EXHIBIT 10.1


 


AMENDED
AND RESTATED


FIVE-YEAR
REVOLVING CREDIT AGREEMENT


 


DATED
AS OF OCTOBER 12, 2005


 


AMONG


 


UNITED
STATIONERS SUPPLY CO.,


AS
THE BORROWER


 


UNITED
STATIONERS INC.,


AS
A CREDIT PARTY


 


THE
LENDERS FROM TIME TO TIME PARTIES HERETO


 


PNC
BANK, N.A.


AND


U.S.
BANK, NATIONAL ASSOCIATION,


AS
SYNDICATION AGENTS


 


KEYBANK
NATIONAL ASSOCIATION,


AS
DOCUMENTATION AGENT


 


AND


 


JPMORGAN
CHASE BANK, N.A.,


AS
ADMINISTRATIVE AGENT


 


 


JPMORGAN
SECURITIES INC.,


AS
SOLE LEAD ARRANGER AND SOLE BOOK RUNNER


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  	
  DEFINITIONS

  	
   

  
	
   

  	
  1.1.

  	
  Certain Defined Terms

  	
   

  
	
   

  	
  1.2.

  	
  Plural
  Forms

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  THE CREDITS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1.

  	
  Existing
  Revolving Loans; Commitment

  	
   

  
	
   

  	
  2.2.

  	
  Required
  Payments; Termination

  	
   

  
	
   

  	
  2.3.

  	
  Ratable
  Loans; Types of Advances

  	
   

  
	
   

  	
  2.4.

  	
  Swing Line Loans

  	
   

  
	
   

  	
  2.5.

  	
  Commitment
  Fee; Aggregate Commitment

  	
   

  
	
   

  	
  2.6.

  	
  Minimum
  Amount of Each Advance

  	
   

  
	
   

  	
  2.7.

  	
  Optional
  Principal Payments

  	
   

  
	
   

  	
  2.8.

  	
  Method of
  Selecting Types and Interest Periods for New Advances

  	
   

  
	
   

  	
  2.9.

  	
  Conversion
  and Continuation of Outstanding Advances; No Conversion or Continuation of
  Eurodollar Advances After Default

  	
   

  
	
   

  	
  2.10.

  	
  Changes in
  Interest Rate, etc

  	
   

  
	
   

  	
  2.11.

  	
  Rates
  Applicable After Default

  	
   

  
	
   

  	
  2.12.

  	
  Method of
  Payment

  	
   

  
	
   

  	
  2.13.

  	
  Noteless
  Agreement; Evidence of Indebtedness

  	
   

  
	
   

  	
  2.14.

  	
  Telephonic
  Notices

  	
   

  
	
   

  	
  2.15.

  	
  Interest
  Payment Dates; Interest and Fee Basis

  	
   

  
	
   

  	
  2.16.

  	
  Notification
  of Advances, Interest Rates, Prepayments and Commitment Reductions;
  Availability of Loans

  	
   

  
	
   

  	
  2.17.

  	
  Lending
  Installations

  	
   

  
	
   

  	
  2.18.

  	
  Non-Receipt
  of Funds by the Agent

  	
   

  
	
   

  	
  2.19.

  	
  Replacement
  of Lender

  	
   

  
	
   

  	
  2.20.

  	
  Facility LCs

  	
   

  
	
   

  	
  2.21.

  	
  Increase of
  Aggregate Commitment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  YIELD
  PROTECTION; TAXES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.1.

  	
  Yield
  Protection

  	
   

  
	
   

  	
  3.2.

  	
  Changes in
  Capital Adequacy Regulations

  	
   

  
	
   

  	
  3.3.

  	
  Availability
  of Types of Advances

  	
   

  
	
   

  	
  3.4.

  	
  Funding
  Indemnification

  	
   

  
	
   

  	
  3.5.

  	
  Taxes

  	
   

  
	
   

  	
  3.6.

  	
  Lender
  Statements; Survival of Indemnity

  	
   

  
	
   

  	
  3.7.

  	
  Alternative
  Lending Installation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  CONDITIONS PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1.

  	
  Effectiveness
  of Commitments

  	
   

  
	
   

  	
  4.2.

  	
  Each Credit
  Extension

  	
   

  



 


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  ARTICLE V

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1.

  	
  Existence
  and Standing

  	
   

  
	
   

  	
  5.2.

  	
  Authorization
  and Validity

  	
   

  
	
   

  	
  5.3.

  	
  No
  Conflict; Government Consent

  	
   

  
	
   

  	
  5.4.

  	
  Financial
  Statements

  	
   

  
	
   

  	
  5.5.

  	
  Material
  Adverse Change

  	
   

  
	
   

  	
  5.6.

  	
  Taxes

  	
   

  
	
   

  	
  5.7.

  	
  Litigation
  and Contingent Obligations

  	
   

  
	
   

  	
  5.8.

  	
  Subsidiaries

  	
   

  
	
   

  	
  5.9.

  	
  ERISA

  	
   

  
	
   

  	
  5.10.

  	
  Accuracy of
  Information

  	
   

  
	
   

  	
  5.11.

  	
  Regulation
  U

  	
   

  
	
   

  	
  5.12.

  	
  Compliance
  With Laws

  	
   

  
	
   

  	
  5.13.

  	
  Ownership
  of Properties

  	
   

  
	
   

  	
  5.14.

  	
  Plan
  Assets; Prohibited Transactions

  	
   

  
	
   

  	
  5.15.

  	
  Environmental
  Matters

  	
   

  
	
   

  	
  5.16.

  	
  Investment
  Company Act

  	
   

  
	
   

  	
  5.17.

  	
  Public
  Utility Holding Company Act

  	
   

  
	
   

  	
  5.18.

  	
  Insurance

  	
   

  
	
   

  	
  5.19.

  	
  Solvency

  	
   

  
	
   

  	
  5.20.

  	
  Collateral
  Documents

  	
   

  
	
   

  	
  5.21.

  	
  No Default
  or Unmatured Default

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1.

  	
  Financial
  Reporting

  	
   

  
	
   

  	
  6.2.

  	
  Use of
  Proceeds

  	
   

  
	
   

  	
  6.3.

