of termination of any Revolving Commitments
delivered by the US










 



51



Borrower may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the US Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments of any Class shall be permanent. Each
reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance
with their respective Commitments of such Class.




          SECTION 2.09. Repayment of Loans and B/As; Evidence of Debt. (a) Each Borrower
hereby unconditionally promises to pay (i) to the Applicable Agent for the account of each Lender
the then unpaid principal amount of each Revolving Loan of such Lender made to it on the Revolving
Maturity Date and the face amount of each B/A, if any, accepted by such Lender and requested by it
as provided in Section 2.20, (ii) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Term Loan of such Lender made to it as provided in Section
2.10 and (iii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan made
to it on the earlier of the Revolving Maturity Date and the first date after such Swingline Loan is
made that is the 15th or last day of a calendar month and is at least five Business Days after such
Swingline Loan is made, provided that on each date that a Revolving Borrowing is made, the
US Borrower shall repay all Swingline Loans that were outstanding on the date such Borrowing was
requested. Except as otherwise expressly provided herein, each Loan shall be repaid in the
currency in which such Loan is denominated.




          (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the Indebtedness of each Borrower to such Lender resulting from each Loan made or B/A
accepted by such Lender, including the amounts of principal and interest and amounts in respect of
B/As payable and paid to such Lender from time to time hereunder.




          (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof, the currency thereof and the Interest
Period, if any, applicable thereto, and the amount of each B/A and the Contract Period applicable
thereto, (ii) the amount of any principal, interest or other amount in respect of any B/A due and
payable or to become due and payable from each Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Agents hereunder for the account of the Lenders and each Lender’s
share thereof. Each other Agent shall promptly provide the Administrative Agent with all
information needed to maintain such accounts in respect of the Loans or B/A Drawings administered
by such Agent.




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










 



52




          (e) Any Lender may request that Loans of any Class made by it be evidenced by a promissory
note. In such event, each Borrower shall execute and deliver to such Lender a promissory note
payable to the order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note is a registered note,
to such payee and its registered assigns).




          SECTION
2.10. Amortization of Term Loans. (a) Subject to adjustment pursuant to
paragraph (d) of this Section, the US Borrower shall repay to the Administrative Agent for the
ratable account of the Term Lenders on the last Business Day of each March, June, September and
December, commencing on March 31, 2006, an aggregate
principal amount equal to 0.25% of the aggregate principal amount of all Term Loans outstanding on
the Effective Date.




          (b) To the extent not previously paid, all Term Loans shall be due and payable on the Term
Maturity Date.




          (c) Any prepayment of a Term Borrowing made pursuant to Section 2.11(b) shall be applied to
reduce the subsequent scheduled repayments of the Term Borrowings to be made pursuant to this
Section ratably; otherwise, prepayments of Term Borrowings shall be applied as directed by the US
Borrower.




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




          SECTION 2.11. Prepayment of Loans and B/As. (a) The Borrowers shall have the right
at any time and from time to time, and without premium or penalty, to prepay any Borrowing and to
cash collateralize amounts owed in respect of outstanding B/As in whole or in part, subject to
prior notice in accordance with paragraph (d) of this Section and payment of any amounts required
under Section 2.16, provided that all voluntary prepayments of Term Loans effected on or
prior to the first anniversary of the Effective Date with the proceeds of an issuance or incurrence
of Indebtedness by Parent, any Borrower or any other Subsidiary will be accompanied by a prepayment
fee equal to 1.00% of the aggregate principal amount of such prepayment. Such fee shall be paid by
the US Borrower to the Administrative Agent, for the accounts of the relevant Term Lenders, on the
date of such prepayment.




          (b) In the event and on such occasion that (i) the aggregate amount of the Limited Currency
Revolving Exposures exceeds the aggregate amount of the Limited









 



53

Currency Revolving Commitments, (ii) the aggregate amount of the Multicurrency Revolving
Exposures exceeds the aggregate amount of the Multicurrency Revolving Commitments, (iii) the
aggregate amount of the US Dollar Revolving Exposures exceeds the aggregate amount of the US Dollar
Revolving Commitments or (iv) the aggregate amount of the Foreign Currency Revolving Exposures
exceeds the Foreign Currency Sublimit (in each case, other than solely as a result of changes in
Exchange Rates), then, in each case, the Borrowers shall, not later than the next Business Day,
prepay one or more Borrowings or cash collateralize amounts owing in respect of outstanding B/As
(or, if no such Borrowings or B/As are outstanding, deposit cash collateral in an account with the
Administrative Agent pursuant to Section 2.05(j)) in an aggregate amount sufficient to eliminate
the applicable excess. If on any Reset Date and solely as a result of changes in Exchange Rates,
(i) the aggregate amount of the Limited Currency Revolving Exposures exceeds 105% of the aggregate
amount of the Limited Currency Revolving Commitments, (ii) the aggregate amount of the
Multicurrency Revolving Exposures exceeds 105% of the aggregate amount of the Multicurrency
Revolving Commitments, or (iii) the aggregate amount of the Foreign Currency Revolving Exposures
exceeds 105% of the Foreign Currency Sublimit, then, in each case, the Borrowers shall, not later
than the next Business Day, prepay one or more Borrowings or cash collateralize amounts owing in
respect of outstanding B/As (or, if no such Borrowings or B/As are outstanding, deposit cash
collateral in an account with the Administrative Agent pursuant to Section 2.05(j)) in an aggregate
amount sufficient to eliminate the applicable excess.




          (c) In the event and on each occasion that any Net Proceeds are received by or on behalf of
Parent, any Borrower or any other Subsidiary in respect of any Prepayment Event, the Borrowers
shall, within ten Business Days after such Net Proceeds are received, prepay Term Borrowings in an
aggregate amount equal to such Net Proceeds, provided that in the case of any event
described in clause (a) or (b) of the definition of the term Prepayment Event, if the US Borrower
shall deliver to the Administrative Agent a certificate of a Financial Officer (i) to the effect
that Parent, the US Borrower or any other Subsidiary intends to apply the Net Proceeds from such
event (or a portion thereof specified in such certificate), within 365 days after receipt of such
Net Proceeds, (A) in the case of any sale, transfer or other disposition of real property or
interests therein of Parent, any Borrower or any other Subsidiary, to acquire (including through
the acquisition of a Person substantially all of whose assets consist of real property or interests
therein), improve, enlarge, develop or make Capital Expenditures with respect to real property or
interests therein to be used in the business of Parent, the Borrowers and the other Subsidiaries or
(B) in the case of any other sale of property or assets of Parent, any Borrower or any other
Subsidiary, to acquire (including through the acquisition of a Person substantially all of whose
assets consist of equipment or other tangible personal property), improve, enlarge, develop or make
Capital Expenditures in respect of equipment or other tangible personal property to be used in the
business of Parent, the Borrowers and the other Subsidiaries, provided that if the Net
Proceeds from such other sale of property or assets of Parent, any Borrower or any other Subsidiary
do not exceed US$500,000 (or the US Dollar Equivalent thereof), such Net Proceeds may also be
applied to acquire (including through the acquisition of a Person substantially all of whose assets
consist of real property or interests therein), improve, enlarge, develop or make Capital
Expenditures with respect to real property or interests therein to be used in










 



54



the business of Parent, the Borrowers and the other Subsidiaries and (ii) certifying that no
Default has occurred and is continuing, then, in each case, no prepayment shall be required
pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion
of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such
Net Proceeds therefrom that (x) with respect to any sale, transfer or other disposition of real
property or interests therein, Parent, any Borrower or any other Subsidiary have not so applied by
the end of such 365-day period or entered into contractual arrangements to so apply (and actually
so apply) by the date that is 180 days after the end of such 365-day period and (y) with respect to
any other sale, transfer or other disposition, Parent, any Borrower or any other Subsidiary have
not so applied by the end of such 365-day period.




          (d) Prior to any optional or mandatory prepayment of Borrowings or cash collateralization of
amounts owing in respect of outstanding B/A Drawings, the applicable Borrower shall select the
Borrowing or Borrowings and the B/A Drawing or Drawings to be prepaid or cash collateralized and
shall specify such selection in the notice of such prepayment pursuant to paragraph (e) of this
Section.




          (e) The applicable Borrower shall notify the Applicable Agent by telephone (confirmed by
telecopy) or by telecopy of any prepayment hereunder (i) in the case of prepayment of a
Eurocurrency Revolving Borrowing, not later than 11:00 a.m., Local time, three Business Days before
the date of prepayment, or (ii) in the case of prepayment of an ABR Borrowing or a Canadian Base
Rate Borrowing or cash collateralization of a B/A Drawing, not later than 11:00 a.m., Local time,
one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment or cash collateralization date and the principal amount of each Borrowing or
portion thereof, or amount owed in respect of an outstanding B/A Drawing or portion thereof, to be
prepaid or cash collateralized, provided that if a notice of prepayment is given in
connection with a conditional notice of termination of the Commitments as contemplated by Section
2.08, then such notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.08. Promptly following receipt of any such notice relating to a
Borrowing or B/A, the Applicable Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing or cash collateralization of amounts owing in respect of a B/A
Drawing shall be in an amount that would be permitted in the case of an advance of a Borrowing of
the same Type as provided in Section 2.02 or an acceptance and purchase of B/As as provided in
Section 2.20. Each prepayment of a Borrowing or cash collateralization of a B/A Drawing shall be
applied ratably to the Loans included in the prepaid Borrowing or the B/As included in such B/A
Drawing. Prepayments shall be accompanied by accrued interest to the extent required by Section
2.13. Except as otherwise expressly provided herein, each Loan shall be prepaid in the currency in
which such Loan is denominated.




          (f) Amounts to be applied pursuant to this Section or Article VII to cash collateralize
amounts to become due with respect to outstanding B/As shall be deposited in the Prepayment Account
(as defined below). The Canadian Agent shall apply any cash deposited in the Prepayment Account
allocable to amounts to become due in respect of










 



55



B/As on the last day of their respective Contract Periods until all amounts due in respect of
outstanding B/As have been prepaid or until all the allocable cash on deposit has been exhausted.
For purposes of this Agreement, the term “Prepayment Account” means an account established
by a Canadian Borrower with the Canadian Agent and over which the Canadian Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal for application in
accordance with this paragraph (f). The Canadian Agent will, at the request of such Canadian
Borrower, invest amounts on deposit in the Prepayment Account in short-term, cash equivalent
investments selected by the Canadian Agent in consultation with such Canadian Borrower that mature
prior to the last day of the applicable Contract Periods of the B/As to be prepaid,
provided that the Canadian Agent shall have no obligation to invest amounts on deposit in
the Prepayment Account if an Event of Default shall have occurred and be continuing. The Borrowers
shall indemnify the Canadian Agent for any losses relating to the investments so that the amount
available to prepay amounts due in respect of B/As on the last day of the applicable Contract
Period is not less than the amount that would have been available had no investments been made
pursuant thereto. Other than any interest earned on such investments (which shall be for the
account of such Canadian Borrower, to the extent not necessary for the prepayment of B/As in
accordance with this Section and Article VII), the Prepayment Account shall not bear interest.
Interest or profits, if any, on such investments shall be deposited in the Prepayment Account and
reinvested and disbursed as specified above. If the maturity of the Loans and all amounts due
hereunder has been accelerated pursuant to Article VII, the Canadian Agent may, in its sole
discretion, apply all amounts on deposit in the Prepayment Account to satisfy any of the
Obligations in respect of the Loans, unreimbursed LC Disbursements and B/As (and each Borrower
hereby grants to the Canadian Agent a security interest in its Prepayment Account to secure such
Obligations).




          SECTION 2.12. Fees. (a) The US Borrower agrees to pay to the Administrative Agent,
in US Dollars, for the account of the office (or Affiliate) of each Lender from which such Lender
would make Loans to the US Borrower in US Dollars hereunder (which office or Affiliate shall be
specified by each Lender in a notice delivered to the Administrative Agent prior to the initial
payment to such Lender under this paragraph) a commitment fee, which shall accrue at the Applicable
Rate on the average daily unused amount of the total Revolving Commitments of such Lender during
the period from and including the date of this Agreement to but excluding the date on which such
Revolving Commitments terminate. Accrued commitment fees shall be payable in arrears on the last
day of March, June, September and December of each year and on the date on which the Revolving
Commitments terminate, commencing on the first such date to occur after the date hereof. All
commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last day). For purposes
of computing commitment fees with respect to Revolving Commitments, a Revolving Commitment of a
Lender shall be deemed to be used to the extent of the outstanding Revolving Loans and LC Exposure
of such Lender (and the Swingline Exposure of such Lender (other than the Swingline Lender) shall
be disregarded for such purpose).










 



56




          (b) Each Canadian Borrower agrees to pay to the Canadian Agent, in US Dollars, for the account
of each Revolving Lender, on each date on which a B/A drawn by such Canadian Borrower is accepted
hereunder an acceptance fee computed by multiplying the US Dollar Equivalent of the face amount of
each such B/A by the product of (i) the Applicable Rate for B/A Drawings on such date by (ii) a
fraction, the numerator of which is the number of days in the Contract Period applicable to such
B/A and the denominator of which is 365.




          (c) The US Borrower agrees to pay, in US Dollars, (i) to the Administrative Agent for the
account of each Participating Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the Applicable Rate used to determine
the interest rate applicable to Eurocurrency Revolving Loans on the average daily amount of such
Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the later of the date on
which such Lender’s Participating Revolving Commitment terminates and the date on which such Lender
ceases to have any LC Exposure, and (ii) to each Issuing Bank a fronting fee, which shall accrue at
the rate of 0.125% per annum on the average daily amount of the LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the Participating Revolving
Commitments and the date on which there ceases to be any LC Exposure, as well as each Issuing
Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of
Credit or processing of drawings thereunder. Participation fees and fronting fees accrued through
and including the last day of March, June, September and December of each year shall be payable on
the third Business Day following such last day, commencing on the first such date to occur after
the Effective Date, provided that all such fees shall be payable on the date on which the
Participating Revolving Commitments terminate and any such fees accruing after the date on which
the Participating Revolving Commitments terminate shall be payable on demand. Any other fees
payable to any Issuing Bank pursuant to this paragraph which accrue during any calendar month shall
be payable within 5 Business Days after the end of such calendar month. All participation fees and
fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last day).




          (d) The applicable Borrower agrees to pay to the Administrative Agent, in US Dollars, for its
own account, fees payable in the amounts and at the times separately agreed upon between such
Borrower and the Administrative Agent.




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










 



57




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




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




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




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




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




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





    (a) the Applicable Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not









 



58



exist for ascertaining the Adjusted Eurocurrency Rate, the LIBO Rate or the EURIBO
Rate, as applicable, for such Interest Period; or




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


then the Applicable Agent shall give notice thereof to the applicable Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Applicable Agent
notifies the Borrowers and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing
to, or continuation of any Revolving Borrowing as, a Eurocurrency Borrowing in such currency for
such Interest Period shall be ineffective, and such Borrowing shall be converted to or continued on
the last day of the Interest Period applicable thereto (A) if such Borrowing is denominated in US
Dollars or Canadian Dollars, as an ABR Borrowing or Canadian Base Rate Borrowing, respectively, or
(B) if such Borrowing is denominated in any other currency, as a Borrowing bearing interest at such
rate as the Lenders and the applicable Borrower may agree adequately reflects the costs to the
Lenders of making or maintaining their Loans (or, in the absence of such agreement, shall be repaid
as of the last day of the current Interest Period applicable thereto) and (ii) if any Borrowing
Request requests a Eurocurrency Revolving Borrowing in such currency for such Interest Period, (X)
if such Borrowing is denominated in US Dollars or Canadian Dollars, such Borrowing shall be made as
an ABR Borrowing or Canadian Base Rate Borrowing, respectively (or such Borrowing shall not be made
if the applicable Borrower revokes (and in such circumstances, such Borrowing Request may be
revoked notwithstanding any other provision of this Agreement) such Borrowing Request by telephonic
notice, confirmed promptly in writing, not later than one Business Day prior to the proposed date
of such Borrowing) or (Y) if such Borrowing is denominated in any other currency, such Borrowing
shall bear interest at such rate as the Lenders and the applicable Borrower may agree adequately
reflects the costs to the Lenders of making or maintaining their Loans (or, in the absence of such
agreement, such Borrowing shall be cancelled).




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





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




    (ii) impose on any Lender or any Issuing Bank or the Euro, London or Canadian
interbank markets any other condition affecting this Agreement or Eurocurrency Loans or B/A
Drawings made by such Lender or any Letter of Credit or participation therein;









 



59

and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan or obtaining funds for the purchase of B/As (or of maintaining
its obligation to make any such Loan or to accept and purchase B/As) or to increase the cost to
such Lender or any Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank
hereunder (whether of principal, interest or otherwise), then the Borrowers will pay to such Lender
or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such
Lender or such Issuing Bank, as the case may be, on an after-tax basis for such additional costs
incurred or reduction suffered.




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




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




          (d) If the cost to any Lender of making or maintaining any Loan to or obtaining funds for the
purchase of B/As from or participating in any Letter of Credit or any Issuing Bank of issuing or
maintaining any Letter of Credit to any Foreign Borrower is increased (or the amount of any sum
received or receivable by any Lender (or its applicable lending office) or any Issuing Bank is
reduced) by an amount deemed in good faith by such Lender or such Issuing Bank to be material, by
reason of the fact that such Foreign Borrower is incorporated in, or conducts business in, a
jurisdiction outside the United States, such the Borrowers shall indemnify such Lender or such
Issuing Bank for such increased cost or reduction upon demand by such Lender or such Issuing Bank
(with a copy to the Administrative Agent). A certificate of such Lender or such Issuing Bank
claiming compensation under this paragraph and setting forth the additional amount or amounts to be
paid to it hereunder (and the basis for the calculation of such amount or amounts) shall be
conclusive in the absence of manifest error.










