EXHIBIT 4.1

EXECUTION COPY


$2,700,000,000


CREDIT AGREEMENT


Dated as of October 18, 2005


Among


EASTMAN KODAK COMPANY
and
 KODAK GRAPHIC COMMUNICATIONS CANADA COMPANY


as Borrowers


and


THE INITIAL LENDERS NAMED HEREIN


as Initial Lenders


and


LLOYDS TSB BANK PLC


as Syndication Agent


and


CREDIT SUISSE, CAYMAN ISLANDS BRANCH
 BANK OF AMERICA, N.A. 
and
 THE CIT GROUP/BUSINESS CREDIT, INC


as Co-Documentation Agents


and


CITICORP USA, INC.


as Administrative Agent


and


CITIGROUP GLOBAL MARKETS INC.


as Lead Arranger and Bookrunner









TABLE OF CONTENTS


	
  
ARTICLE I
  	
   
 
	
  
 
  	
   
 
	
  
 
  	
  
SECTION   1.01.  Certain Defined Terms
  	
  
5
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   1.02.  Computation of Time Periods
  	
  
20
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   1.03.  Accounting Terms
  	
  
20
  
	
   
  	
  
 
  	
   
 
	
  
ARTICLE II
  	
   
 
	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.01.  The Advances and Letters of   Credit
  	
  
20
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.02.  Making the Advances
  	
  
21
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.03.  Issuance of and Drawings and   Reimbursement Under Letters of Credit
  	
  
22
  
	
   
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.04.  Fees
  	
  
23
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.05.  Termination or Reduction of   the Commitments
  	
  
24
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.06.  Repayment of Advances
  	
  
25
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.07.  Interest on Advances
  	
  
26
  
	
   
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.08.  Interest Rate Determination
  	
  
26
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.09.  Optional Conversion of   Advances
  	
  
28
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.10.  Prepayments of Advances
  	
  
28
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.11.  Increased Costs
  	
  
29
  
	
   
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.12.  Illegality
  	
  
29
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.13.  Payments and Computations
  	
  
30
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.14.  Taxes
  	
  
31
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.15.  Sharing of Payments, Etc.
  	
  
33
  
	
   
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.16.  Evidence of Debt
  	
  
33
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.17.  Use of Proceeds
  	
  
34
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   2.18.  Additional Term Facility
  	
  
34
  










	
  
ARTICLE III
  	
   
 
	
   
  	
   
 
	
  
 
  	
  
SECTION   3.01.  Conditions Precedent to   Effectiveness of Section 2.01
  	
  
35
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   3.02.  Conditions Precedent to Each   Borrowing and Issuance.
  	
  
37
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   3.03.  Determinations Under Section   3.01
  	
  
38
  
	
  
 
  	
  
 
  	
   
 
	
  
ARTICLE IV
  	
   
 
	
   
  	
   
 
	
  
 
  	
  
SECTION   4.01.  Representations and   Warranties of the Company
  	
  
38
  
	
  
 
  	
  
 
  	
   
 
	
  
ARTICLE V
  	
   
 
	
  
 
  	
   
 
	
  
 
  	
  
SECTION   5.01.  Affirmative Covenants
  	
  
41
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   5.02.  Negative Covenants
  	
  
45
  
	
  
 
  	
  
 
  	
   
 
	
   
  	
  
SECTION   5.03.  Financial Covenants
  	
  
50
  
	
  
 
  	
  
 
  	
   
 
	
  
ARTICLE VI
  	
   
 
	
  
 
  	
   
 
	
  
 
  	
  
SECTION   6.01.  Events of Default
  	
  
51
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   6.02.  Actions in Respect of the   Letters of Credit upon Default
  	
  
53
  
	
  
 
  	
  
 
  	
   
 
	
  ARTICLE VII
  	
   
 
	
  
 
  	
   
 
	
  
 
  	
  
SECTION   7.01.  Guaranty; Limitation of   Liability
  	
  
53
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION 7.02.  Guaranty Absolute
  	
  
54
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION 7.03.  Waivers and Acknowledgments
  	
  
55
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   7.04.  Subrogation
  	
  
56
  
	
   
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   7.05.  Guaranty Supplements
  	
  
56
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   7.06.  Subordination
  	
  
56
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   7.07.  Continuing Guaranty;   Assignments
  	
  
57
  
	
  
 
  	
  
 
  	
   
 
	
  
ARTICLE VIII
  	
   
 
	
   
  	
   
 
	
  
 
  	
  
SECTION   8.01.  Authorization and Action
  	
  
57
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   8.02.  Agent’s Reliance.
  	
  
58
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   8.03.  CUSA and Affiliates
  	
  
59
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   8.04.  Lender Credit Decision
  	
  
59
  



2








	
  
 
  	
  
SECTION   8.05.  Indemnification
  	
  
59
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   8.06.  Successor Agent
  	
  
60
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   8.07.  Other Agents.
  	
  
60
  
	
  
 
  	
  
 
  	
   
 
	
  ARTICLE IX
  	
   
 
	
  
 
  	
   
 
	
  
 
  	
  
SECTION   9.01.  Amendments, Waivers.
  	
  
60
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   9.02.  Notices, Etc.
  	
  
61
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   9.03.  No Waiver; Remedies
  	
  
61
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   9.04.  Costs and Expenses
  	
  
62
  
	
   
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   9.05.  Right of Set-off
  	
  
63
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   9.06.  Binding Effect
  	
  
63
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   9.07.  Assignments and   Participations
  	
  
63
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   9.08.  Confidentiality
  	
  
65
  
	
   
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   9.09.  Governing Law
  	
  
66
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   9.10.  Execution in Counterparts
  	
  
66
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   9.11.  Jurisdiction
  	
  
66
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   9.12.  No Liability of the Issuing   Banks
  	
  
66
  
	
   
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   9.13.  PATRIOT Act Notice
  	
  
67
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   9.14.  Release of Collateral
  	
  
67
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   9.15.  Judgment
  	
  
67
  
	
  
 
  	
  
 
  	
   
 
	
  
 
  	
  
SECTION   9.16.  Waiver of Jury Trial
  	
  
67
  



3








	
  
Schedules
  
	
  
 
  
	
  
Schedule I -   List of Applicable Lending Offices
  
	
  
 
  
	
  
Schedule II   - Subsidiary Guarantors and Material Subsidiaries
  
	
  
 
  
	
  
Schedule   2.01(c) - Existing Letters of Credit
  
	
  
 
  
	
  
Schedule   2.18 - Additional Term Provisions
  
	
  
 
  
	
  
Schedule   5.02(a) - Existing Liens
  
	
  
 
  
	
  
Schedule   5.02(d) - Existing Subsidiary Debt
  
	
  
 
  
	
  
Schedule   5.02(e) - Existing Company Debt
  





	
  
Exhibits
  	
   
 	
  
 
  
	
  
 
  	
   
 	
  
 
  
	
  
Exhibit A-1
  	
  
-
  	
  
Form of   Revolving Credit Note
  
	
  
 
  	
   
 	
  
 
  
	
  
Exhibit   A-2-1
  	
  
-
  	
  
Form of Term   B-1 Note
  
	
  
 
  	
   
 	
  
 
  
	
  
Exhibit   A-2-2
  	
  
-
  	
  
Form of Term   B-2 Note
  
	
   
  	
   
 	
  
 
  
	
  
Exhibit A-3
  	
  
-
  	
  
Form of   Additional Term Note
  
	
  
 
  	
   
 	
  
 
  
	
  
Exhibit B
  	
  
-
  	
  
Form of   Notice of Borrowing
  
	
  
 
  	
   
 	
  
 
  
	
  
Exhibit C
  	
  
-
  	
  
Form of   Assignment and Acceptance
  
	
  
 
  	
   
 	
  
 
  
	
  
Exhibit D
  	
  
-
  	
  
Form of   Security Agreement
  
	
   
  	
   
 	
  
 
  
	
  
Exhibit E
  	
  
-
  	
  
Form of   Canadian Security Agreement
  
	
  
 
  	
   
 	
  
 
  
	
  
Exhibit F
  	
  
-
  	
  
Form of   Opinion of General Counsel of the Loan Parties
  
	
  
 
  	
   
 	
  
 
  
	
  
Exhibit G
  	
  
-
  	
  
Form of   Guaranty Supplement
  




4









CREDIT AGREEMENT


Dated as of October 18, 2005


                    EASTMAN KODAK COMPANY, a New Jersey corporation (the “Company”), KODAK GRAPHIC COMMUNICATIONS CANADA COMPANY, an unlimited liability company organized under the laws of the province of Nova Scotia (“Nova Scotia Company” and, together with the Company, the “Borrowers” and each, a “Borrower”), the banks, financial institutions and other institutional lenders (the “Initial Lenders”) and issuers of letters of credit (“Initial Issuing Banks”) listed on Schedule I hereto, CITIGROUP GLOBAL MARKETS INC., as lead arranger and bookrunner, LLOYDS TSB BANK PLC, as syndication agent, CREDIT SUISSE, CAYMAN ISLANDS BRANCH, BANK OF AMERICA, N.A. and THE CIT GROUP/BUSINESS CREDIT, INC., as co-documentation agents, and CITICORP USA, INC. (“CUSA”),

as agent (the “Agent”) for the Lenders (as hereinafter defined), agree as follows:


ARTICLE I


DEFINITIONS AND ACCOUNTING TERMS


                    SECTION 1.01.  Certain Defined Terms.  As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

	
  
 
  	
  
          “Additional   Term Advance” has the meaning specified in Section 2.01(d).
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Additional   Term Borrowing” means a borrowing consisting of simultaneous Additional   Term Advances of the same Type made by the Additional Term Lenders.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Additional   Term Commitment” means, with respect to any Additional Term Lender at any   time, the amount set forth opposite such Lender’s name on Schedule 2.18   hereto or, if such Lender has entered into one or more Assignment and   Acceptances, set forth for such Lender in the Register maintained by the   Agent pursuant to Section 9.07(d) as such Lender’s “Additional Term   Commitment,” as such amount may be reduced at or prior to such time pursuant   to Section 2.05.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Additional   Term Effective Date” means the date on which all of the conditions   precedent to the effectiveness of the Additional Term Commitments set forth   in Section 2.18(c) have been satisfied or waived.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Additional   Term Facility” means, at any time, the aggregate amount of the Additional   Term Lenders’ Additional Term Commitments at such time.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Additional   Term Lender” means any Lender that has an Additional Term Commitment.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Additional   Term Maturity Date” has the meaning specified on Schedule 2.18.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Additional   Term Note” means a promissory note of the Company payable to the order of   any Additional Term Lender, in substantially the form of Exhibit A-3   hereto, evidencing the indebtedness of the Company to such Lender resulting   from the Additional Term Advance made by such Lender, as amended.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Advance”   means a Revolving Credit Advance, a Term B-1 Advance, a Term B-2 Advance or   an Additional Term Advance.
  




5








	
  
 
  	
  
          “Affiliate”   means, as to any Person, any other Person that, directly or indirectly,   controls, is controlled by or is under common control with such Person or is   a director or executive officer of such Person.  For purposes of this definition, the term “control” (including   the terms “controlling”, “controlled by” and “under common control with”) of   a Person means the possession, direct or indirect, of the power to direct or   cause the direction of the management and policies of such Person, whether through   the ownership of Voting Stock, by contract or otherwise.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Agent’s   Account” means the account of the Agent maintained by the Agent at   Citibank at its office at Two Penns Way, New Castle, Delaware, Account   No. 36852248, Attention:  Bank Loan   Syndications.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Applicable   Lending Office” means, with respect to each Lender, such Lender’s   Domestic Lending Office in the case of a Base Rate Advance and such Lender’s   Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Applicable   Margin” means (a) in respect of the Revolving Credit Facility, as of any   date, a percentage per annum determined by reference to the Public Debt   Rating in effect on such date as set forth below:
  





	
  Public   Debt Rating
   S&P/Moody’s
  	
   
 	
  
Applicable   Margin for
   Eurodollar Rate Advances
  	
   
 	
  
Applicable   Margin for
   Base Rate Advances
  
	
  


  	
   
 	
  


  	
   
 	
  


  
	
  
Level 1
BBB- and Baa3 above
  	
  
 
  	
  
0.875%
  	
   
 	
  
0.000%
  
	
  
Level 2
BB+ and Ba1
  	
  
 
  	
  
1.250%
  	
   
 	
  
0.250%
  
	
    
Level 3
BB and Ba2
  	
  
 
  	
  
1.500%
  	
   
 	
  
0.500%
  
	
    Level 4
Lower than Level 3
  	
  
 
  	
  
2.000%
  	
   
 	
  
1.000%
  





	
  
 
  	
  
(b) in   respect of the Term B Facilities, as of any date, a percentage per annum   determined by reference to the Public Debt Rating in effect on such date as   set forth below:
  





	
  
Public   Debt Rating
   S&P/Moody’s
  	
   
 	
  
Applicable   Margin for
   Eurodollar Rate Advances
  	
   
 	
  
Applicable   Margin for
   Base Rate Advances
  
	
  


  	
   
 	
  


  	
   
 	
  


  
	
  Level 1
   BBB- and Baa3 above
  	
  
 
  	
  
1.500%
  	
   
 	
  
0.500%
  
	
   
Level 2
   BB+ and Ba1
  	
  
 
  	
  
1.500%
  	
   
 	
  
0.500%
  
	
    
Level 3
   BB and Ba2
  	
  
 
  	
  
1.750%
  	
   
 	
  
0.750%
  
	
   
Level 4
   Lower than Level 3
  	
  
 
  	
  
2.250%
  	
   
 	
  
1.250%
  





	
  
 
  	
  
provided,   that if the Applicable Margin plus any fee or fee equivalent arrangement at   any pricing level established for the Additional Term Facility pursuant to   Section 2.18 is greater than the Applicable Margin for the Term B Facilities   at the corresponding pricing level by greater than 0.50% per annum (the   amount of such excess being referred to herein as a “Margin Differential”),   then the Applicable Margin then in effect for the Term B Facilities for such   pricing level shall automatically and permanently be increased by the   applicable Margin Differential, effective upon the making of the Additional   Term Advances, and
  




6








	
  
 
  	
  
(c) in the   case of the Additional Term Facility, as set forth in Schedule 2.18.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Applicable   Percentage” means, as of any date, a percentage per annum determined by   reference to the Public Debt Rating in effect on such date as set forth   below:
  





	
  
Public   Debt Rating
   S&P/Moody’s
  	
   
 	
  
Applicable
   Percentage
  
	
  


  	
   
 	
  


  
	
  
Level 1
   BBB- and Baa3 above
  	
  
 
  	
  
0.200%
  
	
  
Level 2
   BB+ and Ba1
  	
  
 
  	
  
0.250%
  
	
  
Level 3
   BB and Ba2
  	
  
 
  	
  
0.375%
  
	
  
Level 4
   Lower than Level 3
  	
  
 
  	
  
0.500%
  





	
  
 
  	
  
          “Appropriate   Lender” means, at any time, with respect to (a) any of the Revolving   Credit Facility, or the Term B-1 Facility, the Term B-2 Facility or the   Additional Term Facility, a Lender that has a Commitment with respect to such   Facility at such time and (b) the Letter of Credit Facility, any Issuing   Bank and each other Revolving Credit Lender.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Approved   Fund” means any Fund that is administered or managed by (i) a Lender,   (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity   that administers or manages a Lender.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Assignment   and Acceptance” means an assignment and acceptance entered into by a   Lender and an Eligible Assignee, and accepted by the Agent, in substantially   the form of Exhibit C hereto.
  
	
  
 
  	
  
 
  
	
   
  	
  
          “Assuming   Lender” has the meaning specified in Section 2.18(c).
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Assumption   Agreement” has the meaning specified in Section 2.18(c).
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Available   Amount” of any Letter of Credit means, at any time, the maximum amount   available to be drawn under such Letter of Credit at such time (assuming   compliance at such time with all conditions to drawing).
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Bankruptcy   Law” means any proceeding of the type referred to in Section 6.01(e)   of this Agreement or Title 11, U.S. Code, or any similar foreign, federal or   state law for the relief of debtors.
  
	
  
 
  	
  
 
  
	
   
  	
  
          “Base   Rate” means a fluctuating interest rate per annum in effect from time to   time, which rate per annum shall at all times be equal to the higher of:
  





	
  
 
  	
  
          (a)          the   rate of interest announced publicly by Citibank in New York,   New York, from time to time, as Citibank’s base rate; and 
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (b)          1⁄2   of one percent per annum above the Federal Funds Rate.
  





	
  
 
  	
  
          “Base   Rate Advance” means an Advance that bears interest as provided in   Section 2.07(a)(i).
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Borrower   Information” has the meaning specified in Section 9.08.
  




7








	
  
 
  	
  
          “Borrowing”   means a Revolving Credit Borrowing, a Term B-1 Borrowing, a Term B-2   Borrowing or an Additional Term Borrowing.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Business   Day” means a day of the year on which banks are not required or   authorized by law to close in New York City and, if the applicable   Business Day relates to any Eurodollar Rate Advances, on which dealings are   carried on in the London interbank market.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Canadian   Guaranteed Obligations” has the meaning specified in Section 7.01(a)(ii).
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Canadian   Loan Party” means Nova Scotia Company and each Canadian Subsidiary   Guarantor.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Canadian   Subsidiary Guarantor” means the Subsidiaries of Nova Scotia Company   listed on Part B of Schedule II hereto and each other Subsidiary of Nova   Scotia Company that shall be required to execute and deliver a guaranty   pursuant to Section 5.01(i).
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Canadian   Security Agreement” has the meaning specified in Section 3.01(g)(iii).
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “CFC”   means an entity that is a “controlled foreign corporation” of the Company   under Section 957 of the Internal Revenue Code or an entity all or   substantially all of the assets of which are CFCs, and any entity which would   be a “controlled foreign corporation” except for any alternate classification   under Treasury Regulation 301.7701-3, or any successor provisions to the   foregoing.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Citibank”   means Citibank, N.A.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Collateral”   means all “Collateral” referred to in the Collateral Documents and all other   property that is or is intended to be subject to any Lien in favor of the   Agent for the benefit of the Secured Parties pursuant to the terms of the   Collateral Documents.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Collateral   Documents” means the Security Agreement, the Canadian Security Agreement   and each of the collateral documents, instruments and agreements delivered   pursuant to Section 5.01(i) or (j).
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Commitment”   means a Revolving Credit Commitment, a Letter of Credit Commitment, a Term   B-1 Commitment, a Term B-2 Commitment or an Additional Term Commitment.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Comprehensive   Guaranteed Obligations” has the meaning specified in Section 7.01(a)(i).
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Consolidated”   refers to the consolidation of accounts in accordance with GAAP.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Consolidated   Subsidiary” means any Person whose accounts are consolidated with the   accounts of the Company in accordance with GAAP.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Convert”,   “Conversion” and “Converted” each refers to a conversion of   Advances of one Type into Advances of the other Type pursuant to   Section 2.08 or 2.09.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Debt”   of any Person means, without duplication, (a) all indebtedness of such   Person for borrowed money (including, without limitation, pursuant to   securitization transactions), (b) to the extent such obligations would   appear as a liability of such Person in accordance with GAAP, all obligations   of such Person for the deferred purchase price of property or services (other   than trade payables incurred in the ordinary course of such Person’s   business), (c) all obligations of such Person evidenced by notes, bonds,   debentures or other similar instruments, (d) all obligations of such   Person created or arising under any conditional sale or other title retention   agreement with respect to property acquired by such Person (even though the   rights and remedies of the seller or lender under such agreement in the event   of default are limited to
repossession or sale of such property),   (e) all obligations of such Person as lessee under leases
  




8








	
  
 
  	
  
that have   been or should be, in accordance with GAAP, recorded as capital leases,   (f) the face or maximum amount of all obligations of such Person which   have been or may be drawn upon under acceptances, letters of credit or   similar extensions of credit, (g) all Hedge Agreement Obligations of   such Person, (h) all payment obligations of other Persons whose   financial statements are not Consolidated with those of such Person   (collectively, “Guaranteed Debt”) guaranteed directly or indirectly in   any manner by such Person, or in effect guaranteed directly or indirectly by   such Person through an agreement (1) to pay or purchase such Guaranteed   Debt or to advance or supply funds for the payment or purchase of such   Guaranteed Debt, (2) to purchase, sell or lease (as lessee or lessor)   property, or to purchase or sell services, expressly for the purpose of   enabling the debtor to make payment of such
Guaranteed Debt or to assure the   holder of such Guaranteed Debt against loss, (3) to supply funds to or   in any other manner invest in the debtor (including any agreement to pay for   property or services irrespective of whether such property is received or   such services are rendered) or (4) otherwise to assure a creditor of   such other Person against loss, and (i) all Debt of the type referred to   in clauses (a) through (h) above secured by (or for which the   holder of such Debt has an existing right to be secured by) any Lien on   property (including, without limitation, accounts and contract rights) owned   by such Person, even though such Person has not assumed or become liable for   the payment of such Debt.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Debt   for Borrowed Money” of any Person means all items that, in accordance   with GAAP, would be classified as short term borrowings and long term debt on   a Consolidated statement of financial position of such Person.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Default”   means any Event of Default or any event that would constitute an Event of   Default but for the requirement that notice be given or time elapse or both.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Domestic   Lending Office” means, with respect to any Lender, the office of such   Lender specified as its “Domestic Lending Office” opposite its name on   Schedule I hereto or in the Assumption Agreement or the Assignment and   Acceptance pursuant to which it became a Lender, or such other office of such   Lender as such Lender may from time to time specify to the Company and the   Agent.
  
	
  
 
  	
  
 
  
	
   
  	
  
          “EBITDA”   means, for any period, net earnings (or net loss) plus, without   duplication and to the extent reflected as a charge in the Consolidated   statement of earnings, the sum of (a) interest expense, (b) income   tax expense (benefit), (c) depreciation expense, (d) amortization   expense, (e) any extraordinary expenses or losses and (f) any other non-cash   charges that will not at any time result in any cash payment and minus,   to the extent included in net earnings on the Consolidated statement of   earnings, (i) interest income, (ii) any extraordinary income or gains, (iii)   any other non-cash income that will not at any time result in any cash   payment and (iv) gain associated with the sale of Intellectual Property   listed on Part A of Schedule X to the Security Agreement in the fiscal   quarter ended December 31, 2005, in each case
determined in accordance with   GAAP for such period.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Effective   Date” has the meaning specified in Section 3.01.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Eligible   Assignee” means (a) with respect to the Revolving Credit Facility   (i) a Lender; (ii) an Affiliate of a Lender; and (iii) any   other Person approved by (x) the Agent, (y) each Issuing Bank and (z) unless   an Event of Default has occurred and is continuing at the time any assignment   is effected in accordance with Section 9.07, the Company, in each case, such   approval not to be unreasonably withheld or delayed and (b) with respect to   any Term Facility (i) a Lender; (ii) an Affiliate of a Lender or an   Approved Fund; and (iii) any other Person approved by (x) the Agent and   (y) unless an Event of Default has occurred and is continuing at the time any   assignment is effected in accordance with Section 9.07, the Company, in each   case, such approval not to be unreasonably withheld or delayed; provided,   however, that neither any
Loan Party nor an Affiliate of a Loan Party   shall qualify as an Eligible Assignee.
  



9








	
  
 
  	
  
          “Environmental   Action” means any action, suit, demand, demand letter, claim, notice of   non-compliance or violation, notice of liability or potential liability,   investigation, proceeding, consent order or consent agreement relating in any   way to any Environmental Law, Environmental Permit or Hazardous Materials or   arising from alleged injury or threat of injury to health, safety or the   environment, including, without limitation, (a) by any governmental or   regulatory authority for enforcement, cleanup, removal, response, remedial or   other actions or damages and (b) by any governmental or regulatory   authority or any third party for damages, contribution, indemnification, cost   recovery, compensation or injunctive relief.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Environmental   Law” means any federal, state, local or foreign statute, law, ordinance,   rule, regulation, code, order, judgment, decree or judicial or agency   interpretation, policy or guidance relating to pollution or protection of the   environment, health, safety or natural resources, including, without   limitation, those relating to the use, handling, transportation, treatment,   storage, disposal, release or discharge of Hazardous Materials.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Environmental   Permit” means any permit, approval, identification number, license or   other authorization required under any Environmental Law.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “ERISA”   means the Employee Retirement Income Security Act of 1974, as amended from   time to time, and the regulations promulgated and rulings issued thereunder.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “ERISA   Affiliate” means any Person that for purposes of Title IV of ERISA   is a member of the controlled group of the Company, or under common control   with the Company, within the meaning of Section 414 of the Internal   Revenue Code.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “ERISA   Event” means (a) (i) the occurrence of a reportable event, within   the meaning of Section 4043 of ERISA, with respect to any Plan unless   the 30-day notice requirement with respect to such event has been waived by   the PBGC, or (ii) the requirements of subsection (1) of Section 4043(b) of   ERISA (without regard to subsection (2) of such Section) are met with respect   to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a   Plan, and an event described in paragraph (9), (10), (11), (12) or (13)   of Section 4043(c) of ERISA is reasonably expected to occur with respect to   such Plan within the following 30 days; (b) the application for a   minimum funding waiver with respect to a Plan; (c) the provision by the   administrator of any Plan of a notice of intent to terminate such Plan   pursuant to Section 4041(a)(2) of ERISA
(including any such notice with   respect to a plan amendment referred to in Section 4041(e) of ERISA);   (d) the cessation of operations at a facility of the Company or any   ERISA Affiliate in the circumstances described in Section 4062(e) of   ERISA; (e) the withdrawal by the Company or any ERISA Affiliate from a   Multiple Employer Plan during a plan year for which it was a substantial   employer, as defined in Section 4001(a)(2) of ERISA; (f)  the   conditions for the imposition of a lien under Section 302(f) of ERISA   shall have been met with respect to any Plan; (g) the adoption of an   amendment to a Plan requiring the provision of security to such Plan pursuant   to Section 307 of ERISA; or (h) the institution by the PBGC of   proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or   the occurrence of any event or condition described in Section 4042 of   ERISA that constitutes grounds for the termination of, or the
appointment of   a trustee to administer, a Plan.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Eurocurrency   Liabilities” has the meaning assigned to that term in Regulation D   of the Board of Governors of the Federal Reserve System, as in effect from   time to time.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Eurodollar   Lending Office” means, with respect to any Lender, the office of such   Lender specified as its “Eurodollar Lending Office” opposite its name on   Schedule I hereto or in the Assumption Agreement or the Assignment and   Acceptance pursuant to which it became a Lender (or, if no such office is   specified, its Domestic Lending Office), or such other office of such Lender   as such Lender may from time to time specify to the Company and the Agent.
  