  	
  Notice of
  Default

  	
   

  
	
   

  	
  6.4.

  	
  Conduct of
  Business

  	
   

  
	
   

  	
  6.5.

  	
  Taxes

  	
   

  
	
   

  	
  6.6.

  	
  Insurance

  	
   

  
	
   

  	
  6.7.

  	
  Compliance
  with Laws

  	
   

  
	
   

  	
  6.8.

  	
  Maintenance
  of Properties

  	
   

  
	
   

  	
  6.9.

  	
  Inspection;
  Keeping of Books and Records

  	
   

  
	
   

  	
  6.10.

  	
  Dividends

  	
   

  
	
   

  	
  6.11.

  	
  Merger

  	
   

  
	
   

  	
  6.12.

  	
  Sale of
  Assets

  	
   

  
	
   

  	
  6.13.

  	
  Investments
  and Acquisitions

  	
   

  
	
   

  	
  6.14.

  	
  Indebtedness

  	
   

  
	
   

  	
  6.15.

  	
  Liens

  	
   

  
	
   

  	
  6.16.

  	
  Affiliates

  	
   

  
	
   

  	
  6.17.

  	
  Financial
  Contracts

  	
   

  
	
   

  	
  6.18.

  	
  Subsidiary
  Covenants

  	
   

  
	
   

  	
  6.19.

  	
  Contingent
  Obligations

  	
   

  
	
   

  	
  6.20.

  	
  Leverage
  Ratio

  	
   

  
	
   

  	
  6.21.

  	
  Minimum
  Consolidated Net Worth

  	
   

  
	
   

  	
  6.22.

  	
  Capital
  Expenditures

  	
   

  
	
   

  	
  6.23.

  	
  Subsidiary
  Collateral Documents; Subsidiary Guarantors

  	
   

  



 


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  6.24.

  	
  Foreign
  Subsidiary Investments

  	
   

  
	
   

  	
  6.25.

  	
  TOPCO
  Investments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  DEFAULTS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  ACCELERATION,
  WAIVERS, AMENDMENTS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1.

  	
  Acceleration

  	
   

  
	
   

  	
  8.2.

  	
  Amendments

  	
   

  
	
   

  	
  8.3.

  	
  Preservation
  of Rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  GENERAL PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  9.1.

  	
  Survival of
  Representations

  	
   

  
	
   

  	
  9.2.

  	
  Governmental
  Regulation

  	
   

  
	
   

  	
  9.3.

  	
  Headings

  	
   

  
	
   

  	
  9.4.

  	
  Entire
  Agreement

  	
   

  
	
   

  	
  9.5.

  	
  Several
  Obligations; Benefits of this Agreement

  	
   

  
	
   

  	
  9.6.

  	
  Expenses;
  Indemnification

  	
   

  
	
   

  	
  9.7.

  	
  Numbers of
  Documents

  	
   

  
	
   

  	
  9.8.

  	
  Accounting

  	
   

  
	
   

  	
  9.9.

  	
  Severability
  of Provisions

  	
   

  
	
   

  	
  9.10.

  	
  Nonliability
  of Lenders

  	
   

  
	
   

  	
  9.11.

  	
  Confidentiality

  	
   

  
	
   

  	
  9.12.

  	
  Lenders Not
  Utilizing Plan Assets

  	
   

  
	
   

  	
  9.13.

  	
  Nonreliance

  	
   

  
	
   

  	
  9.14.

  	
  Disclosure

  	
   

  
	
   

  	
  9.15.

  	
  Performance
  of Obligations

  	
   

  
	
   

  	
  9.16.

  	
  USA PATRIOT
  Act

  	
   

  
	
   

  	
  9.17.

  	
  No Duties
  Imposed on Syndication Agents or Documentation Agents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  THE AGENT

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1.

  	
  Appointment;
  Nature of Relationship

  	
   

  
	
   

  	
  10.2.

  	
  Powers

  	
   

  
	
   

  	
  10.3.

  	
  General
  Immunity

  	
   

  
	
   

  	
  10.4.

  	
  No
  Responsibility for Loans, Recitals, etc

  	
   

  
	
   

  	
  10.5.

  	
  Action on
  Instructions of Lenders

  	
   

  
	
   

  	
  10.6.

  	
  Employment
  of Agents and Counsel

  	
   

  
	
   

  	
  10.7.

  	
  Reliance on
  Documents; Counsel

  	
   

  
	
   

  	
  10.8.

  	
  Agent’s
  Reimbursement and Indemnification

  	
   

  
	
   

  	
  10.9.

  	
  Notice of Default

  	
   

  
	
   

  	
  10.10.

  	
  Rights as a Lender

  	
   

  
	
   

  	
  10.11.

  	
  Lender Credit Decision

  	
   

  
	
   

  	
  10.12.

  	
  Successor Agent

  	
   

  
	
   

  	
  10.13.

  	
  Agent and Arranger Fees

  	
   

  
	
   

  	
  10.14.

  	
  Delegation to Affiliates

  	
   

  
	
   

  	
  10.15.

  	
  Collateral Documents

  	
   

  
	
   

  	
  10.16.

  	
  Quebec Security

  	
   

  



 


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  ARTICLE XI

  	
  SETOFF; RATABLE PAYMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  11.1.

  	
  Setoff

  	
   

  
	
   

  	
  11.2.

  	
  Ratable Payments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  BENEFIT OF AGREEMENT; ASSIGNMENTS;
  PARTICIPATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.

  	
  Successors and Assigns; Designated
  Lenders

  	
   

  
	
   

  	
  12.2.

  	
  Participations

  	
   

  
	
   

  	
  12.3.

  	
  Assignments

  	
   

  
	
   

  	
  12.4.

  	
  Dissemination of Information

  	
   

  
	
   

  	
  12.5.

  	
  Tax Certifications

  	
   

  
	
   

  	
  12.6.

  	
  Reimbursement Obligations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  NOTICES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1.

  	
  Notices

  	
   

  
	
   

  	
  13.2.

  	
  Change of Address

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  COUNTERPARTS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV

  	
  CHOICE OF LAW; CONSENT TO
  JURISDICTION; WAIVER OF JURY TRIAL

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  15.1.