 



60




          (e) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or such Issuing Bank’s
right to demand such compensation, provided that the Borrowers shall not be required to
compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender or such Issuing Bank, as
the case may be, notifies any Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor,
provided further that if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof.




          (f) Notwithstanding any other provision of this Agreement, if, after the date hereof, (i) any
Change in Law shall make it unlawful for any Revolving Lender to make or maintain any Foreign
Currency Revolving Loan or to give effect to its obligations as contemplated hereby with respect to
any Foreign Currency Revolving Loan or (ii) there shall have occurred any change in national or
international financial, political or economic conditions (including the imposition of or any
change in exchange controls) or currency exchange rates that would make it impracticable for any
Revolving Lender to make or maintain Foreign Currency Revolving Loans denominated in the affected
currency, then, by written notice to the applicable Borrower and to the Applicable Agent:





    (i) such Revolving Lender or Revolving Lenders may declare that Foreign Currency
Revolving Loans in the affected currency or currencies will not thereafter (for the
duration of such unlawfulness or impracticality) be made by such Lender or Lenders
hereunder (or, in the case of outstanding Foreign Currency Revolving Loans, be continued
for additional Interest Periods), whereupon any request for a Foreign Currency Revolving
Borrowing in the affected currency or currencies (or to continue a Foreign Currency
Revolving Borrowing in the affected currency or currencies for an additional Interest
Period) shall, as to such Revolving Lender or Revolving Lenders only, be deemed a request
for an Eurocurrency Loan having an Interest Period of one month’s duration and denominated
in US Dollars at the Exchange Rate determined by the Administrative Agent in accordance
with this Agreement (or a request to convert a Foreign Currency Revolving Loan into a
Eurocurrency Loan having an Interest Period of one month’s duration and denominated in US
Dollars at the Exchange Rate determined by the Administrative Agent in accordance with this
Agreement on the last day of the then current Interest Period with respect thereto), unless
such declaration shall be subsequently withdrawn; and




    (ii) such Lender may require that all outstanding Foreign Currency Revolving Loans in
the affected currency or currencies made by it be converted to Eurocurrency Loans having an
Interest Period of one month’s duration and denominated in US Dollars, in which event all
such Foreign Currency Revolving Loans in the affected currency or currencies shall be
converted to Eurocurrency Loans having an Interest Period of one month’s duration and
denominated in US









 



61



Dollars, as of the effective date of such notice as provided in paragraph (g) below
and at the Exchange Rate determined by the Administrative Agent in accordance with this
Agreement on the date of such conversion.


In the event any Revolving Lender shall exercise its rights under clause (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to repay the Foreign
Currency Revolving Loans that would have been made by such Revolving Lender or the converted
Foreign Currency Revolving Loans of such Lender shall instead be applied to repay the Eurocurrency
Loans made by such Lender in lieu of, or resulting from the conversion of, such Foreign Currency
Revolving Loans.




          (g) For purposes of paragraph (f) of this Section 2.15, a notice to the applicable Borrower by
any Lender shall be effective as to each Foreign Currency Revolving Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such Loan; in all other
cases such notice shall be effective on the date of receipt thereof by the applicable Borrower.




          SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurocurrency Loan or in respect of a B/A other than on the last day of an Interest
Period or Contract Period, as the case may be, applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurocurrency Loan or B/A other than on the last day of
the Interest Period or Contract Period, as the case may be, applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Revolving Loan or to issue B/As for acceptance and purchase
on the date specified in any notice delivered pursuant hereto (regardless of whether such notice
may be revoked under Section 2.11(e) and is revoked in accordance therewith), or (d) the assignment
of any Eurocurrency Loan or the right to receive payment in respect of a B/A other than on the last
day of the Interest Period or Contract Period, as the case may be, applicable thereto as a result
of a request by the US Borrower pursuant to Section 2.19 or the CAM Exchange, then, in any such
event, the Borrowers shall compensate each Lender for the loss, cost and expense attributable to
such event. In the case of a Eurocurrency Loan, such loss, cost or expense to any Lender shall be
deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount
of interest which would have accrued on the principal amount of such Loan had such event not
occurred, at the Adjusted Eurocurrency Rate that would have been applicable to such Loan, for the
period from the date of such event to the last day of the then current Interest Period therefor
(or, in the case of a failure to borrow, convert or continue, for the period that would have been
the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would bid were it to bid,
at the commencement of such period, for deposits in the applicable currency of a comparable amount
and period from other banks in the eurocurrency market. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to this Section, together
with supporting documentation or computations, shall be delivered to the applicable Borrower and
shall be conclusive absent manifest error. The Borrowers shall pay such Lender the amount shown as
due on any such certificate within 10 Business Days after receipt thereof.










 



62




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




          (b) In addition, the applicable Borrower shall pay any Other Taxes to the relevant
Governmental Authorities in accordance with applicable law.




          (c) The applicable Borrower shall indemnify each Agent, each Lender and each Issuing Bank,
within 10 Business Days after written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes paid by such Agent, such Lender or such Issuing Bank, as the case may be, on or with
respect to any payment by or on account of any obligation of such Borrower hereunder or under any
other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate setting forth in reasonable detail the amount and nature of such payment or liability
delivered to any Borrower by a Lender, by an Issuing Bank or by an Agent on its own behalf or on
behalf of a Lender or an Issuing Bank, shall be conclusive absent manifest error.




          (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Borrower
to a Governmental Authority, such Borrowers shall deliver to the Applicable 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 Applicable Agent.




          (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the laws of the United States of America, or any treaty to which the United States of America
is a party, with respect to payments under this Agreement shall deliver to the US Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by US law, such properly
completed and executed documentation prescribed by US law or reasonably requested by the US
Borrower as will permit such payments to be made without withholding or at a reduced rate. Parent
and each Borrower agree to take all actions required in order for all exemptions from withholding
taxes available to any Foreign Lender to be effective.










 



63




          (f) If an Agent, a Lender or an Issuing Bank determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by any Borrower
or with respect to which any Borrower has paid additional amounts pursuant to this Section 2.17, it
shall pay over such refund to the applicable Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrowers under this Section 2.17 with respect to the
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of such Agent,
such Lender or such Issuing Bank and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that the Borrowers, upon the
request of such Agent, such Lender or such Issuing Bank, agree to repay the amount paid over to the
applicable Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to such Agent, such Lender or such Issuing Bank in the event such Agent,
such Lender or such Issuing Bank is required to repay such refund to such Governmental Authority.
This Section shall not be construed to require any Agent, any Lender or any Issuing Bank to make
available its tax returns (or any other information relating to its taxes which it deems
confidential) to any Borrower or any other Person.




          SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) Each
Borrower shall make each payment required to be made by it hereunder or under any other Loan
Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts
payable under Section 2.15, 2.16 or 2.17 or otherwise) prior to the time expressly required
hereunder or under such other Loan Document for such payment (or, if no such time is expressly
required, prior to 12:00 noon, Local Time), on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any date may, in the
discretion of the Applicable Agent, be deemed to have been received on the next succeeding Business
Day for purposes of calculating interest thereon. All such payments shall be made to the
Applicable Agent to the applicable account specified from time to time by such Agent for the
account of the applicable Lenders, except that payments pursuant to Sections 2.15, 2.16, 2.17 and
9.03 shall be made directly to the Persons entitled thereto. The Applicable Agent shall distribute
any such payments received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment under any Loan Document shall be due on a day
that is not a Business Day, the date for payment shall be extended to the next succeeding Business
Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder of principal or interest in respect of any Loan
or amounts owing in respect of any B/A Drawing (or of any breakage indemnity in respect of any Loan
or B/A Drawing) shall be made in the currency of such Loan or B/A Drawing; all other payments
hereunder and under each other Loan Document shall be made in US Dollars, except as otherwise
expressly provided. Any payment required to be made by an Agent hereunder shall be deemed to have
been made by the time required if such Agent shall, at or before such time, have taken the
necessary steps to make such payment in accordance with the regulations or operating procedures of
the clearing or settlement system used by such Agent to make such payment.










 



64




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




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




          (d) Unless the Applicable Agent shall have received notice from the applicable Borrower prior
to the date on which any payment is due to the Applicable Agent for the account of the Lenders or
any Issuing Bank hereunder that the applicable Borrower will not make such payment, the Applicable
Agent may assume that such Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders or the Issuing Banks, as the case
may be, the amount due. In such event, if such Borrower has not in fact made such payment, then
each of the Lenders or the Issuing Banks, as the case may be, severally agrees to repay to the
Applicable Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank
with interest thereon, for each day from and including










 



65



the date such amount is distributed to it to but excluding the date of payment to the
Applicable Agent, at (i) the greater of the Federal Funds Effective Rate and a rate determined by
the Applicable Agent in accordance with banking industry rules on interbank compensation (in the
case of an amount denominated in US Dollars) and (ii) the rate reasonably determined by the
Applicable Agent to be the cost to it of funding such amount (in the case of an amount denominated
in any Foreign Currency).




          (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or 9.03(c), then the Applicable Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received
by the Applicable Agent for the account of such Lender to satisfy such Lender’s obligations under
such Sections until all such unsatisfied obligations are fully paid.




          SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.15, or if any Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.17, or if any Borrower is required to pay any additional interest to any Lender pursuant
to Section 2.22, then such Lender shall use commercially 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 reasonable
judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.15, 2.17 or 2.22 as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. Each Borrower hereby agrees to pay all reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.




          (e) If any Lender requests compensation under Section 2.15, or if any Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, or if any Borrower is required to pay any additional interest to any
Lender pursuant to Section 2.22, or if any Lender defaults in its obligation to fund Loans
hereunder, then the US Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04), all its interests,
rights and obligations under this Agreement to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment), provided that
(i) to the extent required under Section 9.04, the US Borrower shall have received the prior
written consent of the Administrative Agent, which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding principal of its
Loans and B/As and participations in LC Disbursements, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the US Borrower (in the case of all other amounts) and
(iii) in the case of any such assignment resulting from a claim for compensation under Section 2.15
or payments










 



66



required to be made pursuant to Section 2.17 or additional interest required pursuant to
Section 2.22, such assignment will result in a reduction in such compensation, payments, additional
interest or administrative burden to any Borrower that is beneficial to such Borrower in a material
respect.




          SECTION 2.20. Canadian Bankers’ Acceptances. (a) Each acceptance and purchase of
B/As of a single Contract Period pursuant to Section 2.01 or Section 2.07 shall be made ratably by
the Multicurrency Revolving Lenders in accordance with the amounts of their Multicurrency Revolving
Commitments. The failure of any Multicurrency Revolving Lender to accept any B/A required to be
accepted by it shall not relieve any other Multicurrency Revolving Lender of its obligations
hereunder, provided that the Multicurrency Revolving Commitments are several and no
Multicurrency Revolving Lender shall be responsible for any other Multicurrency Revolving Lender’s
failure to accept B/As as required.




          (b) The B/As of a single Contract Period accepted and purchased on any date shall be in an
aggregate amount that is an integral multiple of C$5,000,000 and not less than C$1,000,000. The
face amount of each B/A shall be C$100,000 or any whole multiple thereof. If any Multicurrency
Revolving Lender’s ratable share of the B/As of any Contract Period to be accepted on any date
would not be an integral multiple of C$100,000, the face amount of the B/As accepted by such Lender
may be increased or reduced to the nearest integral multiple of C$100,000 by the Canadian Agent in
its sole discretion. B/As of more than one Contract Period may be outstanding at the same time,
provided that there shall not at any time be more than a total of 5 B/A Drawings
outstanding.




          (c) To request an acceptance and purchase of B/As, a Canadian Borrower shall notify the
Canadian Agent of such request by telephone or by telecopy not later than 10:00 a.m., Local Time,
one Business Day before the date of such acceptance and purchase. Each such request shall be
irrevocable and, if telephonic, shall be confirmed promptly by hand delivery or telecopy to the
Canadian Agent of a written request in a form approved by the Canadian Agent and signed by such
Canadian Borrower. Each such telephonic and written request shall specify the following
information:





    (i) the aggregate face amount of the B/As to be accepted and purchased;




    (ii) the date of such acceptance and purchase, which shall be a Business Day;




    (iii) the Contract Period to be applicable thereto, which shall be a period
contemplated by the definition of the term “Contract Period” (and which shall in no event
end after the Revolving Maturity Date); and




    (iv) the location and number of the applicable Canadian Borrower’s account to which
any funds are to be disbursed, which shall comply with the requirements of Section 2.06.
If no Contract Period is specified with respect to









 



67



any requested acceptance and purchase of B/As, then the Canadian Borrower shall be
deemed to have selected a Contract Period of 30 days’ duration.


Promptly following receipt of a request in accordance with this paragraph, the Canadian Agent shall
advise each Multicurrency Revolving Lender of the details thereof and of the amount of B/As to be
accepted and purchased by such Lender




          (d) Each Canadian Borrower hereby appoints each Multicurrency Revolving Lender as its attorney
to sign and endorse on its behalf, manually or by facsimile or mechanical signature, as and when
deemed necessary by such Lender, blank forms of B/As. It shall be the responsibility of each
Multicurrency Revolving Lender to maintain an adequate supply of blank forms of B/As for acceptance
under this Agreement. Each Canadian Borrower recognizes and agrees that all B/As signed and/or
endorsed on its behalf by any Multicurrency Revolving Lender shall bind such Canadian Borrower as
fully and effectually as if manually signed and duly issued by authorized officers of such Canadian
Borrower. Each Multicurrency Revolving Lender is hereby authorized to issue such B/As endorsed in
blank in such face amounts as may be determined by such Lender, provided that the aggregate
face amount thereof is equal to the aggregate face amount of B/As required to be accepted by such
Lender. No Multicurrency Revolving Lender shall be liable for any damage, loss or claim arising by
reason of any loss or improper use of any such instrument unless such loss or improper use results
from the gross negligence or willful misconduct of such Multicurrency Revolving Lender. Each
Multicurrency Revolving Lender shall maintain a record with respect to B/As (i) received by it from
the Canadian Agent in blank hereunder, (ii) voided by it for any reason, (iii) accepted and
purchased by it hereunder and (iv) canceled at their respective maturities. Each Multicurrency
Revolving Lender further agrees to retain such records in the manner and for the periods provided
in applicable provincial or Federal statutes and regulations of Canada and to provide such records
to each Canadian Borrower upon its request and at its expense. Upon request by any Canadian
Borrower, a Multicurrency Revolving Lender shall cancel all forms of B/A that have been pre-signed
or pre-endorsed on behalf of such Canadian Borrower and that are held by such Multicurrency
Revolving Lender and are not required to be issued pursuant to this Agreement.




          (e) Drafts of each Canadian Borrower to be accepted as B/As hereunder shall be signed as set
forth in paragraph (d) above. Notwithstanding that any Person whose signature appears on any B/A
may no longer be an authorized signatory for any of the Multicurrency Revolving Lenders or such
Canadian Borrower at the date of issuance of such B/A, such signature shall nevertheless be valid
and sufficient for all purposes as if such authority had remained in force at the time of such
issuance and any such B/A so signed shall be binding on such Canadian Borrower.




          (f) Upon acceptance of a B/A by a Multicurrency Revolving Lender, such Multicurrency Revolving
Lender shall purchase, or arrange the purchase of, such B/A from the applicable Canadian Borrower
at the Discount Rate for such Multicurrency Revolving Lender applicable to such B/A accepted by it
and provide to the Canadian Agent the Discount Proceeds for the account of such Canadian Borrower
as provided in










 



68



Section 2.06. The acceptance fee payable by the applicable Canadian Borrower to a
Multicurrency Revolving Lender under Section 2.12 in respect of each B/A accepted by such
Multicurrency Revolving Lender shall be set off against the Discount Proceeds payable by such
Multicurrency Revolving Lender under this paragraph. Notwithstanding the foregoing, in the case of
any B/A Drawing resulting from the conversion or continuation of a B/A Drawing or Multicurrency
Revolving Loan pursuant to Section 2.07, the net amount that would otherwise be payable to such
Canadian Borrower by each Lender pursuant to this paragraph will be applied as provided in Section
2.07(f).




          (g) Each Multicurrency Revolving Lender may at any time and from time to time hold, sell,
rediscount or otherwise dispose of any or all B/A’s accepted and purchased by it.




          (h) Each B/A accepted and purchased hereunder shall mature at the end of the Contract Period
applicable thereto.




          (i) Each Canadian Borrower waives presentment for payment and any other defense to payment of
any amounts due to a Multicurrency Revolving Lender in respect of a B/A accepted and purchased by
it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the
maturity thereof, by such Multicurrency Revolving Lender in its own right and each Canadian
Borrower agrees not to claim any days of grace if such Multicurrency Revolving Lender as holder
sues each Canadian Borrower on the B/A for payment of the amounts payable by such Canadian Borrower
thereunder. On the specified maturity date of a B/A, or such earlier date as may be required
pursuant to the provisions of this Agreement, each Canadian Borrower shall pay the Multicurrency
Revolving Lender that has accepted and purchased such B/A the full face amount of such B/A, and
after such payment such Canadian Borrower shall have no further liability in respect of such B/A
and such Lender shall be entitled to all benefits of, and be responsible for all payments due to
third parties under, such B/A.