10








	
  
 
  	
  
          “Eurodollar   Rate” means, for any Interest Period for each Eurodollar Rate Advance   comprising part of the same Borrowing, an interest rate per annum equal to   the rate per annum obtained by dividing (a) the rate per annum (rounded   upward to the nearest whole multiple of 1/16 of 1% per annum) appearing on   Moneyline Telerate Markets Page 3750 (or any successor page) as the London   interbank offered rate for deposits in U.S. dollars at approximately 11:00   A.M. (London time) two Business Days prior to the first day of such Interest   Period for a term comparable to such Interest Period or, if for any reason   such rate is not available, the average (rounded upward to the nearest   whole multiple of 1/16 of 1% per annum, if such average is not such a   multiple) of the rate per annum at which deposits in U.S. dollars are offered   by the principal office of each of the
Reference Banks (or their respective   Affiliates) in London, England to prime banks in the London interbank market   at 11:00 A.M. (London time) two Business Days before the first day of   such Interest Period in an amount substantially equal to such Reference   Bank’s (or their respective Affiliates’) Eurodollar Rate Advance comprising   part of such Borrowing to be outstanding during such Interest Period and for   a period equal to such Interest Period by (b) a percentage equal to 100%   minus the Eurodollar Rate Reserve Percentage for such Interest Period.  If the Moneyline Telerate Markets Page   3750 (or any successor page) is unavailable, the Eurodollar Rate for any   Interest Period for each Eurodollar Rate Advance comprising part of the same   Borrowing shall be determined by the Agent on the basis of applicable rates   furnished to and received by the Agent from the Reference Banks two Business   Days before the first day of such Interest Period, subject,
however,   to the provisions of Section 2.08.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Eurodollar   Rate Advance” means an Advance that bears interest as provided in   Section 2.07(a)(ii).
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Eurodollar   Rate Reserve Percentage” for any Interest Period for all Eurodollar Rate   Advances comprising part of the same Borrowing means the reserve percentage   applicable two Business Days before the first day of such Interest Period   under regulations issued from time to time by the Board of Governors of the   Federal Reserve System (or any successor) for determining the maximum reserve   requirement (including, without limitation, any emergency, supplemental or   other marginal reserve requirement) for a member bank of the Federal Reserve   System in New York City with respect to liabilities or assets consisting   of or including Eurocurrency Liabilities (or with respect to any other   category of liabilities that includes deposits by reference to which the   interest rate on Eurodollar Rate Advances is determined) having a term equal   to such Interest Period.


	
  
 
  	
  
 
  
	
  
 
  	
  
          “Events   of Default” has the meaning specified in Section 6.01.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Facility”   means the Revolving Credit Facility, the Letter of Credit Facility, the Term   B-1 Facility, the Term B-2 Facility or the Additional Term Facility.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Federal   Funds Rate” means, for any period, a fluctuating interest rate per annum   equal for each day during such period to the weighted average of the rates on   overnight Federal funds transactions with members of the Federal Reserve   System arranged by Federal funds brokers, as published for such day (or, if   such day is not a Business Day, for the next preceding Business Day) by the   Federal Reserve Bank of New York, or, if such rate is not so published   for any day that is a Business Day, the average of the quotations for such   day on such transactions received by the Agent from three Federal funds   brokers of recognized standing selected by it.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Fund”   means any Person (other than an individual) that is or will be engaged in   making, purchasing, holding or otherwise investing in commercial loans and   similar extensions of credit in the ordinary course.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “GAAP”   has the meaning specified in Section 1.03.
  




11








	
  
 
  	
  
          “Guaranteed   Obligations” means the Comprehensive Guaranteed Obligations or the   Canadian Guaranteed Obligations.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Guarantors”   means the Company, the US Subsidiary Guarantors and the Canadian Subsidiary   Guarantors.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Guaranty”   means the guaranty of each Guarantor set forth in Article VII.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Guaranty   Supplement” has the meaning specified in Section 7.05.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Hazardous   Materials” means (a) petroleum and petroleum products, byproducts or   breakdown products, radioactive materials, asbestos-containing materials,   polychlorinated biphenyls and radon gas and (b) any other chemicals,   materials or substances designated, classified or regulated as hazardous or   toxic or as a pollutant or contaminant under any Environmental Law.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Hedge   Agreement Obligations” means the aggregate net liabilities, on a   mark-to-market basis as determined in accordance with GAAP, for all Hedge   Agreements of a Person calculated as of the end of the most recent month.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Hedge   Agreements” means interest rate swap, cap or collar agreements, interest   rate future or option contracts, currency swap agreements, currency future or   option contracts and other similar agreements.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Indenture”   means the Indenture dated as of January 1, 1988 between the Company and The   Bank of New York, as trustee, as amended from time to time.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Intellectual   Property” has the meaning specified in Section 4.01(i).
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Interest   Period” means, for each Eurodollar Rate Advance comprising part of the   same Borrowing, the period commencing on the date of such Eurodollar Rate   Advance or the date of the Conversion of any Base Rate Advance into such   Eurodollar Rate Advance and ending on the last day of the period selected by   the applicable Borrower pursuant to the provisions below and, thereafter,   each subsequent period commencing on the last day of the immediately   preceding Interest Period and ending on the last day of the period selected   by such Borrower pursuant to the provisions below.  The duration of each such Interest Period shall be one, two,   three or six months, and subject to clause (c) of this definition, nine or   twelve months, as the applicable Borrower may, upon notice received by the   Agent not later than 11:00 A.M. (New York City time) on the third   Business
Day prior to the first day of such Interest Period, select; provided,   however, that:
  





	
  
 
  	
  
          (a)          no   Borrower may select any Interest Period that ends after the Termination Date   then in effect with respect to any Lender;
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (b)          Interest   Periods commencing on the same date for Eurodollar Rate Advances comprising   part of the same Borrowing shall be of the same duration;
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (c)          
no Borrower shall be entitled to   select an Interest Period having duration of nine or twelve months unless, by   2:00 P.M. (New York City time) on the third Business Day prior to the first   day of such Interest Period, each Lender notifies the Agent that such Lender   will be providing funding for such Borrowing with such Interest Period (the   failure of any Lender to so respond by such time being deemed for all   purposes of this Agreement as an objection by such Lender to the requested   duration of such Interest Period); 
provided
 that, if any or all of the Lenders   object to the requested duration of such Interest Period, the duration of the   Interest Period for such Borrowing shall be one, two, three or six months, as   specified by such Borrower in the applicable Notice of Borrowing as the   desired alternative to an Interest Period of nine or twelve months;
  



12








	
  
 
  	
  
          (d)          whenever   the last day of any Interest Period would otherwise occur on a day other than   a Business Day, the last day of such Interest Period shall be extended to   occur on the next succeeding Business Day, provided, however,   that, if such extension would cause the last day of such Interest Period to   occur in the next following calendar month, the last day of such Interest   Period shall occur on the next preceding Business Day; and
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (e)          whenever   the first day of any Interest Period occurs on a day of an initial calendar   month for which there is no numerically corresponding day in the calendar   month that succeeds such initial calendar month by the number of months equal   to the number of months in such Interest Period, such Interest Period shall   end on the last Business Day of such succeeding calendar month.
  





	
   
  	
  
          “Internal   Revenue Code” means the Internal Revenue Code of 1986, as amended from   time to time, and the regulations promulgated and rulings issued thereunder.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Investment”   in any Person means any loan or advance to such Person, any purchase or other   acquisition of any equity interests or Debt or the assets comprising a   division or business unit or a substantial part or all of the business of   such Person, any capital contribution to such Person or any other direct or   indirect investment in such Person, including, without limitation, any   acquisition by way of a merger or consolidation (or similar transaction) and   any arrangement pursuant to which the investor incurs Debt of the types   referred to in clause (h) or (i) of the definition of “Debt” in   respect of such Person.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Issuance”   with respect to any Letter of Credit means the issuance, amendment, renewal   or extension of such Letter of Credit.
  
	
  
 
  	
  
 
  
	
   
  	
  
          “Issuing   Bank” means an Initial Issuing Bank, any Eligible Assignee to which a   portion of the Letter of Credit Commitment hereunder has been assigned   pursuant to Section 9.07 or any other Revolving Credit Lender so long as such   Eligible Assignee or Lender expressly agrees to perform in accordance with   their terms all of the obligations that by the terms of this Agreement are   required to be performed by it as an Issuing Bank and notifies the Agent of   its Applicable Lending Office (which information shall be recorded by the   Agent in the Register), for so long as such Initial Issuing Bank, Eligible   Assignee or Revolving Credit Lender, as the case may be, shall have a Letter   of Credit Commitment.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “L/C   Cash Deposit Account” means an interest bearing cash deposit account to   be established and maintained by the Agent, over which the Agent, as provided   in Section 6.02, shall have sole dominion and control, upon terms as may be   satisfactory to the Agent.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “L/C   Related Documents” has the meaning specified in Section 2.06(c)(i).
  
	
  
 
  	
  
 
  
	
   
  	
  
          “Lenders”   means each Initial Lender, each Issuing Bank, each Assuming Lender that shall   become a party hereto pursuant to Section 2.18 and each Person and each   Person that shall become a party hereto pursuant to Section 9.07.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Letter   of Credit” has the meaning specified in Section 2.01(c).
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Letter   of Credit Agreement” has the meaning specified in Section 2.03(a).
  




13








	
  
 
  	
  
          “Letter   of Credit Commitment” means, with respect to each Issuing Bank, the   obligation of such Issuing Bank to issue Letters of Credit for the account of   the Company and its specified Subsidiaries in (a) the amount set forth   opposite the Issuing Bank’s name on Schedule I hereto under the caption   “Letter of Credit Commitment” or (b) if such Issuing Bank has entered into   one or more Assignment and Acceptances, the amount set forth for such Issuing   Bank in the Register maintained by the Agent pursuant to Section 9.07(d)   as such Issuing Bank’s “Letter of Credit Commitment”, in each case as such   amount may be reduced prior to such time pursuant to Section 2.05.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Letter   of Credit Facility” means, at any time, an amount equal to the least of   (a) the aggregate amount of the Issuing Banks’ Letter of Credit Commitments   at such time, (b) $500,000,000 and (c) the aggregate amount of the Revolving   Credit Commitments, as such amount may be reduced at or prior to such time   pursuant to Section 2.05.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Lien”   means any lien, security interest or other charge or encumbrance of any kind   on the property of a Person, including, without limitation, the lien or   retained security title of a conditional vendor and any easement, right of   way or other encumbrance on title to real property, provided the term “Lien”   shall not include any license of intellectual property.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Loan   Documents” means (i) this Agreement, (ii) the Notes,   (iii) Collateral Documents and (iv) each Letter of Credit   Agreement, in each case as amended from time to time.
  
	
  
 
  	
  
 
  
	
   
  	
  
          “Loan   Parties” means the Borrowers and the Guarantors.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Material   Adverse Change” means any material adverse change in the business, condition   (financial or otherwise), operations, performance or properties of the   Company and its Consolidated Subsidiaries taken as a whole.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Material   Adverse Effect” means a material adverse effect on (a) the business,   condition (financial or otherwise), operations, performance or properties of   the Company and its Consolidated Subsidiaries taken as a whole, (b) the   rights and remedies of the Agent or any Lender under any Loan Document or   (c) the ability of any Significant Loan Party to perform its obligations   under any Loan Document to which it is a party.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Material   Subsidiary” means (a) with respect to the Company, each direct Subsidiary   of the Company that, for the most recently completed fiscal year of the   Company for which audited financial statements are available, either   (i)  has, together with its Subsidiaries, assets that exceed 5% of the   total assets shown on the Consolidated statement of financial condition of   the Company as of the last day of such period or (ii) has, together with   its Subsidiaries, net sales that exceed 5% of the Consolidated net sales of   the Company for such period; and (b) with respect to Nova Scotia Company,   means any direct Subsidiary of Nova Scotia Company that, as of the end of the   most recently completed fiscal year for which audited financial statements of   the Company are available, either (y) has, together with its Subsidiaries,   assets that exceed 5% of the total assets
shown on consolidating statements   of Nova Scotia Company and its Subsidiaries used in preparation of the   Company’s Consolidated statement of financial condition as of the last day of   such period or (z) has, together with its Subsidiaries, net sales that exceed   5% of the Consolidated net sales of Nova Scotia Company and its subsidiaries   for such period, provided, however, that in each case, as of   the Effective Date, “Material Subsidiaries” of the Company shall be measured   as of the interim financial statements of the Company as at and for the   period ended June 30, 2005 and “Material Subsidiary of Nova Scotia Company   shall be those entities so designated in Part C of Schedule II.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Moody’s”   means Moody’s Investors Service, Inc.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Multiemployer   Plan” means a multiemployer plan, as defined in Section 4001(a)(3)   of ERISA, to which the Company or any ERISA Affiliate is making or accruing   an obligation to make contributions, or has within any of the preceding five   plan years made or accrued an obligation to make contributions.
  




14








	
  
 
  	
  
          “Multiple   Employer Plan” means a single employer plan, as defined in   Section 4001(a)(15) of ERISA, that (a) is maintained for employees   of the Company or any ERISA Affiliate and at least one Person other than the   Loan Parties and the ERISA Affiliates or (b) was so maintained and in   respect of which the Company or any ERISA Affiliate could have liability   under Section 4064 or 4069 of ERISA in the event such plan has been or   were to be terminated.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Net   Cash Proceeds” means, with respect to any sale, lease, transfer or other   disposition by the Company or any of its Subsidiaries of any asset to a   Person that is not an Affiliate of the Company, the aggregate amount of cash   actually received from time to time (whether as initial consideration or   through payment or disposition of deferred consideration, and if received in   a currency other than US dollars, determined after the conversion of such   cash into US dollars using the prevailing exchange rate in effect on the date   such local currency cash is received) by or on behalf of such Person in   connection with such transaction after deducting therefrom only (without   duplication) (a) reasonable and customary brokerage commissions,   underwriting fees and discounts, legal and accounting fees, filing fees, finder’s   fees and other similar fees and commissions
and other expenses of the   transaction, (b) the amount of taxes payable in connection with or as a   result of such transaction or payable as a result of transferring the   proceeds of such disposition to the United States of America for purposes of   the mandatory prepayments set forth in Section 2.10(b) and (c) the   amount of any Debt secured by a Lien on such asset that, by the terms of the   agreement or instrument governing such Debt, is required to be repaid upon   such disposition, in each case to the extent, but only to the extent, that   the amounts so deducted are, at the time of receipt of such cash (or, in the   case of taxes, within 12 months of the time of receipt of such cash),   actually paid to a Person that is not an Affiliate of the Borrower and are   properly attributable to such transaction or to the asset that is the subject   thereof, provided, however, that   Net Cash Proceeds shall not include:
  





	
  
 
  	
  
          (i)          any   such proceeds to the extent such amounts are reinvested in operating or   capital assets used or useful in the business of the Company and its   Subsidiaries within 12 months after the date of receipt thereof, provided   that the aggregate amount of such reinvestments shall not exceed $300,000,000   in any year,
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (ii)          any   such proceeds received from the sale of assets used in the non-digital   business of the Company and its Subsidiaries to the extent such proceeds are   used (x) to prepay or repay Debt outstanding on the date hereof or (y) to pay   cash restructuring costs with respect to the non-digital business of the   Company and its Subsidiaries within 12 months of the date such assets were   sold,
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (iii)          any   proceeds from sales of inventory in the ordinary course of business by the   Company and its Subsidiaries,
  
	
   
  	
  
 
  
	
  
 
  	
  
          (iv)          any   proceeds from any sale, lease, transfer or other disposition of assets in the   ordinary course of business of the Company and its Subsidiaries for an amount   for any transaction, or series of related transactions, of less than   $5,000,000, but not more than $20,000,000 in the aggregate in any calendar   year, 
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (v)          any   license by the Company or its Subsidiaries of its Intellectual Property in   the ordinary course of business, any settlement by the Company or its   Affiliates with respect to claims relating to Intellectual Property rights or   any proceeds from the sale or transfer of the Intellectual Property listed on   Part A of Schedule X of the Security Agreement, or 
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (vi)          proceeds   from any such disposition by the Company or any of its Subsidiaries in a   jurisdiction outside the United States of America where, under the laws   applicable in such jurisdiction, the proceeds are not permitted to be   transferred to the United States of America. 
  



15








	
  
 
  	
  
          “Note”   means a Revolving Credit Note, a Term B-1 Note, a Term B-2 Note or an   Additional Term Note.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Notice   of Borrowing” has the meaning specified in Section 2.02(a).
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Notice   of Issuance” has the meaning specified in Section 2.03(a).
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “PATRIOT   Act” means the Uniting and Strengthening America by Providing Appropriate   Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L.   107-56, signed into law October 26, 2001.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “PBGC”   means the Pension Benefit Guaranty Corporation (or any successor).
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Permitted   Liens” means such of the following as to which no enforcement,   collection, execution, levy or foreclosure proceeding shall have been   commenced:  (a) Liens for taxes,   assessments and governmental charges or levies to the extent not required to   be paid under the proviso of Section 5.01(b) hereof; (b) Liens   imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and   repairmen’s Liens and other similar Liens arising in the ordinary course of   business; (c) pledges or deposits to secure obligations under workers’   compensation laws or similar legislation or to secure public or statutory obligations;   (d) easements, rights of way and other encumbrances on title to real   property that do not render title to the property encumbered thereby   unmarketable or materially adversely affect the use
of such property for its   present purposes; and (e) Liens or other conveyances of property in favor of   any governmental department, agency or instrumentality to secure partial,   progress or advance or other payments (other than in respect of borrowed   money) pursuant to any  contract or   statute.
  
	
  
 
  	
  
 
  
	
   
  	
  
          “Person”   means an individual, partnership, corporation (including a business trust),   joint stock company, trust, unincorporated association, joint venture,   limited liability company or other entity, or a government or any political   subdivision or agency thereof.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Plan”   means a Single Employer Plan or a Multiple Employer Plan.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Public   Debt Rating” means, as of any date, the rating that has been most   recently announced by either S&P or Moody’s, as the case may be, for any   class of long-term senior secured debt issued by the Company or, if any such   rating agency shall have issued more than one such rating, the lowest such   rating issued by such rating agency.    For purposes of the foregoing, (a) if only one of S&P and   Moody’s shall have in effect a Public Debt Rating, the Applicable Margin and   the Applicable Percentage shall be determined by reference to the available   rating; (b) if neither S&P nor Moody’s shall have in effect a Public   Debt Rating, the Applicable Margin and the Applicable Percentage will be set   in accordance with Level 4 under the definition of “Applicable Margin”   or “Applicable Percentage”, as
the case may be; (c) if the   ratings established by S&P and Moody’s shall fall within different   levels, the Applicable Margin and the Applicable Percentage shall be based   upon the lower rating; (d) if any rating established by S&P or   Moody’s shall be changed, such change shall be effective as of the date on   which such change is first announced publicly by the rating agency making such   change; and (e) if S&P or Moody’s shall change the basis on which   ratings are established, each reference to the Public Debt Rating announced   by S&P or Moody’s, as the case may be, shall refer to the then equivalent   rating by S&P or Moody’s, as the case may be.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Ratable   Share” of any amount means, with respect to any Revolving Credit Lender   at any time, the product of such amount times a fraction the numerator   of which is the amount of such Lender’s Revolving Credit Commitment at such   time (or, if the Revolving Credit Commitments shall have been terminated   pursuant to Section 2.05 or 6.01, such Lender’s Revolving Credit   Commitment as in effect immediately prior to such termination) and the   denominator of which is the aggregate amount of all Revolving Credit   Commitments at such time (or, if the Revolving Credit Commitments shall have   been terminated pursuant to Section 2.05 or 6.01, the aggregate amount   of all Revolving Credit Commitments as in effect immediately prior to such   termination).
  




16








	
  
 
  	
  
          “Reference   Banks” means Citibank, Lloyds TSB Bank PLC and Credit Suisse, Cayman   Islands Branch.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Register”   has the meaning specified in Section 9.07(d).
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Required   Lenders” means at any time Lenders owed at least a majority in interest   of the sum of (a) the then aggregate unpaid principal amount of the Advances   outstanding at such time, (b) the unused Term B Commitments at such time, (c)   the unused Additional Term Commitments, if any, at such time, and (d) the   Unused Revolving Credit Commitments at such time.  For purposes of this definition, the aggregate Available Amount   of each Letter of Credit shall be considered to be owed to the Revolving   Credit Lenders ratable in accordance with their respective Revolving Credit   Commitments.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Revolving   Credit Advance” means an advance by a Lender to the Company as part of a   Revolving Credit Borrowing and refers to a Base Rate Advance or a Eurodollar   Rate Advance.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Revolving   Credit Borrowing” means a borrowing consisting of simultaneous Revolving   Credit Advances of the same Type made by each of the Revolving Credit Lenders   pursuant to Section 2.01(a).
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Revolving   Credit Commitment” means as to any Revolving Credit Lender (a) the   amount set forth opposite such Lender’s name on Schedule I hereto as such   Lender’s “Revolving Credit Commitment” or (b) if such Lender has entered   into an Assignment and Acceptance, the amount set forth for such Lender in   the Register maintained by the Agent pursuant to Section 9.07(d), as such   amount may be reduced pursuant to Section 2.05.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Revolving   Credit Facility” means, at any time, the aggregate amount of the   Revolving Credit Lenders’ Revolving Credit Commitments at such time.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Revolving   Credit Lender” means a Lender that has a Revolving Credit Commitment.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Revolving   Credit Note” means a promissory note of the Company payable to the order   of any Revolving Credit Lender, delivered pursuant to a request made under   Section 2.16 in substantially the form of Exhibit A-1 hereto,   evidencing the aggregate indebtedness of the Company to such Lender resulting   from the Revolving Credit Advances made by such Lender.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “S&P”   means Standard & Poor’s, a division of The McGraw-Hill Companies,   Inc.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Secured   Agreement” has the meaning specified in the Security Agreement.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Secured   Parties” has the meaning specified in the Security Agreement.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Security   Agreement” has the meaning specified in Section 3.01(g)(ii).
  
	
  
 
  	
  
 
  
	
   
  	
  
          “Significant   Loan Party” means any Loan Party with assets included in Collateral   having a value of at least $50,000,000 as of the end of the preceding fiscal   year of the Company.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Single   Employer Plan” means a single employer plan, as defined in   Section 4001(a)(15) of ERISA, that (a) is maintained for employees   of the Company or any  ERISA Affiliate   and no Person other than the Loan Parties and the ERISA Affiliates or   (b) was so maintained and in respect of which the Company or any ERISA   Affiliate could have liability under Section 4069 of ERISA in the event   such plan has been or were to be terminated.
  




17








	
  
 
  	
  
          “Solvent”   means, with respect to any Person on a particular date, that on such date   (a) the fair value of the property of such Person is greater than the   total amount of liabilities, including, without limitation, contingent   liabilities, of such Person, (b) the present fair salable value of the   assets of such Person is not less than the amount that will be required to   pay the probable liability of such Person on its debts as they become   absolute and matured, (c) such Person does not intend to, and does not   believe that it will, incur debts or liabilities beyond such Person’s ability   to pay such debts and liabilities as they mature and (d) such Person is   not engaged in business or a transaction, and is not about to engage in   business or a transaction, for which such Person’s property would constitute   an unreasonably small capital. 

The   amount of contingent liabilities at any time shall be computed as the amount   that, in the light of all the facts and circumstances existing at such time,   represents the amount that can reasonably be expected to become an actual or   matured liability.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Specified   Collateral” has the meaning specified in the Security Agreement and in   the Canadian Security Agreement.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Subsidiary”   of any Person means any corporation, partnership, joint venture, limited   liability company, trust or estate of which (or in which) more than 50% of   (a) the issued and outstanding capital stock having ordinary voting   power to elect a majority of the Board of Directors of such corporation   (irrespective of whether at the time capital stock of any other class or   classes of such corporation shall or might have voting power upon the   occurrence of any contingency), (b) the interest in the capital or   profits of such limited liability company, partnership or joint venture or   (c) the beneficial interest in such trust or estate is at the time   directly or indirectly owned or controlled by such Person, by such Person and   one or more of its other Subsidiaries or by one or more of such Person’s   other Subsidiaries.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Supplemental   Collateral Agent” has the meaning specified in Section 8.01(c).
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Term   B-1 Advance” has the meaning specified in Section 2.01(b).
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Term   B-2 Advance” has the meaning specified in Section 2.01(b).
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Term   B-1 Borrowing” means a borrowing consisting of simultaneous Term B-1   Advances of the same Type made by the Term B-1 Lenders.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Term   B-2 Borrowing” means a borrowing consisting of simultaneous Term B-2   Advances of the same Type made by the Term B-2 Lenders.
  
	
  
 
  	
  
 
  
	
   
  	
  
          “Term   B Commitment” means a Term B-1 Commitment or a Term B-2 Commitment.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Term   B-1 Commitment” means, with respect to any Term B-1 Lender at any time,   the amount set forth opposite such Lender’s name on Schedule I hereto   under the caption “Term B-1 Commitment” or, if such Lender has entered into   one or more Assignment and Acceptances, set forth for such Lender in the   Register maintained by the Administrative Agent pursuant to   Section 9.07(d) as such Lender’s “Term B-1 Commitment,” as such amount   may be reduced at or prior to such time pursuant to Section 2.05.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Term   B-2 Commitment” means, with respect to any Term B-2 Lender at any time,   the amount set forth opposite such Lender’s name on Schedule I hereto   under the caption “Term B-2 Commitment” or, if such Lender has entered into   one or more Assignment and Acceptances, set forth for such Lender in the   Register maintained by the Administrative Agent pursuant to   Section 9.07(d) as such Lender’s “Term B-2 Commitment,” as such amount   may be reduced at or prior to such time pursuant to Section 2.05.
  



18








	
  
 
  	
  
          “Term   B Facility” means the Term B-1 Facility or t he Term B-2 Facility.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Term   B-1 Facility” means, at any time, the aggregate amount of the Term B-1   Lenders’ Term B-1 Commitments at such time.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
             “Term B-2 Facility” means, at any time, the aggregate amount of the   Term B-2 Lenders’ Term B-2 Commitments at such time.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Term   B-1 Lender” means any Lender that has a Term B-1 Commitment.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Term   B-2 Lender” means any Lender that has a Term B-2 Commitment.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Term   B-1 Note” means a promissory note of a Borrower payable to the order of   any Term B-1 Lender, in substantially the form of Exhibit A-2-1 hereto,   evidencing the indebtedness of such Borrower to such Lender resulting from   the Term B-1 Advance made by such Lender, as amended.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Term   B-2 Note” means a promissory note of a Borrower payable to the order of   any Term B-2 Lender, in substantially the form of Exhibit A-2-2 hereto,   evidencing the indebtedness of such Borrower to such Lender resulting from   the Term B-2 Advance made by such Lender, as amended.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Term   B Maturity Date” means the seventh anniversary of the Effective Date.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Term   Facility” means the Term B-1 Facility, the Term B-2 Facility and the   Additional Term Facility.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Termination   Date” means the earlier of (a) October 18, 2010 and (b) the date of   termination in whole of the Revolving Credit Commitments pursuant to   Section 2.05 or 6.01.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Type”   refers to the distinction between Advances bearing interest at the Base Rate   and Advances bearing interest at the Eurodollar Rate.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “Unissued   Letter of Credit Commitment” means, with respect to any Issuing Bank, the   obligation of such Issuing Bank to issue Letters of Credit for the account of   the Company or its specified Subsidiaries in an amount equal to the excess of   (a) the amount of its Letter of Credit Commitment over (b) the aggregate   Available Amount of all Letters of Credit issued by such Issuing Bank.
  