  	
  CHOICE OF LAW

  	
   

  
	
   

  	
  15.2.

  	
  CONSENT TO JURISDICTION

  	
   

  
	
   

  	
  15.3.

  	
  WAIVER OF JURY TRIAL

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XVI

  	
  NO NOVATION; CONTINUATION;
  REFERENCES TO THIS AGREEMENT IN LOAN DOCUMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  16.1.

  	
  No Novation; Continuation

  	
   

  
	
   

  	
  16.2.

  	
  References to This Agreement In Other
  Loan Documents

  	
   

  



 


iv





















 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
  Commitment Schedule

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Pricing Schedule

  	
   

  
	
   

  	
   

  
	
  Schedule 5.8

  	
  -

  	
  Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 6.12

  	
  -

  	
  Identified Property Dispositions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 6.13

  	
  -

  	
  Investments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 6.14

  	
  -

  	
  Indebtedness

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 6.15

  	
  -

  	
  Liens

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  -

  	
  Form of the Credit Parties’ Counsel’s Opinion

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit B

  	
  -

  	
  Form of Compliance Certificate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit C

  	
  -

  	
  Form of Assignment and Assumption Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit D

  	
  -

  	
  Form of Promissory Note (if requested)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit E

  	
  -

  	
  Form of Designation Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit F

  	
  -

  	
  List of Closing Documents

  	
   

  
						



 


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AMENDED AND RESTATED

FIVE-YEAR REVOLVING CREDIT AGREEMENT


 


This
Amended and Restated Five-Year Revolving Credit Agreement, dated as of
October 12, 2005, is entered into by and among United Stationers Supply
Co., an Illinois corporation, as the Borrower, United Stationers Inc., a
Delaware corporation, as a Credit Party, the Lenders, PNC Bank, N.A. and U.S.
Bank, National Association, as Syndication Agents, KeyBank National
Association, as Documentation Agent, and JPMorgan Chase Bank, N.A. (successor
by merger to Bank One, NA (Illinois)), as Agent.


 


PRELIMINARY STATEMENTS


 


WHEREAS, the Parent, the Borrower, certain
Lenders, the Departing Lenders and the Agent are parties to that certain Credit
Agreement, dated as of March 21, 2003 (as amended, restated, supplemented
or otherwise modified prior to the date hereof, the “Existing Credit
Agreement”);


 


WHEREAS, the Parent, the Borrower, the
Lenders and the Agent have agreed to enter into this Agreement in order to
(i) amend and restate the Existing Credit Agreement in its entirety;
(ii) re-evidence the Obligations, which shall be repayable in accordance
with the terms of this Agreement; and (iii) set forth the terms and
conditions under which the Lenders will, from time to time, make loans and
extend other financial accommodations to or for the benefit of the Borrower;
and


 


WHEREAS, each Departing Lender has agreed
to execute and deliver a Departing Lender Signature Page pursuant to which
such Departing Lender shall cease to be a party to the Existing Credit
Agreement.


 


NOW, THEREFORE, in consideration of the
mutual covenants herein, as well as other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree that the Existing Credit Agreement is hereby amended and restated in its
entirety as of the date hereof as follows:


 


ARTICLE I



DEFINITIONS


 


1.1.          Certain Defined Terms.  As used in this Agreement:


 


“Accounting
Changes” is defined in Section 9.8 hereof.


 


“Acquisition”
means any transaction, or any series of related transactions, consummated on or
after the Restatement Effective Date, by which the Parent or any of its
Subsidiaries (i) acquires any going concern business or all or
substantially all of the assets of any Person, or division thereof, whether through
purchase of assets, merger or otherwise or (ii) directly or indirectly
acquires from one or more Persons (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities


 





















 


having
such power only by reason of the happening of a contingency) or a majority (by
percentage of voting power) of the outstanding ownership interests of any
Person.


 


“Administrative
Questionnaire” means, with respect to any Lender, the administrative
questionnaire delivered by such Lender to the Agent upon becoming a Lender
hereunder, as such questionnaire may be updated from time to time by notice
from such Lender to the Agent.


 


“Advance”
means a borrowing hereunder consisting of the aggregate amount of several
Revolving Loans (i) made by some or all of the Lenders on the same date,
or (ii) converted or continued by the Lenders on the same date of
conversion or continuation, consisting, in either case, of the aggregate amount
of the several Revolving Loans of the same Type and, in the case of Eurodollar
Loans, for the same Interest Period.  The
term “Advance” shall include Swing Line Loans unless otherwise expressly
provided.


 


“Affiliate”
of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person.  A Person shall be deemed to control another
Person if the controlling Person is the “beneficial owner” (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934) of 10% or more of
any class of voting securities (or other ownership interests) of the controlled
Person having ordinary voting power for the election of directors (or equivalent
governing body) or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of voting securities, by contract or otherwise.


 


“Agent”
means JPMorgan Chase in its capacity as contractual representative of the
Lenders pursuant to Article X, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article X.


 


“Aggregate
Commitment” means the aggregate of the Commitments of all the Lenders, as
increased or reduced from time to time pursuant to the terms hereof.  The initial Aggregate Commitment is Two
Hundred Seventy-Five Million and 00/100 Dollars ($275,000,000).


 


“Aggregate
Outstanding Credit Exposure” means, at any time, the aggregate of the
Outstanding Credit Exposure of all the Lenders.


 


“Agreement”
means this Amended and Restated Five-Year Revolving Credit Agreement, as it may
be amended, restated, supplemented or otherwise modified and as in effect from
time to time.


 


“Agreement
Accounting Principles” means generally accepted accounting principles as in
effect in the United States from time to time.


 


“Alternate
Base Rate” means, for any day, a rate of interest per annum equal to the
greater of (i) the Prime Rate in effect on such day and (ii) the
Federal Funds Effective Rate in effect on such day plus one-half of one percent
(0.5%) per annum.   Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.


 


2





















 


“Applicable
Fee Rate” means, with respect to the Commitment Fee at any time, the percentage
rate per annum which is applicable at such time with respect to such fee as set
forth in the Pricing Schedule.


 


“Applicable
Margin” means, with respect to Advances of any Type at any time, the percentage
rate per annum which is applicable at such time with respect to Advances of
such Type as set forth in the Pricing Schedule.