          (j) At the option of each Canadian Borrower and any Multicurrency Revolving Lender, B/As under
this Agreement to be accepted by that Lender may be issued in the form of depository bills for
deposit with The Canadian Depository for Securities Limited pursuant to the Depository Bills and
Notes Act (Canada). All depository bills so issued shall be governed by the provisions of this
Section 2.20.




          (k) If a Multicurrency Revolving Lender is not a chartered bank under the Bank Act (Canada) or
if a Multicurrency Revolving Lender notifies the Canadian Agent in writing that it is otherwise
unable to accept B/As, such Multicurrency Revolving Lender will, instead of accepting and
purchasing B/As, make a Loan (a “B/A Equivalent Loan”) to the applicable Canadian Borrower
in the amount and for the same term as the draft which such Multicurrency Revolving Lender would
otherwise have been required to accept and purchase hereunder. Each such Multicurrency Revolving
Lender will provide to the Canadian Agent the Discount Proceeds of such B/A Equivalent Loan for the
account of the applicable Canadian Borrower in the same manner as such Multicurrency Revolving
Lender would have provided the Discount Proceeds in respect of the draft which such Multicurrency
Revolving Lender would otherwise have been required to










 



69



accept and purchase hereunder. Each such B/A Equivalent Loan will bear interest at the same
rate which would result if such Multicurrency Revolving Lender had accepted (and been paid an
acceptance fee) and purchased (on a discounted basis) a B/A for the relevant Contract Period (it
being the intention of the parties that each such B/A Equivalent Loan shall have the same economic
consequences for the Multicurrency Revolving Lenders and the applicable Canadian Borrower as the
B/A which such B/A Equivalent Loan replaces). All such interest shall be paid in advance on the
date such B/A Equivalent Loan is made, and will be deducted from the principal amount of such B/A
Equivalent Loan in the same manner in which the Discount Proceeds of a B/A would be deducted from
the face amount of the B/A. Subject to the repayment requirements of this Agreement, on the last
day of the relevant Contract Period for such B/A Equivalent Loan, the applicable Canadian Borrower
shall be entitled to convert each such B/A Equivalent Loan into another type of Loan, or to roll
over each such B/A Equivalent Loan into another B/A Equivalent Loan, all in accordance with the
applicable provisions of this Agreement.




          SECTION 2.21. Incremental Commitments. (a) Any Borrower may, by written notice to
the Administrative Agent from time to time, request Incremental Term Commitments and/or Incremental
Revolving Commitments in an amount not to exceed the Incremental Amount from one or more
Incremental Term Lenders and/or Incremental Revolving Lenders (which may include any existing
Lender or any Person not theretofore a Lender) willing to provide such Incremental Term Loans
and/or Incremental Revolving Loans, as the case may be, in their own discretion, provided
that each Incremental Term Lender and/or Incremental Revolving Lender shall be subject to the
approval of the US Borrower and the Administrative Agent to the extent that such approval would be
required under Section 9.04 if the applicable Incremental Term Lender or Incremental Revolving
Lender were the proposed assignee of a Term Commitment or Revolving Commitment, respectively (which
approvals shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the
Incremental Term Commitments and/or Incremental Revolving Commitments being requested (which shall
be in minimum increments of US$25,000,000 and a minimum amount of US$25,000,000 or equal to the
remaining Incremental Amount) and (ii) the date on which such Incremental Term Commitments and/or
Incremental Revolving Commitments are requested to become effective (the “Increased Amount
Date”).




          (b) Each Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall
execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other
documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term
Commitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such
Incremental Revolving Lender and the security and Guarantees therefor (the “Incremental
Documents”). Each Incremental Assumption Agreement shall specify the terms of the Incremental
Term Loans and/or Incremental Revolving Loans to be made thereunder, provided that (i) the
Incremental Term Loans and Incremental Revolving Loans shall rank pari passu or
junior in right of payment and of security with the Term Loans, and Revolving Loans and (except as
to pricing and amortization) shall have the same terms as the Term Loans or Revolving Loans, as
applicable, (ii) the maturity date of any Incremental Term Loans or










 



70



Incremental Revolving Loans shall be no earlier than the date that is six months after the
Term Maturity Date, (iii) the weighted average life to maturity of any Incremental Term Loans shall
be no shorter than the remaining weighted average life to maturity of the Term Loans as of the date
of the applicable Incremental Assumption Agreement and (iv) no interest rate margin (which shall be
deemed to include all upfront or similar fees or original issue discounts payable to all
Incremental Term Lenders providing such Incremental Term Loans) in respect of any Incremental Term
Loan may exceed any Applicable Rate applicable to the Term Loans (which shall, for such purposes
only, be deemed to include all upfront or similar fees or original issue discounts payable to all
Term Lenders providing Term Loans) by more than 0.25% (it being understood that any such increase
may take the form of original issue discount, with original issue discount being equated to the
interest rates in a manner reasonably determined by the Administrative Agent based on an assumed
four-year life to maturity), without increasing such Applicable Rate so that no interest rate
margin in respect of such Incremental Term Loans (which shall be deemed to include all upfront or
similar fees or original issue discount payable to all Incremental Term Lenders providing such
Incremental Term Loans), is more than 0.25% higher than any Applicable Rate applicable to the Term
Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or
original issue discount payable to all Term Lenders providing the Term Loans). The Administrative
Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption
Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any
Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the
extent) necessary to reflect the existence and terms of the Incremental Term Commitments and/or
Incremental Revolving Commitments evidenced thereby as provided for in Section 9.04(e). Any such
deemed amendment may be memorialized in writing by the Administrative Agent and furnished to the
other parties hereto.




          (c) Notwithstanding the foregoing, no Incremental Term Commitment or Incremental Revolving
Commitment shall become effective under this Section 2.21 unless (i) on the date of such
effectiveness, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be
satisfied and the Administrative Agent shall have received a certificate to that effect dated such
date and executed by a Financial Officer, (ii) the Administrative Agent shall have received the
applicable Incremental Documents and all legal opinions and other documents related thereto and
(iii) immediately before and after giving pro forma effect to such Incremental Term Commitment
and/or Incremental Revolving Commitments and the Loans to be made thereunder and the application of
the proceeds therefrom, no Default shall have occurred and be continuing (including any Default
under Section 6.13, 6.14, 6.15 or 6.16).




          (d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and
all action as may be reasonably necessary to ensure that all Incremental Term Loans and/or
Incremental Revolving Loans, when originally made, are included in each Borrowing of outstanding
Term Loans or Revolving Loans on a pro rata basis, and the Borrowers agree that Section 2.16 shall
apply to any conversion of Eurocurrency Loans to ABR Loans or Canadian Base Rate Loans reasonably
required by the Administrative Agent to effect the foregoing.










 



71




          SECTION 2.22. Additional Reserve Costs. (a) If and so long as any Lender is required
under regulations of the Bank of England or the Financial Services Authority of the United Kingdom
to make special deposits with the Bank of England, to maintain reserve asset ratios or to pay fees,
in each case in respect of such Lender’s Eurocurrency Loans in any Foreign Currency and pursuant to
such regulations, such Lender may require the applicable Borrower to pay, contemporaneously with
each payment of interest on each of such Loans, additional interest on such Loan at a rate per
annum equal to the Mandatory Costs Rate calculated in accordance with the formula and in the manner
set forth in Exhibit G hereto.




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




          (c) A certificate of the applicable Lender setting forth in reasonable detail the additional
interest owed pursuant to paragraph (a) or (b) above of this Section shall be delivered to the
applicable Borrower (with a copy to the Applicable Agent) at least five Business Days before each
date on which interest is payable for the relevant Loan and shall be conclusive absent manifest
error. Such additional interest so notified to the applicable Borrower by such Lender shall be
payable to the Applicable Agent for the account of such Lender on each date on which interest is
payable for such Loan.




          SECTION 2.23. Foreign Borrowers. On or after the Effective Date, the US Borrower may
deliver to the Administrative Agent a Foreign Borrower Agreement executed by a Wholly Owned Foreign
Subsidiary and the US Borrower, and after (i) ten Business Days have elapsed after such delivery
and (ii) receipt by the Lenders and the Administrative Agent of such documentation and other
information reasonably requested by the Lenders or the Administrative Agent for purposes of
complying with all necessary “know your customer” or other similar checks under all applicable laws
and regulations, such Subsidiary shall for all purposes of this Agreement be a Foreign Borrower and
a party to this Agreement, provided that each Foreign Borrower shall also be a Foreign
Guarantor. Upon the execution by the US Borrower and a Foreign Borrower and delivery to the
Administrative Agent of a Foreign Borrower Termination with respect to such Foreign Borrower, such
Foreign Borrower shall cease to be a Foreign Borrower and a party to this Agreement,
provided that no Foreign Borrower Termination will become effective as to any Foreign
Borrower (other than to terminate such Foreign Borrower’s right to make further Borrowings under
this Agreement) at a time when any Loan to, B/A on behalf of or Letter of Credit issued to such
Foreign Borrower shall be outstanding hereunder. Promptly following receipt of any Foreign
Borrower Agreement or Foreign










 



72



Borrower Termination, the Administrative Agent shall send a copy thereof to each Lender.




ARTICLE III




Representations and Warranties




          Each of Parent and the Borrowers represents and warrants to the Agents and the Lenders that:




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




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




          SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions to be entered
into by each Loan Party (a) do not require any consent or approval of, registration or filing with
or any other action by any Governmental Authority to be made or obtained by any Loan Party pursuant
to any applicable law, rule or regulation applicable to it, except such as have been obtained or
made and are in full force and effect and except for filings necessary to perfect Liens created
under the Loan Documents, (b) will not violate any law, rule or regulation applicable to it or the
charter, by-laws or other organizational documents of Parent, any Borrower or any other Subsidiary
or any order of any Governmental Authority binding on any of them, (c) will not result in a breach
of, or constitute a default under, any indenture or other material agreement or instrument binding
upon Parent, any Borrower or any other Subsidiary or its assets, or give rise to a right thereunder
to require any payment to be made by Parent, any Borrower or any other Subsidiary, and (d) will not
result in the creation or imposition of any Lien on any asset of Parent, any Borrower or any other
Subsidiary pursuant to the










 



73



express provisions of any indenture or other material agreement or instrument to which it is a
party or bound, except Liens created under the Loan Documents.




          SECTION 3.04. Financial Condition; No Material Adverse Change. (a) Parent and the
US Borrower have heretofore furnished to the Lenders (i) Parent’s audited consolidated balance
sheet as of the fiscal years ended December 31, 2003 and 2004, reported on by Ernst & Young LLP,
independent public accountants, (ii) Parent’s audited consolidated statements of operations,
changes in stockholder’s equity and cash flows for the fiscal years ended December 31, 2002, 2003
and 2004, reported on by Ernst & Young LLP, independent public accountants and (iii) Parent’s
unaudited consolidated balance sheet and statements of operations, changes in stockholder’s equity
and cash flows as of and for the six-month periods ended June 30, 2004 and 2005, certified by
Parent’s chief financial officer. Such financial statements present fairly, in all material
respects, the financial position and results of operations, changes in stockholder’s equity and
cash flows of Parent and its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the
case of the statements referred to in clause (iii) above.




          (b) Parent has heretofore furnished to the Lenders its pro forma consolidated balance sheet as
of June 30, 2005, prepared giving effect to the Transactions as if the Transactions had occurred on
such date. As of the Effective Date, such pro forma consolidated balance sheet (i) has been
prepared in good faith based on the same assumptions used to prepare the pro forma financial
statements included in the Information Memorandum (which assumptions are reasonable), (ii) is based
on the best information available to Parent and the Borrowers after due inquiry, (iii) accurately
reflects all adjustments necessary to give effect to the Transactions and (iv) presents fairly, in
all material respects, the pro forma financial position of Parent and its consolidated Subsidiaries
as of June 30, 2005, as if the Transactions had occurred on such date.




          (c) Except as disclosed in the financial statements referred to above or the notes thereto or
in the Information Memorandum and except for the Disclosed Matters, after giving effect to the
Transactions, none of Parent, the Borrowers or the Subsidiaries has, as of the Effective Date, any
material contingent liabilities, unusual long-term commitments or unrealized losses.




          (d) Since December 31, 2004, there has been no material adverse change in the business,
assets, operations, properties, condition (financial or otherwise), liabilities (including
contingent liabilities), material agreements or prospects of Parent, the Borrowers and the other
Subsidiaries, taken as a whole.




          SECTION 3.05. Properties. (a) Each of Parent, the Borrowers and the other
Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property
material to its business, except for (i) minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such properties for their
intended purposes and (ii) Liens permitted by Section 6.02.










 



74




          (b) Each of Parent, the Borrowers and the other Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property material to its
business, and the use thereof by Parent, the Borrowers and the other Subsidiaries does not infringe
upon the rights of any other Person.




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




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




          (c) Since the date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or could reasonably be expected to
result in, a Material Adverse Effect.




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




          SECTION 3.08. Investment and Holding Company Status. None of Parent, the Borrowers
and the other Subsidiaries is (a) an “investment company” as defined in, or subject to regulation
under, the Investment Company Act of 1940 or (b) a “holding company” as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935.




          SECTION 3.09. Taxes. (a) Each of Parent, the Borrowers and the other Subsidiaries
(after giving effect to all applicable granted extensions) has timely filed or caused to be filed
all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes
required to have been paid by it before the same became delinquent, except (a) any Taxes that are
being contested in good faith and if necessary by appropriate proceedings and for which Parent,
such Borrower or such Subsidiary, as applicable, has set aside on its books adequate reserves in
accordance with GAAP or










 



75



(b) to the extent that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.




          (b) None of Parent, the Borrowers and the other Subsidiaries has incurred any material Tax
liabilities in connection with the Spin-Off.




          SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the
most recent financial statements reflecting such amounts, exceed the fair market value of the
assets of such Plan by an amount that could reasonably be expected to result in a Material Adverse
Effect, and the present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such amounts, exceed the
fair market value of the assets of all such underfunded Plans by an amount that could reasonably be
expected to result in a Material Adverse Effect.




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




          SECTION 3.12. Subsidiaries and Joint Ventures. Parent does not have any subsidiaries
other than the Subsidiaries set forth on Schedule 3.12. Neither Parent nor any Subsidiary holds
any Equity Interest in any joint venture other than those set forth on Schedule 3.12. Schedule
3.12 sets forth as of the Effective Date the name of, and the ownership interest of Parent in (i)
each Subsidiary of Parent and (ii) each joint venture in which Parent, any Borrower or any other
Subsidiary holds an Equity Interest, in each case as of the Effective Date. Schedule 3.12 sets
forth as of the Effective Date each Subsidiary that is a Material Subsidiary.




          SECTION 3.13. Insurance. Parent, the Borrowers and the other Subsidiaries maintain,
in force, with financially sound and reputable insurance companies, and have paid all premiums and
costs that are due and payable and are related










 



76



to, insurance coverages in such amounts (with no materially greater risk retention) and
against such risks under similar circumstances as are reasonably determined by the management of
Parent, the Borrowers and the other Subsidiaries to be sufficient in accordance with the usual and
customary practices of companies of established repute engaged in the same or similar lines of
business as Parent, the Borrowers and the other Subsidiaries and operating in the same or similar
locations, except to the extent reasonable self insurance meeting the same standards is maintained
with respect to such risks.




          SECTION 3.14. Labor Matters. As of the Effective Date, there are no strikes, lockouts
or slowdowns against Parent, any Borrower or any other Subsidiary pending or, to the knowledge of
Parent or any Borrower, overtly threatened in writing to Parent, any Borrower or any other
Subsidiary. To the best knowledge of Parent or any Borrower after making reasonable due inquiry,
the hours worked by and payments made to employees of Parent, the Borrowers and the other
Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters. All payments due from Parent, any
Borrower or any other Subsidiary, or for which any claim made against Parent, any Borrower or any
other Subsidiary, which Parent or any Borrower reasonably and in good faith believes it or any
other Subsidiary is liable, on account of wages and employee health and welfare insurance and other
benefits, have been paid or accrued as a liability on the books of Parent, such Borrower or such
Subsidiary. The consummation of the Transactions will not give rise to any right of termination or
right of renegotiation on the part of any union under any collective bargaining agreement to which
Parent, any Borrower or any other Subsidiary is bound.




          SECTION 3.15. Solvency. After giving effect to the application of the proceeds of all
Loans, (a) the fair value of the assets of each Loan Party, at a fair valuation, will exceed its
debts and liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value
of the property of each Loan Party will be greater than the amount that will be required to pay the
probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as
such debts and other liabilities become absolute and matured; (c) each Loan Party will be able to
pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities
become absolute and matured; and (d) each Loan Party will not have unreasonably small capital with
which to conduct the business in which it is engaged as such business is currently conducted and is
proposed to be conducted.




          SECTION 3.16. Status of Obligations. The Obligations constitute Senior Indebtedness
(and any other similar term defining Senior Indebtedness) under each indenture or other agreement
governing any Indebtedness of Parent, any Borrower or any other Subsidiary.