	
   
  	
  
 
  
	
  
 
  	
  
          “Unused   Revolving Credit Commitment” means, with respect to each Revolving Credit   Lender at any time, (a) such Lender’s Revolving Credit Commitment at such   time minus (b) the sum of (i) the aggregate principal amount of all   Revolving Credit Advances made by such Lender (in its capacity as a Lender)   and outstanding at such time, plus (ii) such Lender’s Ratable Share of   (A) the aggregate Available Amount of all the Letters of Credit outstanding   at such time and (B) the aggregate principal amount of all Revolving Credit   Advances made by each Issuing Bank pursuant to Section 2.03(c) that have   not been ratably funded by such Lender and outstanding at such time.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “US   Guarantor” means the Company and each US Subsidiary Guarantor.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          “US   Subsidiary Guarantor” means the direct and indirect Subsidiaries of the   Company organized under the laws of a state of the United States of America   as listed on Part A of Schedule II hereto and, as of the date of such   requirement, each other Subsidiary of the Company that shall be required to   execute and deliver a guaranty pursuant to Section 5.01(i).
  
	
   
  	
   
  
	
   
  	
            “Voting   Stock” means capital stock issued by a corporation, or equivalent   interests in any other Person, the holders of which are ordinarily, in the   absence of contingencies, entitled to vote for the election of directors (or   persons performing similar functions) of such Person, even if the right so to   vote has been suspended by the happening of such a contingency.
  



19










                    SECTION 1.02.  Computation of Time Periods.  In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”.

                    SECTION 1.03.  Accounting Terms.  All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles in the United States of America consistent with those applied in the preparation of the financial statements referred to in Section 4.01(e) (“GAAP”).


ARTICLE II


AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT


                    SECTION 2.01.  The Advances and Letters of Credit.  (a)  Revolving Credit Advances.  Each Revolving Credit Lender severally agrees, on the terms and conditions hereinafter set forth, to make Revolving Credit Advances to the Company from time to time on any Business Day during the period from the Effective Date until the Termination Date in an amount not to exceed such Lender’s Unused Revolving Credit Commitment.  Each Revolving Credit Borrowing shall be in an aggregate amount of $25,000,000 or an integral multiple of $1,000,000 in excess thereof and shall consist of Revolving Credit Advances of the same Type made on the same day by the Revolving Credit Lenders ratably according to their respective Revolving Credit Commitments.  Within the limits of each Revolving Credit Lender’s Revolving
Credit Commitment, the Company may borrow under this Section 2.01(a), prepay pursuant to Section 2.10 and reborrow under this Section 2.01(a).


                    (b)          The Term B Advances.  (i)  Each Term B-1 Lender severally agrees, on the terms and conditions hereinafter set forth, to make advances (each, a “Term B-1 Advance”) to the Borrowers in an aggregate amount not to exceed such Lender’s Term B-1 Commitment as follows: (A) an amount up to $280,000,000 in the aggregate may be borrowed by either or both Borrowers on the Effective Date and (B) an amount up to $920,000,000 may be borrowed by the Company on the Effective Date.  Each Term B-1 Borrowing shall consist of Term B-1 Advances made simultaneously by the Term B-1 Lenders ratably according to their Term B-1 Commitments.  Amounts borrowed under this Section 2.01(b)(i) and repaid or prepaid may not be reborrowed.


                    (ii)  Each Term B-2 Lender severally agrees, on the terms and conditions hereinafter set forth, to make an advance (a “Term B-2 Advance”) to the Company in an amount not to exceed such Lender’s Term B-2 Commitment on any single Business Day during the period from the Effective Date to June 15, 2006.  Each Term B-2 Borrowing shall consist of Term B-2 Advances made simultaneously by the Term B-2 Lenders ratably according to their Term B-2 Commitments.  Amounts borrowed under this Section 2.01(b)(ii) and repaid or prepaid may not be reborrowed.


                    (c)          Letters of Credit.  Each Issuing Bank agrees, on the terms and conditions hereinafter set forth, in reliance upon the agreements of the other Lenders set forth in this Agreement, to issue letters of credit (each, a “Letter of Credit”) for the account of the Company and its specified Subsidiaries from time to time on any Business Day during the period from the Effective Date until 30 days before the Termination Date in an aggregate Available Amount not to exceed (i) for all Letters of Credit at any time the Letter of Credit Facility at such time, (ii) for all Letters of Credit issued by each Issuing Bank at any time such Issuing Bank’s Letter of Credit Commitment at such time and (iii) for each such Letter of Credit an amount equal to the
Unused Revolving Credit Commitments of the Lenders at such time.  No Letter of Credit shall have an expiration date (including all rights of the Company or the beneficiary to require renewal) later than 10 Business Days before the Termination Date.  Within the limits referred to above, the Company may from time to time request the Issuance of Letters of Credit under this Section 2.01(c).  Each letter of credit listed on Schedule 2.01(c) shall be deemed to constitute a Letter of Credit issued hereunder, and each Lender that is an issuer of such a Letter of Credit shall, for purposes of Section 2.03, be deemed to be an Issuing Bank for each such letter of credit, provided that any renewal or replacement of any such letter of credit shall be issued by an Issuing Bank pursuant to the terms of this Agreement.


20









                    (d)          The Additional Term Advances.  Each Additional Term Lender severally agrees, on the terms and conditions hereinafter set forth, to make advances (each, a “Additional Term Advance”) to the Company in an amount not to exceed such Lender’s Additional Term Commitment on the Additional Term Effective Date.  Each Additional Term Borrowing shall consist of Additional Term Advances made simultaneously by the Additional Term Lenders ratably according to their Additional Term Commitments.  Amounts borrowed under this Section 2.01(d) and repaid or prepaid may not be reborrowed.


                    SECTION 2.02.  Making the Advances.  (a)  Except as otherwise provided in Section 2.03(c), each Borrowing shall be made on notice, given not later than (x) 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar Rate Advances or (y) 11:00 A.M. (New York City time) on the date of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the applicable Borrower to the Agent, which shall give to each Appropriate Lender prompt notice thereof by telecopier.  Each such notice of a Borrowing (a “Notice of Borrowing”) shall be by telephone, confirmed promptly in writing, or by telecopier, in substantially the form of Exhibit B hereto, specifying therein the
requested (i) date of such Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing consisting of Eurodollar Rate Advances, the initial Interest Period for each such Advance.  Each Appropriate Lender shall, before 1:00 P.M. (New York City time) on the date of such Borrowing make available for the account of its Applicable Lending Office to the Agent at the Agent’s Account, in same day funds, such Lender’s ratable portion of such Borrowing in accordance with the respective Commitments under the applicable Facility of such Lender and the other Appropriate Lenders.  After the Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the applicable Borrower at the Agent’s address referred to in Section 9.02(a).


                    (b)          Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrowers may not select Eurodollar Rate Advances for any Borrowing if the aggregate amount of such Borrowing is less than $25,000,000 or if the obligation of the Appropriate Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.08 or 2.12 and (ii) the Eurodollar Rate Advances may not be outstanding as part of more than twelve separate Revolving Credit Borrowings, six separate Term B-1 Borrowings, six separate Term B-2 Borrowings or six separate Additional Term Borrowings.


                    (c)          Each Notice of Borrowing shall be irrevocable and binding on the Borrower delivering such notice.  In the case of any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate Advances, the applicable Borrower shall indemnify each Appropriate Lender against any loss, cost or expense incurred by such Lender as a result of any failure of such Borrower to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as
part of such Borrowing when such Advance, as a result of such failure, is not made on such date.


                    (d)          Unless the Agent shall have received notice from an Appropriate Lender prior to the time of any Borrowing that such Lender will not make available to the Agent such Lender’s ratable portion of such Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.02, as applicable, and the Agent may, in reliance upon such assumption, make available to the applicable Borrower on such date a corresponding amount.  If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and the applicable Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of a Borrower, the interest rate applicable at the time to the Advances comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Advance as part of such Borrowing for purposes of this Agreement.


21









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


                    SECTION 2.03.  Issuance of and Drawings and Reimbursement Under Letters of Credit.  (a)  Request for Issuance.  (i) Each Letter of Credit shall be issued upon notice, given not later than 11:00 A.M. (New York City time) on the fifth Business Day prior to the date of the proposed Issuance of such Letter of Credit (or on such shorter notice as the applicable Issuing Bank may agree), by the Company to any Issuing Bank, and such Issuing Bank shall give the Agent, prompt notice thereof.  Each such notice by the Company of Issuance of a Letter of Credit (a “Notice of Issuance”) shall be by telephone, confirmed promptly in writing, or by telecopier, specifying therein the requested (A) date of such Issuance (which shall be a Business Day), (B) Available Amount of such Letter of Credit,

(C) expiration date of such Letter of Credit (which shall not be later than 10 Business Days before the Termination Date), (D) name and address of the beneficiary of such Letter of Credit and (E) form of such Letter of Credit, such Letter of Credit shall be issued pursuant to such application and agreement for letter of credit as such Issuing Bank and the Company shall agree for use in connection with such requested Letter of Credit (a “Letter of Credit Agreement”).  If the requested form of such Letter of Credit is acceptable to such Issuing Bank in its reasonable discretion (it being understood that any such form shall have only explicit documentary conditions to draw and shall not include discretionary conditions), such Issuing Bank will, upon fulfillment of the applicable conditions set forth in Section 3.02, make such Letter of Credit available to the Company at its office referred to in Section 9.02 or as otherwise agreed with the Company in connection
with such Issuance.  In the event and to the extent that the provisions of any Letter of Credit Agreement shall conflict with this Agreement, the provisions of this Agreement shall govern.


                    (b)          Participations.  By the Issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing or decreasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Revolving Credit Lenders, such Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Ratable Share of the Available Amount of such Letter of Credit.  The Company hereby agrees to each such participation.  In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Agent, for the account of such Issuing Bank, such
Lender’s Ratable Share of each drawing made under a Letter of Credit funded by such Issuing Bank and not reimbursed by the Company on the date funded, or of any reimbursement payment required to be refunded to the Company for any reason, which amount will be advanced, and deemed to be a Revolving Credit Advance hereunder, regardless of the satisfaction of the conditions set forth in Section 3.02.  Each Revolving Credit 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 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 Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Each Revolving Credit Lender further acknowledges and agrees
that its participation in each Letter of Credit will be automatically adjusted to reflect such Lender’s Ratable Share of the Available Amount of such Letter of Credit at each time such Lender’s Revolving Credit Commitment is amended pursuant to an assignment in accordance with Section 9.07 or otherwise pursuant to this Agreement.


                    (c)          Drawing and Reimbursement.  The payment by an Issuing Bank of a draft drawn under any Letter of Credit which is not reimbursed by the Company on the date funded shall constitute for all purposes of this Agreement the making by any such Issuing Bank of a Revolving Credit Advance, which shall be a Base Rate Advance, in the amount of such draft, without regard to whether the making of such a Revolving Credit Advance would exceed such Issuing Bank’s Unused Revolving Credit Commitment.  Each Issuing Bank shall give prompt notice to the Company and the Agent of each drawing under any Letter of Credit issued by it.  Upon written demand by such Issuing Bank, with a copy of such demand to the Agent and the Company, each Revolving Credit Lender shall pay to the Agent
such Lender’s Ratable Share of such outstanding Revolving Credit Advance pursuant to Section 2.03(b).  Each Revolving Credit Lender acknowledges and agrees that its obligation to make Revolving Credit Advances pursuant to this paragraph (c) in respect of Letters of Credit is absolute and unconditional and shall


22









not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Promptly after receipt thereof, the Agent shall transfer such funds to such Issuing Bank.  Each Revolving Credit Lender agrees to fund its Ratable Share of an outstanding Revolving Credit Advance on (i) the Business Day on which demand therefor is made by such Issuing Bank, provided that notice of such demand is given not later than 11:00 A.M. (New York City time) on such Business Day, or (ii) the first Business Day next succeeding such demand if notice of such demand is given after such time.  If and to the extent that any Revolving Credit Lender shall not have so made the amount of such
Advance available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of demand by any such Issuing Bank until the date such amount is paid to the Agent, at the Federal Funds Rate for its account or the account of such Issuing Bank, as applicable.  If such Lender shall pay to the Agent such amount for the account of any such Issuing Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Credit Advance made by such Lender on such Business Day for purposes of this Agreement, and the outstanding principal amount of the Revolving Credit Advance made by such Issuing Bank shall be reduced by such amount on such Business Day.


                    (d)          Letter of Credit Reports.  Each Issuing Bank shall furnish (A) to the Agent (with a copy to the Company) on the first Business Day of each month a written report summarizing Issuance and expiration dates of Letters of Credit issued by such Issuing Bank during the preceding month and drawings during such month under all Letters of Credit and (B) to the Agent (with a copy to the Company) on the first Business Day of each calendar quarter a written report setting forth the average daily aggregate Available Amount during the preceding calendar quarter of all Letters of Credit issued by such Issuing Bank.


                    (e)          Failure to Make Advances.  The failure of any Revolving Credit Lender to make the Revolving Credit Advance to be made by it on the date specified in Section 2.03(c) shall not relieve any other Revolving Credit Lender of its obligation hereunder to make its Revolving Credit Advance on such date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Revolving Credit Advance to be made by such other Lender on such date.  No failure by any Revolving Credit Lender to make such Revolving Credit Advances shall limit or restrict the availability of any Letter of Credit to the Company.


                    SECTION 2.04.  Fees.  (a)  Commitment Fee.  (i)  Revolving Credit Facility.  The Company agrees to pay to the Agent for the account of each Revolving Credit Lender a commitment fee on the aggregate amount of such Lender’s Unused Revolving Credit Commitment from the date hereof in the case of each Initial Lender and from the effective date specified in the Assignment and Acceptance pursuant to which it became a Lender in the case of each other Revolving Credit Lender until the Termination Date calculated by multiplying such Lender’s Unused Revolving Credit Commitment by the Applicable Percentage in effect from time to time, payable in arrears quarterly on the last day of each January, April, July and October, commencing October 31, 2005, and on the Termination Date.


                    (ii)  Term B-2 Facility.  The Company agrees to pay to the Agent for the account of each Term B-2 Lender a commitment fee on the aggregate amount of such Lender’s unused Term B-2 Commitment from the date hereof in the case of each Initial Lender and from the effective date specified in the Assignment and Acceptance pursuant to which it became a Lender in the case of each other Term B-2 Lender until the earlier of June 15, 2006 and the date the Term B-2 Facility is fully drawn, calculated by multiplying such Lender’s unused Term B-2 Commitment by 1.50 % per annum, payable in arrears quarterly on the last day of each January, April, July and October, commencing October 31, 2005, and on the earlier of June 15, 2006 and the date the Term B-2 Commitments are fully drawn.


                    (b)          Letter of Credit Fees.  (i)  The Company shall pay to the Agent for the account of each Revolving Credit Lender a commission on such Lender’s Ratable Share of the average daily aggregate Available Amount of all Letters of Credit issued and outstanding from time to time at a rate per annum equal to the Applicable Margin for Eurodollar Rate Advances for Revolving Credit Advances in effect from time to time during such calendar quarter, payable in arrears quarterly on the last day of each January, April, July and October, commencing with October 31, 2005, and on the Termination Date; provided that the Applicable Margin shall be 2% above the Applicable Margin in effect if the Company is required to pay default interest pursuant to Section
2.07(b).


23








	
  
 
  	
  
          (ii)          The   Company shall pay to each Issuing Bank, for its own account, a fronting fee   and such other commissions, issuance fees, transfer fees and other fees and   charges in connection with the Issuance or administration of each Letter of   Credit as the Company and such Issuing Bank shall agree.
  




                    (c)          Agent’s Fees.  The Company shall pay to the Agent for its own account the fees set forth in the fee letter dated August 11, 2005 between the Company and the Agent, as such fee letter may from time to time be amended by the Company and the Agent.


                    SECTION 2.05.  Termination or Reduction of the Commitments.  (a)  Optional.  The Company shall have the right, upon at least three Business Days’ notice to the Agent, to terminate in whole or permanently reduce ratably in part the unused portions of the Term B-2 Commitments, the Unissued Letter of Credit Commitments and the Unused Revolving Credit Commitments; provided, however, that each partial reduction of a Facility (i) shall be in an aggregate amount of $25,000,000 or an integral multiple of $1,000,000 in excess thereof and (ii) shall be made ratably among the Appropriate Lenders in accordance with their Commitments with respect to such Facility.


                    (b)          Mandatory.  (i)  The Letter of Credit Facility shall be permanently reduced from time to time on the date of each reduction in the Revolving Credit Facility by the amount, if any, by which the amount of the Letter of Credit Facility exceeds the Revolving Credit Facility after giving effect to such reduction of the Revolving Credit Facility.

	
  
 
  	
  
          (ii)          Upon   the request of the Revolving Credit Lenders holding a majority in interest of   the Revolving Credit Commitments, the Revolving Credit Facility shall be   automatically and permanently reduced, on a pro rata basis, on each date on   which prepayment thereof is required to be made pursuant to Section 2.10(b)   in an amount equal to the Net Cash Proceeds required to be applied to the   Revolving Credit Facility; provided that each such reduction of the   Revolving Credit Facility shall be made ratably among the Revolving Credit   Lenders in accordance with their Revolving Credit Commitments.
  
	
   
  	
  
 
  
	
  
 
  	
  
          (iii)          (A)  Upon giving effect to the Term B-1   Advances on the Effective Date, and from time to time thereafter upon each   prepayment of the Term B-1 Advances, the Term B-1 Commitments of the Term B-1   Lenders shall be automatically and permanently reduced on a pro rata basis by   an amount equal to the amount by which (A) the aggregate Term B-1 Commitments   immediately prior to such reduction exceeds (B) the aggregate unpaid   principal amount of all Term B-1 Advances outstanding at such time.
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
               (B)   On the earlier of the close of business   on June 15, 2006 and the date on which the Term B-2 Commitments are fully   drawn, and from time to time thereafter upon each prepayment of the Term B-2   Advances, the Term B-2 Commitments of the Term B-2 Lenders shall be   automatically and permanently reduced on a pro rata basis by an amount equal   to the amount by which (A) the aggregate Term B-2 Commitments immediately   prior to such reduction exceeds (B) the aggregate unpaid principal   amount of all Term B-2 Advances outstanding at such time.
  
	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
          (iv)          On   the Additional Term Effective Date, and from time to time thereafter upon   each prepayment of the Additional Term Advances, the Additional Term   Commitments of the Additional Term Lenders shall be automatically and   permanently reduced on a pro rata basis by an amount equal to the amount by   which (A) the aggregate Additional Term Commitments immediately prior to such   reduction exceeds (B) the aggregate unpaid principal amount of all   Additional Term Advances outstanding at such time.
  




24









                    SECTION 2.06.  Repayment of Advances.  (a)  Revolving Credit Facility.  The Company shall repay to the Agent for the ratable account of the Revolving Credit Lenders on the Termination Date the aggregate principal amount of the Revolving Credit Advances then outstanding. 


                    (b)          Term Facilities.  (i)  Term B Facilities.  Each Borrower shall repay to the Agent for the ratable account of the Term B-1 Lenders and the Term B-2 Lenders the aggregate outstanding principal amount of the Term B-1 Advances and Term B-2 Advances made to it on the last day of each January, April, July and October, commencing January 31, 2006 and ending on the sixth anniversary of the Effective Date in an amount equal to 0.25% of the aggregate amount of Term B-1 Advances and Term B-2 Advances made to such Borrower, and the final principal installment shall be repaid on the Term B Maturity Date in an amount equal to the aggregate principal amount of the Term B-1 Advances and Term B-2 Advances outstanding on such date, and provided, however, that
prior to the fifth anniversary of the Effective Date, the aggregate payments of principal made by Nova Scotia Company pursuant to this Section 2.06 and pursuant to Section 2.10 shall not be required in the aggregate to reduce by more than 25% the Term B-1 Advances made to Nova Scotia Company.  If any payment required pursuant to this Section 2.06 or by Section 2.10 would cause the reduction of the Term B-1 Advances made to Nova Scotia Company to exceed the amount specified in the preceding sentence, such principal payment shall, without any action by any Lender or Loan Party, not be due and payable until the end of the Interest Period next succeeding the fifth anniversary of the Effective Date.


	
  
 
  	
  
          (ii)          Additional   Term Facility.  The Company shall   repay to the Agent for the ratable account of the Additional Term Lenders on   the dates and in the amounts specified on Schedule 2.18, provided, however,   that the final principal installment shall be repaid on the Additional Term   Maturity Date and in any event shall be in an amount equal to the aggregate   principal amount of the Additional Term Advances outstanding on such date.
  




                    (c)          Letter of Credit Drawings.  The obligations of the Company under any Letter of Credit Agreement and any other agreement or instrument relating to any Letter of Credit shall be unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement, such Letter of Credit Agreement and such other agreement or instrument under all circumstances, including, without limitation, the following circumstances (it being understood that any such payment by the Company is without prejudice to, and does not constitute a waiver of, any rights the Company might have or might acquire as a result of the payment by any Lender of any draft or the reimbursement by the Company thereof, including, without limitation, pursuant to Section 9.12):

	
  
 
  	
  
          (i)          any   lack of validity or enforceability of this Agreement or any Note, or of any   Letter of Credit Agreement, any Letter of Credit or any other agreement or   instrument relating thereto (such Letter of Credit Agreement, Letter of   Credit and related instruments or instruments being, collectively, the “L/C   Related Documents”);
  
	
   
  	
  
 
  
	
  
 
  	
  
          (ii)          any   change in the time, manner or place of payment of, or in any other term of,   all or any of the obligations of the Company in respect of any L/C Related   Document or any other amendment or waiver of or any consent to departure from   all or any of the L/C Related Documents;
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (iii)          the   existence of any claim, set-off, defense or other right that the Company may   have at any time against any beneficiary or any transferee of a Letter of   Credit (or any Persons for which any such beneficiary or any such transferee   may be acting), any Issuing Bank, the Agent, any Lender or any other Person,   whether in connection with the transactions contemplated by the L/C Related   Documents or any unrelated transaction;
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (iv)          any   statement or any other document presented under a Letter of Credit proving to   be forged, fraudulent, invalid or insufficient in any respect or any   statement therein being untrue or inaccurate in any respect;
  



25








	
  
 
  	
  
          (v)          payment   by any Issuing Bank under a Letter of Credit against presentation of a draft   or certificate that does not strictly comply with the terms of such Letter of   Credit;
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (vi)          any   exchange, release or non-perfection of any Collateral or other collateral, or   any release or amendment or waiver of or consent to departure from any   guarantee, for all or any of the obligations of the Company in respect of the   L/C Related Documents; or
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (vii)          any   other circumstance or happening whatsoever, whether or not similar to any of   the foregoing, including, without limitation, any other circumstance that   might otherwise constitute a defense available to, or a discharge of, the   Company or a guarantor.
  



                    SECTION 2.07.  Interest on Advances.  (a)  Scheduled Interest.  Each Borrower shall pay interest on the unpaid principal amount of each Advance owing by such Borrower to each Lender from the date of such Advance until such principal amount shall be paid in full, at the following rates per annum:

	
  
 
  	
  
          (i)          Base   Rate Advances.  During such   periods as such Advance is a Base Rate Advance, a rate per annum equal at all   times to the sum of (x) the Base Rate in effect from time to time plus   (y) the Applicable Margin in effect from time to time, payable in   arrears quarterly on the last day of each January, April, July and October   during such periods and on the date such Base Rate Advance shall be Converted   or paid in full.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (ii)          Eurodollar   Rate Advances.  During such   periods as such Advance is a Eurodollar Rate Advance, a rate per annum equal   at all times during each Interest Period for such Advance to the sum of   (x) the Eurodollar Rate for such Interest Period for such Advance plus   (y) the Applicable Margin in effect from time to time, payable in   arrears on the last day of such Interest Period and, if such Interest Period   has a duration of more than three months, on the day of every third month   during such Interest Period corresponding to the first day of such Interest   Period and on the date such Eurodollar Rate Advance shall be Converted or   paid in full.
  



                    (b)          Default Interest.  Upon the occurrence and during the continuance of an Event of Default under Section 6.01(a), the Agent may, and upon the request of the Required Lenders shall, require and notify the Borrowers to pay interest (“Default Interest”) on (i) the unpaid principal amount of each Advance owing to each Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law, the amount of any interest, fee or other amount payable hereunder that is not paid when due, from the date such amount shall be
due until such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on Base Rate Advances pursuant to clause (a)(i) above, provided, however, that following acceleration of the Advances pursuant to Section 6.01, Default Interest shall accrue and be payable hereunder whether or not previously required by the Agent.


                    SECTION 2.08.  Interest Rate Determination.  (a)  Each Reference Bank agrees, if requested by the Agent, to furnish to the Agent timely information for the purpose of determining each Eurodollar Rate.  If any one or more of the Reference Banks shall not furnish such timely information to the Agent for the purpose of determining any such interest rate, the Agent shall determine such interest rate on the basis of timely information furnished by the remaining Reference Banks.  The Agent shall give prompt notice to the Company and the Appropriate Lenders of the applicable interest rate determined by the Agent for purposes of Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for the purpose of determining the interest rate under Section 2.07(a)(ii).


                    (b)          If, with respect to any Eurodollar Rate Advances under any Facility, Lenders owed at least 50% of the then aggregate principal amount thereof notify the Agent that the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the cost to such Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such Interest Period, the Agent shall forthwith so notify the Company


26









and the Appropriate Lenders, whereupon (i) each Eurodollar Rate Advance under such Facility will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance, and (ii) the obligation of the Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Agent shall notify the Borrowers and such Lenders that the circumstances causing such suspension no longer exist.


                    (c)          If any Borrower shall fail to select the duration of any Interest Period for any Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest Period” in Section 1.01, the Agent will forthwith so notify such Borrower and the Appropriate Lenders and such Advances will automatically, on the last day of the then existing Interest Period therefor, Convert into Base Rate Advances.


                    (d)          On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than $25,000,000, such Advances shall automatically Convert into Base Rate Advances.


                    (e)          Upon the occurrence and during the continuance of any Event of Default under Section 6.01(a), (i) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended.