 


“Approved
Fund” means any Fund that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.


 


“Arranger”
means J.P. Morgan Securities Inc., and its successors, in its capacity as sole
lead arranger and sole book runner for the loan transaction evidenced by this
Agreement.


 


“Article”
means an article of this Agreement unless another document is specifically
referenced.


 


“Assignment
Agreement” is defined in Section 12.3.1.


 


“Authorized
Officer” means any of the chief executive officer, president, chief operating
officer, chief financial officer, controller, treasurer or assistant treasurer
of the Parent, acting singly.


 


“Available
Aggregate Commitment” means, at any time, the Aggregate Commitment then in
effect minus the Aggregate Outstanding Credit Exposure at such time.


 


 “Borrower” means United Stationers Supply Co.,
an Illinois corporation, and its permitted successors and assigns (including,
without limitation, a debtor in possession on its behalf).


 


“Borrowing
Date” means a date on which an Advance is made hereunder.


 


“Borrowing
Notice” is defined in Section 2.8.


 


“Business
Day” means (i) with respect to any borrowing, payment or rate selection of
Eurodollar Advances, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago, Illinois for the conduct of substantially all of
their commercial lending activities, interbank wire transfers can be made on
the Fedwire system and dealings in Dollars are carried on in the London
interbank market and (ii) for all other purposes, a day (other than a
Saturday or Sunday) on which banks generally are open in Chicago, Illinois for
the conduct of substantially all of their commercial lending activities and
interbank wire transfers can be made on the Fedwire system.


 


“Canadian
Subsidiary” means (i) any Foreign Subsidiary organized under the laws of
Canada or any jurisdiction located therein and (ii) any Subsidiary of a
Person described in clause (i) hereof that is organized under the laws of
a jurisdiction located in the United States of America.


 


3





















 


“Capital
Expenditures” means, without duplication, any expenditures for any purchase or
other acquisition of any asset which would be classified as a fixed or capital
asset on a consolidated balance sheet of the Parent and its Subsidiaries
prepared in accordance with Agreement Accounting Principles, excluding
(i) expenditures of insurance proceeds to rebuild or replace any asset
after a casualty loss, (ii) leasehold improvement expenditures for which
the Parent or a Subsidiary is reimbursed by the lessor, sublessor or sublessee,
(iii) expenditures of Net Cash Proceeds of any asset sale permitted under
Section 6.12, and (iv) with respect to any Permitted Acquisition,
(a) the Purchase Price thereof and (b) any Capital Expenditures
expended by the seller or entity to be acquired in any Permitted Acquisition
prior to the date of such Permitted Acquisition.


 


“Capitalized
Lease” of a Person means any lease of Property by such Person as lessee which
would be capitalized on a balance sheet of such Person prepared in accordance
with Agreement Accounting Principles.


 


“Capitalized
Lease Obligations” of a Person means the amount of the obligations of such
Person under Capitalized Leases which would be shown as a liability on a
balance sheet of such Person prepared in accordance with Agreement Accounting
Principles.


 


“Cash
Equivalent Investments” means (i) obligations of, or fully guaranteed by,
the United States of America having maturities of not more than one year from
the date of acquisition thereof, (ii) commercial paper rated A-1 or better
by S&P or P-1 or better by Moody’s, (iii) demand deposit accounts
maintained in the ordinary course of business, and (iv) certificates of
deposit issued by and time deposits with commercial banks (whether domestic or
foreign) having capital and surplus in excess of $100,000,000, (v) money
market funds that (a) comply with the criteria set forth in SEC
Rule 2a-7 under the Investment Company Act of 1940, (b) are rated AAA
by S&P or Aaa by Moody’s and (c) have portfolio assets of at least
$5,000,000,000, (vi) marketable direct obligations issued by any state of
the United States or any political subdivision of any such state or any public
instrumentality thereof having maturities of not more than 90 days from the
date of acquisition thereof and, at the time of acquisition, having one of the
two highest ratings obtainable from either S&P or Moody’s and
(vii) repurchase obligations with a term of not more than 30 days
underlying securities of the types described in clause (i) above entered
into with any commercial bank meeting the qualifications specified in clause
(iv) above.


 


“Change
in Control” means (i) the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of
Rule 13d-3 of the SEC under the Securities Exchange Act of 1934) of 30% or
more of the outstanding shares of voting stock of the Parent having ordinary
voting power for the election of directors; (ii) the Parent shall cease to
own, directly or indirectly and free and clear of all Liens or other
encumbrances (other than Liens in favor of the Agent), all of the outstanding
shares of voting stock of the Borrower and, other than pursuant to a
transaction otherwise permitted under this Agreement, the Guarantors, on a
fully diluted basis; or (iii) the majority of the Board of Directors of
the Parent fails to consist of Continuing Directors.


 


“Closing
Date” means March 21, 2003.


 


4





















 


“Code”
means the Internal Revenue Code of 1986, as amended, reformed or otherwise
modified from time to time, and any rule or regulation issued thereunder.


 


“Collateral”
means all property and interests in property now owned or hereafter acquired by
the Parent or any of its Domestic Subsidiaries in or upon which a security
interest, lien or mortgage is granted to the Agent, for the benefit of the
Holders of Secured Obligations, or to the Agent, for the benefit of the
Lenders, whether under the Security Agreement, under any of the other
Collateral Documents or under any of the other Loan Documents; provided, however,
that Collateral shall not include property constituting “Securitization
Collateral” as defined in the Security Agreement.


 


“Collateral
Documents” means all agreements, instruments and documents executed in
connection with this Agreement or the Existing Credit Agreement that are
intended to create or evidence Liens to secure the Secured Obligations,
including, without limitation, the Security Agreement, the Intellectual
Property Security Agreements, and all other security agreements, mortgages,
deeds of trust, loan agreements, notes, guarantees, subordination agreements,
pledges, powers of attorney, consents, assignments, contracts, fee letters,
notices, leases, financing statements and all other written matter whether heretofore,
now, or hereafter executed by or on behalf of the Parent or any of its Domestic
Subsidiaries and delivered to the Agent or any of the Lenders, together with
all agreements and documents referred to therein or contemplated thereby.