          SECTION 3.17. Collateral Matters. (a) Each of the Security Documents creates (or
will create, as the case may be), as security for the obligations purported to be secured thereby,
subject to the provisions hereof and thereof, a legal, valid and enforceable security interest in
all the Collateral subject to such Security Document (or










 



77

comparable interest under foreign law in the case of foreign Collateral) and each such
Security Document shall constitute either (a) a fully perfected Lien on, and security interest in,
all of the Collateral subject to such Security Document or (b) a floating charge, fixed charge or
security interest, as specified in the applicable Security Document, with respect to all of the
Collateral subject to such Security Document, in each case in favor of the relevant Collateral
Agent and subject to no other Liens except as may be expressly permitted under Section 6.02. The
pledgor or assignor, as the case may be, under each Security Document has good title to all
Collateral subject thereto free and clear of all Liens other than Permitted Encumbrances and such
additional Liens as may be expressly permitted under Section 6.02. No filings or recordings are
required in order to perfect the security interests created under the Security Documents except for
filings or recordings listed on Schedule 3.17, all of which shall have been made on or prior to the
Effective Date except as otherwise expressly provided in Schedule 3.17. There are no agreements or
understandings between or among stockholders or equity holders of any of the Loan Parties that
might adversely affect the benefits intended to be conferred on the relevant Collateral Agent by
the Security Documents or the prompt realization of such benefits.




          (b) When the Domestic Security Agreement is filed in the United States Patent and Trademark
Office and the United States Copyright Office, the security interest created thereunder shall
constitute a fully perfected Lien on, and security interest in, all right, title and interest of
the Domestic Loan Parties in the Intellectual Property (as defined in such Security Agreement) in
which a security interest may be perfected by filing, recording or registering a security
agreement, financing statement or analogous document in the United States Patent and Trademark
Office or the United States Copyright Office, as applicable, in each case prior and superior in
right to any other Person, other than with respect to the rights of Persons pursuant to Liens
expressly permitted by Section 6.02 (it being understood that subsequent recordings in the United
States Patent and Trademark Office and the United States Copyright Office may be necessary to
perfect a lien on registered trademarks, trademark applications and copyrights acquired by the
Domestic Credit Parties after the date hereof).




          (c) The Collateral and Guarantee Requirement is satisfied.




          SECTION 3.18. Immunities, Etc.  Each Borrower is subject to civil and commercial law
with respect to its obligations under this Agreement, and the execution, delivery and performance
by it of this Agreement and each other Loan Document constitutes and will constitute private and
commercial acts rather than public or governmental acts. Each Borrower has validly given its
consent to be sued in respect of its obligations under this Agreement and the other Loan Documents.
Each Borrower has waived every immunity (sovereign or otherwise) to which it or any of its
properties would otherwise be entitled from any legal action, suit or proceeding, from jurisdiction
of any court or from setoff or any legal process (whether service or notice, attachment prior to
judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) under the
laws of the jurisdiction of its incorporation in respect of its obligations under this Agreement
and the other Loan Documents. The waiver by each










 



78



Borrower described in the immediately preceding sentence is legal, valid and binding on such
Borrower.




ARTICLE IV




Conditions




          SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and accept
and purchase B/As and of the Issuing Banks to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied (or waived in
accordance with Section 9.02):




     (a) The Administrative Agent (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may include telecopy or
other electronic transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.



     (b) The Administrative Agent shall have received a favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated the Effective Date) of
each of (i) Fulbright & Jaworski L.L.P., counsel for the US Borrower, substantially in
the form of Exhibit H-1, and (ii) other counsel to Parent, the Borrowers and the other
Subsidiaries in the form of Exhibit H-2, and, in the case of each such opinion required
by this paragraph, covering such other matters relating to the Loan Parties, the Loan
Documents or the Transactions as the Required Lenders shall reasonably request. Each of
Parent and the Borrowers hereby requests such counsel to deliver such opinions.



     (c) The Administrative Agent shall have received such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Loan Party, the authorization of the
Transactions and any other legal matters relating to the Loan Parties, the Loan
Documents or the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.



     (d) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by a Financial Officer, confirming, to the best knowledge of such
officer, compliance with the conditions set forth in paragraphs (a) and (b) of Section
4.02.



     (e) The Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses (including fees, charges and
disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder
or under any other Loan Document.









 



79


     (f) The Collateral and Guarantee Requirement shall have been satisfied and the
Administrative Agent shall have received a completed Perfection Certificate dated the
Effective Date and signed by a Financial Officer, together with all attachments
contemplated thereby, including the results of a search of the Uniform Commercial Code
(or equivalent) filings made with respect to the Loan Parties in the jurisdictions
contemplated by the Perfection Certificate and copies of the financing statements (or
similar documents) disclosed by such search and evidence reasonably satisfactory to the
Administrative Agent that the Liens indicated by such financing statements (or similar
documents) are permitted by Section 6.02 or have been released.



     (g) The Administrative Agent shall have received evidence that the insurance
required by Section 5.07 and the Security Documents is in effect.



     (h) Holdco #2 shall have received gross cash proceeds of not less than
US$20,000,000 from the issuance of the Series A Preferred Stock.



     (i) All consents and approvals required to be obtained by any Loan Party from any
Governmental Authority or other Person in connection with the Transactions shall have
been obtained, and all applicable waiting periods and appeal periods shall have expired,
in each case without the imposition of any burdensome conditions. There shall be no
litigation or administrative proceeding that could reasonably be expected to have a
material adverse effect on the Transactions. The Transactions shall have been, or
substantially simultaneously with the initial funding of Loans on the Effective Date
shall be, consummated in accordance with applicable law and the terms and conditions set
forth in the Form 10 and all other related documentation.



     (j) The Lenders shall have received a pro forma consolidated balance sheet of
Parent as of September 30, 2005, reflecting all pro forma adjustments as if the
Transactions had been consummated on such date, and such pro forma consolidated balance
sheet shall be consistent in all material respects with the forecasts and other
information previously provided to the Lenders. After giving effect to the
Transactions, none of Parent, the Borrowers and the other Subsidiaries shall have
outstanding any shares of preferred stock or any Indebtedness, other than (i)
Indebtedness incurred under the Loan Documents, (ii) the Preferred Stock and (iii) other
Indebtedness set forth on Schedule 6.01.



     (k) The Administrative Agent shall have received a solvency certificate from a
Financial Officer in the form of Exhibit I.



     (l) To the extent not prohibited by the terms thereof, the Administrative Agent
shall have received a copy of the letter ruling from the Internal Revenue Service
delivered to Parent as to the tax-free nature of the Spin-Off. Otherwise, the
Administrative Agent shall have received a certificate from Skadden, Arps, Slate,
Meagher & Flom LLP, counsel to Parent, certifying that such letter ruling has been
received.









 



80


     (m) The Lenders shall have received a reasonably detailed business plan of Parent,
the Borrowers and the other Subsidiaries for the fiscal years 2006 through 2010
(including quarterly projections for the first four fiscal quarters ending after the
Effective Date).



     (n) The Lenders shall have received all documentation and other information
required by bank regulatory authorities under applicable “know your customer” and
anti-money laundering rules and regulations, including the Act.


The Administrative Agent shall notify the Borrowers and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived pursuant to
Section 9.02) at or prior to 5:00 p.m., New York City time, on January 6, 2006 (and, in the event
such conditions shall not have been so satisfied or waived, the Commitments shall terminate at such
time).




     SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing or accept and purchase any B/As, and of any Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject to the satisfaction of the following conditions:




          (a) The representations and warranties of each Loan Party set forth in the Loan Documents
shall be true and correct in all material respects on and as of the date of such Borrowing or the
date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable,
provided that (i) to the extent that such representations and warranties specifically refer
to an earlier date, they shall be true and correct in all material respects as of such earlier date
and (ii) any representation and warranty that is qualified as to “materiality,” “Material Adverse
Effect” or similar language shall be true and correct in all respects as qualified and as of each
date such representation and warranty is made.




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




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




          SECTION 4.03. First Credit Extension to a Foreign Borrower. The obligation of each
Lender to honor any initial request for a Loan or B/A by a Foreign Borrower or of any Issuing Bank
to honor any initial request for a Letter of Credit by a Foreign Borrower is subject to the
satisfaction of the following further conditions:










 



81




          (a) receipt by the Administrative Agent of an opinion of counsel for such Foreign Borrower
reasonably acceptable to the Administrative Agent, substantially in the form of Exhibit H-2 hereto
and covering such additional matters relating to the transactions contemplated hereby as the
Administrative Agent may reasonably request;




          (b) receipt by the Administrative Agent of all documents which it may reasonably request
relating to the existence of such Foreign Borrower, its corporate authority for and the validity of
its entry into its Foreign Borrower Agreement, this Agreement and any other Loan Document, and any
other matters relevant thereto, all in form and substance reasonably satisfactory to the
Administrative Agent; and




          (c) the requirements of Section 5.11 shall have been satisfied with respect to such Foreign
Borrower.




ARTICLE V




Affirmative Covenants




          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and each B/A and all fees payable hereunder shall have been paid in full and all Letters
of Credit shall have expired or terminated and all LC Disbursements shall have been reimbursed,
each of Parent and the Borrowers covenants and agrees with the Agents and the Lenders as to itself
and the Subsidiaries that:




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





    (a) within 90 days after the end of each fiscal year of Parent, its audited
consolidated balance sheet and related statements of operations, changes in
stockholders’ equity and cash flows as of the end of and for such year, setting forth in
each case in comparative form the figures for the previous fiscal year, all reported on
by Ernst & Young LLP or other independent public accountants of recognized national
standing (without a “going concern” or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material respects the financial
condition and results of operations of Parent and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;




    (b) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of Parent, its unaudited consolidated balance sheet and related statements
of operations, changes in stockholders’ equity and cash flows as of the end of and for
such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for the corresponding period or periods of
(or, in the case of the balance sheet, as of the end of) the previous fiscal year, all
certified by one of its Financial Officers as presenting fairly in all material respects
the financial condition and results of









 



82



operations of Parent and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit adjustments
and the absence of footnotes;




    (c) concurrently with any delivery of financial statements under clause (a) or (b)
above, a certificate of a Financial Officer (i) certifying, to the best of such
officer’s knowledge, as to whether a Default exists at the end of such fiscal quarter or
fiscal year, as applicable, and, if a Default so exists, specifying the details thereof
and any action taken or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections 6.13, 6.14, 6.15
and 6.16, (iii) setting forth reasonably detailed calculations demonstrating
Consolidated Tangible Assets as of the date of such financial statements, (iv) stating
whether any change in GAAP or in the application thereof has occurred since the date of
Parent’s audited financial statements referred to in Section 3.04 and, if any such
change has occurred, specifying the effect of such change on the financial statements
accompanying such certificate and (v) setting forth the Subsidiaries formed or acquired
during the applicable fiscal quarter;




    (d) concurrently with any delivery of financial statements under clause (a) above,
a certificate of the accounting firm that reported on such financial statements stating
whether they obtained knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent required by
accounting rules or guidelines);




    (e) at least 15 days prior to the commencement of each fiscal year of Parent, a
detailed consolidated budget for such fiscal year (including a projected consolidated
balance sheet and related statements of projected operations and cash flow as of the end
of and for each fiscal quarter of such fiscal year and setting forth the assumptions
used for purposes of preparing such budget) and, promptly when available, any
significant revisions of such budget;




    (f) promptly after the same become publicly available, copies of all periodic and
other reports, proxy statements and other materials filed by Parent, or any Subsidiary
with the Securities and Exchange Commission, or any Governmental Authority succeeding to
any or all of the functions of said Commission, or with any national securities
exchange, or distributed by Parent to its shareholders generally, as the case may be;




    (g) within 100 days after the end of each fiscal year of Parent, the unaudited
consolidated balance sheet and related statements of operations of the US Borrower (with
consolidating information reconciling in reasonable detail such financial statements
with the corresponding financial statements of Parent), in each case as of the end of
and for such year, setting forth in each case in comparative form the figures for the
previous fiscal year, all certified by a Financial Officer as presenting fairly in all
material respects the financial









 



83



condition and results of operations of the applicable Person and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;




    (h) within 55 days after the end of each of the first three fiscal quarters of each
fiscal year of Parent, the unaudited consolidated balance sheet and related statements
of operations of the US Borrower (with consolidating information reconciling in
reasonable detail such financial statements with the corresponding financial statements
of Parent), in each case as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer
as presenting fairly in all material respects the financial condition and results of
operations of the applicable Person and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;




    (i) promptly following any request therefor, such information regarding Parent, any
Borrower or any other Subsidiary as the Administrative Agent (or any Lender acting
through the Administrative Agent) may reasonably request to comply with the Act; and




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


Information required to be delivered pursuant to this Section 5.01 shall be deemed to have been
furnished and delivered if such information, or one or more annual, quarterly or other reports or
filings containing such information, shall have been (a) delivered to the Administrative Agent in
electronic format or (b) electronically filed with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said Commission, and notice
thereof shall have been provided to the Administrative Agent. Information required to be delivered
pursuant to this Section 5.01 may also be delivered by electronic communications pursuant to
procedures approved by the Administrative Agent.




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





        (a) the occurrence of any Default;




        (b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting Parent,









 



84



any Borrower or any Affiliate thereof that could reasonably be expected to result
in a Material Adverse Effect;




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




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


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




          SECTION 5.03. Information Regarding Collateral. (a) Parent and the Borrowers will
furnish to the Administrative Agent prompt written notice of any change (i) in any Loan Party’s
corporate name or in any trade name used to identify it in the conduct of its business or in the
ownership of its properties, (ii) in the location of any Loan Party’s chief executive office, its
principal place of business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it is located
(including the establishment of any such new office or facility), (iii) in any Loan Party’s
identity or corporate structure or (iv) to the extent applicable, in any Loan Party’s Federal
Taxpayer Identification Number. Parent and the Borrowers agree to make or cause to be made or
otherwise effect all filings under the Uniform Commercial Code or otherwise that are required in
order for the Administrative Agent to continue at all times following such change to have a valid,
legal and perfected security interest in all the Collateral. Parent and the Borrowers also agree
promptly to notify the Administrative Agent if any material portion of the Collateral is damaged or
destroyed.




          (b) Each year, at the time of delivery of annual financial statements with respect to the
preceding fiscal year pursuant to clause (a) of Section 5.01, Parent and the Borrowers shall
deliver to the Administrative Agent a certificate of a Financial Officer and the general counsel of
Parent (i) setting forth the information required pursuant to Section 2 of the Perfection
Certificate or confirming that there has been no change in such information since the date of the
Perfection Certificate delivered on the Effective Date or the date of the most recent certificate
delivered pursuant to this Section and (ii) certifying that, to the best knowledge of such
Financial Officer and general counsel, all Uniform Commercial Code financing statements (including
fixture filings, as applicable) or other appropriate filings, recordings or registrations,
including all refilings, rerecordings and reregistrations, containing a description of the
Collateral have been filed of record in each governmental, municipal or other appropriate office in
each jurisdiction identified pursuant to clause (i) above to the extent necessary to protect and
perfect the security interests under the Collateral Agreement for a period of not less than 18
months after the date of such certificate (except as noted therein with respect to any continuation
statements to be filed within such period). Each certificate delivered pursuant to this










 



85



Section 5.03(b) shall identify in the format of Schedule II, III, IV or V, as applicable, of
the Domestic Collateral Agreement all Intellectual Property (as defined in the Security Documents)
of any Loan Party in existence on the date thereof and not then listed on such Schedules as
previously so identified to the Collateral Agent.




          SECTION 5.04. Existence; Conduct of Business. Each of Parent and the Borrowers will,
and will cause each of its subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the rights, licenses,
permits, privileges, franchises, patents, copyrights, trademarks and trade names material to the
conduct of the business of Parent and the Subsidiaries, taken as a whole, provided that the
foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.03, any sale, transfer or other disposition permitted by Section 6.05 or, to the extent
compliance with Section 5.03 is met, any statutory conversion that does not result in (a) a
Subsidiary Loan Party ceasing to be a Subsidiary Loan Party or (b) a Domestic Subsidiary or a
Foreign Subsidiary becoming a Foreign Subsidiary or a Domestic Subsidiary, respectively.




          SECTION 5.05. Payment of Obligations. Each of Parent and the Borrowers will, and will
cause each of its subsidiaries to, pay its Indebtedness and other obligations, including Tax
liabilities, before the same shall become delinquent, except where (a) the validity or amount
thereof is being contested in good faith and if necessary to so contest, by appropriate
proceedings, (b) Parent, such Borrower or such Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP, (c) such contest effectively suspends
collection of the contested obligation and the enforcement of any Lien securing such obligation and
(d) the failure to make payment pending such contest could not reasonably be expected to result in
a Material Adverse Effect.




          SECTION 5.06. Maintenance of Properties. Each of Parent and the Borrowers will, and
will cause each of its subsidiaries to, keep and maintain all property material to the conduct of
the business of Parent and the Subsidiaries, taken as a whole, in good working order and condition,
ordinary wear and tear excepted.




          SECTION 5.07. Insurance. Each of Parent and the Borrowers will, and will cause each
of its subsidiaries to, maintain, with financially sound and reputable insurance companies,
insurance in such amounts (with no greater risk retention) and against such risks under similar
circumstances as are reasonably determined by the management of Parent, the Borrowers and the other
Subsidiaries to be sufficient in accordance with usual and customary practices of companies of
established repute engaged in the same or similar businesses operating in the same or similar
locations, except to the extent reasonable self insurance meeting the same standards is maintained
with respect to such risks, and all insurance required to be maintained pursuant to the Security
Documents. Parent and the Borrowers will furnish to the Lenders, upon request of the
Administrative Agent, information in reasonable detail as to the insurance so maintained.