                    (f)          If Moneyline Telerate Markets Page 3750 is unavailable and fewer than two Reference Banks furnish timely information to the Agent for determining the Eurodollar Rate for any Eurodollar Rate Advances,

	
  
 
  	
  
          (i)          the   Agent shall forthwith notify the Borrowers and the Lenders that the interest   rate cannot be determined for such Eurodollar Rate Advances,
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (ii)         with   respect to Eurodollar Rate Advances, each such Advance will automatically, on   the last day of the then existing Interest Period therefor, Convert into a   Base Rate Advance (or if such Advance is then a Base Rate Advance, will   continue as a Base Rate Advance), and
  
	
   
  	
  
 
  
	
  
 
  	
  
          (iii)        the   obligation of the Lenders to make Eurodollar Rate Advances or to Convert   Advances into Eurodollar Rate Advances shall be suspended until the Agent   shall notify the Company and the Lenders that the circumstances causing such   suspension no longer exist.
  




                    (g)          Interest Act (Canada).  With respect to Advances made to Nova Scotia Company, whenever a rate of interest hereunder is calculated on the basis of a year (the “deemed year”) which contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest shall be expressed as a yearly rate for purposes of the Interest Act (Canada) by multiplying such rate of interest by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year.


                    (h)          Nominal Rates; No Deemed Reinvestment.  With respect to Advances made to Nova Scotia Company, the principle of deemed reinvestment of interest shall not apply to any interest calculation under this Agreement; all interest payments to be made hereunder shall be paid without allowance or deduction for reinvestment or otherwise, before and after maturity, default and judgment.  The rates of interest specified in this Agreement are intended to be nominal rates and not effective rates.  Interest calculated hereunder shall be calculated using the nominal rate method and not the effective rate method of calculation.


                    (i)          Interest Paid by Nova Scotia Company.  Notwithstanding any provision of this Agreement, in no event shall the aggregate “interest” (as defined in Section 347 of the Criminal Code (Canada)) payable by Nova Scotia Company under this Agreement exceed the effective annual rate of interest on the “credit advanced” (as defined in the Section) under this Agreement lawfully permitted by that Section and, if any payment, collection or demand pursuant to this Agreement in respect of “interest” (as defined in that Section) is determined to be contrary to the provisions of that Section, such payment, collection or demand shall be deemed to have been 


27









made by mutual mistake of Nova Scotia Company and the Term B-1 Lenders and the amount of such payment or collection shall be refunded to Nova Scotia Company.  For the purposes of this Agreement, the effective annual rate of interest shall be determined in accordance with generally accepted actuarial practices and principles over the relevant term and, in the event of a dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Term B-1 Lenders will be prima facie evidence of such rate.


                    SECTION 2.09.  Optional Conversion of Advances.  Either Borrower may on any Business Day, upon notice given to the Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Conversion and subject to the provisions of Sections 2.08 and 2.12, Convert all or any portion of the Advances made to it of one Type comprising the same Borrowing into Advances of the other Type; provided, however, that any Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made only on the last day of an Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in an amount not less than the minimum amount specified in Section 2.02(b), no Conversion of any Advances shall result in
more separate Borrowings than permitted under Section 2.02(b) and each Conversion of Advances comprising part of the same Borrowing under any Facility shall be made ratably among the Appropriate Lenders in accordance with their Commitments under such Facility.  Each such notice of a Conversion shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Advances to be Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the duration of the initial Interest Period for each such Advance.  Each notice of Conversion shall be irrevocable and binding on the Borrower giving such notice.


                    SECTION 2.10.  Prepayments of Advances.  (a)  Optional.  Either Borrower may, upon notice at least two Business Days’ prior to the date of such prepayment, in the case of Eurodollar Rate Advances, and not later than 11:00 A.M. (New York City time) on the date of such prepayment, in the case of Base Rate Advances, to the Agent stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given such Borrower shall, prepay the outstanding principal amount of the Advances comprising part of the same Borrowing made to it in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid; provided, however, that (x) each partial prepayment shall be in an aggregate principal amount of $25,000,000 or an
integral multiple of $1,000,000 in excess thereof and (y) in the event of any such prepayment of a Eurodollar Rate Advance, such Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to Section 9.04(c).  Each such prepayment of any Term B-1 Advance, any Term B-2 Advances or any Additional Term Advances shall be applied to the installments thereof in inverse order of maturity.


                    (b)          Mandatory.  (i)  The Borrowers shall, after receipt of Net Cash Proceeds in excess of $75,000,000 in the aggregate by the Company or any of its Subsidiaries from the sale, lease, transfer or other disposition of any assets of the Company or any of its Subsidiaries in any calendar year, prepay an aggregate principal amount of the Advances comprising part of the same Borrowings in an amount equal to the amount of such Net Cash Proceeds, provided, that, each mandatory prepayment of Advances may be deferred until the aggregate of such Net Cash Proceeds not previously used to prepay Advances equal or exceed $25,000,000, and if the Borrowers have previously made a mandatory prepayment of Advances in accordance with this Section 2.10(b)(i), no further mandatory

prepayment shall be required until the amount of Net Cash Proceeds again exceed $25,000,000.  Any mandatory prepayment of Advances required to be made pursuant to this Section 2.10(b)(i) shall be made on the earlier of (1) the last day of the Interest Period for any Advance ending after the date of receipt of such Net Cash Proceeds (until all such Net Cash Proceeds have been prepaid) and (2) the 45th calendar day after the receipt thereof; provided, that, all such Net Cash Proceeds shall have been applied to prepay Advances not later than the 45th calendar day after the date that such Net Cash Proceeds exceed $25,000,000.  Each such prepayment shall be applied first to each of the Term Facilities on a pro rata basis and to the installments of each Term Facility in inverse order of principal maturity and second to the Revolving Credit Facility, provided, that prior to the fifth anniversary of the Effective Date, the aggregate
outstanding principal amount of the Term B-1 Advances made to Nova Scotia Company shall not be required to be reduced in aggregate by this Section 2.10 and by Section 2.06 by more than 25% of the Term B-1 Advances made to Nova Scotia Company.  Each such prepayment shall be applied ratably to the Advances comprising a Borrowing.


28









                    (ii)          Each
prepayment made pursuant to this Section 2.10(b) shall be made together with any
interest accrued to the date of such prepayment on the principal amounts prepaid
and, in the case of any prepayment of a Eurodollar Rate Advance on a date other
than the last day of an Interest Period or at its maturity, any additional
amounts which the Borrower shall be obligated to reimburse to the Lenders in
respect thereof pursuant to Section 9.04(c).  


                    (iii)          The Agent shall give prompt notice of any prepayment required under this Section 2.10(b) to Revolving Credit Lenders.  Upon any prepayment of the Revolving Credit Facility under this Section 2.10(b), each Revolving Credit Lender shall notify the Agent as to whether such Lender requests or declines to request a reduction of the Revolving Credit Commitments in accordance with Section 2.05(b)(ii).


                    SECTION 2.11.  Increased Costs.  (a)  If, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other governmental authority (whether or not having the force of law), there shall be any increase in the cost to any Lender of agreeing to make or making, funding or maintaining Eurodollar Rate Advances or of agreeing to issue or of issuing or maintaining or participating in Letters of Credit (excluding for purposes of this Section 2.11 any such increased costs resulting from (x) Taxes or Other Taxes (as to which Section 2.14 shall govern) and (y) changes in the basis of taxation of overall net income or overall gross income by the United States or by the foreign jurisdiction or state under
the laws of which such Lender is organized or has its Applicable Lending Office or any political subdivision thereof), then the Company shall from time to time, upon demand by such Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost; provided, however, that before making any such demand, each Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different Applicable Lending Office if the making of such a designation would avoid the need for, or reduce the amount of, such increased cost and would not, in the judgment of such Lender, be otherwise disadvantageous to such Lender.  A certificate as to the amount of such increased cost, submitted to the Company and the Agent by such Lender, shall be conclusive and binding for all purposes, absent manifest error.


                    (b)          If any Lender determines that compliance with any law or regulation or any guideline or request from any central bank or other governmental authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Lender or any corporation controlling such Lender and that the amount of such capital is increased by or based upon the existence of such Lender’s commitment to lend or to issue or participate in Letters of Credit hereunder and other commitments of such type or the issuance or maintenance of or participation in the Letters of Credit (or similar contingent obligations), then, upon demand by such Lender (with a copy of such demand to the Agent), the Company shall pay to the Agent for the account of
such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender or such corporation in the light of such circumstances, to the extent that such Lender reasonably determines such increase in capital to be allocable to the existence of such Lender’s commitment to lend or to issue or participate in Letters of Credit hereunder or to the issuance or maintenance of or participation in any Letters of Credit.  A certificate as to such amounts submitted to the Company and the Agent by such Lender shall be conclusive and binding for all purposes, absent manifest error.


                    SECTION 2.12.  Illegality.  Notwithstanding any other provision of this Agreement, if any Lender shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or any central bank or other governmental authority asserts that it is unlawful, for any Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate Advance under each Facility under which such Lender has a Commitment will automatically, upon such demand, Convert into a Base Rate Advance and (ii) the obligation of the Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Agent shall notify the Company and the
Lenders that the circumstances causing such suspension no longer exist; provided, however, that before making any such demand, each Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different Eurodollar Lending Office if the making of such a designation would allow such Lender or its Eurodollar Lending Office to continue to perform its obligations to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate Advances and would not, in the judgment of such Lender, be otherwise disadvantageous to such Lender.


29









                    SECTION 2.13.  Payments and Computations.  (a)  The Borrowers shall make each payment hereunder, irrespective of any right of counterclaim or set-off,  not later than 11:00 A.M. (New York City time) on the day when due in U.S. dollars to the Agent at the Agent’s Account in same day funds.  The Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal, interest, fees or commissions ratably (other than amounts payable pursuant to Section 2.04(b)(ii), 2.11, 2.14 or 9.04(c)) to the Lenders for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this
Agreement.  Upon any Assuming Lender becoming a Lender hereunder as a result of a the establishment of the Additional Term Facility pursuant to Section 2.18, and upon the Agent’s receipt of such Lender’s Assumption Agreement and recording of the information contained therein in the Register, from and after the applicable Increase Date the Agent shall make all payments hereunder and under any Notes issued in connection therewith in respect of the interest assumed thereby to the Assuming Lender.  Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein in the Register pursuant to Section 9.07(c), from and after the effective date specified in such Assignment and Acceptance, the Agent shall make all payments hereunder and under the Notes in respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate adjustments in such payments for periods
prior to such effective date directly between themselves.


                    (b)          Each Borrower hereby authorizes each Lender, if and to the extent payment owed to such Lender is not made when due hereunder or under the Note held by such Lender, to charge from time to time against any or all of such Borrower’s accounts with such Lender any amount so due.


                    (c)          All computations of interest based on the Base Rate shall be made by the Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate or the Federal Funds Rate and of fees and Letter of Credit commissions shall be made by the Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees or commissions are payable.  Each determination by the Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.


                    (d)          Whenever any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest, fee or commission, as the case may be; provided, however, that, if such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.


                    (e)          Unless the Agent shall have received notice from the applicable Borrower prior to the date on which any payment is due to the Lenders hereunder that such Borrower will not make such payment in full, the Agent may assume that such Borrower has made such payment in full to the Agent on such date and the Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender.  If and to the extent any Borrower shall not have so made such payment in full to the Agent, each Lender shall repay to the Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.


                    (f)          If the Agent receives funds for application to the obligations of the Borrowers under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify, or the applicable Borrower does not direct, the Advances or the Facility to which, or the manner in which, such funds are to be applied, the Agent may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s pro rata share of the sum of (A) the aggregate principal amount of all Advances outstanding at such time and (b) the aggregate Available Amount of all Letters of Credit outstanding at such time, in repayment or prepayment of such of the outstanding Advances or other obligations then owing to such Lender, and, in the case of any
Term Facility, for application to such principal repayment installments thereof, as the Agent shall direct.


30









                    SECTION 2.14.  Taxes.  (a)  Any and all payments by any Loan Party to or for the account of any Lender or the Agent hereunder or under the Notes shall be made, in accordance with Section 2.13 or the applicable provisions of such other documents, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and the Agent, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction under the laws of which such Lender or the Agent (as the case may be) is organized or in which its principal executive office is located, or any political subdivision thereof and, in the case of each Lender, taxes imposed on

its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction of such Lender’s Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect of payments hereunder or under the Notes being hereinafter referred to as “Taxes”).  If any Loan Party shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any Note to any Lender or the Agent, (i) the sum payable to such Loan Party shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.14) such Lender or the Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Loan Party shall make such deductions and (iii) such Loan Party shall pay
the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.


                    (b)          In addition, each Loan Party shall pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies that arise from any payment made by such Loan Party hereunder or under any other Loan Documents or from the execution, delivery or registration of, performing under, or otherwise with respect to, this Agreement or the other Loan Documents (hereinafter referred to as “Other Taxes”).


                    (c)          The Loan Parties shall indemnify each Lender and the Agent for and hold it harmless against the full amount of Taxes or Other Taxes (including, without limitation, taxes of any kind imposed or asserted by any jurisdiction on amounts payable under this Section 2.14) imposed on or paid by such Lender or the Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto.  This indemnification shall be made within 30 days from the date such Lender or the Agent (as the case may be) makes written demand therefor with appropriate supporting documentation.


                    (d)          Within 30 days after the date of any payment of Taxes, the appropriate Loan Party shall furnish to the Agent, at its address referred to in Section 9.02, the original or a certified copy of a receipt evidencing such payment to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Agent.  In the case of any payment hereunder or under the Notes or any other documents to be delivered hereunder by or on behalf of a Loan Party through an account or branch outside the United States or by or on behalf of a Loan Party by a payor that is not a United States person, if such Loan Party determines that no Taxes are payable in respect thereof, such Loan Party shall furnish, or shall cause such payor to furnish, to
the Agent, at such address, an opinion of counsel reasonably acceptable to the Agent stating that such payment is exempt from Taxes.  For purposes of this subsection (d) and subsection (e), the terms “United States” and “United States person” shall have the meanings specified in Section 7701 of the Internal Revenue Code.


                    (e)          Each Lender organized under the laws of a jurisdiction outside the United States, on or prior to the date of its execution and delivery of this Agreement in the case of each Initial Lender, on or prior to the designation of any different Applicable Lending Office and on the date of the Assumption Agreement or the Assignment and Acceptance pursuant to which it becomes a Lender in the case of each other Lender, and from time to time thereafter as reasonably requested in writing by the Company (but only so long as such Lender remains lawfully able to do so), shall provide each of the Agent and the Company with  two original Internal Revenue Service Forms W-8BEN or W-8ECI or (in the case of a Lender that has certified in writing to the Agent that it is not (i) a
“bank” as defined in Section 881(c)(3)(A) of the Internal Revenue Code), (ii) a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of any Loan Party or (iii) a controlled foreign


31









corporation related to any Loan Party (within the meaning of Section 864(d)(4) of the Internal Revenue Code), Internal Revenue Service Form W-8BEN, as appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying that such Lender is exempt from or entitled to a reduced rate of United States withholding tax on payments pursuant to this Agreement or any other Loan Document or, in the case of a Lender that has certified that it is not a “bank” as described above, certifying that such Lender is a foreign corporation, partnership, estate or trust.   If the form provided by a Lender at the time such Lender first becomes a party to this Agreement indicates a United States interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered excluded from Taxes unless and until such Lender provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at
such lesser rate only shall be considered excluded from Taxes for periods governed by such form; provided, however, that, if at the date of the Assignment and Acceptance pursuant to which a Lender assignee becomes a party to this Agreement, the Lender assignor was entitled to payments under subsection (a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to the Lender assignee on such date.  If any form or document referred to in this subsection (e) requires the disclosure of information, other than information necessary to compute the tax payable and information required on the date hereof by Internal Revenue Service Form W-8BEN or W-8ECI or the related certificate described above, that the Lender
reasonably considers to be confidential, the Lender shall give notice thereof to the Company and shall not be obligated to include in such form or document such confidential information, except directly to a governmental authority or other Person subject to a reasonable confidentiality agreement.  In addition, upon the written request of the Borrower, any other certification, identification, information, documentation or other reporting requirement if (i) delivery thereof is required by a change in the law, regulation, administrative practice or any applicable tax treaty as a precondition to exemption from or a reduction in the rate of deduction or withholding; (ii) the Agent or Lender, as the case may be, is legally entitled to make delivery such item; and (iii) delivery of such item will not result in material additional costs unless Borrower shall have agreed in writing to indemnify Lender or the Agent for such costs. 


                    (f)          For any period with respect to which a Lender has failed to provide the Company with the appropriate form, certificate or other document described in Section 2.14(e) (other than if such failure is due to a change in law, or in the interpretation or application thereof, occurring subsequent to the date on which a form, certificate or other document originally was required to be provided, or if such form, certificate or other document otherwise is not required under subsection (e) above), such Lender shall not be entitled to indemnification under Section 2.14(a) or (c) with respect to Taxes imposed by the United States of America or Canada by reason of such failure; provided, however, that should a Lender become subject to Taxes because of
its failure to deliver a form, certificate or other document required hereunder, the Loan Parties, at such Lender’s expense, shall take such steps as the Lender shall reasonably request to assist the Lender to recover such Taxes.


                    (g)          Any Lender claiming any additional amounts payable pursuant to this Section 2.14 agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its Eurodollar Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the judgment of such Lender, be otherwise disadvantageous to such Lender.


                    (h)          If any Lender determines, in its sole discretion, that it has actually and finally realized, by reason of a refund, deduction or credit of any Taxes paid or reimbursed by a Loan Party pursuant to subsection (a) or (c) above in respect of payments under this Agreement or the other Loan Documents, a current monetary benefit that it would otherwise not have obtained, and that would result in the total payments under this Section 2.14 exceeding the amount needed to make such Lender whole, such Lender shall pay to the applicable Loan Party, with reasonable promptness following the date on which it actually realizes such benefit, an amount equal to the lesser of the amount of such benefit or the amount of such excess, in each case net of all out-of-pocket expenses in securing such refund,
deduction or credit.


                    (i)          If any Loan Party determines in good faith that a reasonable basis exists for contesting the applicability of any Tax or Other Tax, the Agent or the relevant Lender shall cooperate with such Loan Party, upon the request and at the expense of such Loan Party, in challenging such Tax or Other Tax.  Nothing in this Section 2.14(i) shall require the Agent or any Lender to disclose the contents of its tax returns or other confidential information to any Person.


32









                    SECTION 2.15.  Sharing of Payments, Etc.  Without expanding the rights of any Lender under this Agreement, if any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the Advances owing to it (other than (x) as payment of an Advance made by an Issuing Bank pursuant to the first sentence of Section 2.03(c) or (y) pursuant to Section 2.11, 2.14 or 9.04(c)) in excess of its ratable share (according to the proportion of (i) the amount of such Advances due and payable to such Lender at such time to (ii) the aggregate amount of the Advances due and payable at such time to all Lenders hereunder) of payments on account of the Advances obtained by all the Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Advances owing to them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent of such Lender’s ratable share (according to the proportion of (i) the purchase price paid to such Lender to (ii) the aggregate purchase price paid to all Lenders) of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered; and provided further that, so
long as the Advances shall not have become due and payable pursuant to Section 6.01, any excess payment received by any Appropriate Lender shall be shared on a pro rata basis only with other Appropriate Lenders.  The Borrowers agree that any Lender so purchasing a participation from another Lender pursuant to this Section 2.15 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Loan Parties in the amount of such participation.


                    SECTION 2.16.  Evidence of Debt.  (a)  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 Advance owing to such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder in respect of Advances.  Each Borrower agrees that upon notice by any Lender to such Borrower (with a copy of such notice to the Agent) to the effect that a Note is required or appropriate in order for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Advances owing to, or to be made by, such Lender, such Borrower shall promptly execute and deliver to such Lender a Revolving Credit Note, a Term B-1 Note, a Term B-2 Note or
an Additional Term Note, as applicable, properly completed, payable to the order of such Lender in a principal amount up to the Revolving Credit Commitment, the Term B-1 Commitment, the Term B-2 Commitment and the Additional Term Commitment, respectively, of such Lender.


                    (b)          The Register maintained by the Agent pursuant to Section 9.07(d) shall include a control account, and a subsidiary account for each Lender, in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances comprising such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it, (iii) the amount of any principal or interest due and payable or to become due and payable from each Borrower to each Lender hereunder and (iv) the amount of any sum received by the Agent from each Borrower hereunder and each Lender’s share thereof.


                    (c)          Entries made in good faith by the Agent in the Register pursuant to subsection (b) above, and by each Lender in its account or accounts pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from each Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement, absent manifest error; provided, however, that the failure of the Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of any Borrower under this Agreement with respect to Advances made and not repaid.


33









                    SECTION 2.17.  Use of Proceeds.  The proceeds of the Advances shall be available (and each Borrower agrees that it shall use such proceeds) solely for general corporate purposes of the Company and its Subsidiaries, provided, however, that the proceeds of the Additional Term Facility shall not be used to repay or prepay Debt for Borrowed Money.


                    SECTION 2.18.  Additional Term Facility.  (a) The Company may, at any time after Citigroup Global Markets Inc. notifies the Company that the primary syndication of the Revolving Credit Facility and the Term B Facilities has been completed, but in any event not more than once prior to the Termination Date, by notice to the Agent, request that the Additional Term Facility be established in an aggregate amount of the Additional Term Commitments of not more than $500,000,000, to be effective as of a date specified in the related notice to the Agent, having an Additional Term Maturity Date not earlier than six months following the Term B Maturity Date, having amortization payments, if any, and bearing interest at the Applicable Margin specified in the related notice to the Agent; provided, however that on the date of any

request by the Company for the establishment of the Additional Term Facility and on the Additional Term Effective Date, the conditions set forth in Section 2.18(c) shall be satisfied.


                    (b)          The Agent shall promptly notify such Lenders and Eligible Assignees as it shall identify of a request by the Company for the establishment of the Additional Term Facility, which notice shall include (i) the proposed amount of such requested Additional Term Facility, (ii) the proposed Additional Term Effective Date, (iii) the date by which Lenders wishing to participate in the Additional Term Facility must commit to their respective Additional Term Commitments (the “Commitment Date”), (iv) the Applicable Margin for the Additional Term Facility, (v) the schedule amortization, if any, of the Additional Term Facility (which shall not exceed 1% per annum) and (vi) the Additional Term Maturity Date (which shall be no earlier than six months following the Term B Maturity
Date).  Promptly following the Commitment Date, the Agent shall notify the Company as to the amount, if any, by which the Lenders are willing to participate in the requested Additional Term Facility  The requested Additional Term Facility shall be allocated among the Lenders and Eligible Assignees willing to participate therein in such amounts as are agreed between the Company and the Agent, provided, however, that the Additional Term Commitment of each such Additional Term shall be in an amount of $1,000,000 or more.


                    (c)          On the Additional Term Effective Date, each Lender and each Eligible Assignee that accepts an offer to participate in a requested Additional Term Facility in accordance with Section 2.18(b) (an “Assuming Lender”) shall become a Lender party to this Agreement as of the Additional Term Effective Date and the Additional Term Commitment of each such Lender shall be established as the amount allocated to such Lender pursuant to the last sentence of Section 2.18(b)); provided, however, that the Agent shall have received on or before the Additional Term Effective Date the following, each dated such date:

	
  
 
  	
  
          (i)          (A)   certified copies of resolutions of the Board of Directors of the Company or   the Executive Committee of such Board approving the Additional Term Facility,   (B) a consent of each US Guarantor (other than the Company) to the addition   of the Additional Term Facility, (C) a certificate signed by a duly   authorized officer of the Company, stating that (1) the representations and   warranties contained in the Loan Documents are correct on and as of the   Additional Term Effective Date and (2) no event has occurred and is in   continuing that constitutes a Default, (D) an opinion of general counsel for   the Company, in substantially the form of Exhibit F hereto and (E) a   certificate of the chief financial officer of the Company setting forth in   reasonable detail the calculations necessary to demonstrate compliance with   Section 5.03
giving pro forma effect to the Additional Term Borrowings as if   such Additional Term Borrowings had been outstanding on the first day of the   most recently ended measurement period;
  
	
   
  	
  
 
  
	
  
 
  	
  
          (ii)          an   assumption agreement from each Assuming Lender, if any, in form and substance   satisfactory to the Company and the Agent (each an “Assumption Agreement”),   duly executed by such Assuming Lender, the Agent and the Company; and
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (iii)          confirmation   from each Lender participating in the Additional Term Facility of the amount   of its Additional Term Commitment in a writing satisfactory to the Company   and the Agent.
  




34









On the Additional Term Effective Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.18(c), Schedule 2.18 shall be completed to reflect the amount and the terms applicable to the Additional Term Facility as set forth in clauses 2.18(b)(iv), (v) and (vi), the Agent shall notify the Lenders (including, without limitation, each Assuming Lender) and the Company, on or before 1:00 P.M. (New York City time), by telecopier, of the occurrence of the Additional Term Effective Date and shall distribute, by telecopier, to the Lenders the duly completed Schedule 2.18 (and such Schedule 2.18 shall be deemed to be a part of this Agreement), shall notify the Lenders of the Margin Differential (as defined in the definition of “Applicable Margin”), if any, to be added to the Applicable Margin for the Term B Facilities, and shall record in the Register the relevant information with respect to each Lender and each
Assuming Lender on such date.  On and after the Additional Term Effective Date, the Company shall be entitled to request Additional Term Advances in accordance with the terms of Sections 2.01(d), 2.02 and 3.02.


ARTICLE III


CONDITIONS TO EFFECTIVENESS AND LENDING


                    SECTION 3.01.  Conditions Precedent to Effectiveness of Section 2.01.  Section 2.01 of this Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:

	
  
 
  	
  
          (a)          Except   as disclosed in filings made with the Securities and Exchange Commission,   press releases or other widely distributed disclosure prior to the Effective   Date, there shall have occurred no Material Adverse Change since   December 31, 2004, as reflected in the audited financial statements of   the Company and its Consolidated Subsidiaries for the fiscal year ended on   such date.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (b)          There   shall exist no action, suit, investigation, litigation or proceeding   affecting the Company or any of its Subsidiaries pending or, to the knowledge   of the Company, threatened before any court, governmental agency or   arbitrator that (i) is reasonably likely to have a Material Adverse Effect   or (ii) purports to affect the legality, validity or enforceability of   this Agreement or any Note or the consummation of the transactions   contemplated hereby.
  
	
   
  	
  
 
  
	
  
 
  	
  
          (c)          All   governmental and third party consents and approvals necessary in connection   with the transactions contemplated hereby shall have been obtained (without   the imposition of any conditions that are not acceptable to the Lenders)   shall remain in effect other than any governmental filings required to be   made or approvals obtained in order for any Loan Party to execute, deliver   and perform a Collateral Document with respect to the equity of any non-US   Subsidiary, and no law or regulation shall be applicable in the reasonable   judgment of the Lenders that restrains, prevents or imposes materially   adverse conditions upon the transactions contemplated hereby.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (d)          The   Company shall have notified the Agent in writing as to the proposed Effective   Date.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (e)          The   Company shall have paid all fees of the Agent and the Lenders accrued and   payable on or prior to the Effective Date, and all such expenses of the   Agent, including the accrued fees and expenses of counsel to the Agent.
  