 


“Collateral
Shortfall Amount” is defined in Section 8.1.


 


“Commitment”
means, for each Lender, including, without limitation, each LC Issuer, such
Lender’s obligation to make Loans to, and participate in Facility LCs issued
upon the application of, and each LC Issuer’s obligation to issue Facility LCs
for the account of, the Borrower in an aggregate amount not exceeding the
amount set forth for such Lender on the Commitment Schedule or in an
Assignment Agreement delivered pursuant to Section 12.3, as such amount
may be modified from time to time pursuant to the terms hereof.


 


“Commitment
Fee” is defined in Section 2.5.1.


 


“Commitment
Schedule” means the Schedule identifying each Lender’s Commitment as of
the Restatement Effective Date attached hereto and identified as such.


 


“Consolidated
Capital Expenditures” means, with reference to any period, the Capital
Expenditures of the Parent and its Subsidiaries (other than TOPCO) calculated
on a consolidated basis for such period.


 


“Consolidated
EBITDA” means, with respect to any period, Consolidated Net Income for such
period plus, to the extent deducted from revenues in determining
Consolidated Net Income for such period, (i) Consolidated Interest
Expense, (ii) expense for taxes paid or accrued, (iii) depreciation,
(iv) amortization, (v) losses attributable to equity in Affiliates,
(vi) non-cash charges related to employee compensation and (vii) any
extraordinary non-cash or nonrecurring non-cash charges or losses, minus,
to the extent included in Consolidated Net Income for such period, any
extraordinary non-cash or nonrecurring non-cash gains, all calculated for the
Parent and its Subsidiaries (other than TOPCO) on a consolidated basis.


 


5





















 


“Consolidated
Funded Indebtedness” means, at any time, with respect to any Person, without
duplication, the sum of (i) the aggregate dollar amount of Consolidated
Indebtedness for borrowed money owing by such Person or for which such Person
is liable which has actually been funded and is outstanding at such time,
whether or not such amount is due or payable at such time, plus
(ii) the aggregate undrawn amount of all standby Letters of Credit at such
time for which such Person or any of its Subsidiaries is the account party or
is otherwise liable (other than standby Letters of Credit in an amount up to
$10,000,000 issued to support worker’s compensation obligations of the Credit
Parties and other than Letters of Credit supporting any other component of this
definition), plus (iii) the aggregate principal component of
Capitalized Lease Obligations owing by such Person and its Subsidiaries on a
consolidated basis or for which such Person or any of its Subsidiaries is
otherwise liable, plus (iv) all Off-Balance Sheet Liabilities of
such Person and its Subsidiaries on a consolidated basis, plus
(v) all Disqualified Stock of such Person and its Subsidiaries on a
consolidated basis.


 


“Consolidated
Indebtedness” means at any time, with respect to any Person, the Indebtedness
of such Person and its Subsidiaries calculated on a consolidated basis as of
such time.


 


“Consolidated
Interest Expense” means, with reference to any period, the interest expense of
the Parent and its Subsidiaries calculated on a consolidated basis for such
period (net of interest income), including, without limitation, yield or any
other financing costs resembling interest which are payable under any
Receivables Purchase Facility.


 


“Consolidated
Net Income” means, with reference to any period, the net income (or loss) of
the Parent and its Subsidiaries (other than TOPCO) calculated on a consolidated
basis for such period and on a FIFO basis of inventory valuation.


 


“Consolidated
Net Worth” means at any time, with respect to any Person, the consolidated
stockholders’ equity of such Person and its Subsidiaries calculated on a
consolidated basis and on a FIFO basis of inventory valuation as of such time.


 


“Consolidated
Rentals” means, with reference to any period, the rental expense (net of rental
income) of the Parent and its Subsidiaries in respect of Operating Leases, but
excluding rental expense for any extension thereof for a period shorter than
twelve months, calculated on a consolidated basis for such period; provided that rental expense in respect of
all non-real property rentals shall be the amount as set forth on the
compliance certificate most recently delivered to the Agent pursuant to
Section 6.1.3 in connection with the most recent annual financial
statements of the Parent delivered pursuant to Section 6.1.1 (and for the
period prior to the delivery of the first such compliance certificate, the
amount set forth on the compliance certificate delivered pursuant to
Section 4.1.5).


 


“Contingent
Obligation” of a Person means any agreement, undertaking or arrangement by
which such Person assumes, guarantees, endorses, contingently agrees to
purchase or provide funds for the payment of, or otherwise becomes or is
contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial
condition of any other Person, or otherwise assures any creditor of such other
Person against loss, including, without limitation, any comfort letter,
operating agreement, take-or-pay


 


6





















 


contract or the obligations of any such Person as general partner of a
partnership with respect to the liabilities of the partnership unless the
underlying obligation is expressly made non-recourse to such general partner; provided, however,
that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business.  The amount of any Contingent Obligation shall
be deemed to be an amount equal to the lesser of (a) an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Contingent Obligation is made and (b) the maximum amount for which
such guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Contingent Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of the Contingent Obligation shall be
such guaranteeing person’s reasonably anticipated liability in respect thereof
as determined by such Person in good faith.


 


“Continuing
Director” means, with respect to any Person as of any date of determination,
any member of the board of directors of such Person who (i) was a member
of such board of directors on the Restatement Effective Date, or (ii) was
nominated for election or elected to such board of directors with the approval
of the required majority of the Continuing Directors who were members of such
board at the time of such nomination or election; provided that if any individual who is so elected or
nominated in connection with a merger, consolidation, acquisition or similar
transaction and who was not a Continuing Director prior thereto, together with
all other individuals so elected or nominated in connection with such merger,
consolidation, acquisition or similar transaction who were not Continuing
Directors prior thereto, constitute a majority of the members of the board of
directors of such Person, such individual shall not be a Continuing Director.


 


“Controlled
Group” means all members of a controlled group of corporations or other
business entities and all trades or businesses (whether or not incorporated)
under common control which, together with the Parent or any of its
Subsidiaries, are treated as a single employer under
Section 414(b) or (c) of the Code.


 


“Conversion/Continuation
Notice” is defined in Section 2.9.