 



86




          SECTION 5.08. Casualty and Condemnation. Parent and the Borrowers (a) will furnish to
the Administrative Agent and the Lenders prompt written notice of any casualty or other insured
damage to any material portion of the Collateral or the commencement of any action or proceeding
for the taking or expropriation of any material portion of the Collateral under power of eminent
domain or by condemnation or similar proceeding and (b) will ensure that the Net Proceeds of any
such event (whether in the form of insurance proceeds, condemnation awards or otherwise) are
collected and applied in accordance with the applicable provisions of this Agreement and the
Security Documents.




          SECTION 5.09. Books and Records; Inspection and Audit Rights. Each of Parent and the
Borrowers will, and will cause each of its subsidiaries to, keep proper books of record and account
in which full, true and correct entries are made of all dealings and transactions in relation to
its business and activities. Each of Parent and the Borrowers will, and will cause each of its
subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender,
upon reasonable prior notice and during normal business hours, to visit and inspect its properties,
to examine and make extracts from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants, all at such reasonable times and as often
as reasonably requested, in each case subject to applicable attorney-client privilege exceptions
and compliance with non-disclosure and confidentiality agreements between any of Parent, any
Borrower or any other Subsidiary and third parties.




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




          SECTION 5.11. Additional Subsidiaries. If any additional Subsidiary is formed or
acquired after the Effective Date, Parent and the Borrowers will, if applicable, cause the
Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with
respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any
Loan Party.




          SECTION 5.12. Further Assurances. (a) Each of Parent and the Borrowers will, and
will cause each Subsidiary Loan Party to, execute any and all further documents, financing
statements, agreements and instruments, and take all such further actions (including the filing and
recording of financing statements, fixture filings, mortgages, deeds of trust and other documents),
which may be required under any applicable law, or which the Administrative Agent or the Required
Lenders may reasonably request, to cause the Collateral and Guarantee Requirement to be and remain
satisfied at all times, all at the expense of the Loan Parties. Parent and the Borrowers also
agree to provide to the Administrative Agent, from time to time upon request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.










 



87




          (b) If any material assets (including any real property or improvements thereto or any
interest therein) are acquired by Parent, any Borrower or any other Subsidiary Loan Party after the
Effective Date (other than assets constituting Collateral under the Security Documents that become
subject to the Liens of the Security Documents upon acquisition thereof), Parent and the Borrowers
will notify the Administrative Agent and the Lenders thereof, and, to the extent required by the
Collateral and Guarantee Requirement, Parent and the Borrowers will cause such assets to be
subjected to a Lien securing the Obligations and will take, and cause the Subsidiary Loan Parties
to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to
grant and perfect such Liens, including actions described in paragraph (a) of this Section, all at
the expense of the Loan Parties.




          SECTION 5.13. Interest Rate Protection. As promptly as practicable, and in any event
within 90 days after the Effective Date, the US Borrower will enter into, and thereafter for a
period of not less than three years will maintain in effect, one or more interest rate protection
agreements on such terms and with such parties as shall be reasonably satisfactory to the
Administrative Agent, the effect of which shall be to fix or limit the interest cost to the US
Borrower with respect to at least 50% of the outstanding Term Loans.




          SECTION 5.14. Ownership of Foreign Borrowers. Each of the Foreign Borrowers will, at
all times, be a direct or indirect wholly owned subsidiary of the US Borrower.




ARTICLE VI




Negative Covenants




          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and each B/A and all fees payable hereunder shall have been paid in full and all Letters
of Credit shall have expired or terminated and all LC Disbursements shall have been reimbursed,
each of Parent and the Borrowers covenants and agrees with the Agents and the Lenders as to itself
and the Subsidiaries that:




          SECTION 6.01. Indebtedness; Certain Equity Securities. (a) Each of Parent and the
Borrowers will not, and will not permit any of its subsidiaries to, create, incur, assume or permit
to exist any Indebtedness, except:





    (i) Indebtedness created under the Loan Documents;




    (ii) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and
extensions, renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity date or decreased
weighted average life thereof or change the parties directly or indirectly responsible for
the payment thereof;




    (iii) unsecured Indebtedness of Parent, any Borrower or any other Subsidiary to
Parent, any Borrower or any other Subsidiary, provided that (A)









 



88



such Indebtedness shall not have been transferred or pledged to any third party, (B)
such Indebtedness is subordinated to the Obligations on terms customary for intercompany
subordinated Indebtedness and (C) Indebtedness of any Subsidiary that is not a Loan Party
to Parent, any Borrower or any other Subsidiary Loan Party shall be subject to Section
6.04;




    (iv) Indebtedness of Parent, any Borrower or any other Subsidiary incurred to finance
the acquisition, construction, development, enlargement, repair or improvement of any fixed
or capital assets, including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on any such assets
prior to the acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof or result in an
earlier maturity date or decreased weighted average life thereof or change the parties
directly or indirectly responsible for the payment thereof, provided that (A) such
Indebtedness is incurred prior to or within 180 days after such acquisition or the
completion of such construction, development, enlargement, repair or improvement and (B)
the aggregate principal amount of Indebtedness permitted by this clause (iv) shall not
exceed the US Dollar Equivalent of US$10,000,000 at any time outstanding;




    (v) Indebtedness of any Person that becomes a Subsidiary after the date hereof and
extensions, renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity date or decreased
weighted average life thereof or change the parties directly or indirectly responsible for
the payment thereof, provided that (A) such Indebtedness exists at the time such
Person becomes a Subsidiary and is not created in contemplation of or in connection with
such Person becoming a Subsidiary and (B) the aggregate principal amount of Indebtedness
permitted by this clause (v) shall not exceed the US Dollar Equivalent of US$10,000,000 at
any time outstanding;




    (vi) Permitted Subordinated Indebtedness, provided that immediately before and
after giving pro forma effect to the incurrence of such Permitted Subordinated
Indebtedness, no Default shall have occurred and be continuing (including any Default under
Section 6.13, 6.14, 6.15 or 6.16);




    (vii) Indebtedness with respect to Swap Agreements that are permitted to be entered
into under Section 6.07;




    (viii) Indebtedness of Foreign Subsidiaries denominated in any currency (exclusive of
Indebtedness incurred hereunder) in an aggregate principal amount not exceeding the US
Dollar Equivalent of US$75,000,000 at any time outstanding;









 



89



    (ix) advances and deposits received by any Borrower or any other Subsidiary in the
ordinary course of business and Guarantees by Parent, any Borrower or any other Subsidiary
thereof; and




    (x) other Indebtedness of Parent, any Borrower or any other Subsidiary not permitted
by any other clause of this Section 6.01(a) in an aggregate principal amount not exceeding
the US Dollar Equivalent of US$50,000,000 at any time outstanding, provided that
immediately before and after giving pro forma effect to the incurrence of such
Indebtedness, no Default shall have occurred and be continuing (including any Default under
Section 6.13, 6.14, 6.15 or 6.16).



          (b) Parent will not, and will not permit any Holding Company to, create, incur, assume or
permit to exist any Indebtedness other than Guarantees under the Security Documents.




          (c) None of Parent and the Borrowers will, nor will they permit any Subsidiary to, issue any
preferred stock or other preferred Equity Interests, other than the Preferred Stock.




          SECTION 6.02. Liens. (a) Each of Parent and the Borrowers will not, and will not
permit any of its subsidiaries to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or, except as permitted under Section
6.05, assign or sell any income or revenues (including accounts receivable) or rights in respect of
any thereof, except:





    (i) Liens created under the Loan Documents;




    (ii) Permitted Encumbrances;




    (iii) any Lien on any property or asset of any Borrower or any other Subsidiary
existing on the date hereof and set forth in Schedule 6.02, provided that (A) such
Lien shall not apply to any other property or asset of Parent, any Borrower or any other
Subsidiary other than proceeds from, and after-acquired property in respect of, the
property or assets subject to such Lien, in each case to the extent required under the
terms of the document or instrument creating such Lien as in effect on the date hereof, and
(B) such Lien shall secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the outstanding
principal amount thereof;




    (iv) any Lien existing on any property or asset prior to the acquisition thereof by
any Borrower or any other Subsidiary or existing on any property or asset of any Person
that becomes a Subsidiary after the date hereof prior to the time such Person becomes a
Subsidiary, provided that (A) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary, as the case may be,
(B) such Lien shall not apply to any other property or assets of Parent, any Borrower or
any other Subsidiary other than proceeds from, and after-acquired property in respect of,
the property or









 



90



assets subject to such Lien, in each case to the extent required under the terms of
the document or instrument creating such Lien as in effect on the date of the applicable
acquisition, and (C) such Lien shall secure only those obligations which it secures on the
date of such acquisition or the date such Person becomes a Subsidiary, as the case may be
and extensions, renewals and replacements thereof that do not increase the outstanding
principal amount thereof;




    (v) Liens on fixed or capital assets acquired, constructed, developed, enlarged,
repaired or improved by any Borrower or any other Subsidiary, provided that (A)
such Liens secure Indebtedness permitted by clause (iv) of Section 6.01(a), (B) such Liens
and the Indebtedness secured thereby are incurred prior to or within 180 days after such
acquisition or the completion of such construction, development, enlargement, repair or
improvement, provided that such Liens may also secure extensions, renewals and
replacements of such Indebtedness to the extent such extensions, renewals and replacements
are permitted under Section 6.01(a), (C) the Indebtedness secured thereby does not exceed
100% of the cost of acquiring, constructing, developing, enlarging, repairing or improving
such fixed or capital assets and (D) such Liens shall not apply to any other property or
assets of Parent, any Borrower or any other Subsidiary other than proceeds from, and
after-acquired property in respect of, the property or assets subject to such Lien, in each
case to the extent required under the terms of the document or instrument creating such
Lien as in effect on the date such Lien is created; and




    (vi) Liens (other than Liens on Collateral or on any real property or interests in
real property of Parent, any Borrower or any other Subsidiary) that are not permitted by
any other clause of this Section 6.02(a), provided that the aggregate amount of all
Liens permitted under this clause (vi) (measured, as to each such Lien, as the greater of
the amount secured by such Lien and the fair market value at the time of the creation of
such Lien of the assets subject to such Lien) shall not exceed the US Dollar Equivalent of
US$25,000,000.



          (b) Parent will not, and will not permit any Holding Company, to create, incur, assume or
permit to exist any Lien on any property or asset now owned or hereafter acquired by it or any
Holding Company, or assign or sell any income or revenues (including accounts receivable) or rights
in respect thereof, except Liens created under the Security Documents and Permitted Encumbrances.




          SECTION 6.03. Fundamental Changes. (a) Neither Parent nor any Borrower will, nor
will they permit any of their subsidiaries to, merge into or consolidate with any other Person, or
permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except
that, if at the time thereof and immediately after giving pro forma effect thereto no Default shall
have occurred and be continuing (i) any Person may merge into any Borrower in a transaction in
which the applicable Borrower is the surviving corporation, (ii) any Person may merge into any
Subsidiary (other than a Holding Company) (A) in a transaction in which the surviving entity is a
Subsidiary and (if any party to such merger is a Subsidiary Loan Party) is a Subsidiary Loan Party
and










 



91



(B) in connection with a sale or other disposition of a Subsidiary permitted under Section
6.05 that results in such Person ceasing to be a Subsidiary, (iii) any Subsidiary (other than a
Borrower) may liquidate or dissolve if (X) Parent determines in good faith that such liquidation or
dissolution is in the best interests of Parent, the Borrowers and the other Subsidiaries and is not
materially disadvantageous to the Lenders and (Y) after giving pro forma effect thereto, no Default
shall have occurred and be continuing and the Excluded Subsidiaries shall not constitute 10% or
more of the Consolidated Revenues of Parent for the most recently ended fiscal year of Parent (or,
to the extent certified by a Financial Officer, for the most recently ended fiscal quarter of
Parent), and (iv) any wholly owned Subsidiary that has no assets or liabilities may merge with a
Holding Company for the purpose of changing such Holding Company’s name, provided that any
such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such
merger shall not be permitted unless also permitted by Section 6.04.




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




          (c) Each Holding Company will not engage in any business or activity other than the ownership
of all the outstanding Equity Interests of the US Borrower or other Holding Companies and
activities incidental thereto, provided that Holdco #1 shall be permitted to own the real
property set forth on Schedule 6.03 and other real property and interests therein acquired, and
improvements, repairs and enlargements thereto made, with the proceeds thereof in accordance with
the terms of this Agreement. Each Holding Company will not own or acquire any assets (other than
Equity Interests of the US Borrower and other Holding Companies, cash and Permitted Investments) or
incur any liabilities (other than liabilities under the Loan Documents, liabilities imposed by law,
including tax liabilities, and other liabilities incidental to its existence and permitted business
and activities).




          SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. Each of
Parent and the Borrowers will not, and will not permit any of its subsidiaries to, purchase, hold
or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary
prior to such merger) any Equity Interests in or evidences of Indebtedness or other securities
(including any option, warrant or other right to acquire any of the foregoing) of, make or permit
to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of related transactions) any assets of any other Person constituting a
business unit, line of business or division of a Person except:





    (a) Permitted Investments;




    (b) investments existing on the date hereof and set forth on Schedule 6.04(b);









 



92



    (c) investments by Parent, the Borrowers and the other Subsidiaries in Equity
Interests in Subsidiary Loan Parties (that are Subsidiaries prior to such investment),
provided that any such Equity Interests held by a Loan Party shall be pledged
pursuant to the Security Documents (subject to the limitations applicable to voting
Equity Interests of a Foreign Subsidiary referred to in paragraph (c) of the definition
of Collateral and Guarantee Requirement);




    (d) loans or advances made by Parent or any Borrower to any Subsidiary Loan Party
and made by any Subsidiary to Parent, any Borrower or any Subsidiary Loan Party;




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




    (f) purchases or other acquisitions of property and assets or businesses of any
Person or of assets constituting a business unit, a line of business or division of such
Person, or Equity Interests in a Person that, upon the consummation thereof, will be a
direct or indirect Subsidiary of the US Borrower (including as a result of a merger or
consolidation), provided that with respect to each purchase or other acquisition
made pursuant to this Section 6.04(f) (each, a “Permitted Acquisition”):




    (i) all property, assets and businesses acquired in such purchase or
other acquisition (other than Excluded Assets) shall constitute Collateral
and each applicable Loan Party and any such newly created or acquired
Subsidiary shall be a Guarantor and shall have complied with the
requirements of Section 5.11, provided that this clause (i) shall
not apply to Excluded Acquisitions;




    (ii) the acquired property, assets, business or Person is in a business
of the type conducted by the Borrowers and the Subsidiaries on the date of
execution of this Agreement or a business reasonably related thereto;




    (iii) immediately before and after giving pro forma effect to such
purchase or acquisition, no Default shall have occurred and be continuing
(including any Default under Section 6.13, 6.14, 6.15 or 6.16);




    (iv) Parent shall have delivered to the Administrative Agent, no later
than five (5) Business Days prior the date on which any such purchase or
other acquisition, other than an Excluded Acquisition, is to be consummated
and no later than 20 Business Days following the date on which an Excluded
Acquisition is consummated, a certificate of a Financial Officer, in form
and substance reasonably satisfactory to the Administrative Agent,









 



93



certifying that all of the requirements set forth in the immediately
preceding clauses (i) (if not an Excluded Acquisition), (ii) and (iii) have
been satisfied or will be satisfied on or prior to the consummation of such
purchase or other acquisition; and




    (v) such purchase or other acquisition shall not have been consummated
through or preceded by an unsolicited tender offer;




    (g) Permitted Deposits;




    (h) any Equity Interest, Indebtedness, securities or assets received as a result of
the receipt of non-cash consideration from any asset disposition permitted under Section
6.05;




    (i) any Equity Interests, Indebtedness, securities or assets received solely in
exchange for common stock of Parent;




    (j) loans and advances to employees, officers and directors that do not exceed the
US Dollar Equivalent of US$2,000,000 in the aggregate at any time outstanding;




    (k) intercompany Indebtedness permitted under Section 6.01(a)(iii);




    (l) investments in joint ventures and Subsidiaries that do not exceed the US Dollar
Equivalent of US$10,000,000 in the aggregate at any time outstanding;




    (m) with respect to each of the fiscal years ended December 31, 2006 and 2007,
investments during such fiscal year that, taken together, do not exceed US$4,000,000, in
each case to the extent and at the times required by, and made in accordance with the
terms of the contract listed on Schedule 6.04(m);




    (n) investments, loans or advances, and purchases and acquisitions resulting in
aggregate payments, at any time in an aggregate amount not exceeding the Remaining
Excess Cash at such time;




    (o) (i) Guarantees by Parent, the Borrowers and the other Subsidiaries of
obligations that do not constitute Indebtedness, in each case incurred by any Subsidiary
in the ordinary course of business and (ii) Guarantees permitted under Sections
6.01(a)(vii) and 6.01(a)(ix); and




    (p) investments that are not permitted by any other clause of this Section 6.04 and
that do not exceed the US Dollar Equivalent of US$150,000,000 in the aggregate at any
time outstanding, provided that immediately after giving pro forma effect to any
such investment, no Default shall have occurred and be continuing (including any Default
under Section 6.13, 6.14, 6.15 or 6.16).