	
   
  	
  
 
  
	
  
 
  	
  
          (f)          On   the Effective Date, the following statements shall be true and the Agent   shall have received for the account of each Lender a certificate signed by a   duly authorized officer of the Company, dated the Effective Date, stating   that:
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
             (i)          The   representations and warranties contained in the Loan Documents are correct on   and as of the Effective Date, and
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
             (ii)          No   event has occurred and is continuing that constitutes a Default.
  



35








	
  
 
  	
  
          (g)          The   Agent shall have received on or before the Effective Date the following, each   dated such day, in form and substance satisfactory to the Agent and (except   for the Notes) in sufficient copies for each Lender:
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (i)          The   Notes to the order of the Lenders to the extent requested by any Lender   pursuant to Section 2.16.
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (ii)          A   security agreement in substantially the form of Exhibit D hereto (the “Security   Agreement”), duly executed by the Company and each Person that is a US   Subsidiary Guarantor on the Effective Date, together with:
  





	
  
 
  	
  
 
  	
  
 
  	
  
             (A)          certificates,   if any, representing the Initial Pledged Equity referred to therein   accompanied by undated stock powers executed in blank and instruments   evidencing the Initial Pledged Debt referred to therein, indorsed in blank, provided,   however, that the receipt of any Initial Pledged Equity for any non-US   Subsidiary for which all required filings with applicable governmental   entities have not yet been made or approval of such governmental entities   have not yet been received shall not be a condition to the Effective Date,
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  

             (B)          acknowledgment
copies or stamped receipt copies of proper financing statements, duly filed on
or before the Effective Date under the Uniform Commercial Code of all
jurisdictions that the Agent may deem reasonably necessary or desirable in order
to perfect and protect the first priority liens and security interests created
under the Security Agreement (other than in respect of the Specified
Collateral), covering the Collateral described in the Security
Agreement,
 
	
   
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  

             (C)          completed
requests for information, dated on or before the Effective Date showing all
financing statements filed in the jurisdictions referred to in clause (B) above
that name any Loan Party as debtor, together with copies of such other financing
statements,
 
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  

             (D)          the
Intellectual Property Security Agreements covering the registered copyrights
listed on Schedule IV to the Security Agreement, duly executed by the Company
and each Person that is a US Subsidiary Guarantor on the Effective
Date,
 
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
 
  	
  
 
  	
  

             (E)          evidence
of the completion of all other recordings and filings of or with respect to the
Security Agreement that the Agent may deem reasonably necessary or desirable in
order to perfect and protect the security interest created thereunder in
accordance with the terms of the Security Agreement,
 
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  

             (F)          evidence
of the insurance required by the terms of the Security Agreement, and


	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  

             (G)          evidence
that all other action that the Agent may deem reasonably necessary or desirable
in order to perfect and protect the first priority liens and security interests
created under the Security Agreement (other than in respect of the Specified
Collateral) has been taken (including, without limitation, receipt of duly
executed payoff letters, UCC-3 termination statements and landlords’ and
bailees’ waiver and consent agreements).
 
	
   
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (iii)          A   security agreement in substantially the form of Exhibit E hereto (the “Canadian   Security Agreement”), duly executed by Nova Scotia Company and each   Canadian Subsidiary Guarantor listed on Part B of Schedule I hereto, together with:
  




36








	
  
 
  	
  
 
  	
  
 
  	
  
          (A)          certificates   representing the Initial Pledged Equity referred to therein accompanied by   undated stock powers executed in blank and instruments evidencing the Initial   Pledged Debt referred to therein, endorsed in blank and instruments   evidencing the Initial Pledged Debt owed to Nova Scotia Company referred to   therein, assigned in blank, and
  
	
   
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (B)          evidence   that all other action that the Agent may deem reasonably necessary or   desirable in order to perfect and protect the first priority liens and   security interests created under the Canadian Security Agreement (other than   in respect of the Specified Collateral) has been taken (including, without   limitation, receipt of duly executed payoff letters, termination of effective   financing statements and landlords’ and bailees’ waiver and consent   agreements).
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (iv)          Certified   copies of the resolutions of the Board of Directors, or Executive or Finance   Committee of the Board of Directors, of each Loan Party approving each Loan   Document to which it is a party, and of all documents evidencing other   necessary corporate action and governmental approvals, if any, with respect   to each Loan Document to which it is a party.
  
	
   
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (v)          A   certificate of the Secretary or an Assistant Secretary of each Loan Party   certifying the names and true signatures of the officers of such Loan Party   authorized to sign each Loan Document to which it is or is to be a party and   the other documents to be delivered hereunder and thereunder.
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (vi)          A   favorable opinion of the general counsel of the Loan Parties, substantially   in the form of Exhibit F hereto.
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (vii)          A   favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in   form and substance satisfactory to the Agent.
  
	
   
  	
  
 
  
	
  
 
  	
  
          (h)          Except   with respect to the letters of credit deemed issued under this Agreement   pursuant to Section 2.01(c), the Company shall have terminated the   commitments of the lenders and repaid or prepaid (or shall have arranged for   the contemporaneous repayment or prepayment upon the Effective Date) all of   the obligations under (i) the Five Year Credit Agreement dated as of July 13,   2001, as amended, among the Company, the lenders parties thereto and Citicorp   USA, Inc., as administrative agent, (ii) the Second Amended and Restated   Credit Agreement dated as of August 4, 2000, as amended and restated as of   October 12, 2001, and as amended and restated as of December 31, 2002, as   amended, among Kodak Polychrome Graphics LLC and KPG Finance (Barbados) SaRL,   as borrowers, the Company and Sun Chemical Group BV, as guarantors, the
lenders parties thereto, Mizuho Corporate Bank, Ltd., as arranger and agent,   and The Bank of Tokyo-Mitsubishi, Ltd., as syndication agent, and (iii) the   Receivables Purchase Agreement dated as of March 28, 2001, as amended, among   EK Funding LLC, as seller, the Company, as servicer, Ciesco LLC, as conduit   purchaser, Citibank, N.A., as committed purchaser, and Citicorp North   America, Inc., as program agent.  Each   of the Lenders that is a party to any such credit facility hereby waives,   upon execution of this Agreement, any notice required by said credit facility   relating to the termination of commitments thereunder.
  
	
  
 
  	
  
 
  
	
  
                    SECTION   3.02.  Conditions Precedent to Each   Borrowing and Issuance.  The   obligation of each Appropriate Lender to make an Advance (other than an   Advance made by any Issuing Bank pursuant to Section 2.03(c) or any Lender   pursuant to Section 2.03(c)) on the occasion of each Borrowing and the   obligation of each Issuing Bank to issue a Letter of Credit shall be subject   to the conditions precedent that the Effective Date shall have occurred and   on the date of such Borrowing or such Issuance the following statements shall   be true (and each of the giving of the applicable Notice of Borrowing, Notice   of Issuance and the acceptance by the applicable Borrower of the proceeds of   such Borrowing or such Issuance shall constitute a representation and   warranty by the Company that on the date of such Borrowing or such
Issuance   such statements are true):
  



37








	
  
 
  	
  
          (a)          the   representations and warranties of each Borrower and each Significant Loan   Party contained in each Loan Document to which it is a party are correct on   and as of such date, before and after giving effect to such Borrowing or such   Issuance and to the application of the proceeds therefrom, as though made on   and as of such date, and
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (b)          no   event has occurred and is continuing, or would result from such Borrowing or   such Issuance or from the application of the proceeds therefrom, that   constitutes a Default.
  




                    SECTION 3.03.  Determinations Under Section 3.01.  For purposes of determining compliance with the conditions specified in Section 3.01, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Lender prior to the date that the Company, by notice to the Lenders, designates as the proposed Effective Date, specifying its objection thereto.  The Agent shall promptly notify the Lenders of the occurrence of the Effective Date.


ARTICLE IV


REPRESENTATIONS AND WARRANTIES


                    SECTION 4.01.  Representations and Warranties of the Company.  The Company represents and warrants as follows:

	
  
 
  	
  
          (a)          Each   Loan Party is duly organized, validly existing and, to the extent such   concept is applicable, in good standing under the laws of the jurisdiction of   its organization.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (b)          The   execution, delivery and performance by each Loan Party of each Loan Document   to which it is or is to be party, and the consummation of the transactions   contemplated hereby and thereby, are within such Loan Party’s corporate   powers, have been duly authorized by all necessary corporate action, and do   not (i) contravene such Loan Party’s charter or by-laws,   (ii) violate law, rule, regulation (including, without limitation, with   respect to the Borrowers, Regulation X of the Board of Governors of the   Federal Reserve System), order, writ, judgment, injunction, decree,   determination or award, (iii) conflict with or result in the breach of, or   constitute a default or require any payment to be made under, any material   contractual restriction or, to such Loan Party’s knowledge, any other
contractual restriction, binding on or affecting such Loan Party or   (iv) except for the Liens created under the Loan Documents, result in or   require the creation or imposition of any Lien upon or with respect to any of   the properties of any Loan Party or any of its Subsidiaries.
  
	
   
  	
  
 
  
	
  
 
  	
  
          (c)          No   authorization or approval or other action by, and no notice to or filing   with, any governmental authority or regulatory body or any other third party   is required for (i) the due execution, delivery, recordation, filing or   performance by any Loan Party of any Loan Document to which it is or is to be   a party, (ii) other than as set forth in Section 6(m) of the Security   Agreement or Section 6(m) of the Canadian Security Agreement, the grant by   any Loan Party of the Liens granted by it pursuant to the Collateral   Documents, (iii) other than in respect of the Specified Collateral as set   forth in Section 6(m) of the Security Agreement or Section 6(m) of the   Canadian Security Agreement, the perfection or maintenance of the Liens   created under the Collateral Documents (including the first priority nature
thereof) or (iv) the exercise by the Agent or any Lender of its rights   under the Loan Documents or the remedies in respect of the Collateral   pursuant to the Collateral Documents.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (d)          This   Agreement has been, and each other Loan Document when delivered hereunder will   have been, duly executed and delivered by each Loan Party party thereto.  This Agreement is, and each other Loan   Document when delivered hereunder will be, the legal, valid and binding   obligation of each Loan Party party thereto enforceable against such Loan   Party in accordance with their respective terms, except as enforceability may   be affected by applicable bankruptcy, insolvency, reorganization, moratorium   or other similar laws affecting enforcement of creditors’ rights generally   and by general principles of equity, whether enforcement is sought in a   proceeding in equity or at law.
  



38








	
  
 
  	
  
          (e)          The   Consolidated statement of financial position of the Company and its   Consolidated Subsidiaries as at December 31, 2004, and the related   Consolidated statement of earnings and Consolidated statement of cash flows   of the Company and its Consolidated Subsidiaries for the fiscal year then   ended, accompanied by an opinion of PricewaterhouseCoopers LLP, independent   public accountants, and the Consolidated statement of financial position of   the Company and its Consolidated Subsidiaries as at June 30, 2005, and the   related Consolidated statement of earnings and Consolidated statement of cash   flows of the Company and its Consolidated Subsidiaries for the six months   then ended, duly certified by the chief financial officer of the Company,   copies of which have been furnished to each Lender, fairly present, subject,   in the
case of said statement of financial position as at June 30, 2005, and   said statement of earnings and statement of cash flows for the six months   then ended, to normal year-end audit adjustments, the Consolidated financial   condition of the Company and its Consolidated Subsidiaries as at such date   and the Consolidated statement of earnings and Consolidated statement of cash   flows of the Company and its Consolidated Subsidiaries for the period ended   on such date, all in accordance with generally accepted accounting principles   consistently applied.  Since   December 31, 2004, there has been no Material Adverse Change except as   disclosed in filings made with the Securities and Exchange Commission, press   releases or other widely distributed disclosure  prior to the Effective Date (or, if such representation is made   or deemed made as of any Additional Term Effective Date, since the end of the   fiscal year of the Company immediately preceding such date for which audited
consolidated financial statements of the Company have been publicly   released).
  
	
   
  	
  
 
  
	
  
 
  	
  
          (f)          There   is no pending or, to the knowledge of the Company, threatened action, suit,   investigation, litigation or proceeding, including, without limitation, any   Environmental Action, affecting the Company or any of its Subsidiaries before   any court, governmental agency or arbitrator that (i) is reasonably   likely to have a Material Adverse Effect or (ii) purports to affect the   legality, validity or enforceability of this Agreement or any other Loan   Document or the consummation of the transactions contemplated hereby.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (g)          Neither   Borrower is engaged in the business of extending credit for the purpose of   purchasing or carrying margin stock (within the meaning of Regulation U   issued by the Board of Governors of the Federal Reserve System), and no   proceeds of any Advance will be used to purchase or carry any margin stock or   to extend credit to others for the purpose of purchasing or carrying any   margin stock.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (h)          Neither   Borrower is an “investment company”, or a company “controlled” by an   “investment company”, within the meaning of the Investment Company Act of   1940, as amended.
  
	
   
  	
  
 
  
	
  
 
  	
  
          (i)          The   Company and each of its Subsidiaries owns, or is licensed to use, all   trademarks, tradenames, copyrights, technology, know-how and processes   necessary for the conduct of its business as currently conducted except for   those the failure to own or license which are not reasonably expected to have   a Material Adverse Effect (the “Intellectual Property”).  No claim has been asserted and is pending   by any Person challenging or questioning the use of any such Intellectual   Property or the validity or effectiveness of any such Intellectual Property,   nor does the Company know of any valid basis for any such claim, except, in   either case, for such claims that in the aggregate are not reasonably   expected to have a Material Adverse Effect.    The use of such Intellectual Property by the Company and its
Subsidiaries does not infringe on the rights of any Person, except for such   claims and infringements that, in the aggregate, are not reasonably expected   to have a Material  Adverse Effect.
  




39








	
  
 
  	
  
          (j)          (i)  No ERISA Event has occurred or is   reasonably expected to occur with respect to any Plan that has resulted in or   is reasonably expected to result in a material liability of the Company or   any ERISA Affiliate.
  
	
   
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
             (ii)          None   of the Company or any ERISA Affiliate has incurred or is reasonably expected   to incur any Withdrawal Liability (within the meaning of Part I of   Subtitle E of Title IV of ERISA) to any Multiemployer Plan that in   the aggregate could reasonably be expected to have a Material Adverse Effect.
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
             (iii)          None   of the Company or any ERISA Affiliate has been notified by the sponsor of a   Multiemployer Plan that such Multiemployer Plan is in reorganization or has   been terminated, within the meaning of Title IV of ERISA, and no such   Multiemployer Plan is reasonably expected to be in reorganization or to be   terminated, within the meaning of Title IV of ERISA.
  
	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
          (k)          The   operations and properties of the Company and each of its Consolidated   Subsidiaries comply in all material respects with all applicable   Environmental Laws and Environmental Permits, all past non-compliance with   such Environmental Laws and Environmental Permits has been resolved without   ongoing obligations or costs that have had or are reasonably expected to have   a Material Adverse Effect, and no circumstances exist that are reasonably   likely to (A) form the basis of an Environmental Action against the   Company or any of its Subsidiaries or any of their properties that is   reasonably expected to have a Material Adverse Effect or (B) cause any   such property to be subject to any restrictions on ownership, occupancy, use   or transferability under any Environmental Law that is reasonably expected to   have a Material

Adverse Effect.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (l)          The   Company and each of its Subsidiaries has good and marketable fee simple title   to or valid leasehold interests in all of the real property owned or leased   by the Company or such Subsidiary and good title to all of their personal   property, except where the failure to hold such title or leasehold interests,   individually or in the aggregate is not reasonably expected to have a   Material Adverse Effect.  The Company   and its Subsidiaries enjoy peaceful and undisturbed possession under all of   their respective leases except where the failure to enjoy such peaceful and   undisturbed possession, individually or in the aggregate, is not reasonably   expected to have a Material Adverse Effect.
  
	
   
  	
  
 
  
	
  
 
  	
  
          (m)          All   factual information, taken as a whole, furnished by or on behalf of the   Company and its Subsidiaries, taken as a whole, in writing to the Agents or   any Lender on or prior to the Effective Date, for purposes of this Agreement   and all other such factual information taken as a whole, furnished by the   Company on behalf of itself and its Subsidiaries, taken as a whole, in   writing to the Agents or any Lender pursuant to the terms of this Agreement   will be, true and accurate in all material respects on the date as of which   such information is dated or furnished and not incomplete by knowingly   omitting to state any material fact necessary to make such information, taken   as a whole, not misleading at such time, provided, however,   that with respect to any projected financial information or forward-looking
statements, the Company represents only that such information was prepared in   good faith based upon assumptions, and subject to such qualifications,   believed to be reasonable at the time.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (n)          All   filings and other actions necessary or desirable to perfect and protect the   security interest in the Collateral (other than in respect of the Specified   Collateral as set forth in Section 6(m) of the Security Agreement and Section   6(m) of the Canadian Security Agreement) created under the Collateral   Documents have been duly made or taken and are in full force and effect, and   the Collateral Documents create in favor of the Collateral Agent for the   benefit of the Secured Parties a valid and, together with such filings and   other actions, perfected first priority security interest in the Collateral   (other than the Specified Collateral), securing the payment of the Secured   Obligations (as defined in the Security Agreement), and all filings and other   actions necessary or desirable to perfect and protect such security
interest   have been duly taken.  The Loan   Parties are the legal and beneficial owners of the Collateral free and clear   of any Lien, except for the liens and security interests created or permitted   under the Loan Documents.
  



40








	
  
 
  	
  
          (o)          Each   Borrower is, individually and together with its Subsidiaries, Solvent.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (p)          Set   forth on Part A of Schedule II hereto is a complete and accurate list of all   direct and indirect Subsidiaries of the Company that are organized under the   laws of a state of the United States of America, and set forth on Part C of   Schedule II hereto is a complete and accurate list of all Material   Subsidiaries of each Borrower, showing, in each case, as of the date hereof   (as to each such Subsidiary) the jurisdiction of its formation, the number of   shares, membership interests or partnership interests (as applicable) of each   class of its equity interests authorized, and the number outstanding, on the   date hereof and the percentage of each such class of its Equity Interests   owned (directly or indirectly) by the applicable Loan Party and the number of   shares covered by all outstanding options, warrants, rights of
conversion or   purchase and similar rights at the date hereof.  All of the outstanding equity interests in each Loan Party’s   Subsidiaries have been validly issued, are fully paid and non-assessable and   are owned by such Loan Party or one or more of its Subsidiaries, other than   director’s qualifying shares or similar minority interests required under the   laws of the Material Subsidiary’s formation, free and clear of all Liens,   except those created under the Collateral Documents.
  



ARTICLE V


COVENANTS OF THE COMPANY


                    SECTION 5.01.  Affirmative Covenants.  So long as any Advance or any other payment obligation of any Loan Party of which the Company has knowledge under any Loan Document shall remain unpaid, any Letter of Credit is outstanding or any Lender shall have any Commitment hereunder, the Company will:

	
  
 
  	
  
          (a)          Compliance   with Laws.  Comply, and cause each   of its Subsidiaries to comply, in all material respects, with all applicable   laws, rules, regulations and orders, such compliance to include, without   limitation, compliance with ERISA, Environmental Laws and the PATRIOT Act,   except where such non-compliance is not reasonably expected to have a   Material Adverse Effect.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (b)          Payment   of Taxes, Etc.  Pay and discharge,   and cause each of its Subsidiaries to pay and discharge, before the same   shall become delinquent, (i) all taxes, assessments and governmental   charges or levies imposed upon it or upon its property and (ii) all   lawful claims that, if unpaid, might by law become a Lien upon its property; provided,   however, that neither the Company nor any of its Subsidiaries shall be   required to pay or discharge any such tax, assessment, charge or claim that   is being contested in good faith and by proper proceedings and as to which   appropriate reserves are being maintained, unless and until any Lien   resulting therefrom attaches to its property and becomes enforceable against   its other creditors.
  
	
   
  	
  
 
  
	
  
 
  	
  
          (c)          Maintenance   of Insurance.  Maintain, and cause   each of its Subsidiaries to maintain, insurance with responsible and   reputable insurance companies or associations in such amounts and covering   such risks as is usually carried by companies engaged in similar businesses   and owning similar properties in the same general areas in which the Company   or such Subsidiary operates; provided, however, that the   Company and its Subsidiaries may self-insure to the extent consistent with   prudent business practice.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (d)          Preservation   of Corporate Existence.  Preserve   and maintain, and cause each of its Subsidiaries to preserve and maintain,   its corporate existence, rights (charter and statutory) and franchises; provided,   however, that the Company and its Subsidiaries may consummate any   amalgamation, merger or consolidation permitted under Section 5.02(b)   and provided further that neither the Company nor any of its   Subsidiaries shall be required to preserve any right or franchise if the   Company determines that the preservation thereof is no longer desirable in   the conduct of the business of the Company or such Subsidiary, as the case   may be, and that the loss thereof is not reasonably expected to have a   Material Adverse Effect.
  




41









	
  
 
  	
  
          (e)          Visitation   Rights.  At any reasonable time,   on reasonable notice and from time to time, permit the Agent or any of the   Lenders or any agents or representatives thereof, to examine and make copies   of and abstracts from the records and books of account of, and visit the   properties of, the Company and any of its Subsidiaries, and to discuss the   affairs, finances and accounts of the Company and any of its Subsidiaries   with any of their officers or directors and with their independent certified   public accountants, provided that all such information is subject to the   provisions of Section 9.08.  At   any time prior to the occurrence of a continuing Event of Default, the right   of the Agent and any of the Lenders to visit the property of the Company and   any of its Subsidiaries shall be subject to reasonable
rules and restrictions   of the Company for such access, and such visit shall not unreasonably   interfere with the ongoing conduct of the business of the Company and its   Subsidiaries at such properties.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (f)          Keeping   of Books.  Keep and maintain   proper books of record and account on a Consolidated basis for Company and   its Subsidiaries in conformity with generally accepted accounting principles   in effect from time to time.
  
	
   
  	
  
 
  
	
  
 
  	
  
          (g)          Maintenance   of Properties, Etc.  Maintain and   preserve, and cause each of its Subsidiaries to maintain and preserve in all   material respects, all of its properties that are used or useful in the   conduct of its business in good working order and condition, ordinary wear   and tear excepted, except where the failure to so maintain or preserve is not   reasonably expected to have a Material Adverse Effect.
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
          (h)          Reporting   Requirements.  Furnish to the   Lenders:
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  

             (i)          as
soon as available and in any event within 45 days after the end of each of the
first three quarters of each fiscal year of the Company, the Consolidated
statement of financial position of the Company and its Consolidated Subsidiaries
as of the end of such quarter and Consolidated statements of earnings and cash
flows of the Company and its Consolidated Subsidiaries for the period commencing
at the end of the previous fiscal year and ending with the end of such quarter,
duly certified by the chief financial officer of the Company as having been
prepared in accordance with generally accepted accounting principles subject to
normal year-end audit adjustments and other items, such as footnotes, omitted in
interim statements, and certificates of the chief financial officer of the
Company as to compliance with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate compliance with
Section 5.03, provided that in the event of any change in generally
accepted accounting principles used in the preparation of such financial
statements, the Company shall also provide, if necessary for the determination
of compliance with Section 5.03, a statement of reconciliation conforming
such financial statements to GAAP as applied in the preparation of the financial
statements delivered pursuant to Section 4.01(e);
 
	
   
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  

             (ii)          as
soon as available and in any event within 90 days after the end of each fiscal
year of the Company, a copy of the annual audit report for such year for the
Company and its Consolidated Subsidiaries, containing the Consolidated statement
of financial position of the Company and its Consolidated Subsidiaries as of the
end of such fiscal year and Consolidated statements of earnings and cash flows
of the Company and its Consolidated Subsidiaries for such fiscal year, in each
case accompanied by an opinion acceptable to the Required Lenders by registered
independent public accountants reasonably acceptable to the Required Lenders and
certificates of the chief financial officer of the Company as to compliance with
the terms of this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section 5.03,
provided that in the event of any change in generally accepted accounting
principles used in the preparation of such financial statements, the Company
shall also provide, if necessary for the determination of compliance with
Section 5.03, a statement of reconciliation conforming such financial statements
to GAAP as applied in the preparation of the financial statements delivered
pursuant to Section 4.01(e);
 




42









 

	
   
  	
  
 
  	
  

             (iii)          as
soon as possible and in any event within five days after the Company has
knowledge of the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the Company setting
forth details of such Default and the action that the Company has taken and/or
proposes to take with respect thereto;
 
	 	 	 
	
  
 
  	
  
 
  	
  


             (iv)          promptly
after the sending or filing thereof, copies of all reports that the Company
sends to any of its securityholders, and copies of all reports and registration
statements that the Company or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange;
 
	 	 	 
	
  
 
  	
  
 
  	
  

             (v)          notice
of all actions and proceedings before any court, governmental agency or
arbitrator affecting the Company or any of its Subsidiaries of the type which
would have been required to be disclosed under Section 4.01(f), promptly
after the later of the commencement thereof or knowledge that such actions or
proceedings are reasonably likely to be of a type which would have been required
to be disclosed under Section 4.01(f);
 
	 	 	 
	
  
 
  	
  
 
  	
  

             (vi)          as
soon as available and in any event no later than 45 days after the end of each
fiscal quarter, amended or supplemented Schedules setting forth such information
as would be required to make the representations set forth in Section 6(a), (c),
(d), (h), (i), (l) and (p)(iii) of the Security Agreement and Section 6(a), (c),
(d), (h), (i), (l) and (p)(iii) of the Canadian Security Agreement true and
correct as if the Schedules referenced therein were delivered on such date;
and
 
	 	 	 
	
   
  	
  
 
  	
  
          (vi)          such   other information respecting the Company or any of its Subsidiaries as any   Lender through the Agent may from time to time reasonably request.
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
          (i)          Covenant   to Guarantee Obligations and Give Security.  Upon (x) the request of the Agent following the occurrence and   during the continuance of a Default, (y) the formation or acquisition of   any new direct or indirect Material Subsidiaries owned directly by any   Borrower or any new Subsidiaries organized under the laws of any state of the   United States of America owned directly or indirectly by either Borrower or   (z) the acquisition of any property by any Loan Party, and such   property, in the judgment of the Agent (as to which judgment the Agent has   given notice to the Company), shall not already be subject (other than in   respect of the Specified Collateral) to a perfected first priority security   interest in favor of the Agent for the benefit of the Secured Parties, then   in each case at the
Company’s expense:
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (i)          in   connection with the formation or acquisition of a Subsidiary organized under   the laws of a state of the United States of America owned directly or   indirectly by the Company or Nova Scotia Company that (A) is not a CFC, (B)   is not a “Restricted Subsidiary” (as defined in the Indenture) or (C) is not   a Person having total assets of less than $10,000,000, within 30 days after   such formation or acquisition, cause each such Subsidiary, duly execute and   deliver to the Agent a guaranty supplement, in the form of Exhibit G hereto,   guaranteeing the applicable Guaranteed Obligations,
  
	
   
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (ii)          within   45 days after (A) such request or acquisition of property other than any   “Principal Property” (as defined in the Indenture) by any Loan Party, duly   execute and deliver, and cause each Loan Party to duly execute and deliver,   to the Agent such additional pledges, assignments, security agreement   supplements, intellectual property security agreement supplements and other   security agreements as specified by, and in form and substance reasonably   satisfactory to, the Agent, securing payment of all the obligations of such   Loan Party under the Loan Documents and constituting Liens on all such   properties and (B) such formation or acquisition of any new Material   Subsidiary, duly execute and deliver and cause each Loan Party acquiring   equity interests in such Subsidiary to duly execute and deliver to the Agent
pledges, assignments and security agreement supplements related to such   equity interests as specified by,
  




43








	
  
 
  	
  
 
  	
  
and in form   and substance satisfactory to, the Agent, securing payment of all of the   obligations of such Loan Party under the Loan Documents; provided that   (A) the stock of any Restricted Subsidiary shall not be required to be   pledged, (B) the stock of any Subsidiary held by a CFC shall not be required   to be pledged and (C) if such new property is equity interests in a CFC, no   more than 65% of the equity interests in such CFC shall be pledged in favor   of the Secured Parties,
  
	
   
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (iii)          within   60 days after such request, formation or acquisition, take, and cause each   Loan Party and each newly acquired or newly formed direct Material Subsidiary   (other than any Subsidiary that is a CFC or a Restricted Subsidiary) to take,   whatever action (including, without limitation, the filing of Uniform   Commercial Code financing statements, the giving of notices and the   endorsement of notices on title documents) may be necessary or advisable in   the reasonable opinion of the Agent to vest in the Agent (or in any   representative of the Agent designated by it) valid and subsisting Liens on   the properties purported to be subject to the pledges, assignments, security   agreement supplements, intellectual property security agreement supplements   and security agreements delivered pursuant to this Section 5.01(i),
enforceable against all third parties in accordance with their terms (other   than in respect of the Specified Collateral as set forth in Section 6(m) of   the Security Agreement and Section 6(m) of the Canadian Security Agreement),
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (iv)          within   60 days after such request, formation or acquisition, deliver to the Agent,   upon the request of the Agent in its sole discretion, a signed copy of a   favorable opinion, addressed to the Agent and the other Secured Parties, of   counsel for the Loan Parties reasonably acceptable to the Agent as to (1)   such guaranties, guaranty supplements, pledges, assignments, security   agreement supplements, intellectual property security agreement supplements   and security agreements described in clauses (i), (ii) and (iii) above being   legal, valid and binding obligations of each Loan Party party thereto   enforceable in accordance with their terms and as to the matters contained in   clause (iii) above, subject to customary exceptions, (2) such   recordings, filings, notices, endorsements and other actions being sufficient   to
create valid perfected Liens on such assets, and (3) such other matters as   the Agent may reasonably request, consistent with the form of opinion   attached as Exhibit F hereto.
  