 


“Credit
Extension” means the making of an Advance or the issuance of a Facility LC
hereunder.


 


“Credit
Extension Date” means the Borrowing Date for an Advance or the issuance date
for a Facility LC.


 


“Credit
Party” means, collectively, the Parent, the Borrower and each of the
Guarantors.


 


“Default”
means an event described in Article VII.


 


“Departing
Lender” means each lender under the Existing Credit Agreement that executes and
delivers to the Agent a Departing Lender Signature Page.


 


“Departing
Lender Signature Page” means each signature page to this Agreement on
which it is indicated that the Departing Lender executing the same shall cease
to be a party to the Existing Credit Agreement on the Restatement Effective
Date.


 


7





















 


“Designated
Lender” means, with respect to each Designating Lender, each Eligible Designee
designated by such Designating Lender pursuant to Section 12.1.2.


 


“Designating
Lender” means, with respect to each Designated Lender, the Lender that
designated such Designated Lender pursuant to Section 12.1.2.


 


“Designation
Agreement” is defined in Section 12.1.2.


 


“Disqualified
Stock” means any preferred or other capital stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
date that is ninety-one (91) days after the Facility Termination Date.


 


“Dollar”,
“dollar” and “$” means the lawful currency of the United States of America.


 


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


 


“Eligible
Designee” means a special purpose
corporation, partnership, trust, limited partnership or limited liability
company that is administered by the respective Designating Lender or an
Affiliate of such Designating Lender and (i) is organized under the laws
of the United States of America or any state thereof, (ii) is engaged
primarily in making, purchasing or otherwise investing in commercial loans in
the ordinary course of its business and (iii) issues (or the parent of
which issues) commercial paper rated at least A-1 or the equivalent thereof by
S&P or P-1 or the equivalent thereof by Moody’s.


 


“Environmental
Laws” means any and all applicable federal, state, local and foreign statutes,
laws, judicial decisions, regulations, ordinances, rules, judgments, orders,
decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the
environment on human health, (iii) emissions, discharges or releases of
pollutants, contaminants, hazardous substances or wastes into surface water,
ground water or land, or (iv) the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of pollutants,
contaminants, hazardous substances or wastes or the clean-up or other
remediation thereof.


 


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


 


“Eurodollar
Advance” means an Advance which, except as otherwise provided in
Section 2.11, bears interest at the applicable Eurodollar Rate.


 


“Eurodollar
Base Rate” means, with respect to a Eurodollar Advance for the relevant
Interest Period, the applicable British Bankers’ Association LIBOR rate for
deposits in Dollars as reported by any generally recognized financial
information service as of 11:00 a.m. (London time) two (2) Business
Days prior to the first day of such Interest Period, and having a maturity
equal to such Interest Period, provided
that, if no such British Bankers’ Association LIBOR rate is available to the
Agent, the applicable Eurodollar Base Rate for the relevant Interest Period


 


8





















 


shall instead be the rate determined by the Agent to be the rate at
which JPMorgan Chase or one of its affiliate banks offers to place deposits in Dollars
with first-class banks in the London interbank market at approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day
of such Interest Period, in the approximate amount of JPMorgan Chase’s relevant
Eurodollar Loan and having a maturity equal to such Interest Period.


 


“Eurodollar
Loan” means a Revolving Loan which, except as otherwise provided in
Section 2.11, bears interest at the applicable Eurodollar Rate.


 


“Eurodollar
Rate” means, with respect to a Eurodollar Advance for the relevant Interest
Period, the sum of (i) the quotient of (a) the Eurodollar Base Rate
applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus (ii) the
then Applicable Margin, changing as and when the Applicable Margin changes.


 


“Excluded
Taxes” means, in the case of each Lender or applicable Lending Installation and
the Agent, taxes imposed on its overall net income, and franchise taxes or
similar taxes imposed on it, by (i) the jurisdiction under the laws of
which such Lender, such Lending Installation or the Agent is incorporated or
organized or any political combination or subdivision or taxing authority
thereof, (ii) the jurisdiction in which the Agent’s, such Lending
Installation’s or such Lender’s principal executive office or such Lender’s
applicable Lending Installation is located or (iii) any other jurisdiction
except to the extent the imposition of such taxes results solely from the
Borrower’s operations or presence in such jurisdiction as reasonably determined
by the Lender or the Agent, as applicable.


 


“Exhibit”
refers to an exhibit to this Agreement, unless another document is specifically
referenced.


 


“Existing
Credit Agreement” is defined in the Preliminary Statements.


 


“Existing
Revolving Loan” is defined in Section 2.1.1.


 


“Facility
LC” is defined in Section 2.20.1.


 


“Facility
LC Application” is defined in Section 2.20.3.


 


“Facility
LC Collateral Account” is defined in Section 2.20.11.


 


“Facility
Termination Date” means the earlier of (a) October 12, 2010 and
(b) the date of termination in whole of the Aggregate Commitment pursuant
to Section 2.5 hereof or the Commitments pursuant to Section 8.1
hereof.


 


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


 


9





















 


if necessary, to the next 1/100 of 1%) of the quotations for such day
for such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.


 


“Financing”
means, with respect to any Person, the issuance, assumption, incurrence or sale
by such Person of any Indebtedness (other than Indebtedness described in
Sections 6.14.1 through 6.14.10, any Indebtedness incurred under
Section 6.14.11 and described in clauses (a) or (b) of the first
parenthetical thereof, and any Indebtedness incurred under Section 6.14.12
and described in the first parenthetical thereof); provided, however,
that the foregoing shall not permit the incurrence by the Parent or any
Subsidiary of any Indebtedness if such incurrence is not otherwise permitted by
this Agreement.


 


“Floating
Rate” means, for any day, a rate per annum equal to the sum of (i) the
Alternate Base Rate for such day, changing when and as the Alternate Base Rate
changes plus (ii) the then
Applicable Margin, changing as and when the Applicable Margin changes.


 


“Floating
Rate Advance” means an Advance which, except as otherwise provided in
Section 2.11, bears interest at the Floating Rate.


 


“Floating
Rate Loan” means a Revolving Loan which, except as otherwise provided in
Section 2.11, bears interest at the Floating Rate.