 



94


          SECTION 6.05. Asset Sales. Each of Parent and the Borrowers will not, and will not
permit any of its subsidiaries to, sell, transfer, lease or otherwise dispose of any asset,
including any Equity Interest owned by it, nor will Parent and the Borrowers permit any of their
subsidiaries to issue any additional Equity Interest in itself (other than to a Borrower or another
Subsidiary Loan Party in compliance with Section 6.04), except:





    (a) sales of inventory, non-obsolete, used or surplus equipment and Permitted
Investments (including trades or exchanges of Permitted Investments) in the ordinary
course of business;




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




    (c) dispositions of assets in trade or exchange for assets of comparable fair
market value used or usable in the business of Parent and the Subsidiaries;




    (d) a Restricted Payment that is permitted under Section 6.08;




    (e) sales or other dispositions of obsolete assets neither used nor useful to any
business of Parent or any Subsidiary;




    (f) any lease or rental of assets entered into in the ordinary course of business
and with respect to which Parent or any Subsidiary is the lessor and the lessee has no
option to purchase such assets for less than fair market value at any time,
provided that this exception shall not permit the sale of such asset pursuant to
such lease or rental;




    (g) the disposition of assets received in settlement of debts accrued in the
ordinary course of business;




    (h) the creation or perfection of a Lien permitted under Section 6.02;




    (i) the grant in the ordinary course of business of any non-exclusive license of
patents, trademarks, registrations therefor and other similar intellectual property;




    (j) any disposition of assets pursuant to a condemnation, appropriation or similar
taking;




    (k) sales and other dispositions, in one transaction or a series of related
transactions, of assets and other properties of Parent and the Subsidiaries with a fair
market value not exceeding the US Dollar Equivalent of US$500,000 and made in the
ordinary course of business; and




    (l) sales, transfers and other dispositions of assets (other than Equity Interests
in Holdco #1, Holdco #2 or any Borrower) that are not permitted by any other clause of
this Section, provided that the aggregate fair market value









 



95



of all Equity Interests or assets sold, transferred or otherwise disposed of in
reliance upon this clause (l) shall not exceed (i) 10% of Consolidated Tangible Assets
during any fiscal year of Parent and (ii) 25% of Consolidated Tangible Assets during the
term of this Agreement,


provided that all sales, transfers, leases and other dispositions permitted by clauses (a),
(f), (g), (k) and (l) shall be made for fair value, and at least 75% of the consideration received
with respect to each such sale, transfer, lease and other disposition shall consist of cash, cash
equivalents, Permitted Investments, liabilities assumed by the transferee, accounts receivable
retained by the transferor or any combination of the foregoing.




          SECTION 6.06. Sale and Leaseback Transactions. Each of Parent and the Borrowers will
not, and will not permit any of its subsidiaries to, enter into any arrangement, directly or
indirectly, whereby it shall sell or transfer any property, real or personal, used or useful in its
business, whether now owned or hereafter acquired, and thereafter rent or lease such property or
other property that it intends to use for substantially the same purpose or purposes as the
property sold or transferred, except for any such sale of any fixed or capital assets that is made
for cash consideration in an amount not less than the cost of such fixed or capital asset and is
consummated within 180 days after such Borrower or such Subsidiary acquires or completes the
construction of such fixed or capital asset.




          SECTION 6.07. Swap Agreements. Each of Parent and the Borrowers will not, and will
not permit any of its subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements
required by Section 5.13, (b) Swap Agreements entered into to hedge or mitigate risks to which
Parent, any Borrower or any Subsidiary has actual exposure (other than those in respect of Equity
Interests of Parent, any Borrower or any other Subsidiary), and (c) Swap Agreements entered into in
order to effectively cap, collar or exchange (i) interest rates (from fixed to floating rates, from
one floating rate to another floating rate or otherwise) with respect to any interest-bearing
liability or investment of any Borrower or any Subsidiary and (ii) currency exchange rates, in each
case in connection with the conduct of its business and not for speculative purposes.




          SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness. (a) Neither
Parent nor any Borrower will, nor will they permit any of their subsidiaries to, declare or make,
or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except that (i) Parent may declare and pay dividends with
respect to its Equity Interests payable solely in additional shares of its common stock, (ii)
subsidiaries of the US Borrower may declare and pay dividends ratably with respect to their Equity
Interests, (iii) with respect to any fiscal year, the Holding Companies may pay dividends (A) to
other Holding Companies or (B) to Persons other than Holding Companies that, taken together, do not
exceed the US Dollar Equivalent of the Permitted Restricted Payment Amount with respect to such
fiscal year, (iv) for purposes of funding the dividends permitted under the immediately preceding
clause (iii), with respect to any fiscal year, the US Borrower may pay dividends to the Holding
Companies that, taken together, do not exceed the Permitted Restricted Payment Amount with respect
to such fiscal year, (v) Holdco #2 may redeem





 









 








96



the Preferred Stock to the extent and at the times required by, and in accordance with, the
terms of the Preferred Stock, (vi) for purposes of funding the Restricted Payments permitted under
the immediately preceding clause (v), the US Borrower may pay dividends to Holdco #2 at the time
of, and in amounts necessary to effectuate, redemptions of the Preferred Stock permitted under the
immediately preceding clause (v), (vii) Parent, the Borrowers and the other Subsidiaries may make
Restricted Payments at any time in an aggregate amount not in excess of the Remaining Excess Cash
at such time, (viii) with respect to any fiscal year, the US Borrower and the Holding Companies may
pay dividends to the Holding Companies if such dividends are used within 30 days upon receipt to
pay for (A) the federal, state, local, foreign and other tax liabilities of the applicable Holding
Company, (B) audit fees and expenses of the applicable Holding Company, (C) fees and expenses
associated with litigation and other contested matters of the applicable Holding Company or (D)
fees and expenses associated with debt or equity issuances by the applicable Holding Company to the
extent in excess of cash proceeds received, (ix) with respect to any fiscal year, the US Borrower
and the Holding Companies may pay dividends to the Holding Companies that, taken together (and
without duplication), do not exceed the US Dollar Equivalent of US$13,000,000 and if such dividends
are used within 30 days upon receipt to pay for (A) with respect to Parent, expenses relating to
being a public company, including conducting shareholder meetings, mailing and soliciting proxies,
compliance with the Securities and Exchange Act of 1934, as amended, (including the preparation of
reports thereunder) and the Sarbanes-Oxley Act of 2002, (B) directors and officers insurance of the
applicable Holding Company, (C) directors fees and expenses of the applicable Holding Company, (D)
with respect to Holdco #1, expenses and capital expenditures associated with the operation of the
theatrical property located in New York City held by Holdco #1 in an amount not to exceed the US
Dollar Equivalent of US$2,500,000 per fiscal year or (E) fees and expenses required to maintain the
corporate existence of, and to pay for general corporate and overhead expenses (including salaries
and other compensation of the employees) incurred in the ordinary course of, the applicable Holding
Company’s business, which fees and expenses, taken together for all the Holding Companies, for
purposes of this clause (E) shall not exceed the US Dollar Equivalent of US$5,000,000 during any
fiscal year and (x) the US Borrower and the Holding Companies may pay dividends to the Holding
Companies if such dividends are used within 30 days upon receipt to pay for amounts required to be
paid under the contracts set forth on Schedule 6.08, provided that the prohibitions and
limitations set forth in this Section 6.08 shall not apply with respect to any Restricted Payment
if immediately before and after giving pro forma effect to such Restricted Payment, (A) the
Leverage Ratio would be less than 3.0 to 1.0 and (B) no Default shall have occurred and be
continuing (including any Default under Section 6.13, 6.14, 6.15 or 6.16), and any Restricted
Payments made under the exception set forth in this proviso shall be disregarded for purposes of
determining whether any Restricted Payments may be made under the other provisions of this Section
6.08(a) when such exception is not applicable.




          (b) Neither Parent nor any Borrower will, nor will they permit any of their subsidiaries to,
make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in
cash, securities or other property) of or in respect of principal of or interest on any
Indebtedness, or any payment or other distribution (whether in cash,









 



97



securities or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancelation or termination of any Indebtedness,
except:




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




     (ii) payments as and when due in respect of any Indebtedness, other than payments in
respect of the Subordinated Indebtedness prohibited by the subordination provisions
thereof;




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




     (iv) payment of secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such Indebtedness,


provided that the prohibitions and limitations set forth in this Section 6.08(b) shall not
apply with respect to any such payment or other distribution if immediately before and after giving
pro forma effect to such payment or other distribution, (A) the Leverage Ratio would be less than
3.0 to 1.0 and (B) no Default shall have occurred and be continuing (including any Default under
Section 6.13, 6.14, 6.15 or 6.16).




          SECTION 6.09. Transactions with Affiliates. Neither Parent nor any Borrower will, nor
will they permit any of their subsidiaries to, sell, lease or otherwise transfer any property or
assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage
in any other transactions with, any of its Affiliates involving consideration in excess of the US
Dollar Equivalent of US$1,000,000, except, without duplication, (a) transactions in the ordinary
course of business that are at prices and on terms and conditions not less favorable to Parent,
such Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated
third parties, (b) transactions between or among Parent, the Borrowers and the Subsidiary Loan
Parties not involving any other Affiliate, (c) any Restricted Payment permitted by Section 6.08,
(d) investments permitted under Section 6.04(c), (e) loans and advances permitted under Section
6.04(j) and Guarantees permitted under Section 6.04(o), (f) the performance of employment, equity
award, equity option or equity appreciation agreements, plans or other similar compensation or
benefit plans or arrangements (including vacation plans, health and insurance plans, deferred
compensation plans and retirement or savings plans) entered into by Parent, any Borrower or any
other Subsidiary in the ordinary course of its business with its employees, officers and directors,
(g) the performance of any agreement set forth on Schedule 6.09 and as in effect on the date
hereof, (h) fees and compensation to, and indemnity provided on behalf of, officers, directors,
employees and consultants of Parent, any Borrower or any other Subsidiary in their capacity as
such, to the extent such fees and compensation are reasonable and customary and (i) transfers of
cash and cash equivalents at any time in an aggregate amount not in excess of the Remaining Cash
Excess at such time.









 



98


          SECTION 6.10. Restrictive Agreements. Neither Parent nor any Borrower will, nor will
they permit any of their subsidiaries to, directly or indirectly, enter into, incur or permit to
exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon
(a) the ability of Parent, any Borrower or any other Subsidiary to create, incur or permit to exist
any Lien upon any of its property or assets, or (b) the ability of any Borrower or any Subsidiary
to pay dividends or other distributions with respect to its Equity Interests or to make or repay
loans or advances to any Borrower or any other Subsidiary or to Guarantee Indebtedness of any
Borrower or any other Subsidiary, provided that (i) the foregoing shall not apply to
restrictions and conditions that are (A) imposed by law or by any Loan Document or (B) imposed by
any agreement or instrument relating to secured Indebtedness permitted by this Agreement to the
extent that such restrictions apply only to the property or assets securing such Indebtedness
(including, to the extent required under the terms of such agreement or instrument on the date the
applicable Indebtedness is incurred, proceeds thereof and after-acquired property in respect
thereof), (ii) the foregoing shall not apply to restrictions and conditions existing on the date
hereof identified on Schedule 6.10 (but shall apply to any extension, renewal, amendment or
modification expanding the scope of any such restriction or condition), (iii) the foregoing shall
not apply to customary restrictions and conditions contained in agreements relating to the sale of
a Subsidiary pending such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to
the property or assets securing such Indebtedness and (v) clause (a) of the foregoing shall not
apply to customary provisions in leases, licenses and similar contracts restricting the assignment,
encumbrance or transfer thereof.



          SECTION 6.11. Amendment of Material Documents. Neither Parent nor any Borrower will,
nor will they permit any of their subsidiaries to, amend, modify or waive any of its rights under
(a) any document (other than this Agreement) governing any Material Indebtedness, (b) its
certificate of incorporation, by-laws or other organizational documents, (c) any document governing
the Preferred Stock or (d) any other material contract to which it is a party, in each case to the
extent that such amendment, modification or waiver could reasonably be expected to be material and
adverse to the Lenders.



          SECTION 6.12. Use of Proceeds and Letters of Credit. The proceeds of the Term Loans,
together with the proceeds from the issuance of the Preferred Stock, will be used only (a) to fund
the Intercompany Debt Repayment, (b) to fund the Effective Date Excess Cash and (c) to pay fees and
expenses payable in connection with the Transactions. The proceeds of the Revolving Loans made
after the Effective Date, the Swingline Loans and Letters of Credit will be used only for general
corporate purposes of the US Borrower and its subsidiaries, including for working capital purposes.
No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose
that entails a violation of any of the Regulations of the Board, including Regulations T, U and X.









 



99


          SECTION 6.13. Interest Expense Coverage Ratio. Parent and the Borrowers will not
permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Cash Interest Expense, in each case
as of the end of any period of four consecutive fiscal quarters, to be less than 2.5 to 1.0.



          SECTION 6.14. Leverage Ratio. Parent and the Borrowers will not permit the Leverage
Ratio as of the end of any fiscal quarter of Parent during any period set forth below to exceed the
ratio set forth opposite such period:



	 	 	 	 	 
	Period	 	Ratio
	 	 	 	 	 
	Effective Date through December 31, 2008
	 	 	4.5 to 1.0	 
	 
	 	 	 	 
	January 1, 2009 and thereafter
	 	 	4.0 to 1.0	 





provided that at any time when an aggregate principal amount of Subordinated Indebtedness
of Parent, the Borrowers and the other Subsidiaries in excess of the US Dollar Equivalent of
US$25,000,000 (determined on a consolidated basis) is outstanding, Parent and the Borrowers instead
will not permit the Leverage Ratio as of the end of any fiscal quarter of Parent during any period
set forth below to exceed the ratio set forth opposite such period:




	 	 	 	 	 
	Period	 	Ratio
	 	 	 	 	 
	Effective Date through December 31, 2006
	 	 	6.5 to 1.0	 
	 
	 	 	 	 
	January 1, 2007 through December 31, 2007
	 	 	6.0 to 1.0	 
	 
	 	 	 	 
	January 1, 2008 through December 31, 2008
	 	 	5.5 to 1.0	 
	 
	 	 	 	 
	January 1, 2009 and thereafter
	 	 	5.0 to 1.0	 






          SECTION 6.15. Senior Leverage Ratio. At any time when an aggregate principal amount
of Subordinated Indebtedness of Parent, the Borrowers and the other Subsidiaries in excess of the
US Dollar Equivalent of US$25,000,000 (determined on a consolidated basis) is outstanding, Parent
and the Borrowers will not permit the Senior Leverage Ratio as of the end of any fiscal quarter of
Parent to exceed 3.0 to 1.0.



          SECTION 6.16. Capital Expenditures. Parent and the Borrowers will not, and will not
permit any of their subsidiaries to, make Capital Expenditures that would cause the US Dollar
Equivalent of the aggregate amount of all Capital Expenditures made by Parent, the Borrowers and
the other Subsidiaries in any fiscal year of Parent to exceed the amount of Capital Expenditures
set forth below opposite such fiscal year:



	 	 	 	 	 
	Fiscal Year Ended	 	Capital Expenditures
	December 31, 2005
	 	US$	125,000,000	 












 



100


	 	 	 	 	 
	Fiscal Year Ended	 	Capital Expenditures
	 	 	 	 	 
	December 31, 2006
	 	US$	125,000,000	 
	 
	 	 	 	 
	December 31, 2007 and thereafter
	 	US$	110,000,000	 





provided that to the extent that the aggregate amount of Capital Expenditures made by
Parent, the Borrowers and the other Subsidiaries in any fiscal year pursuant to this Section is
less than the maximum amount of Capital Expenditures permitted by this Section with respect to such
fiscal year, the amount of such difference (the “Rollover Amount”) may be carried forward
and used to make Capital Expenditures in the immediately succeeding fiscal year, provided
further that Capital Expenditures in any fiscal year shall be counted against the Rollover
Amount available with respect to such fiscal year prior to being counted against the base amount
with respect to such fiscal year and provided further that for purposes of this
Section 6.16, all Capital Expenditures made with Net Proceeds that are reinvested in accordance
with Section 2.11(c) shall be disregarded in determining Capital Expenditures made by Parent, the
Borrowers and the other Subsidiaries in any fiscal year of Parent.




          SECTION 6.17. Accounting Changes. Parent will not make any change to its fiscal year.