	
   
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (v)          at   any time and from time to time, promptly execute and deliver, and cause each   Loan Party and each newly acquired or newly formed direct Material Subsidiary   (other than any Subsidiary that is a CFC or a Restricted Subsidiary) to   execute and deliver, any and all further instruments and documents and take,   and cause such Subsidiary to take, all such other action as the Agent may   deem reasonably necessary or desirable in obtaining the full benefits of, or   in perfecting and preserving the Liens of, such guaranties, pledges,   assignments, security agreement supplements, intellectual property security   agreement supplements and security agreements.
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
          (j)          Further   Assurances.  (i)  Promptly upon the reasonable request by   the Agent, or any Lender through the Agent, correct, and cause each of the   other Loan Parties promptly to correct, any material defect or error that may   be discovered in any Loan Document or in the execution, acknowledgment,   filing or recordation thereof, and
  
	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
 
  	
  
          (ii)          Promptly   upon the reasonable request by the Agent, or any Lender through the Agent,   do, execute, acknowledge, deliver, record, re-record, file, re-file, register   and re-register any and all such further acts, pledge agreements,   assignments, financing statements and continuations thereof, termination   statements, notices of assignment, transfers, certificates, assurances and   other instruments as the Agent, or any Lender through the Agent, may   reasonably require from time to time in order to (A) carry out more   effectively the purposes of the Loan Documents, (B) to the fullest   extent permitted by applicable law and the terms of this Agreement and the   Collateral Documents, subject any Loan Party’s properties, assets, rights or   interests to the Liens now or hereafter intended to be covered by any of the
Collateral Documents, (C) perfect and 
  




44








	
  
 
  	
  
 
  	
  
maintain the   validity, effectiveness and priority of any of the Collateral Documents and   any of the Liens intended to be created thereunder and (D) assure,   convey, grant, assign, transfer, preserve, protect and confirm more   effectively unto the Secured Parties the rights granted or now or hereafter   intended to be granted to the Secured Parties under any Loan Document or   under any other instrument executed in connection with any Loan Document to which   any Loan Party or any of its Subsidiaries formed or acquired after the   Effective Date is or is to be a party, and cause each of its Subsidiaries to   do so.
  
	
   
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (k)          Transactions   with Affiliates.  Conduct, and   cause each of its Subsidiaries to conduct, all transactions otherwise   permitted under this Agreement with any of their Affiliates on terms that are   fair and reasonable and no less favorable to the Company or such Subsidiary   than it would obtain in a comparable arm’s-length transaction (determined in   the reasonable judgment of the Company) with a Person not an Affiliate, other   than (i) intercompany transactions among the Company and its wholly-owned   Subsidiaries, (ii) fees and other benefits to non-officer directors of the   Company and its Subsidiaries and (iii) employment, severance and other   similar arrangements and employee benefits with officers and employees of the   Company and its Subsidiaries.
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (l)          Post-Closing   Requirements.  (i) On or prior to   the date which is 10 Business Days following the Effective Date, Agent shall   have received the following:
  






	 	 	 	 	          (A)          a certificate representing 65% of the outstanding shares of capital stock of Kodak Limited, together with an undated stock power duly executed in blank;
	 	 	 	 	 
	 	 	 	 	          (B)          a deed of disclosed pledge of 65% of the outstanding shares of Eastman Kodak Holding B.V. naming Citicorp USA, Inc. as pledgee; and
	 	 	 	 	 
	 	 	 	 	          (C)          a deed of disclosed pledge of 65% of the outstanding shares of Creo Capital Netherlands, B.V. naming Citicorp USA, Inc. as pledgee.
	 	 	 	 	 
	 	 	 	          (ii)          On or prior to the date which is 20 Business Days following the Effective Date, Agent shall have received the following:
	 	 	 	 	 
	 	 	 	 	          (A)          a certificate representing 65% of the outstanding shares of capital stock of Creo Japan Inc. or, if such entity is at the time the surviving corporation of a merger with Creo Japan Inc., Kodak Polychrome Graphics Japan Ltd., together with an undated stock power duly executed in blank; and
	  
	  
	  
	  
	  

	 	 	 	 	          (B)          a certificate representing 65% of the outstanding shares of capital stock of Kodak (China) Company Limited, together with an undated stock power duly executed in blank;
	 	 	 	 	 
	 	 	 	          (iii)          On or prior to the date which is 90 Business Days following the Effective Date, Agent shall have received the evidence of corporate actions, and governmental approvals and registrations required under the laws of the People’s Republic of China for the pledge of a security interest in 65% of the outstanding ownership interests in Kodak (China) Company Limited.
	 
	                                  SECTION
5.02.  Negative Covenants.  So long as any Advance or any other
payment obligation of any Loan Party of which the Company has knowledge under
any Loan Document shall remain unpaid, any Letter of Credit is outstanding or
any Lender shall have any Commitment hereunder, the Company will
not:




45








	
  
 
  	
  
 
  	
  
          (a)          Liens.  Create or suffer to exist, or permit any   of its Subsidiaries to create or suffer to exist, any Lien on or with respect   to any of its properties, whether now owned or hereafter acquired, or assign,   or permit any of its Subsidiaries to assign, any right to receive income,   other than:
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (i)          Permitted   Liens,
  
	
   
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (ii)          Liens   upon or in any real property or equipment acquired or held by the Company or   any Subsidiary in the ordinary course of business to secure the purchase   price of such property or equipment or to secure Debt incurred solely for the   purpose of financing the acquisition or improvement of such property or   equipment (including any Liens placed on such property or equipment within   180 days after the acquisition of such property or equipment), or Liens   existing on such property or equipment at the time of its acquisition (other   than any such Liens created in contemplation of such acquisition that were   not incurred to finance the acquisition of such property) or extensions,   renewals or replacements of any of the foregoing for the same or a lesser   amount, provided, however, that no such Lien shall extend to or
cover any properties of any character other than the real property or   equipment being acquired, and no such extension, renewal or replacement shall   extend to or cover any properties not theretofore subject to the Lien being   extended, renewed or replaced, provided further that the   aggregate principal amount of the indebtedness secured by the Liens referred   to in this clause (ii) shall not exceed $200,000,000 at any time   outstanding,
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
 
  	
  
 
  	
  
          (iii)          the   Liens existing on the Effective Date and described on Schedule 5.02(a)   hereto,
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (iv)          Liens   on property of a Person existing at the time such Person is acquired by,   amalgamated, merged into or consolidated with the Company or any Subsidiary   of the Company or becomes a Subsidiary of the Company; provided that   such Liens were not created in contemplation of such amalgamation, merger,   consolidation or acquisition and do not extend to any assets other than those   of the Person so merged or amalgamated into or consolidated with the Company   or such Subsidiary or acquired by the Company or such Subsidiary,
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
 
  	
  
 
  	
  
          (v)          Liens   securing Debt permitted in accordance with Section 5.02(d)(viii),
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (vi)          Liens   arising under leases that have been or should be, in accordance with   generally accepted accounting principles, recorded as capital leases,
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (vii)          other   Liens securing Debt, or judgments pending appeal, in an aggregate principal   amount not to exceed $200,000,000 at any time outstanding, provided   that such Liens shall not encumber “Principal Properties” as such term is   defined in the Indenture, and
  
	
   
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (viii)          the   replacement, extension or renewal of any Lien permitted by clause (iii)   or (iv) above upon or in the same property theretofore subject thereto or the   replacement, extension or renewal (without increase in the amount or change   in any direct or contingent obligor) of the Debt secured thereby.
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (b)          Mergers.  Merge, amalgamate or consolidate with or   into, or convey, transfer, lease or otherwise dispose of (whether in one   transaction or in a series of transactions) all or substantially all of its   assets (whether now owned or hereafter acquired) on a Consolidated basis to,   any Person, or permit any of its Material Subsidiaries to do so, provided   that, notwithstanding the foregoing (i) any Material Subsidiary of the   Company may merge, amalgamate or consolidate with or into, or dispose of   assets to, the Company or any other Subsidiary of the Company, (ii) any   Subsidiary of the Company that is a Loan Party may merge, amalgamate or   consolidate with or into, or dispose of assets to the Company or any other   Loan
  



46








	
  
 
  	
  
 
  	
  
Party, (iii)   any Subsidiary of the Company that is not a Loan Party may merge, amalgamate   or consolidate with or into, or dispose of assets to the Company or any other   Subsidiary of the Company and (iv) the Company may merge, amalgamate or   consolidate with any other Person so long as the Company is the surviving   corporation, provided, in each case, that no Default shall have   occurred and be continuing at the time of such proposed transaction or would   result therefrom and provided, further, that the Net Cash   Proceeds of any sale, lease or other disposition of assets in accordance with   this Section 5.02(b) shall be applied to the extent required by, and as set   forth in, Section 2.10(b).
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (c)          Accounting   Changes.  Make or permit, or   permit any of its Subsidiaries to make or permit, any change in accounting   policies or reporting practices, except as required or permitted by generally   accepted accounting principles.
  
	
   
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (d)          Subsidiary   Debt.  Permit any of its   Subsidiaries to create or suffer to exist, any Debt other than:
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (i)          Debt   owed to the Company or to a Consolidated Subsidiary of the Company,
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (ii)          Debt   existing on the Effective Date and described on Schedule 5.02(d) hereto   (the “Existing Debt”), and any Debt extending the maturity of, or   refunding or refinancing, in whole or in part, the Existing Debt, provided   that the principal amount of such Existing Debt shall not be increased above   the principal amount thereof outstanding immediately prior to such extension,   refunding or refinancing, and the direct and contingent obligors therefor   shall not be changed, as a result of or in connection with such extension,   refunding or refinancing,
  
	
   
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (iii)          Debt   secured by Liens of the type described in and to the extent permitted by   Section 5.02(a)(ii),
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (iv)          Debt   of a Person existing at the time such Person is amalgamated, merged into or   consolidated with the Company or any Subsidiary of the Company or becomes a   Subsidiary of the Company; provided that such Debt was not created in   contemplation of such amalgamation, merger, consolidation or acquisition,
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
 
  	
  
 
  	
  
          (v)          Debt   arising under the Loan Documents,
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (vi)          Debt   incurred by any Subsidiary organized, or substantially all of the business of   which is conducted, in the People’s Republic of China in an aggregate amount   not to exceed $500,000,000 at any time outstanding,
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (vii)          Debt   incurred by Kodak International Finance Limited, a company organized and   existing under the laws of England, (x) in connection with short term working   capital needs in an aggregate amount not to exceed $100,000,000 at any time   outstanding and (y) consisting of Hedge Agreement Obligations entered into in   the ordinary course of business to protect the Company and its Subsidiaries   against fluctuations in interest or exchanges rates,
  
	
   
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (viii)          Debt   in an aggregate amount not to exceed $500,000,000 at any time outstanding   incurred on or before December 31, 2005 by a Subsidiary organized under the   laws of a jurisdiction outside of the United States to, directly or   indirectly, finance payments to the Company or any of its domestic   Subsidiaries under the American Jobs Creation Act of 2004 (as amended from   time to time) provided that, from and after the Effective Date and   until such Debt is paid in full, neither the Company nor any other Loan Party   shall have made any material loan or advance to such Subsidiary, any material   purchase or other acquisition of any capital stock, warrants, rights,   options, obligations or other securities or all or substantially all of the   assets of such Subsidiary, any, material capital contribution to such   Subsidiary or any

other material investment in such Subsidiary, including,   without limitation, guaranteed any Debt of such Subsidiary,
  




47








	
   
  	
  
 
  	
  
 
  	
  
          (ix)          other   Debt (whether secured or unsecured) to the extent such Debt would be   permitted to be secured under Section 5.02(a)(vii), and
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (x)          endorsement   of negotiable instruments for deposit or collection or similar transactions   in the ordinary course of business.
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (e)          Company   Debt for Borrowed Money.  Create   or suffer to exist, any Debt for Borrowed Money of the Company other than:
  
	
   
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (i)          Debt   for Borrowed Money arising under the Loan Documents,
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (ii)          Debt   for Borrowed Money existing on the Effective Date and described on   Schedule 5.02(e) hereto (the “Existing Debt”), and any Debt for   Borrowed Money extending the maturity of, or refunding or refinancing, in   whole or in part, the Existing Debt, provided that the principal   amount of such Existing Debt shall not be increased above the principal   amount thereof outstanding immediately prior to such extension, refunding or   refinancing, the direct and contingent obligors therefor shall not be   changed, as a result of or in connection with such extension, refunding or   refinancing,
  
	
   
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (iii)          Debt   for Borrowed Money with a maturity at least 90 days after the later of the   Term B Maturity Date and the Additional Term Maturity Date,
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (iv)          Debt   for Borrowed Money under uncommitted lines of credit not to exceed   $100,000,000 at any time outstanding to be used for working capital purposes,   and
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
 
  	
  
 
  	
  
          (v)          Debt   for Borrowed Money that is subordinated to the obligations of the Company   under the Loan Documents on terms that are reasonably satisfactory to the   Agent and the Required Lenders.
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (f)          Payment   Restrictions Affecting Subsidiaries.    Directly or indirectly, enter into or suffer to exist, or permit any   of its Subsidiaries to enter into or suffer to exist, any agreement or   arrangement limiting the ability of any of its Subsidiaries to declare or pay   dividends or other distributions in respect of its equity interests or repay   or prepay any Debt owed to, make loans or advances to, or otherwise transfer   assets to or make investments in, the Company or any Subsidiary of the   Company (whether through a covenant restricting dividends, loans, asset   transfers or investments, a financial covenant or otherwise), except (i) as   provided in this Agreement, (ii)any agreement or instrument evidencing Debt   existing on the date hereof, (iii) any agreement in effect at the time a   Person first became a Subsidiary
of the Company, so long as such agreement   was not entered into solely in contemplation of such Person becoming a   Subsidiary of the Company; (iv) any agreement evidencing debt permitted   by Section 5.02(a)(iii) that imposes restrictions on the property   acquired; (v) by reason of customary provisions restricting assignments,   licenses, subletting or other transfers contained in leases, licenses, joint venture   agreements, purchase and sale or merger agreements and other similar   agreements entered into in the ordinary course of business so long as such   restrictions do not extend to assets other than those that are the subject of   such lease, license or other agreement; or (v) in securitization   transactions to the extent set forth in the documents evidencing such   transactions so long as such restrictions do not extend to assets other than   those that are the subject of such securitization transactions.
  



48








	
  
 
  	
  
 
  	
  
          (g)          Change   in Nature of Business.  Make, or   permit any of its Material Subsidiaries to make, any material change in the   nature of the business as carried on or as contemplated to be carried on by   the Company and its Subsidiaries taken as a whole at the date hereof.
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (h)          Dividends,   Etc.  Declare or make any dividend   payment or other distribution of assets, properties, cash, rights,   obligations or securities on account of any shares of any class of capital stock   of the Company, or purchase, redeem or otherwise acquire for value (or permit   any of its Subsidiaries to do so) any shares of any class of capital stock of   the Company or any warrants, rights or options to acquire any such shares,   now or hereafter outstanding, except that the Company may (i) declare and   make any dividend payment or other distribution payable in common stock of   the Company, (ii) purchase, redeem or otherwise acquire shares of its common   stock or warrants, rights or options to acquire any such shares with the   proceeds received from the substantially concurrent issue of new shares of   its common stock,
and (iii) declare or pay cash dividends to its stockholders   and purchase, redeem or otherwise acquire shares of its capital stock or warrants,   rights or options to acquire any such shares for cash so long as (A) no   Default shall have occurred and be continuing or would result therefrom, and   (B) if the ratio of Consolidated Debt for Borrowed Money to Consolidated   EBITDA most recently measured pursuant to Section 5.03(a) was equal to or   greater than 2.00: 1.00, the aggregate amount of any such cash payment to be   made at such time, when taken together with the aggregate amount of all other   cash payments made under this Section 5.02(h)(iii) during the then current   fiscal year, does not exceed $200,000,000 in such fiscal year.
  
	
   
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
          (i)          Investments   in Other Persons.  Make, or permit   any of its Subsidiaries to make, any Investment in any Person, except:
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (i)          (A)   Investments by the Company and its Subsidiaries in their Subsidiaries   outstanding on the date hereof, (B) additional Investments by the Company and   its Subsidiaries in Loan Parties, (C) additional Investments by Subsidiaries   of the Company that are not Loan Parties in other Subsidiaries that are not   Loan Parties and (D) additional Investments by the Loan Parties in   Subsidiaries that are not Loan Parties, provided, if the ratio of   Consolidated Debt for Borrowed Money to Consolidated EBITDA most recently   measured pursuant to Section 5.03(a) was equal to or greater than 2.00: 1.00,   the aggregate amount of Investments permitted pursuant to this clause (D)   shall not exceed $250,000,000 in any year;
  
	
   
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (ii)          loans   and advances to employees in the ordinary course of the business of the   Company and its Subsidiaries as presently conducted in an aggregate principal   amount not to exceed $25,000,000 at any time outstanding;
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (iii)          Investments   by the Company and its Subsidiaries in cash and cash equivalents;
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
 
  	
  
 
  	
  
          (iv)          Investments   existing on the date hereof and Investments of up to $100,000,000 in the   People’s Republic of China for the previously announced digital   computer-to-plate factory;
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (v)          Investments   in Hedge Agreements designed to hedge against fluctuations in interest rates,   foreign exchange rates or in commodity prices incurred in the ordinary course   of business and consistent with existing business practice;
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (vi)          Investments   received in settlement of claims against another Person in connection with   (A) a bankruptcy proceeding against such Person, (B) accounts receivable   arising from or trade credit granted to, in the ordinary course of business,   a financially troubled account debtor and (C) disputes regarding intellectual   property rights; and
  
	
   
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
          (vii)          Investments   by the Company and its Subsidiaries not otherwise permitted under this   Section 5.02(i), provided, if the ratio of Consolidated Debt for   Borrowed Money to Consolidated EBITDA most recently measured pursuant to   Section 5.03(a) was equal to or greater than 2.00: 1.00, the aggregate amount   of Investments permitted pursuant to this clause (vii) shall not exceed   $250,000,000 in any year; provided, further, that, with respect   to each Investment made pursuant to this clause (vii):
  




49








	
  
 
  	
  
 
  	
  
 
  	
  
 
  	
  
          (A)          such   Investment shall not include or result in any contingent liabilities that   could reasonably be expected to be material to the business, financial   condition or operations of the Company and its Subsidiaries, taken as a whole   (as determined in good faith by the board of directors (or persons performing   similar functions) of the Company, if the board of directors is otherwise   approving such transaction, or, in each other case, by the chief executive or   financial officer of the Company);
  
	
   
  	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  	
  
          (B)          any   determination of the amount of such Investment shall include all cash and   noncash consideration (including, without limitation, the fair value,   determined in accordance with generally accepted accounting principles, of   all equity interests issued or transferred to the sellers of such investment,   all earnouts and other contingent payment obligations to, and the aggregate   amounts paid or to be paid under noncompete, consulting and other affiliated   agreements with, the sellers of such investment, all write-downs of property   and assets and reserves for liabilities with respect thereto and all   assumptions of debt, liabilities and other obligations in connection   therewith) paid by or on behalf of the Company and its Subsidiaries in   connection with such Investment; and
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
 
  	
  
 
  	
  
 
  	
  
          (C)          (1)   immediately before and immediately after giving effect to any such purchase   or other acquisition, no Default shall have occurred and be continuing and   (2) immediately after giving effect to such purchase or other acquisition,   the Company and its Subsidiaries shall be in pro forma   compliance with all of the covenants set forth in Section 5.03, such   compliance to be determined on the basis of audited financial statements for   such Investment as though such Investment had been consummated as of the   first day of the fiscal period covered thereby.
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
                    SECTION   5.03.  Financial Covenants.  So long as any Advance or any other  payment obligation of any Loan Party of   which the Company has knowledge under any Loan Document shall remain unpaid,   any Letter of Credit is outstanding or any Lender shall have any Commitment   hereunder, the Company will:
  
	
  
 
  	
  
 
  
	
   
  	
  
          (a)          Leverage   Ratio.  Maintain, as at the end of   each fiscal quarter, a ratio of Consolidated Debt for Borrowed Money of the   Company and its Consolidated Subsidiaries at such date to Consolidated EBITDA   of the Company and its Consolidated Subsidiaries for the most recently   completed period of four consecutive fiscal quarters of not greater than the   amount set forth below for each fiscal quarter set forth below:
  






	
  
Fiscal Quarter Ending
  	
   
 	
  
Ratio
  
	
  


  	
   
 	
  


  
	
  
December 31,   2005
  	
  
 
  	
  
4.75 : 1.0
  
	
  
March 31,   2006
  	
  
 
  	
  
4.50 : 1.0
  
	
  June 30,   2006
  	
  
 
  	
  
4.25 : 1.0
  
	
  
September   30, 2006
  	
  
 
  	
  
4.00 : 1.0
  
	
  
December 31,   2006 and thereafter
  	
  
 
  	
  
3.50 : 1.0
  




50











	
  
 
  	
  
          (b)          Interest   Coverage Ratio.  Maintain, as at   the end of each fiscal quarter, a ratio of Consolidated EBITDA of the Company   and its Consolidated Subsidiaries for the most recently completed period of   four consecutive fiscal quarters to interest payable on, and amortization of   debt discount in respect of, all Debt for Borrowed Money of the Company and   its Consolidated Subsidiaries during such period of not less than 3.00:1.00.
  