 


“Foreign
Subsidiary” means (i) any Subsidiary of any Person that is not organized
under the laws of a jurisdiction located in the United States of America and
(ii) any Subsidiary of a Person described in clause (i) hereof that
is organized under the laws of a jurisdiction located in the United States of
America.


 


“Foreign
Subsidiary Investment” means the sum, without duplication, of (i) the
aggregate outstanding principal amount of all intercompany loans made on or
after the Restatement Effective Date from any Credit Party to any Foreign
Subsidiary; (ii) all outstanding Investments made on or after the
Restatement Effective Date by any Credit Party in any Foreign Subsidiary; and
(iii) an amount equal to the net benefit derived by the Foreign
Subsidiaries resulting from any non-arm’s-length transactions, or any other
transfer of assets conducted, in each case entered into on or after the
Restatement Effective Date, between any Credit Party, on the one hand, and such
Foreign Subsidiaries, on the other hand, other than (a) transactions in
the ordinary course of business and (b) in respect of legal, accounting,
reporting, listing and similar administrative services provided by any Credit
Party to any such Foreign Subsidiary in the ordinary course of business consistent
with past practice.


 


“Fund”
means any Person (other than a natural person) 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 of its business.


 


“Guarantor”
means each of the Parent’s Domestic Subsidiaries (other than the Borrower,
TOPCO and any SPV) and all other Subsidiaries of the Parent which become
Guarantors in satisfaction of the provisions of Section 6.23, in each
case, together with their respective permitted successors and assigns.


 


10





















 


“Guaranty”
means the Guaranty, dated as of March 21, 2003, made by the Parent and
certain Subsidiaries of the Parent in favor of the Agent for the benefit of the
Holders of Secured Obligations, as the same may be amended, restated,
supplemented or otherwise modified from time to time.


 


“Holders
of Secured Obligations” means the holders of the Secured Obligations from time
to time and shall refer to (i) each Lender in respect of its Loans,
(ii) the LC Issuers in respect of Reimbursement Obligations,
(iii) the Agent, the Lenders and the LC Issuers in respect of all other
present and future obligations and liabilities of the Parent, the Borrower or
any of their respective Domestic Subsidiaries of every type and description
arising under or in connection with this Agreement or any other Loan Document,
(iii) each Person benefiting from indemnities made by the Parent, the
Borrower or any Subsidiary hereunder or under other Loan Documents,
(iv) each Lender (or Affiliate thereof), in respect of all Rate Management
Obligations of the Borrower to such Lender (or such Affiliate) as exchange
party or counterparty under any Rate Management Transaction, and (v) their
respective successors, transferees and assigns (to the extent not prohibited by
this Agreement).


 


“Identified
Disclosure Documents” means, collectively, the Parent’s Annual Report on
Form 10-K for the fiscal year ended December 31, 2004, the Parent’s
Quarterly Reports on Form 10-Q for the periods ending on March 31,
2005 and June 30, 2005, and the Current Reports on Form 8-K filed by
the Parent on February 11, 2005, February 28, 2005, March 30,
2005, May 6, 2005, May 16, 2005, May 20, 2005, July 29,
2005 and August 9, 2005, in each case as filed with the SEC, and any
written disclosure memorandum delivered to the Lenders on or prior to
October 11, 2005.


 


“Indebtedness”
of a Person means, at any time, without duplication, such Person’s
(i) obligations for borrowed money which in accordance with Agreement
Accounting Principles would be shown as a liability on the consolidated balance
sheet of such Person, (ii) obligations representing the deferred purchase
price of Property or services (other than current accounts payable arising in
the ordinary course of such Person’s business payable on terms customary in the
trade and accrued expenses in connection with the provision of services
incurred in the ordinary course of such Person’s business),
(iii) Indebtedness of others, whether or not assumed, secured by Liens or
payable out of the proceeds or production from Property now or hereafter owned
or acquired by such Person (provided
that the amount of any such Indebtedness at any time shall be deemed to be the
lesser of (a) such Indebtedness at such time and (b) the fair market
value of such Property, as determined by such Person in good faith at such
time), (iv) financial obligations which are evidenced by notes, bonds,
debentures, acceptances, or other instruments, (v) obligations to purchase
securities or other Property arising out of or in connection with the sale of
the same or substantially similar securities or Property, (vi) Capitalized
Lease Obligations, (vii) Contingent Obligations of such Person in respect
of any Indebtedness, (viii) reimbursement obligations under Letters of
Credit, bankers’ acceptances, surety bonds and similar instruments,
(ix) Off-Balance Sheet Liabilities, (x) Net Mark-to-Market Exposure under
Rate Management Transactions and (xi) Disqualified Stock.


 


“Intellectual
Property Security Agreements” means each of (i) the Trademark Security
Agreement, dated as of March 21, 2003, by and among the Agent and the
Borrower, Azerty Incorporated and Lagasse, Inc., (ii) the Copyright
Security Agreement, dated as of March 21,


 


11





















 


2003, by and between the Agent and the Borrower, and (iii) such
other intellectual property security documents as the Borrower or any Affiliate
may from time to time make in favor of the Agent, in each case as the same may
be amended, restated, supplemented or otherwise modified from time to time.


 


“Interest
Period” means, with respect to a Eurodollar Advance, a period of one, two,
three or six months, or, to the extent available to all of the Lenders, nine or
twelve months, commencing on a Business Day selected by the Borrower pursuant
to this Agreement.  Such Interest Period
shall end on but exclude the day which corresponds numerically to such date
one, two, three or six months, or if applicable nine or twelve months,
thereafter, provided,  however, that if there is no such
numerically corresponding day in such next, second, third, sixth, ninth or
twelfth succeeding month, such Interest Period shall end on the last Business
Day of such next, second, third, sixth, ninth or twelfth succeeding month.  If an Interest Period would otherwise end on
a day which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided,
however, that if said next
succeeding Business Day falls in a new calendar month, such Interest Period
shall end on the immediately preceding Business Day.