ARTICLE VII




Events of Default




          SECTION 7.01. Events of Default. If any of the following events (“Events of
Default”) shall occur:




     (a) any principal of any Loan or any B/A or any reimbursement obligation in respect
of any LC Disbursement shall not be paid when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;




     (b) any interest on any Loan or any B/A or any fee or any other amount (other than
an amount referred to in clause (a) of this Article) payable under this Agreement or any
other Loan Document shall not be paid when and as the same shall become due and payable,
and such failure shall continue unremedied for a period of three Business Days;




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









 



101



     (d) Parent or any Borrower shall fail to observe or perform any covenant, condition
or agreement contained in Section 5.02, 5.04 (with respect to the existence of Parent or
any Borrower) or 5.14 or in Article VI;




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




     (f) Parent, any Borrower or any other Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable, and such failure shall
continue after the applicable grace or notice period;




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




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




     (i) Parent, any Borrower or any other Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in clause (h) of
this Article, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Parent, any Borrower or any
other Subsidiary or for a substantial part of its assets, (iv) file an answer admitting
the material









 



102



allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the purpose
of effecting any of the foregoing;




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




     (k) one or more judgments for the payment of money in an aggregate amount in excess
of the US Dollar Equivalent of US$10,000,000 (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage) shall be
rendered against Parent, any Borrower, any other Subsidiary or any combination thereof
and the same shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of Parent, any Borrower or any other
Subsidiary to enforce any such judgment;




     (l) an ERISA Event shall have occurred that when taken together with all other
ERISA Events that have occurred and are continuing and unpaid, could reasonably be
expected to result in a Material Adverse Effect;




     (m) any Lien purported to be created under any Security Document shall cease to be,
or shall be asserted by any Loan Party not to be, a valid and perfected Lien on any
Collateral, with the priority required by the applicable Security Document, except (i)
as a result of the sale or other disposition of the applicable Collateral in a
transaction permitted under any Loan Document, (ii) as a result of the Administrative
Agent’s failure to maintain possession of any stock certificates, promissory notes or
other instruments delivered to it under the Collateral Agreement or (iii) for any Lien
pertaining to Collateral that individually or in the aggregate is of an immaterial value
in relation to the outstanding Obligations;




     (n) any Guarantee purported to be created under any Loan Document shall cease to
be, or shall be asserted by any Loan Party not to be, in full force and effect, except
upon the consummation of any transaction permitted by any Loan Document as a result of
which the Subsidiary Loan Party providing such Guarantee ceases to be a Subsidiary; or




     (o) a Change in Control shall occur;


then, and in every such event (other than an event described in clause (h) or (i) of this Section),
and at any time thereafter during the continuance of such event, the Administrative Agent may, and
at the request of the Required Lenders shall, by notice to the US Borrower, take either or both of
the following actions, at the same or different times: (i) terminate the Commitments, and
thereupon the Commitments shall terminate immediately, and (ii) declare the Loans and B/As then
outstanding to be due and payable








 



103


in whole (or in part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of the Loans and B/As so
declared to be due and payable, together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the
Borrowers; and in case of any event with respect to Parent or any Borrower described in clause (h)
or (i) of this Section, the Commitments shall automatically terminate and the principal of the
Loans and B/As then outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the
Borrowers.




          Solely for purposes of determining whether a Default has occurred under clause (h) or (i) of
this Section 7.01, any reference in any such clause to any Subsidiary or group of Subsidiaries
shall be deemed not to include any Subsidiary or group of Subsidiaries affected by any event or
circumstance referred to in any such clause that did not, taken together, as of the last day of the
fiscal year of Parent most recently ended constitute 2% or more of the Consolidated Revenues of
Parent with respect to such fiscal year.



          SECTION 7.02. CAM. (a) On the CAM Exchange Date, (i) the Commitments shall
automatically and without further act be terminated as provided in this Article VII, (ii) the
Lenders shall automatically and without further act be deemed to have exchanged interests in the
Designated Obligations such that, in lieu of the interests of each Lender in the Designated
Obligations under each Tranche in which it shall participate as of such date, such Lender shall own
an interest equal to such Lender’s CAM Percentage in the Designated Obligations under each of the
Tranches (such exchange, the “CAM Exchange”) and (iii) simultaneously with the deemed
exchange of interests pursuant to clause (ii) above, the interests in the Designated Obligations to
be received in such deemed exchange shall, automatically and with no further action required, be
converted into the US Dollar Equivalent thereof, determined using the Exchange Rate calculated as
of such date, of such amount and on and after such date all amounts accruing and owed to the
Lenders in respect of such Designated Obligations shall accrue and be payable in US Dollars at the
rate otherwise applicable hereunder. It is understood and agreed that Lenders holding interests in
B/As on the CAM Exchange Date shall discharge the obligations to fund such B/As at maturity in
exchange for the interests acquired by such Lenders in funded Loans in the CAM Exchange. Each
Lender, each Person acquiring a participation from any Lender as contemplated by Section 9.04, and
each Borrower hereby consents and agrees to the CAM Exchange. Each of Parent, the Borrowers and
the Lenders agrees from time to time to execute and deliver to the Administrative Agent or the
Applicable Agent all such promissory notes and other instruments and documents as the
Administrative Agent or such Applicable Agent shall reasonably request to evidence and confirm the
respective interests and obligations of the Lenders after giving effect to the CAM Exchange, and
each Lender agrees to surrender any promissory notes originally received by it in connection with
its Loans hereunder to the Administrative Agent against delivery of any promissory notes so
executed and









 



104



delivered, provided that the failure of Parent or any Borrower to execute or deliver
or of any Lender to accept any such promissory note, instrument or document shall not affect the
validity or effectiveness of the CAM Exchange.



          (a) As a result of the CAM Exchange, on and after the CAM Exchange Date, (i) each payment
received by the Administrative Agent pursuant to any Loan Document in respect of the Designated
Obligations shall be distributed to the Lenders pro rata in accordance with their respective CAM
Percentages (to be redetermined as of each such date of payment or distribution to the extent
required by the next paragraph below) and (ii) Section 2.17(e) shall not apply with respect to any
Taxes required to be withheld or deducted by a Borrower from or in respect of payments hereunder to
any Lender or the Administrative Agent that exceed the Taxes such Borrower would have otherwise
been required to withhold or deduct from or in respect of payments to such Lender or Administrative
Agent had such CAM Exchange not occurred.



          (b) In the event that, on or after the CAM Exchange Date, the aggregate amount of the
Designated Obligations shall change as a result of the making of a LC Disbursement by an Issuing
Bank that is not reimbursed by the applicable Borrower, then (i) each Revolving Lender (determined
without giving effect to the CAM Exchange) shall, in accordance with Section 2.05(d), promptly
purchase from the applicable Issuing Bank a participation in such LC Disbursement in the amount of
such Revolving Lender’s Applicable Percentage of such LC Disbursement (without giving effect to the
CAM Exchange) and (ii) the Administrative Agent shall redetermine the CAM Percentages after giving
effect to such disbursement and the making of such LC Disbursement and the purchase of
participations therein by the applicable Revolving Lenders and the Lenders shall automatically and
without further act be deemed to have exchanged interests in the Designated Obligations such that
each Lender shall own an interest equal to such Lender’s CAM Percentage in the Designated
Obligations under each of the Tranches (and the interests in the Designated Obligations to be
received in such deemed exchange shall, automatically and with no further action required, be
converted into the US Dollar Equivalent of such amount in accordance with the first sentence of
this Section 7.02), and (iii) in the event distributions shall have been made in accordance with
clause (i) of the preceding paragraph, the Lenders shall make such payments to one another as shall
be necessary in order that the amounts received by them shall be equal to the amounts they would
have received had each such disbursement and LC Disbursement been outstanding on the CAM Exchange
Date. Each such redetermination shall be binding on each of the Lenders and their successors and
assigns and shall be conclusive, absent manifest error.



ARTICLE VIII




The Agents




          In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby
appointed to act as Administrative Agent on behalf of the Lenders and Issuing Banks, JPME is hereby
appointed to act as London Agent on behalf of the Lenders and JPMorgan Chase Bank, N.A., Toronto
Branch, is hereby appointed to act as Canadian Agent on behalf of the Lenders. Each of the Lenders
and each Issuing Bank









 



105


          hereby irrevocably authorizes the Agents to take such actions on its behalf and to exercise
such powers as are delegated to the Agents by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.



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



          The Agents shall not have any duties or obligations except those expressly set forth in the
Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to
any fiduciary or other implied duties, regardless of whether a Default has occurred and is
continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated by the Loan
Documents that such Agent is required to exercise in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
Parent, any Borrower or any other Subsidiary that is communicated to or obtained by the bank
serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action
taken or not taken by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02) or in the absence of its own gross negligence or wilful misconduct. No Agent shall
be deemed to have knowledge of any Default unless and until written notice thereof is given to such
Agent by a Borrower or a Lender, and no such Agent shall be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in or in connection
with any Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or in connection herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in Article IV or
elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be
delivered to such Agent.



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









 



106


          Each Agent may perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by such Agent. Such Agent and any such sub-agent may perform
any and all its duties and exercise its rights and powers through their respective Related Parties.
The exculpatory provisions of the preceding paragraphs and the provisions of Section 9.03 shall
apply to any such sub-agent and to the Related Parties of the Agents 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 Agent.



          Subject to the appointment and acceptance of a successor Agent as provided in this paragraph,
any Agent may resign at any time by notifying the Lenders, the Issuing Banks and Parent. Upon any
such resignation, the Required Lenders shall have the right (in consultation with Parent) to
appoint a successor. If no successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may (in consultation with Parent) on behalf of the Lenders,
appoint a successor Agent which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a
successor, such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder. The fees payable by the Borrowers to a successor Agent shall be
the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such
successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.03
shall continue in effect for the benefit of such retiring Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Agent.



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



          The institution named as Syndication Agent in the heading of this Agreement shall not, in its
capacity as such, have any duties or responsibilities of any kind under this Agreement.









 



107


ARTICLE IX




Miscellaneous




          SECTION 9.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:




     (i) if to Parent or any Borrower, to it at Clear Channel Entertainment, 2000 West Loop
South, Ste 1300, Houston, Texas 77027-3512, Attention of David A. Cheadle, Vice President
& Treasurer (Telecopy No. (713) 693-8679), with a copy to SFX Entertainment, Inc., 9348
Civic Center Drive, Beverly Hills, CA 90210, Attention of Alan Ridgeway, Chief Financial
Officer (Telecopy No. (310) 867-7051);




     (ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency
Services Group, 1111 Fannin, 10th Floor, Houston, Texas 77002, Attention of Gloria Javier
(Telecopy No. (713) 750-2378), with a copy to JPMorgan Chase Bank, N.A., 270 Park Avenue,
New York, New York 10017, Attention of Tracey A. Ewing (Telecopy No. (212) 270-5127);




     (iii) if to the London Agent, to it at J.P. Morgan Europe Limited, 125 London Wall,
London EC2Y 5AJ, England, Attention of Loans Agency Division (Telecopy No.
011-44-207-777-2360), with a copy to the Administrative Agent as provided in clause (ii)
above;




     (iv) if to the Canadian Agent, to it at JPMorgan Chase Bank, N.A., Toronto Branch, 200
Bay Street, Royal Bank Plaza, South Tower, Suite 1800, Toronto, Ontario M5J 2J2, Canada,
Attention of: Funding Officer (Telecopy No. (416) 981-9128); with a copy to the
Administrative Agent as provided in clause (ii) above;




     (v) if to any Issuing Bank, to it at the address most recently specified by it in a
notice delivered to the Administrative Agent and Parent;




     (vi) if to the Swingline Lender, to it at JPMorgan Chase Bank, N.A., 270 Park Avenue,
New York, New York 10017, Attention of Tracey A. Ewing (Telecopy No. (212) 270-5127); and




     (vii) if to any other Lender, to it at its address (or telecopy number) set forth in
its Administrative Questionnaire if it has been delivered to the party sending such notice
or communications; otherwise to such address (or telecopy number) reasonably believed
(after consultation with the Administrative Agent) by the sending party to be the address
(or telecopy number) of such other Lender.









 



108


          (b) Notices and other communications among the Applicable Agents and the Lenders hereunder may
be delivered or furnished by electronic communications pursuant to procedures approved by the
Administrative Agent, provided that the foregoing shall not apply to notices pursuant to
Article II unless otherwise agreed by the Administrative Agent and the applicable Lender. The
Administrative Agent or any Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices or
communications.



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



          SECTION 9.02. Waivers; Amendments. (a) No failure or delay by any Agent, any Issuing
Bank or any Lender in exercising any right or power hereunder or under any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or power. The rights and
remedies of the Agents, the Issuing Banks and the Lenders hereunder and under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise
have. No waiver of any provision of any Loan Document or consent to any departure by any Loan
Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b)
of this Section, and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the foregoing, the making
of a Loan, acceptance of a B/A or issuance of a Letter of Credit shall not be construed as a waiver
of any Default, regardless of whether any Agent, any Lender or any Issuing Bank may have had notice
or knowledge of such Default at the time.



          (b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may
be waived, amended or modified except pursuant to an agreement or agreements in writing entered
into by Parent, the Borrowers and the Required Lenders or by Parent, the Borrowers and the
Administrative Agent with the written consent of the Required Lenders, provided that no
such agreement shall (i) increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or any amount payable in
respect of B/As or reduce the rate of interest thereon, or reduce any fees payable to any Lender
hereunder, without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan or B/A (including any scheduled date
of payment of the principal amount of any Term Loan under Section 2.10) or any LC Disbursement, or
any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, provided that, for the avoidance of doubt, this
clause (iii) shall not apply to waivers, amendments or modifications of Section 2.11(c), (iv) waive
or









 



109



change Section 2.18(b) or (c) or any other provision providing for the pro rata nature of
sharing payments among the Lenders in a manner that would alter the pro rata sharing of payments
required thereby, (v) waive or change any of the provisions of this Section or the definition of
the term “Required Lenders” or any other provision of any Loan Document specifying the number or
percentage of Lenders (or Lenders of any Class or Tranche) required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder, without the written
consent of each Lender (or Lender of such Class or Tranche, as the case may be), (vi) release
Parent, any Borrower or any other Subsidiary Loan Party from its Guarantee under the Security
Documents (except as expressly provided in the Loan Documents), or limit its liability in respect
of such Guarantee, without the written consent of each Lender, (vii) release all or substantially
all of the Collateral from the Liens of the Security Documents (except as expressly provided in the
Loan Documents), without the written consent of each Lender, (viii) waive or change any provision
of Section 7.02 without the written consent of each Lender or (ix) waive or change any provision of
any Loan Document in a manner that by its terms adversely affects the rights in respect of payments
due to Lenders under any Class or Tranche differently from those of Lenders under any other Class
or Tranche without the written consent of Lenders holding a majority in interest of the outstanding
Loans and unused Commitments of each adversely affected Class or Tranche, and provided
further that (A) no such agreement shall amend, modify or otherwise affect the rights or
duties of any Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written
consent of such Agent, such Issuing Bank or the Swingline Lender, as the case may be, and (B) with
respect to any waiver, amendment or modification that by its terms is limited in effect to the
rights or duties of Lenders under one or more (but less than all) of the Classes and Tranches, such
waiver, amendment or modification may be effected by an agreement or agreements in writing entered
into by Parent, the Borrowers and the requisite percentage in interest of Lenders under each
affected Class or Tranche.



          (c) Notwithstanding the foregoing or anything to the contrary contained herein, technical and
conforming modifications to the Loan Documents may be made with the consent of the Borrowers to the
extent necessary to integrate any Incremental Term Commitments or Incremental Revolving Commitments
on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable.



          SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrowers shall pay (i)
all reasonable out-of-pocket expenses incurred by the Agents and their Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Agents, in connection with the
arrangement and the syndication of the credit facilities provided for herein, the preparation,
execution, delivery and administration of the Loan Documents or any amendments, modifications or
waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby
shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by each Issuing Bank in
connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by any Agent, any Issuing Bank
or any Lender, including the fees, charges and disbursements of any counsel for any Agent, any
Issuing Bank or any Lender, in connection with the









 



110



enforcement or protection of its rights in connection with the Loan Documents, including its
rights under this Section, or in connection with the Loans made, the B/As accepted or purchased or
Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans, B/As or Letters of Credit.



          (b) The Borrowers shall indemnify the Agents, the Issuing Banks and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of,
in connection with, or as a result of (i) the arrangement and the syndication of the credit
facilities provided for herein, the preparation, execution, delivery and administration of the Loan
Documents or any other agreement or instrument contemplated hereby, the performance by the parties
to the Loan Documents of their respective obligations thereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan, B/A or Letter of Credit
or the use of the proceeds therefrom (including any refusal by an Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property currently or formerly owned or operated
by Parent, the Borrowers or any of the other Subsidiaries, or any Environmental Liability related
in any way to Parent, the Borrowers or any of the other Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto and regardless of whether such matter is initiated by a third party or by Parent or
any Affiliate thereof, provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and non-appealed judgment to have resulted
from the gross negligence or wilful misconduct of such Indemnitee or such Indemnitee’s violation of
any applicable law or breach of its obligations under the Loan Documents.



          (c) To the extent that any Borrower fails to pay any amount required to be paid by it to any
Agent, any Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to such Agent, such Issuing Bank or the Swingline Lender, as the
case may be, such Lender’s pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that
the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the
case may be, was incurred by or asserted against such Agent, such Issuing Bank or the Swingline
Lender in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be
determined based upon its share of the sum of the total Revolving Exposures, outstanding Term Loans
and unused Commitments at the time.









 



111


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



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



          SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of
Credit), except that (i) no Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by any Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Agents, the Issuing Banks and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.



          (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld) of:




     (A) the US Borrower, provided that no consent of the US Borrower shall
be required for an assignment to a Lender, an Affiliate of a Lender, an Approved
Fund or, if an Event of Default has occurred and is continuing, any other assignee;




     (B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of any Term Loan to a
Lender, an Affiliate of a Lender or an Approved Fund; and




     (C) in the case of any assignment of all or a portion of a Revolving
Commitment or any Lender’s obligations in respect of its LC Exposure or Swingline
Exposure, the Issuing Banks and the Swingline Lenders.



          (ii) Assignments shall be subject to the following additional conditions:









 



112



     (A) except in the case of an assignment to a Lender, an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender’s
Commitment or Loans of any Class, the amount of the Commitment or Loans of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than the US Dollar Equivalent of
US$5,000,000 or, in the case of a Term Commitment or a Term Loan, US$1,000,000
unless each of the US Borrower and the Administrative Agent otherwise consents,
provided that no such consent of the US Borrower shall be required if an
Event of Default has occurred and is continuing:




     (B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement,
provided that this clause shall not be construed to prohibit the assignment
of a proportionate part of all the assigning Lender’s rights and obligations in
respect of one Class of Commitments or Loans;




     (C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of US$3,500; and




     (D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.