ARTICLE VI


EVENTS OF DEFAULT


                    SECTION 6.01.  Events of Default.  If any of the following events (“Events of Default”) shall occur and be continuing:

	
  
 
  	
  
          (a)          (i)   Any Borrower shall fail to pay any principal of any Advance when the same   becomes due and payable; (ii) any Borrower shall fail to pay any interest on   any Advance or fees within five Business Days after the same becomes due and   payable; or (iii) any Loan Party shall fail to make any other payment under   any Loan Document, within five Business Days after notice of such failure is   given by the Agent or any Lender to the Company; or
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (b)          Any   representation or warranty made by any Borrower herein or by any Significant   Loan Party in any Loan Document to which it is a party or by the Company (or   any of its officers) in a certificate delivered under or in connection with   any Loan Document shall prove to have been incorrect in any material respect   when made; or
  
	
   
  	
  
 
  
	
  
 
  	
  
          (c)          (i) The   Company shall fail to perform or observe any term, covenant or agreement   contained in Section 5.01(d), (e) or (h), 5.02 or 5.03, or (ii) any   Significant Loan Party shall fail to perform or observe any other term,   covenant or agreement contained in any Loan Document on its part to be   performed or observed if such failure shall remain unremedied for 30 days   after written notice thereof shall have been given to the Company by the   Agent or any Lender; or
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (d)          The   Company or any of its Subsidiaries shall fail to pay any principal of or   premium or interest on any Debt that is outstanding in a principal, or in the   case of Hedge Agreement Obligations, net amount of, at least $50,000,000 in   the aggregate (but excluding Debt outstanding hereunder) of the Company or   such Subsidiary (as the case may be), when the same becomes due and payable   (whether by scheduled maturity, required prepayment, acceleration, demand or   otherwise), and such failure shall continue after the applicable grace   period, if any, specified in the agreement or instrument relating to such   Debt; or any other event shall occur or condition shall exist under any   agreement or instrument relating to any such Debt and shall continue after   the applicable grace period, if any, specified in such agreement or   instrument,
if the effect of such event or condition is to accelerate, or to   permit the acceleration of, the maturity of such Debt; or any such Debt shall   be declared to be due and payable, or required to be prepaid or redeemed   (other than by a regularly scheduled required prepayment or redemption),   purchased or defeased, or an offer to prepay, redeem, purchase or defease   such Debt shall be required to be made, in each case prior to the stated   maturity thereof; or
  
	
   
  	
  
 
  
	
  
 
  	
  
          (e)          The   Company or any of its Material Subsidiaries shall generally not pay its debts   as such debts become due, or shall admit in writing its inability to pay its   debts generally, or shall make a general assignment for the benefit of creditors;   or any proceeding shall be instituted by or against the Company or any of its   Material Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or   seeking liquidation, winding up, reorganization, arrangement, adjustment,   protection, relief, or composition of it or its debts under any law relating   to bankruptcy, insolvency or reorganization or relief of debtors, or seeking   the entry of an order for relief or the appointment of a receiver, trustee,   custodian or other similar official for it or for any substantial part of its   property and, in the case of any such proceeding
instituted against it 
  




51








	
  
 
  	
  
(but not   instituted by it), either such proceeding shall remain undismissed or   unstayed for a period of 60 days, or any of the actions sought in such   proceeding (including, without limitation, the entry of an order for relief   against, or the appointment of a receiver, trustee, custodian or other   similar official for, it or for any substantial part of its property) shall   occur; or the Company or any of its Material Subsidiaries shall take any   corporate action to authorize any of the actions set forth above in this   subsection (e); or
  
	
   
  	
  
 
  
	
  
 
  	
  
          (f)          Judgments   or orders for the payment of money in excess of $50,000,000 in the aggregate   shall be rendered against the Company or any of its Subsidiaries and either   (i) enforcement proceedings shall have been commenced by any creditor   upon such judgment or order or (ii) there shall be any period of 10   consecutive days during which a stay of enforcement of such judgment or   order, by reason of a pending appeal or otherwise, shall not be in effect; or
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (g)          (i) Any   Person or two or more Persons acting in concert shall have acquired   beneficial ownership (within the meaning of Rule 13d-3 of the Securities   and Exchange Commission under the Securities Exchange Act of 1934), directly   or indirectly, of Voting Stock of the Company (or other securities   convertible into such Voting Stock) representing 25% or more of the combined   voting power of all Voting Stock of the Company; or (ii) during any   period of up to 24 consecutive months, commencing before or after the date of   this Agreement, individuals who at the beginning of such 24-month period were   directors of the Company together with individuals who were either (x)   elected by a majority of the remaining members of the board of directors of   the Company or (y) nominated for election by a majority of the remaining
members of the board of directors of the Company, shall cease for any reason   to constitute a majority of the board of directors of the Company; or
  
	
   
  	
  
 
  
	
  
 
  	
  
          (i)          The   Company or any of its ERISA Affiliates shall incur, or shall be reasonably   likely to incur liability in excess of $50,000,000 in the aggregate as a   result of one or more of the following:    (i) the occurrence of any ERISA Event; (ii) the partial or   complete withdrawal of the Company or any of its ERISA Affiliates from a   Multiemployer Plan; or (iii) the reorganization or termination of a   Multiemployer Plan; or
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (j)          any   provision of any Collateral Document material to the substantial realization   of the rights of the Lenders under the Collateral Documents taken as a whole,   or any provision of any other Loan Document after delivery thereof pursuant   to Section 3.01 or 5.01(i) or (j) shall for any reason cease to be valid   and binding on or enforceable against any Loan Party party to it, or any such   Loan Party shall so state in writing; or
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (k)          any   Collateral Document or financing statement after delivery thereof pursuant to   Section 3.01 or 5.01(i) or (j) shall for any reason (other than pursuant   to the terms thereof) cease to create a valid and perfected first priority   lien on and security interest in the Collateral (other than the Specified   Collateral as set forth in Section 6(m) of the Security Agreement and Section   6(m) of the Canadian Security Agreement) purported to be covered thereby; 
  



then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Company, declare the obligation of each Lender to make Advances (other than Advances to be made by an Issuing Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing Banks to issue Letters of Credit to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the Company, declare the Advances, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Advances, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by each Borrower; provided, however, that in the event of an actual or deemed entry of an
order for relief with respect to any Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances (other than Advances to be made by an Issuing Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing Banks to issue Letters of Credit shall automatically be terminated and (B) the Advances, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by each Borrower.


52









                    SECTION 6.02.  Actions in Respect of the Letters of Credit upon Default.  If any Event of Default shall have occurred and be continuing, the Agent may with the consent, or shall at the request, of the Required Lenders, irrespective of whether it is taking any of the actions described in Section 6.01, make demand upon the Company to, and forthwith upon such demand the Company will, (a) pay to the Agent on behalf of the Lenders in same day funds at the Agent’s office designated in such demand, for deposit in the L/C Cash Deposit Account, an amount equal to the aggregate Available Amount of all Letters of Credit then outstanding or (b) make such other arrangements in respect of the outstanding Letters of Credit as shall be acceptable to the Required Lenders and not more disadvantageous to the Company than clause (a);
provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Company under the Federal Bankruptcy Code, an amount equal to the aggregate Available Amount of all outstanding Letters of Credit shall be immediately due and payable to the Agent for the account of the Lenders without notice to or demand upon the Company, which are expressly waived by the Company, to be held in the L/C Cash Deposit Account.  If at any time an Event of Default is continuing the Agent determines that any funds held in the L/C Cash Deposit Account are subject to any right or claim of any Person other than the Agent and the Lenders or that the total amount of such funds is less than the aggregate Available Amount of all Letters of Credit, then the Company will, forthwith upon demand by the Agent, pay to the Agent, as additional funds to be deposited and held in the L/C Cash Deposit Account, an amount equal to the excess of (i) such aggregate Available Amount
over (ii) the total amount of funds, if any, then held in the L/C Cash Deposit Account that the Agent determines to be free and clear of any such right and claim.  Upon the drawing of any Letter of Credit, to the extent funds are on deposit in the L/C Cash Deposit Account, such funds shall be applied to reimburse the Issuing Banks to the extent permitted by applicable law.  After all such Letters of Credit shall have expired or been fully drawn upon, if at such time (x) no Event of Default is continuing or (y) all other obligations of the Company hereunder and under the Notes shall have been paid in full, the balance, if any, in such L/C Cash Deposit Account shall be returned to the Company.


ARTICLE VII


GUARANTY


                    SECTION 7.01.  Guaranty; Limitation of Liability.  (a)  (i) Each of the Company and each US Subsidiary Guarantor, jointly and severally, hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all obligations of each other Loan Party and each other Subsidiary of the Company now or hereafter existing under or in respect of the Loan Documents or any other Secured Agreement (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or
otherwise (such obligations being the “Comprehensive Guaranteed Obligations”), and agrees to pay any and all expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by the Agent or any other Lender in enforcing any rights under this Guaranty or any other Loan Document.  Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the Comprehensive Guaranteed Obligations and would be owed by any other Loan Party or Subsidiary of the Company, as applicable, to the Agent or any Lender under or in respect of the Loan Documents or any Secured Agreement but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Loan Party or Subsidiary, as the case may be.


                    (ii) Each of the Company and each Canadian Subsidiary Guarantor, jointly and severally, hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all obligations of each Canadian Loan Party now or hereafter existing under or in respect of the Loan Documents or any other Secured Agreement (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing obligations), whether direct or indirect, absolute or contingent, and whether for principal,


53









interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such obligations being the “Canadian Guaranteed Obligations”), and agrees to pay any and all expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by the Agent or any other Lender in enforcing any rights under this Guaranty or any other Loan Document against such Guarantor.  Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the Canadian Guaranteed Obligations and would be owed by any other Loan Party to the Agent or any Lender under or in respect of the Loan Documents by a Canadian Loan Party but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Loan Party.

	
  
 
  	
  
          (b)          Each   Guarantor, and by its acceptance of this Guaranty, the Agent and each other   Lender, hereby confirms that it is the intention of all such Persons that   this Guaranty and the obligations of each US Subsidiary Guarantor and each   Canadian Subsidiary Guarantor hereunder not constitute a fraudulent transfer   or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent   Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign,   federal or state law to the extent applicable to this Guaranty and the   obligations of such Guarantor hereunder.    To effectuate the foregoing intention, the Agent, the Lenders and the   Guarantors hereby irrevocably agree that the obligations of such Guarantor   under this Guaranty at any time shall be limited to the maximum amount as   will result in the obligations of such
Guarantor under this Guaranty not   constituting a fraudulent transfer or conveyance.
  
	
   
  	
  
 
  
	
  
 
  	
  
          (c)          (i)   Each US Subsidiary Guarantor hereby unconditionally and irrevocably agrees   that in the event any payment shall be required to be made to the Agent or   any Lender under this Guaranty or any guaranty supplement of the   Comprehensive Guaranteed Obligations, such US Subsidiary Guarantor will   contribute, to the maximum extent permitted by law, such amounts to each   other US Subsidiary Guarantor and each other guarantor so as to maximize the   aggregate amount paid to the Agent and the Lenders under or in respect of the   Loan Documents.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (ii)   Each Canadian Subsidiary Guarantor hereby unconditionally and irrevocably   agrees that in the event any payment shall be required to be made to the   Agent or any Lender under this Guaranty or any guaranty supplement of the   Canadian Guaranteed Obligations, such Canadian Subsidiary Guarantor will   contribute, to the maximum extent permitted by law, such amounts to each   other Canadian Subsidiary Guarantor and each other guarantor so as to   maximize the aggregate amount paid to the Agent and the Lenders under or in   respect of the Loan Documents.
  




                    SECTION 7.02.  Guaranty Absolute.  Each Guarantor guarantees that the applicable Guaranteed Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Agent or any Lender with respect thereto.  The obligations of each Guarantor under or in respect of this Guaranty are independent of the applicable Guaranteed Obligations or any other obligations of any other Loan Party under or in respect of the Loan Documents, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce this Guaranty, irrespective of whether any action is brought against any Borrower or any other Loan Party or whether any Borrower or any other Loan Party is
joined in any such action or actions.  The liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:


	
  
 
  	
  
          (a)          any   lack of validity or enforceability of any Loan Document or any agreement or   instrument relating thereto;
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (b)          any   change in the time, manner or place of payment of, or in any other term of,   all or any of the applicable Guaranteed Obligations or any other obligations of any other Loan Party under or in   respect of the Loan Documents, or any other amendment or waiver of or   any consent to departure from any Loan Document, including, without limitation,   any increase in the applicable Guaranteed Obligations resulting from the   extension of additional credit to any Loan Party or any of its Subsidiaries   or otherwise;
  




54








	
  
 
  	
  
          (c)          any   taking, exchange, release or non-perfection of any Collateral or any other   collateral, or any taking, release or amendment or waiver of, or consent to   departure from, any other guaranty, for all or any of the applicable   Guaranteed Obligations;
  
	
   
  	
  
 
  
	
  
 
  	
  
          (d)          any   manner of application of Collateral or any other collateral, or proceeds   thereof, to all or any of the applicable Guaranteed Obligations or any manner   of sale or other disposition of any Collateral or any other collateral for all or any of the applicable   Guaranteed Obligations or any other obligations of any Loan Party under the   Loan Documents or any other assets of any Loan Party or any of its   Subsidiaries;
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (e)          any   change, restructuring or termination of the corporate structure or existence   of any Loan Party or any of its Subsidiaries;
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (f)          any   failure of the Agent or any Lender to disclose to any Loan Party any   information relating to the business, condition (financial or otherwise),   operations, performance, properties or prospects of any other Loan Party now   or hereafter known to the Agent or such Lender (each Guarantor waiving any   duty on the part of the Agent and the Lenders to disclose such information);
  
	
   
  	
  
 
  
	
  
 
  	
  
          (g)          the   failure of any other Person to   execute or deliver this Agreement, any Guaranty Supplement or any other   guaranty or agreement or the release or reduction of liability of any   Guarantor or other guarantor or surety with respect to the applicable   Guaranteed Obligations; or
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (h)          any   other circumstance (including, without limitation, any statute of   limitations) or any existence of or reliance on any representation by the   Agent or any Lender that might otherwise constitute a defense available to,   or a discharge of, any Loan Party or any other guarantor or surety.
  




This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the applicable Guaranteed Obligations is rescinded or must otherwise be returned by the Agent or any Lender or any other Person upon the insolvency, bankruptcy or reorganization of the applicable Borrower or any other Loan Party or otherwise, all as though such payment had not been made.


                    SECTION 7.03.  Waivers and Acknowledgments.  (a)  Each Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the applicable Guaranteed Obligations and this Guaranty and any requirement that the Agent or any Lender protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any Loan Party or any other Person or any Collateral.


	
  
 
  	
  
          (b)          Each   Guarantor hereby unconditionally and irrevocably waives any right to revoke   this Guaranty and acknowledges that this Guaranty is continuing in nature and   applies to all applicable Guaranteed Obligations whether existing now or in   the future.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (c)          Each   Guarantor hereby unconditionally and irrevocably waives (i) any defense   arising by reason of any claim or defense based upon an election of remedies   by the Agent or any Lender that in any manner impairs, reduces, releases or   otherwise adversely affects the subrogation, reimbursement, exoneration,   contribution or indemnification rights of such Guarantor or other rights of   such Guarantor to proceed against any of the other Loan Parties, any other   guarantor or any other Person or any Collateral and (ii) any defense   based on any right of set-off or counterclaim against or in respect of the   obligations of such Guarantor hereunder.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (d)          Each   Guarantor hereby unconditionally and irrevocably waives any duty on the part   of the Agent or any Lender to disclose to such Guarantor any matter, fact or   thing relating to the business, condition (financial or otherwise),   operations, performance, properties or prospects of any other Loan Party or   any of its Subsidiaries now or hereafter known by the Agent or such Lender.
  



55








	
  
 
  	
  
          (e)          Each   Guarantor acknowledges that it will receive substantial direct and indirect   benefits from the financing arrangements contemplated by the Loan Documents   and that the waivers set forth in Section 7.02 and this   Section 7.03 are knowingly made in contemplation of such benefits.
  




                    SECTION 7.04  Subrogation.  Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against any Borrower, any other Loan Party or any other insider guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under or in respect of this Guaranty or any other Loan Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Agent or any Lender against any Borrower, any other Loan Party or any other guarantor of some or all of the Guaranteed Obligations or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from any Borrower, any other Loan Party or any other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the applicable Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash, all Letters of Credit shall have expired or been terminated and the Commitments shall have expired or been terminated.  If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the latest of (a) the payment in full in cash of the applicable Guaranteed Obligations and all other amounts payable under this Guaranty, (b) the Termination Date and (c) the latest date of expiration or termination of all Letters of Credit, such amount shall be received and held in trust for the benefit of the Agent and the Lenders,
shall be segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered to the Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the applicable Guaranteed Obligations and all other amounts payable under this Guaranty by such Guarantor, whether matured or unmatured, in accordance with the terms of the Loan Documents, or to be held as Collateral for any applicable Guaranteed Obligations or other amounts payable under this Guaranty by such Guarantor thereafter arising.  If (i) any Guarantor shall make payment to the Agent or any Lender of all or any part of the applicable Guaranteed Obligations, (ii) all of the applicable Guaranteed Obligations and all other amounts payable under this Guaranty by such Guarantor shall have been paid in full in cash, (iii) the Termination Date shall have occurred and (iv) in the case of any US Guarantor, all Letters of Credit shall have expired or
been terminated, the Agent and the Lenders will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the applicable Guaranteed Obligations resulting from such payment made by such Guarantor pursuant to this Guaranty.


                    SECTION 7.05.  Guaranty Supplements.  (a)    Upon the execution and delivery by any Person of a guaranty supplement in substantially the form of Exhibit G hereto (each, a “Guaranty Supplement”), (a) such Person shall be referred to as an “Additional Guarantor” and shall become and be a Guarantor hereunder, and each reference in this Guaranty to a “Guarantor” shall also mean and be a reference to such Additional Guarantor, and each reference in any other Loan Document to a “US Subsidiary Guarantor” or a “Canadian Subsidiary Guarantor”, as applicable, shall also mean and be a reference to such Additional Guarantor, and (b) each reference herein to “this Guaranty,” “hereunder,” “hereof” or words of like
import referring to this Guaranty, and each reference in any other Loan Document to the “Guaranty,” “thereunder,” “thereof” or words of like import referring to this Guaranty, shall mean and be a reference to this Guaranty as supplemented by such Guaranty Supplement.


                    SECTION 7.06.  Subordination.  (a)  Each Guarantor hereby subordinates any and all debts, liabilities and other obligations owed to such Guarantor by each other Loan Party (the “Subordinated Obligations”) to the applicable Guaranteed Obligations to the extent and in the manner hereinafter set forth in this Section 7.06:

	
  
 
  	
  
          (a)          Prohibited   Payments, Etc.  Except during the   continuance of an Event of Default, each Guarantor may receive regularly   scheduled payments from any other Loan Party on account of the Subordinated   Obligations.  After the occurrence and   during the continuance of any Event of Default, however, unless the Required   Lenders otherwise agree, no Guarantor shall demand, accept or take any action   to collect any payment on account of the Subordinated Obligations.
  



56








	
  
 
  	
  
          (b)          Prior   Payment of Guaranteed Obligations.    In any proceeding under any Bankruptcy Law relating to any other Loan   Party, each Guarantor agrees that the Lenders shall be entitled to receive   payment in full in cash of all applicable Guaranteed Obligations (including   all interest and expenses accruing after the commencement of a proceeding   under any Bankruptcy Law, whether or not constituting an allowed claim in   such proceeding (“Post-Petition Interest”)) before such Guarantor   receives payment of any Subordinated Obligations.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          (c)          Turn-Over.  After the occurrence and during the   continuance of any Event of Default, each Guarantor shall, if the Agent (with   the consent or at the direction of the Required Lenders) so requests,   collect, enforce and receive payments on account of the Subordinated   Obligations as trustee for the Agent and the Lenders and deliver such   payments to the Agent on account of the applicable Guaranteed Obligations   (including all Post-Petition Interest), together with any necessary   endorsements or other instruments of transfer, but without reducing or   affecting in any manner the liability of such Guarantor under the other   provisions of this Guaranty.
  
	
   
  	
  
 
  
	
  
 
  	
  
          (d)          Administrative   Agent Authorization.  After the   occurrence and during the continuance of any Event of Default, the Agent is   authorized and empowered (but without any obligation to so do), in its   discretion, (i) in the name of each Guarantor, to collect and enforce, and to   submit claims in respect of, the Subordinated Obligations and to apply any   amounts received thereon to the applicable Guaranteed Obligations (including   any and all Post-Petition Interest), and (ii) to require each Guarantor (A)   to collect and enforce, and to submit claims in respect of, the Subordinated   Obligations and (B) to pay any amounts received on such obligations to the   Agent for application to the applicable Guaranteed Obligations (including any   and all Post-Petition Interest).
  




                    SECTION 7.07.  Continuing Guaranty; Assignments.  This Guaranty is a continuing guaranty and shall (a) except as provided in the next succeeding sentence, remain in full force and effect until the latest of (i) the payment in full in cash of the applicable Guaranteed Obligations and all other amounts payable under this Guaranty, (ii) the Termination Date and (iii) the latest date of expiration or termination of all Letters of Credit, (b) be binding upon each Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the Agent and the Lenders and their successors, permitted transferees and permitted assigns.  Upon the sale of a Guarantor or any or all of the assets of any Guarantor to the extent permitted in accordance with the terms of the Loan Documents or upon
such Guarantor otherwise ceasing to be a Subsidiary of the Company organized under the laws of a state of the United States of America without violation of the terms of this Agreement, such Guarantor (and its Subsidiaries) or such assets shall be automatically released from this Guaranty or any Guaranty Supplement, and all pledges and security interests of the equity of such Guarantor or any Subsidiary of such Guarantor and all other pledges and security interests in the assets of such Guarantor and any of its Subsidiaries shall be released as provided in Section  9.14.  Without limiting the generality of clause (c) above, the Agent or any Lender may assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of its Commitments, the Advances owing to it and any Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise, in each case as and to the extent provided in Section 9.07.  No Guarantor shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders.


ARTICLE VIII


THE AGENT


                    SECTION 8.01.  Authorization and Action.  (a)  Each Lender (in its capacities as a Lender and Issuing Bank, as applicable) hereby appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto.  As to any matters not expressly provided for by this Agreement (including, without limitation, enforcement or collection of obligations of the Loan Parties), the Agent shall not be required to exercise any discretion or take any action, but shall be required to act or


57









to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; provided, however, that the Agent shall not be required to take any action that exposes the Agent to personal liability or that is contrary to this Agreement or applicable law.  The Agent agrees to give to each Lender prompt notice of each notice given to it by any Borrower pursuant to the terms of this Agreement.


                    (b)          In furtherance of the foregoing, each Lender (in its capacities as a Lender and Issuing Bank, as applicable, and on behalf of itself and its Affiliates as potential Secured Parties) hereby appoints and authorizes the Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto, including, without limitation, the power to release any Guaranty as provided in Section 7.07 and the power to release any Collateral as provided in Section 9.14.  In this connection, the Agent (and any Supplemental Collateral Agents appointed by the Agent pursuant to Section 8.01(c)
for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights or remedies thereunder at the direction of the Agent) shall be entitled to the benefits of this Article VIII (including, without limitation, Section 8.05) as though the Agent (and any such Supplemental Collateral Agents) were an “Agent” under the Loan Documents, as if set forth in full herein with respect thereto.


                    (c)          The Agent may execute any of its duties under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents or of exercising any rights and remedies thereunder at the direction of the Agent) by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties.  The Agent may also from time to time, when the Agent deems it to be necessary or desirable, appoint one or more trustees, co-trustees, collateral co-agents, collateral subagents or attorneys-in-fact (each, a “Supplemental Collateral Agent”) with respect to all or any part of the
Collateral; provided, however, that no such Supplemental Collateral Agent shall be authorized to take any action with respect to any Collateral unless and except to the extent expressly authorized in writing by the Agent.  If any instrument in writing from the Company or any other Loan Party is required by any Supplemental Collateral Agent so appointed by the Agent to more fully or certainly vest in and confirm to such Supplemental Collateral Agent such rights, powers, privileges and duties, the Company shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all such instruments promptly upon request by the Agent.  If any Supplemental Collateral Agent, or successor thereto, shall die, become incapable of acting, resign or be removed, all rights, powers, privileges and duties of such Supplemental Collateral Agent, to the extent permitted by law, shall automatically vest in and be exercised by the Agent until the appointment of a new Supplemental
Collateral Agent.  The Agent shall not be responsible for the negligence or misconduct of any agent, attorney-in-fact or Supplemental Collateral Agent that it selects in accordance with the foregoing provisions of this Section 8.01(c) in the absence of the Agent’s gross negligence or willful misconduct.


                    SECTION 8.02.  Agent’s Reliance.  Neither the Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct.  Without limitation of the generality of the foregoing, the Agent:  (i) may treat the Lender that made any Advance as the holder of the Debt resulting therefrom until the Agent receives and accepts an Assignment and Acceptance entered into by such Lender, as assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07; (ii) may consult with legal counsel (including counsel for any Loan Party), independent public accountants and other experts selected by it and shall not be liable for any action
taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with the Loan Documents; (iv) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of any Loan Document on the part of any Loan Party or the existence at any time of any Default or to inspect the property (including the books and records) of any Loan Party; (v) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other instrument or document furnished
pursuant hereto; and (vi) shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopier or other electronic transmission) believed by it to be genuine and signed or sent by the proper party or parties.


58









                    SECTION 8.03.  CUSA and Affiliates.  With respect to its Commitments, the Advances made by it and the Note issued to it, CUSA shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though it were not the Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include CUSA in its individual capacity.  CUSA and its Affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with, the Company, any of its Subsidiaries and any Person who may do business with or own securities of the Company or any such Subsidiary, all as if CUSA were not the Agent and without any duty to account therefor to the Lenders.  The
Agent shall have no duty to disclose any information obtained or received by it or any of its Affiliates relating to the Company or any of its Subsidiaries to the extent such information was obtained or received in any capacity other than as Agent.


                    SECTION 8.04.  Lender Credit Decision.  Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.


                    SECTION 8.05.  Indemnification.  (a)  Each Lender severally agrees to indemnify the Agent (to the extent not promptly reimbursed by the Company) from and against such Lender’s ratable share (based upon the aggregate of the Advances and unused Commitments (other than Letter of Credit Commitments) of the Lenders) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Agent under this Agreement (collectively, the “Indemnified Costs”), provided that no Lender shall be liable for any portion of the Indemnified Costs resulting from the
Agent’s gross negligence or willful misconduct.  Without limitation of the foregoing, each Lender agrees to reimburse the Agent promptly upon demand for its ratable share of any reasonable out-of-pocket expenses (including reasonable counsel fees) incurred by the Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Agent is not promptly reimbursed for such expenses by the Company.  In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 8.05 applies whether any such investigation, litigation or proceeding is brought by the Agent, any Lender or a third party.


                    (b)          Each Revolving Credit Lender severally agrees to indemnify the Issuing Banks (to the extent not promptly reimbursed by the Company) from and against such Revolving Credit Lender’s Ratable Share of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against any such Issuing Bank in any way relating to or arising out of the L/C Related Documents or any action taken or omitted by such Issuing Bank hereunder or in connection herewith; provided, however, that no Revolving Credit Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Issuing Bank’s gross negligence or willful misconduct.  Without limitation of the foregoing, each Revolving Credit Lender agrees to reimburse any such Issuing Bank promptly upon demand for its Ratable Share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Company under Section 9.04, to the extent that such Issuing Bank is not promptly reimbursed for such costs and expenses by the Company.


59









                    (c)          The failure of any Lender to reimburse the Agent or any Issuing Bank promptly upon demand for its ratable share of any amount required to be paid by the Lenders to the Agent as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse the Agent or any Issuing Bank for its ratable share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse the Agent or any Issuing Bank for such other Lender’s ratable share of such amount.  Without prejudice to the survival of any other agreement of any Lender hereunder, the agreement and obligations of each Lender contained in this Section 8.05 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the
Notes.  Each of the Agent and each Issuing Bank agrees to return to the Lenders their respective ratable shares of any amounts paid under this Section 8.05 that are subsequently reimbursed by the Company.


                    SECTION 8.06.  Successor Agent.  The Agent may resign at any time by giving written notice thereof to the Lenders and the Company and may be removed at any time with or without cause by the Required Lenders.  Upon any such resignation or removal, the Required Lenders shall have the right to appoint a successor Agent.  If no successor Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Agent’s giving of notice of resignation or the Required Lenders’ removal of the retiring Agent, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least
$500,000,000.  Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under this Agreement.  After any retiring Agent’s resignation or removal hereunder as Agent, the provisions of this Article VIII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.


                    SECTION 8.07.  Other Agents.  Each Lender hereby acknowledges that neither the documentation agent nor any other Lender designated as any “Agent” on the signature pages hereof has any liability hereunder other than in its capacity as a Lender.


ARTICLE IX


MISCELLANEOUS


                    SECTION 9.01.  Amendments, Waivers.  No amendment or waiver of any provision of this Agreement or the Notes, nor consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that (a) no amendment, waiver or consent shall, unless in writing and signed by all the Lenders, do any of the following:  (i) waive any of the conditions specified in Section 3.01, (ii) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Advances, or the number of Lenders, that shall be required for the Lenders or any of them to take any action hereunder,
(iii) release all or substantially all of the Collateral in any transaction or series of related transactions, (iv) release one or more Guarantors (or otherwise limit such Guarantors’ liability with respect to the obligations owing to the Agents and the Lenders under the Guaranties) if such release or limitation is in respect of all or substantially all of the value of the Guaranties, taken as a whole, to the Lenders, or (iv) amend this Section 9.01 and (b) no amendment, waiver or consent shall, unless in writing and signed by each Lender affected thereby, do any of the following:  (i) increase the Commitment of such Lender, (ii) reduce or forgive the principal of, or interest on, the Advances or any fees or other amounts payable hereunder, (iii) postpone any date fixed for any payment of principal (including the Term B Maturity Date) of, or interest on, the Advances or any fees or other amounts payable hereunder or (iv) change the order of application of any reduction in the
Commitments or any prepayment of Advances among the Facilities from the application thereof set forth in the applicable provisions of Section 2.06(b) or 2.10(b), Section 19(b) of the Security Agreement or Section 19(4) of the Canadian Security Agreement, respectively; and provided further that (x) no amendment, waiver or consent shall, unless in writing and signed by the Agent in addition to the Lenders required above to take such action, affect the rights or duties of the Agent under this Agreement or any Note and (y) no amendment, waiver or consent shall, unless in writing and signed by the Issuing Banks in addition to the Lenders required above to take such action, adversely affect the rights or obligations of the Issuing Banks in their capacities as such under this Agreement, provided, however, notwithstanding clauses (ii) and (iv) of clause (a) above, no consent or waiver or other approval of any Lender shall be required for any release of a Guaranty or Guaranty
Supplement as provided in Section 7.07 or any release of Collateral as provided in Section 9.14 or in any Collateral Document.


60









                    SECTION 9.02.  Notices, Etc.  (a)  All notices and other communications provided for hereunder shall be either (x) in writing (including telecopier communication) and mailed, telecopied or delivered or (y) as and to the extent set forth in Section 9.02(b) and in the proviso to this Section 9.02(a), if to any Loan Party, at the address of the Company at 343 State Street, Rochester New York 14650, Attention:  Treasurer with a copy to the same address, Attention:  General Counsel; if to any Initial Lender or Initial Issuing Bank, at its Domestic Lending Office specified opposite its name on Schedule I hereto; if to any other Lender, at its Domestic Lending Office specified in the Assumption Agreement or the Assignment and Acceptance pursuant to which it became a Lender; and if to the Agent, at its address at Two
Penns Way, New Castle, Delaware 19720, Attention: Bank Loan Syndications Department; or, as to the Company or the Agent, at such other address as shall be designated by such party in a written notice to the other parties and, as to each other party, at such other address as shall be designated by such party in a written notice to the Company and the Agent, provided that materials required to be delivered pursuant to Section 5.01(h)(i), (ii) or (iv) shall be delivered to the Agent as specified in Section 9.02(b) or as otherwise specified to the Company by the Agent.  All such notices and communications shall, when mailed, telecopied or e-mailed, be effective when deposited in the mails, telecopied, delivered to the delivery service or confirmed by e-mail, respectively, except that notices and communications to the Agent pursuant to Article II, III or VIII shall not be effective until received by the Agent.  Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto to be executed and delivered hereunder shall be effective as delivery of a manually executed counterpart thereof.


                    (b)          So long as CUSA or any of its Affiliates is the Agent, materials required to be delivered pursuant to Section 5.01(h)(i), (ii) and (iv) shall be delivered to the Agent in an electronic medium in a format acceptable to the Agent and the Lenders by e-mail at oploanswebadmin@citigroup.com or at such other address as the Agent may give notice to the Borrowers.  The Company and the Lenders agree that the Agent may make such materials, as well as any other written information, documents, instruments and other material relating to the Company, any of its Subsidiaries or any other materials or matters provided by, or authorized to be provided by a party to this Agreement relating to this Agreement, the Notes or any of the transactions contemplated hereby (collectively, the
“Communications”) available to the Lenders by posting such notices on Intralinks or a substantially similar electronic system (the “Platform”).  The Communications shall be subject to the provisions of Section 9.08.  The Company acknowledges that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither the Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the Communications or the Platform and each expressly disclaims liability for errors or omissions in the Communications or the Platform.  No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other
code defects, is made by the Agent or any of its Affiliates in connection with the Platform.


                    (c)          Each Lender agrees that notice to it (as provided in the next sentence) (a “Notice”) specifying that any Communications have been posted to the Platform shall constitute effective delivery of such information, documents or other materials to such Lender for purposes of this Agreement; provided that if requested by any Lender the Agent shall deliver a copy of the Communications to such Lender by email or telecopier.  Each Lender agrees (i) to notify the Agent in writing of such Lender’s e-mail address to which a Notice may be sent by electronic transmission (including by electronic communication) on or before the date such Lender becomes a party to this Agreement (and from time to time thereafter to ensure that the Agent has on record an effective
e-mail address for such Lender) and (ii) that any Notice may be sent to such e-mail address.


                    SECTION 9.03.  No Waiver; Remedies.  No failure on the part of any Lender or the Agent to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.


61









                    SECTION 9.04.  Costs and Expenses.  (a)  The Company agrees to pay on demand all reasonable costs and expenses of the Agent in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement, the Notes and the other documents to be delivered hereunder, including, without limitation, (A) all due diligence, syndication (including printing, distribution and bank meetings), transportation, computer, duplication, appraisal, consultant, and audit expenses and (B) the reasonable fees and expenses of counsel for the Agent with respect thereto, provided, however, Borrower shall not be required to pay fees or expenses of more than one counsel in any jurisdiction where the Collateral is located, with respect to advising such Agent as to its rights and
responsibilities, or the perfection, protection or preservation of rights or interests, under the Loan Documents, with respect to negotiations with any Loan Party or with other creditors of any Loan Party or any of its Subsidiaries arising out of any Default or any events or circumstances that may give rise to a Default and with respect to presenting claims in or otherwise participating in or monitoring any bankruptcy, insolvency or other similar proceeding involving creditors’ rights generally and any proceeding ancillary thereto.  The Company further agrees to pay on demand all costs and expenses of the Agent and each Lender, if any (including, without limitation, reasonable counsel fees and expenses), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of the Loan Documents, whether in any action, suit or litigation, or any bankruptcy, insolvency or other similar proceeding affecting creditors’ rights generally, including, without
limitation, reasonable fees and expenses of counsel for the Agent and each Lender in connection with the enforcement of rights under this Section 9.04(a).


                    (b)          The Company agrees to indemnify and hold harmless the Agent and each Lender and each of their Affiliates and their officers, directors, employees, trustees, agents and advisors (each, an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (i) the Notes, this Agreement, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the
Advances or Letters of Credit or (ii) the actual or alleged presence of Hazardous Materials on any property of the Company or any of its Subsidiaries or any Environmental Action relating in any way to the Company or any of its Subsidiaries, except to the extent such claim, damage, loss, liability or expense resulted from such Indemnified Party’s gross negligence or willful misconduct.  In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 9.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, equityholders or creditors or an Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated.  The Company and each Indemnified Party agrees not to assert any claim for special, indirect, consequential or punitive damages against
the Company, the Agent, any Lender, any of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, arising out of or otherwise relating to the Notes, this Agreement, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances.


                    (c)          If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made by any Borrower to or for the account of a Lender other than on the last day of the Interest Period for such Advance, as a result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10 or 2.12, acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason, or by an Eligible Assignee to a Lender other than on the last day of the Interest Period for such Advance upon an assignment of rights and obligations under this Agreement pursuant to Section 9.07 as a result of a demand by the Company pursuant to Section 9.07(a), the applicable Borrower shall, upon demand by such Lender (with a copy of such demand to the Agent), pay to the Agent for the account
of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.


                    (d)          Without prejudice to the survival of any other agreement of any Loan Party hereunder or under any other Loan Document, the agreements and obligations of the Borrowers contained in Sections 2.11, 2.14 and 9.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the Notes.


62









                    SECTION 9.05.  Right of Set-off.  Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making of the request or the granting of the consent specified by Section 6.01 to authorize the Agent to declare the Advances due and payable pursuant to the provisions of Section 6.01, 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 indebtedness at any time owing by such Lender or such Affiliate to or for the credit or the account of any Borrower against any and all of the obligations of such Borrower now or hereafter existing under this Agreement and any Note held by such
Lender, whether or not such Lender shall have made any demand under this Agreement or such Note and although such obligations may be unmatured, provided, however, that no such right shall exist against any deposit designated as being for the benefit of any governmental authority.  Each Lender agrees promptly to notify the applicable Borrower after any such set-off and application, provided that the failure to give such notice shall not affect the validity of such set-off and application.  The rights of each Lender and its Affiliates under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) that such Lender and its Affiliates may have.


                    SECTION 9.06.  Binding Effect.  This Agreement shall become effective (other than Section 2.01, which shall only become effective upon satisfaction of the conditions precedent set forth in Section 3.01) when it shall have been executed by each Borrower and the Agent and when the Agent shall have been notified by each Initial Lender that such Initial Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Borrowers, the Agent and each Lender and their respective successors and assigns, except that no Borrower shall have the right to assign its rights hereunder or any interest herein without the prior written consent of all of the Lenders.


                    SECTION 9.07.  Assignments and Participations.  (a)  Each Lender may with the consent of each Issuing Bank (which consent shall not be unreasonably withheld or delayed and will not be required for any assignment of a Term Loan or Term Commitment) and, if demanded by the Company (so long as no Default shall have occurred and be continuing and only with respect to any Affected Lender (as defined below)) upon at least five Business Days’ notice to such Lender and the Agent, will assign to one or more Persons all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment or Commitments, the Advances owing to it, its participations in Letters of Credit, if any, and the Note or Notes held by it); provided, however, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement with respect to one or more Facilities, (ii) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of (x) the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, (y) the Unissued Letter of Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (z) the Term B-1
Advances, Term B-2 Advances, Term B-1 Commitment or Term B-2 Commitment, and the Additional Term Advances or Additional Term Commitment, of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $1,000,000 or an integral multiple of $1,000,000 in excess thereof, in each case, unless the Company and the Agent otherwise agree (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Company pursuant to this Section 9.07(a) shall be arranged by the Company after consultation with the Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by the Company pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either the Borrowers or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, and (vi) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any


63









Note subject to such assignment and a processing and recordation fee of $3,500 payable by the parties to each such assignment; provided, however, that (x) only one such fee shall be payable in connection with simultaneous assignments to or by two or more Approved Funds with respect to a Lender and (y) in the case of each assignment made as a result of a demand by the Company, such recordation fee shall be payable by the Company except that no such recordation fee shall be payable in the case of an assignment made at the request of the Company to an Eligible Assignee that is an existing Lender.  Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a
Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.11, 2.14 and 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations (other than its obligations under Section 9.05 to the extent any claim thereunder relates to an event arising prior to such assignment) under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).  “Affected Lender” means any Lender that (x) has made a demand under Sections 2.11, 2.12 or 2.14, (y) has defaulted in its obligation to made Advances under Section 2.01 or (z) has not agreed to any consent, waiver or amendment that
requires the agreement of all Lenders or all affected Lenders in accordance with the terms of Section 9.01 and as to which the Required Lenders have agreed, provided that in the case of any assignment by an Affected Lender described in this clause (z), all similarly situated non-consenting Lenders are simultaneously required to assign their interests hereunder and each assignee of such Affected Lender shall agree to the subject consent, waiver or amendment.


                    (b)          By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows:  (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender.


                    (c)          Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Credit Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Company. 


                    (d)          The Agent shall maintain at its address referred to in Section 9.02 a copy of copy of each Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the “Register”).  The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement.  The Register shall be available for inspection by any Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.


64









                    (e)          Each Lender may sell participations to one or more banks or other entities (other than the Company or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and any Note or Notes held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Agent 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 and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, provided, however, that any agreement between a Lender and such participant may provide that the Lender will not, without the consent of participant, agree to any such amendment, waiver or consent would reduce the principal of, or interest on, the Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or other amounts payable hereunder, in each case to the extent subject to such participation.


                    (f)          Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Borrower Information relating to the Borrowers received by it from such Lender.


                    (g)          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; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledge or assignee for such Lender as a party hereto.


                    SECTION 9.08.  Confidentiality.  Neither the Agent nor any Lender may disclose to any Person any confidential, proprietary or non-public information of any Loan Party furnished to the Agent or the Lenders by any Loan Party, including, without limitation (1) earnings and other financial information and forecasts, budgets, projections, plans, (including, without limitation, any confirmations of publicly disclosed advice regarding any material matter); (2) mergers, acquisitions, tender offers, joint ventures or changes in assets; (3) new products or discoveries or developments regarding the Company’s customers or suppliers; (4) changes in control or in management; (5) changes in auditors or auditor notifications to the Company; (6) securities redemptions, splits, repurchase plans, changes in
dividends, changes in rights of holders or sales of additional securities; and (7) negative news relating to such matters as physical damage to properties from significant events, loss of significant contractual relationship, material litigation, defaults under contracts or securities, bankruptcy or receivership (such information being referred to collectively herein as the “Borrower Information”), except that each of the Agent and each of the Lenders may disclose Borrower Information (i) to its and its Affiliates’ employees, trustees, officers, directors, agents and advisors solely for purposes of this Agreement, any Notes and the transactions contemplated hereby (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Borrower Information and instructed to keep such Borrower Information confidential on terms substantially no less restrictive than those provided herein), (ii) to the extent requested
by any regulatory authority, provided, to the extent permitted by law and practicable under the circumstances, the Agent or such


65









Lender shall provide the Company with prompt notice of such requested disclosure so that the Company may seek a protective order prior to the time when the Agent or such Lender is required to make such disclosure, (iii) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, provided, to the extent permitted by law and practicable under the circumstances, the Agent or such Lender shall provide the Company with prompt notice of such requested disclosure so that the Company may seek a protective order prior to the time when the Agent or such Lender is required to make such disclosure, (iv) subject to this Section 9.08, to any other Lender party to this Agreement which has requested such information, (v) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (vi) subject to an agreement
containing provisions substantially the same as those of this Section 9.08, to any assignee or participant or prospective assignee or participant or any pledge referred to in Section 9.07(g), (vii) to the extent such Borrower Information (A) is or becomes generally available to the public on a non-confidential basis other than as a result of a breach of this Section 9.08 by the Agent or such Lender, or (B) is or becomes legally available to the Agent or such Lender on a nonconfidential basis from a source other than a Loan Party, provided that the source of such information was not known by the Agent or such Lender to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligations of confidentiality to a Loan Party or any other party with respect to such information and (viii) with the consent of the Company.


                    SECTION 9.09.  Governing Law.  This Agreement and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York.


                    SECTION 9.10.  Execution in Counterparts.  This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of a signature page to this Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.


                    SECTION 9.11.  Jurisdiction.  (a)  Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the Notes, 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 any such New York State court or, to the extent permitted by law, in such federal court.  Each Borrower hereby further irrevocably consents to the service of process in any action or
proceeding in such courts by the mailing thereof by any parties hereto by registered or certified mail, postage prepaid, to the Company at its address specified pursuant to Section 9.02.  Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in this Agreement shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement or the Notes in the courts of any jurisdiction. 


                    (b)          Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that 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 the Notes in any New York State or federal court.  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.


                    SECTION 9.12.  No Liability of the Issuing Banks.  The Company assumes all risks of the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to its use of such Letter of Credit.  Neither an Issuing Bank nor any of its officers or directors shall be liable or responsible for:  (a) the use that may be made of any Letter of Credit or any acts or omissions of any beneficiary or transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank against presentation of documents that do not comply with the terms of a Letter of Credit, including failure of any documents to bear any reference or
adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under any Letter of Credit, except that the Company shall have a claim against such Issuing Bank, and such Issuing Bank shall be liable to the Company, to the extent of any direct, but not consequential, damages suffered by the Company that the Company proves were caused by such Issuing Bank’s willful misconduct or gross negligence.  In furtherance and not in limitation of the foregoing, such Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary; provided that nothing herein shall be deemed to excuse such Issuing Bank if it acts with gross negligence or willful misconduct in accepting such documents.


66









                    SECTION 9.13.  PATRIOT Act Notice.  Each Lender and the Agent (for itself and not on behalf of any Lender) hereby notifies each Borrower that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies such Borrower, which information includes the name and address of such Borrower and other information that will allow such Lender or the Agent, as applicable, to identify such Borrower in accordance with the PATRIOT Act.  Each Borrower shall provide, to the extent commercially reasonable, such information and take such actions as are reasonably requested by the Agent or any Lenders in order to assist the Agent and the Lenders in maintaining compliance with the PATRIOT Act.


                    SECTION 9.14.  Release of Collateral.  Upon the sale, lease, transfer or other disposition of any item of Collateral of any Loan Party in accordance with the terms of the Loan Documents, including, without limitation, as a result of the sale, in accordance with the terms of the Loan Documents, of the Loan Party that owns such Collateral, upon a Subsidiary ceasing to be a Material Subsidiary, and at any time a Loan Party’s guarantee of the obligations under the Loan Documents ceases as provided in Section 7.07, the security interests granted by the Loan Documents with respect to such items of Collateral and/or Loan Party shall immediately terminate and automatically be released, and Agent will, at the Company’s expense, execute and deliver to such Loan Party such documents as such Loan Party may reasonably request to
evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents.


                    SECTION 9.15.  Judgment.  (a)  If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder in US dollars into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Agent could purchase US dollars with such other currency at Citibank’s principal office in London at 11:00 A.M. (London time) on the Business Day preceding that on which final judgment is given.


                    (b)          The obligation of each Borrower in respect of any sum due from it in any currency (the “Primary Currency”) to any Lender or the Agent hereunder shall, notwithstanding any judgment in any other currency, be discharged only to the extent that on the Business Day following receipt by such Lender or the Agent (as the case may be), of any sum adjudged to be so due in such other currency, such Lender or the Agent (as the case may be) may in accordance with normal banking procedures purchase the applicable Primary Currency with such other currency; if the amount of the applicable Primary Currency so purchased is less than such sum due to such Lender or the Agent (as the case may be) in the applicable Primary Currency, each Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the Agent (as the case may be) against such loss, and if the amount of the applicable Primary Currency so purchased exceeds such sum due to any Lender or the Agent (as the case may be) in the applicable Primary Currency, such Lender or the Agent (as the case may be) agrees to remit to such Borrower such excess.

                    SECTION 9.16.  Waiver of Jury Trial.  Each of the Borrowers, the Agent and the Lenders hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the Notes or the actions of the Agent or any Lender in the negotiation, administration, performance or enforcement thereof.




67











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

	
  
 
  	
  
EASTMAN   KODAK COMPANY
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ William   G. Love
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Treasurer
  
	
   
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
KODAK   AVIATION LEASING LLC
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ William   G. Love
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Treasurer
  
	
   
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
EASTMAN   KODAK COMPANY
  
	
  
 
  	
  
ALGOTEC INC.
  
	
  
 
  	
  
BREMSON INC.
  
	
  
 
  	
  
CADI   ACQUISITION CORP.
  
	
  
 
  	
  
CINESITE,   INC.
  
	
  
 
  	
  
CREO   AMERICAS CREDIT, LLC
  
	
  
 
  	
  
CREO AMERICAS,   INC.
  
	
  
 
  	
  
CREO LATIN   AMERICA, INC.
  
	
   
  	
  
CREO   MANUFACTURING AMERICA LLC
  
	
  
 
  	
  
CREO   SEATTLE, INC.
  
	
  
 
  	
  
CUSTOMERFIRST   SERVICE & SUPPORT, INC.
  
	
  
 
  	
  
EASTMAN   GELATINE CORPORATION
  
	
  
 
  	
  
EASTMAN   KODAK INTERNATIONAL CAPITAL COMPANY, INC.
  
	
  
 
  	
  
EK FUNDING,   LLC
  
	
  
 
  	
  
ENCAD, INC.
  
	
   
 	
  
EVENT   IMAGING SOLUTIONS, INC.
  
	
  
 
  	
  
FAR EAST   DEVELOPMENT, LTD.
  
	
  
 
  	
  
FPC, INC.
  
	
   
  	
  
KGI   HOLDINGS, INC.
  
	
  
 
  	
  
KODAK (NEAR   EAST), INC.
  
	
  
 
  	
  
KODAK   AMERICAS, LTD.
  
	
  
 
  	
  
KODAK GLOBAL   IMAGING, INC.
  
	
  
 
  	
  
KODAK   GRAPHICS HOLDINGS, INC.
  
	
  
 
  	
  
KODAK   IMAGING NETWORK, INC.
  
	
  
 
  	
  
KODAK   INTERNATIONAL MANAGEMENT CORP.
  




68








	
  
 
  	
  
KODAK NOVA   SCOTIA HOLDING COMPANY, INC.
  
	
   
  	
  
KODAK   REALTY, INC.
  
	
  
 
  	
  
KODAK   VERSAMARK, INC.
  
	
  
 
  	
  
KPG HOLDING   COMPANY, INC.
  
	
  
 
  	
  
LASER EDIT,   INC.
  
	
  
 
  	
  
LASER-PACIFIC   MEDIA CORPORATION
  
	
  
 
  	
  
LUMISYS   HOLDING CO.
  
	
  
 
  	
  
NEXPRESS   SOLUTIONS, INC.
  
	
  
 
  	
  
OREX COMPUTED   RADIOGRAPHY U.S., INC.
  
	
  
 
  	
  
PACIFIC   VIDEO, INC.
  
	
  
 
  	
  
PAKON, INC.
  
	
   
  	
  
PRACTICEWORKS,   INC.
  
	
  
 
  	
  
PRACTICEWORKS   SYSTEMS, LLC
  
	
  
 
  	
  
QUALEX INC.
  
	
  
 
  	
  
QUALEX   CARIBE CORP.
  
	
  
 
  	
  
QUALEX   PHOTOFINISHING LABS INC.
  
	
  
 
  	
  
SOFTDENT,   LLC
  
	
  
 
  	
  
TROPHY   DENTAL, INC.
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ William   G. Love
  
	
   
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Treasurer
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
CREO C.C.   (USA) LLC
  
	
  
 
  	
  
DUTCH DENTAL   PARTNERS I, LLC
  
	
  
 
  	
  
DUTCH DENTAL   PARTNERS II, LLC
  
	
  
 
  	
  
DUTCH DENTAL   PARTNERS III, LLC
  
	
  
 
  	
  
IMIP LLC
  
	
   
  	
  
KPG USA   HOLDINGS LLC
  
	
  
 
  	
  
KODAK   PANAMA, LTD.
  
	
  
 
  	
  
KODAK   PHILIPPINES LTD.
  
	
  
 
  	
  
KODAK   POLYCHROME GRAPHICS LLC
  
	
  
 
  	
  
KODAK   PORTUGUESA LIMITED
  
	
  
 
  	
  
NPEC INC.
  
	
  
 
  	
  
TECH   SERVICES INTERNATIONAL LLC
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ William   G. Love
  
	
   
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Authorized   Signatory
  




69









Initial Lenders

	
  
 
  	
  
BACO   SANTANDER CENTRAL HISPANO,
  
	
  
 
  	
  
S.A., NEW   YORK BRANCH
  
	
  
 
  	
  
 
  
	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ Frank G.   English, IV
  
	
   
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Managing   Director
  
	
  
 
  	
  
 
  	
  
Global   Corporate Banking
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ Jose   Castelló
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Executive   Vice President
  
	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
 
  	
  
 
  
	
  
 
  	
  
BANK OF   AMERICA, N.A.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/   Elizabeth G. Brandt
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Vice President
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
THE BANK OF   NEW YORK
  
	
  
 
  	
  
 
  
	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ David S.   Csatari
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Vice   President
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
THE BANK OF   NOVA SCOTIA
  
	
   
  	
  
 
  
	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ Todd S.   Meller
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Managing   Director
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
THE CIT   GROUP/BUSINESS CREDIT, INC.
  
	
  
 
  	
  
 
  
	
   
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ Richard   G. DePaul
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Senior Vice   President
  




70








	
  
 
  	
  
CITICORP   USA, INC.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
 
  
	
   
  	
  
By
  	
  
/s/ Carolyn   A. Kee
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Vice   President
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
CREDIT   SUISSE, CAYMAN ISLANDS BRANCH
  
	
  
 
  	
  
 
  
	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ Ian   Nalitt
  
	
   
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Vice   President
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/  Mikhail Faybusovich
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Associate
  
	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
 
  	
  
 
  
	
  
 
  	
  
DZ BANK AG
  
	
  
 
  	
  
Deutsche   Zentral-Genossenschaftsbank
  
	
  
 
  	
  
(Frankfurt   am Main)
  
	
  
 
  	
  
 
  
	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/   Bernd-Henrik Franke
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Senior Vice   President
  
	
   
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ Paul   Fitzpatrick
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Vice   President
  




71








	
  
 
  	
  
FIFTH THIRD BANK
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ Michael R. Noville
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Vice President
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
GOLDMAN SACHS CREDIT PARTNERS, L.P.
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ William W. Archer
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Managing Director
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
ICBC SHANGHAI BRANCH
  
	
   
  	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ Gu Guoming
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Vice President
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
LLOYDS TSB BANK PLC
  
	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
By
  	
  
/s/ Deborah Carlson
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
VP and Manager – Business
  
	
  
 
  	
  
 
  	
  
Development C.B. 
  
	
  
 
  	
  
 
  	
  
C103
  
	  
	  
	  

	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ Cherian Thomas
  
	
  
 
  	
  
 
  	
  


  
	
   
  	
  
Title:
  	
  
Assistant Vice President 
  
	
  
 
  	
  
 
  	
  
Project Finance 
  
	
  
 
  	
  
 
  	
  
T-1011
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
MELLON BANK, N.A.
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ Robert J. Mitchell Jr.
  
	
   
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
First Vice President
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
MIZUHO CORPORATE BANK, LTD.
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ Bertram H. Tang
  
	
  
 
  	
  
 
  	
  


  
	
   
  	
  
Title:
  	
  
Senior Vice President
  




72








	
  
 
  	
  
MORGAN STANLEY SENIOR FUNDING, INC.
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ Eugene F. Martin
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Vice President
  
	
   
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
NORTH FORK BUSINESS CAPITAL CORPORATION
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ Stephen K. Goetschius
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Senior Vice President
  
	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
 
  	
  
 
  
	
  
 
  	
  
PNC BANK, NATIONAL ASSOCIATION
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By
  	
  
/s/ Timothy J. Hornickle
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Title:
  	
  
Vice President
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  SUMITOMO MITSUI BANKING CORPORATION
  
	
   
  	
   
  	
   
  
	
   
  	
  By
  	
  /s/  David A.   Buck
  
	
   
  	
   
  	
  


  
	
   
  	
  Title:
  	
  Senior Vice President
  



73