          For the purposes of this Section 9.04(b), the term “Approved Fund” has the following meaning:



          “Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender, provided that with respect to an assignment of any Revolving Loans or Revolving
Commitments, an Approved Fund must be a Person that engages in making Loans of the type and nature
of the applicable Revolving Loans and otherwise is able to perform each of the obligations of a
Revolving Lender with respect to its applicable Revolving Commitments, in each case, in accordance
with the applicable provisions hereof.



          (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and









 



113



Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.



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



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



          (c) (i) Any Lender may, without the consent of any Borrower, any Agent, any Issuing Bank or
the Swingline Lender, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it),
provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrowers, the Agents, the Issuing Banks and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement,
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that pertains to the participation it sold to such Participant.
Subject to paragraph (c)(ii) of this Section, Parent and the Borrowers agree that each Participant
shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were
a Lender and had acquired its interest by assignment









 



114



pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.



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



          (d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest, provided that (i) no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto, (ii) all costs, fees and
expenses in connection with any such pledge or assignment shall be for the sole account of such
Lender and (iii) the reassignment back to such Lender, free of any interests of such assignee,
shall be for the sole account of such Lender. Notwithstanding anything to the contrary contained
herein, any Lender (a “Granting Bank”) may grant to a special purpose funding vehicle (an
“SPC”) of such Granting Bank, identified as such in writing from time to time by the
Granting Bank to the Administrative Agent and the Borrowers, the option to provide to the Borrowers
all or any part of any Loan that such Granting Bank would otherwise be obligated to make to the
Borrowers pursuant to Section 2.01 or the option to participate in any Letter of Credit, as the
case may be, provided that (i) nothing herein shall constitute a commitment to make any
Loan by any SPC or to participate in any Letter of Credit and (ii) if an SPC elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, or to participate in such
Letter of Credit the Granting Bank shall be obligated to make such Loan or participate in such
Letter of Credit pursuant to the terms hereof. The making of a Loan by an SPC or the participation
by such SPC in any Letter of Credit shall be deemed to utilize the Commitment of the Granting Bank
to the same extent, and as if, such Loan were made by the Granting Bank or such participation in a
Letter of Credit were paid or taken, as the case may be by such Granting Bank. Each party hereto
hereby agrees that no SPC shall be liable for any payment under this Agreement for which a Lender
would otherwise be liable, for so long as, and to the extent, the related Granting Bank makes such
payment. In furtherance of the foregoing, each party hereto hereby agrees that, prior to the date
that is one year and one day after the payment in full of all outstanding senior indebtedness of
any SPC, it will not institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar
proceedings under the laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 9.04, any SPC may









 



115



(i) with notice to, but without the prior written consent of, the Borrowers and the Administrative
Agent and without paying any processing fee therefor, assign all or a portion
of its interests in any Loans or participations in any Letters of Credit to its Granting Bank or
to any financial institutions (if consented to by the Borrowers and Administrative Agent) providing
liquidity and/or credit facilities to or for the account of such SPC to fund the Loans made by such
SPC or to support the securities (if any) issued by such SPC to fund such Loans and (ii) disclose
on a confidential basis any non-public information relating to its Loans or participations in any
Letters of Credit (but not relating to any Borrower, except with Parent’s consent) to any rating
agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC.



          SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Loan Parties in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans, acceptance and purchase or any B/As and
issuance of any Letters of Credit, regardless of any investigation made by any such other party or
on its behalf and notwithstanding that any Agent, any Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at the time any credit
is extended hereunder, and shall continue in full force and effect as long as the principal of or
any accrued interest on any Loan or any B/A or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03
and Article VIII shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this Agreement or any provision
hereof.



          SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Documents and any separate letter agreements with respect
to fees payable to any Agent constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the Agents and when the Administrative
Agent shall have received counterparts hereof which, when taken together, bear the signatures of
each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy or internet transmission shall be
effective as delivery of a manually executed counterpart of this Agreement.









 



116


          SECTION 9.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting
the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of
a particular provision in a particular jurisdiction shall not invalidate such provision in any
other jurisdiction.



          SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of a Borrower against
any of and all the obligations of such Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of setoff) which such
Lender may have.



          SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.



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



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









 



117


          (c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement or any other Loan Document will
affect the right of any party to this Agreement to serve process in any other manner permitted by
law. Each Foreign Borrower hereby irrevocably appoints the US Borrower as its agent for service of
process in respect of this Agreement and any Loan Document, provided that such appointment
will not affect the right of any party to this Agreement to serve process on any Foreign Borrower
in any other manner permitted by law.



          SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.



          SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.



          SECTION 9.12. Confidentiality. Each of the Agents, the Issuing Banks and the Lenders
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and will be instructed (and will agree) to keep such Information confidential), (b) to
the extent requested by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to
Parent, any Borrower or any other Subsidiary and its obligations hereunder, (g) upon conditions
satisfactory to Parent, with the consent of Parent or (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this









 



118



Section or (ii) becomes available to any Agent, any Issuing Bank or any Lender on a
nonconfidential basis from a source other than Parent or a Borrower. For the purposes of this
Section, the term “Information” means all information received from Parent or any Borrower
relating to Parent or the Borrowers or any of their Affiliates, or their respective businesses,
other than any such information that is available to any Agent, any Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by Parent or a Borrower, provided that in the
case of information received from Parent or any Borrower after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.



          SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law, including the
Criminal Code (Canada) (collectively, the “Charges”), shall exceed the maximum lawful rate
(the “Maximum Rate”) that may be contracted for, charged, taken, received or reserved by
the Lender holding such Loan in accordance with applicable law, including the Criminal Code
(Canada), the rate of interest payable in respect of such Loan hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and Charges payable to
such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by such Lender.



          SECTION 9.14. Release of Liens and Guarantees. A Subsidiary Loan Party shall
automatically be released from its obligations under the Loan Documents and all Liens in the
Collateral of such Subsidiary Loan Party shall be automatically released and all provisions of the
Loan Documents shall cease to apply to such Subsidiary Loan Party upon the consummation of any
transaction permitted by this Agreement as a result of which such Subsidiary Loan Party ceases to
be a Subsidiary, provided that if so required by this Agreement, the Required Lenders shall
have consented to such transaction and the terms of such consent did not provide otherwise. Upon
any sale or other transfer by any Subsidiary Loan Party (other than to Parent or any other
Subsidiary) of any Collateral that is permitted under any Loan Document, or upon the effectiveness
of any written consent to the release of the Lien granted under any Loan Document in any Collateral
pursuant to Section 9.02 of this Agreement, the Lien on such Collateral shall be automatically
released. In connection with any termination or release pursuant to this Section, the
Administrative Agent shall execute and deliver to any Subsidiary Loan Party, at such Subsidiary
Loan Party’s expense, all documents that such Subsidiary Loan Party shall reasonably request to
evidence such termination or release. Any execution and delivery of documents pursuant to this
Section shall be without recourse to or warranty by the Administrative Agent.









 



119


          SECTION 9.15. Conversion of Currencies. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder in one currency into
another currency, each party hereto (including any Foreign Borrower) agrees, to the fullest extent
that it may effectively do so, that the rate of exchange used shall be that at which in accordance
with normal banking procedures in the relevant jurisdiction the first currency could be purchased
with such other currency on the Business Day immediately preceding the day on which final judgment
is given.



          (b) The obligations of each Borrower in respect of any sum due to any party hereto or any
holder of the obligations owing hereunder (the “Applicable Creditor”) shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than the
currency in which such sum is stated to be due hereunder (the “Agreement Currency”), be
discharged only to the extent that, on the Business Day following receipt by the Applicable
Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase the Agreement
Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less
than the sum originally due to the Applicable Creditor in the Agreement Currency, such Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the Borrowers contained in this Section 9.15 shall
survive the termination of this Agreement and the payment of all other amounts owing hereunder.



          SECTION 9.16. USA Patriot Act Notice. Each of the Lenders and the Agents (for itself
and not on behalf of any Lender) hereby notifies each Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”), it is required to obtain, verify and record information that identifies each
Borrower, which information includes the name and address of each Borrower and other information
that will allow such Lender or such Agent, as applicable, to identify each Borrower in accordance
with the Act.









 



 


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



	 	 	 	 	 	 	 
	 	 	CCE SPINCO, INC.,	 	 
	 

	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 
	 	 	 	/s/ Michael Rapino	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Michael Rapino	 	 
	 

	 	 	 	Title: Chief Executive Officer	 	 













 



 




	 	 	 	 	 	 	 
	 	 	SFX ENTERTAINMENT, INC.,	 	 
	 

	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 
	 	 	 	/s/ Michael Rapino	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Michael Rapino	 	 
	 

	 	 	 	Title: Chief Executive Officer	 	 












 



 


	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,
	 	 	individually and as Administrative Agent,
	 

	 	 	 	 	 	 
	 

	 	by	 	/s/ Thomas H. Kozlark	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Thomas H. Kozlark	 	 
	 

	 	 	 	Title: Vice President	 	 












 



 


	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,
	 	 	TORONTO BRANCH, as Canadian Agent,
	 

	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 
	 	 	 	/s/ Christine Chan	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Christine Chan	 	 
	 

	 	 	 	Title: Vice President	 	 












 



 


	 	 	 	 	 
	 	 	J.P. MORGAN EUROPE LIMITED, as
	 	 	London Agent,
	 
	 	 	 	 
	 

	 	by	 	 
	 
	 	 	 	/s/ Lesley Pluck
	 

	 	 	 	 
	 

	 	 	 	Name: Lesley Pluck
	 

	 	 	 	Title: Associate












 



 


	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as
	 	 	Syndication Agent,
	 
	 	 	 	 
	 

	 	by	 	 
	 
	 	 	 	/s/ Scott Conner
	 

	 	 	 	 
	 

	 	 	 	Name: Scott Conner
	 

	 	 	 	Title: Vice President












 



2


	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS
OF DECEMBER 21, 2005, AMONG CCE SPINCO, INC., SFX
ENTERTAINMENT, INC., THE FOREIGN BORROWERS PARTY
THERETO, THE LENDERS PARTY THERETO, JPMORGAN
CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, AS
CANADIAN AGENT, J.P. MORGAN EUROPE LIMITED, AS
LONDON AGENT, AND BANK OF AMERICA, N.A., AS
SYNDICATION AGENT
	 
	 	 	 	 
	 	 	Name of Institution:
	 
	 
	 	 	 	The Bank of New York
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	by	 	/s/ Mehrasa Raygan
	 

	 	 	 	 
	 

	 	 	 	Name:   Mehrasa
Raygan
	 

	 	 	 	Title:  Vice President
	 
	 	 	 	 
	 

	 	by	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:

















 



2


	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS
OF DECEMBER 21, 2005, AMONG CCE SPINCO, INC., SFX
ENTERTAINMENT, INC., THE FOREIGN BORROWERS PARTY
THERETO, THE LENDERS PARTY THERETO, JPMORGAN
CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, AS
CANADIAN AGENT, J.P. MORGAN EUROPE LIMITED, AS
LONDON AGENT, AND BANK OF AMERICA, N.A., AS
SYNDICATION AGENT
	 
	 	 	 	 
	 	 	Name of Institution:
	 
	 
	 	 	 	National City Bank
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	by	 	/s/ Elizabeth A. Brosky
	 

	 	 	 	 
	 

	 	 	 	Name:  Elizabeth A. Brosky
	 

	 	 	 	Title:  Vice President
	 
	 	 	 	 
	 

	 	by	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:

















 



2


	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS
OF DECEMBER 21, 2005, AMONG CCE SPINCO, INC., SFX
ENTERTAINMENT, INC., THE FOREIGN BORROWERS PARTY
THERETO, THE LENDERS PARTY THERETO, JPMORGAN
CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, AS
CANADIAN AGENT, J.P. MORGAN EUROPE LIMITED, AS
LONDON AGENT, AND BANK OF AMERICA, N.A., AS
SYNDICATION AGENT
	 
	 	 	 	 
	 	 	Name of Institution:
	 
	 
	 	 	 	Wachovia Bank, N.A.
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	by	 	/s/  Russ Lyons
	 

	 	 	 	 
	 

	 	 	 	Name:  Russ Lyons
	 

	 	 	 	Title:   Director
	 
	 	 	 	 
	 

	 	by	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:

















 



2


	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS
OF DECEMBER 21, 2005, AMONG CCE SPINCO, INC., SFX
ENTERTAINMENT, INC., THE FOREIGN BORROWERS PARTY
THERETO, THE LENDERS PARTY THERETO, JPMORGAN
CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, AS
CANADIAN AGENT, J.P. MORGAN EUROPE LIMITED, AS
LONDON AGENT, AND BANK OF AMERICA, N.A., AS
SYNDICATION AGENT
	 
	 	 	 	 
	 	 	Name of Institution:
	 
	 
	 	 	 	Credit Suisse, Cayman Islands Branch
	 

	 	 	 	 
	 

	 	by	 	 
	 
	 	 	 	/s/ Doreen Barr
	 

	 	 	 	 
	 

	 	 	 	Name: Doreen Barr
	 

	 	 	 	Title:  Associate
	 
	 	 	 	 
	 

	 	by	 	 
	 
	 	 	 	/s/ Judith E. Smith
	 

	 	 	 	 
	 

	 	 	 	Name: Judith E. Smith
	 

	 	 	 	Title:  Director

















 



2


	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS
OF DECEMBER 21, 2005, AMONG CCE SPINCO, INC., SFX
ENTERTAINMENT, INC., THE FOREIGN BORROWERS PARTY
THERETO, THE LENDERS PARTY THERETO, JPMORGAN
CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, AS
CANADIAN AGENT, J.P. MORGAN EUROPE LIMITED, AS
LONDON AGENT, AND BANK OF AMERICA, N.A., AS
SYNDICATION AGENT
	 
	 	 	 	 
	 	 	Name of Institution:
	 
	 
	 	 	 	UBS Loan Finance LLC
	 

	 	 	 	 
	 

	 	by	 	 
	 
	 	 	 	/s/ Richard L. Tavrow
	 

	 	 	 	 
	 

	 	 	 	Name: Richard L. Tavrow
	 

	 	 	 	Title:   Director

            Banking Products Services, U.S.
	 
	 	 	 	 
	 

	 	by	 	 
	 
	 	 	 	/s/ Iris R. Otsa
	 

	 	 	 	 
	 

	 	 	 	Name: Iris R. Otsa
	 

	 	 	 	Title:  Associate
Director
           Banking
Products Services, U.S.


















 



2


	 	 	 	 	 
	 	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS
OF DECEMBER 21, 2005, AMONG CCE SPINCO, INC., SFX
ENTERTAINMENT, INC., THE FOREIGN BORROWERS PARTY
THERETO, THE LENDERS PARTY THERETO, JPMORGAN
CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, AS
CANADIAN AGENT, J.P. MORGAN EUROPE LIMITED, AS
LONDON AGENT, AND BANK OF AMERICA, N.A., AS
SYNDICATION AGENT
	 
	 	 	 	 
	 	 	Name of Institution:
	 
	 	 	 	Merrill Lynch Capital Corporation
	 

	 	 	 	 
	 

	 	by	 	 
	 
	 	 	 	 
	 

	 	 	 	/s/  Nancy E. Meadows
	 

	 	 	 	 
	 

	 	 	 	Name:  Nancy E. Meadows
	 

	 	 	 	Title:  Vice President
	 
	 	 	 	 
	 

	 	by	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:

















 



2



	 	 	 	 	 
	 
	SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS
OF DECEMBER 21, 2005, AMONG CCE SPINCO, INC., SFX
ENTERTAINMENT, INC., THE FOREIGN BORROWERS PARTY
THERETO, THE LENDERS PARTY THERETO, JPMORGAN
CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, AS
CANADIAN AGENT, J.P. MORGAN EUROPE LIMITED, AS
LONDON AGENT, AND BANK OF AMERICA, N.A., AS
SYNDICATION AGENT
	 
	 	 	 	 
	 	Name of Institution:



	 	 	 	 	 
	 	Goldman Sachs Credit Partners L.P.

 	 
	 	By:  	/s/ William W. Archer
 	 
	 	 	Name:  	William W. Archer 	 
	 	 	Title:  	Managing Director 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 

















 



2


	 	 	 	 	 
	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS
OF DECEMBER 21, 2005, AMONG CCE SPINCO, INC., SFX
ENTERTAINMENT, INC., THE FOREIGN BORROWERS PARTY
THERETO, THE LENDERS PARTY THERETO, JPMORGAN
CHASE BANK, N.A., AS ADMINISTRATIVE AGENT,
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, AS
CANADIAN AGENT, J.P. MORGAN EUROPE LIMITED, AS
LONDON AGENT, AND BANK OF AMERICA, N.A., AS
SYNDICATION AGENT
	 
	 	 	 	 
	 	Name of Institution:



	 	 	 	 	 
	 	 	Deutsche Bank AG, New York Branch


	 
	 	By:  	/s/ Susan LeFevre 	 
	 	 	Name:  	Susan LeFevre	 
	 	 	Title:  	Director 	 
	 
	 	By:  	/s/ Evelyn
Thierry	 
	 	 	Name:  	Evelyn Thierry	 
	 	 	Title:  	Vice President