 


“Investment”
of a Person means any loan, advance (other than commission, travel, relocation
and similar advances to directors, officers and employees made in the ordinary
course of business), extension of credit (other than accounts receivable
arising in the ordinary course of business on terms customary in the trade) or
contribution of capital by such Person; stocks, bonds, mutual funds, partnership
interests, notes, debentures or other securities owned by such Person; any
deposit accounts and certificates of deposit owned by such Person; and
structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person.


 


“JPMorgan
Chase” means JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA
(Illinois)), in its individual capacity, and its successors.


 


“LC
Fee” is defined in Section 2.20.4.


 


“LC
Issuer” means JPMorgan Chase (or any Subsidiary or Affiliate of JPMorgan Chase
designated by JPMorgan Chase) or any of the other Lenders, as applicable, in
its respective capacity as issuer of Facility LCs hereunder.


 


“LC
Obligations” means, at any time, the sum, without duplication, of (i) the
aggregate undrawn amount under all Facility LCs outstanding at such time plus
(ii) the aggregate unpaid amount at such time of all Reimbursement
Obligations.


 


“LC
Payment Date” is defined in Section 2.20.5.


 


“LC
Reimbursement Date” is defined in Section 2.20.6.


 


“Lenders”
means the lending institutions listed on the signature pages of this
Agreement and their respective successors and assigns.  Unless otherwise specified, the term
“Lenders” includes the Swing Line Lender and the LC Issuers.


 


12





















 


“Lending
Installation” means, with respect to a Lender or the Agent, the office, branch,
Subsidiary or Affiliate of such Lender or the Agent listed on the signature
pages hereof or on the administrative information sheets provided to the
Agent in connection herewith or on a Schedule or otherwise selected by
such Lender or the Agent pursuant to Section 2.17.


 


“Letter
of Credit” of a Person means a letter of credit or similar instrument which is
issued upon the application of such Person or upon which such Person is an
account party or, without duplication, for which such Person has a
reimbursement obligation.


 


“Leverage
Ratio” is defined in Section 6.20.


 


“Lien”
means any lien (statutory or other), mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance or preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the interest of a vendor or lessor under any
conditional sale, Capitalized Lease or other title retention agreement).


 


“Loan”
means, with respect to a Lender, such Lender’s loan made pursuant to
Article II (or any conversion or continuation thereof), whether
constituting a Revolving Loan or a Swing Line Loan.


 


“Loan
Documents” means this Agreement, the Facility LC Applications, the Collateral
Documents, the Guaranty, and all other documents, instruments, notes (including
any Notes issued pursuant to Section 2.13 (if requested)) and agreements
executed in connection herewith or therewith or contemplated hereby or thereby,
as the same may be amended, restated or otherwise modified and in effect from
time to time.


 


“Material
Adverse Effect” means a material adverse effect on (i) the business,
condition (financial or otherwise), operations, Properties or prospects of the
Parent and its Subsidiaries taken as a whole, or the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Parent, the
Borrower or any Subsidiary to perform its obligations under the Loan Documents,
(iii) the validity or enforceability of any of the Loan Documents or
(iv) the rights or remedies of the Agent, the LC Issuers or the Lenders
thereunder or their rights with respect to the Collateral taken as a whole.


 


“Material
Foreign Subsidiary” means any direct or indirect first-tier Foreign Subsidiary
of the Parent that at any time has (i) (a) sales as of the last day
of any fiscal quarter (calculated on a consolidated basis for such Subsidiary
and its consolidated Subsidiaries for the twelve-month period then ended)
greater than or equal to five percent (5%) of consolidated sales of the Parent
and its Subsidiaries for such period and (b) Consolidated EBITDA as of the
last day of such fiscal quarter (calculated on a consolidated basis for such
Subsidiary and its consolidated Subsidiaries for the twelve-month period then
ended) greater than or equal to five percent (5%) of Consolidated EBITDA of the
Parent and its Subsidiaries for such period, or (ii) on a consolidated
basis for such Subsidiary and its consolidated Subsidiaries at any time five
percent (5%) or more of the consolidated total assets of the Parent and its
Subsidiaries as reported in the most recent annual or quarterly financial
statements of the Parent delivered pursuant to Section 6.1.1 or 6.1.2.


 


13





















 


“Material
Indebtedness” means any Indebtedness in an outstanding principal amount of
$25,000,000 or more in the aggregate (or the equivalent thereof in any currency
other than Dollars), other than the Obligations.


 


“Modify”
and “Modification” are defined in Section 2.20.1.


 


“Moody’s”
means Moody’s Investors Services, Inc. and any successor thereto.


 


“Multiemployer
Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, which is covered by Title IV of ERISA and to which the Parent or any
member of the Controlled Group is obligated to make contributions.


 


“Net
Cash Proceeds” means, with respect to any sale of Property or any Financing by
any Person, (a) cash (freely convertible into Dollars) received by such
Person or any Subsidiary of such Person from such sale of Property or
Financing, after (i) provision for all income or other taxes measured by
or resulting from such sale of Property, (ii) payment of all reasonable
brokerage commissions and other fees and expenses related to such sale of
Property or Financing, and (iii) all amounts used to repay Indebtedness
secured by a Lien on any asset disposed of in such sale of Property which is or
may be required (by the express terms of the instrument governing such
Indebtedness or by the purchaser of such Property) to be repaid in connection
with such sale of Property (including payments made to obtain or avoid the need
for the consent of any holder of such Indebtedness).


 


“Net
Mark-to-Market Exposure” of a Person means, as of any date of determination,
the excess (if any) of all unrealized losses over all unrealized profits of
such Person arising from Rate Management Transactions.  “Unrealized losses” means the fair market
value of the cost to such Person of replacing such Rate Management Transaction
as of the date of determination (assuming the Rate Management Transaction were
to be terminated as of that date), and “unrealized profits” means the fair
market value of the gain to such Person of replacing such Rate Management
Transaction as of the date of determination (assuming such Rate Management
Transaction were to be terminated as of that date).


 


 “Non-U.S. Lender” is defined in
Section 3.5(iv).


 


“Note”
is defined in Section 2.13.


 


“Obligations”
means all unpaid principal of and accrued and unpaid interest on the Loans, all
Reimbursement Obligations, accrued and unpaid fees, all expense and other
reimbursement obligations, and all indemnities and other obligations of any
Credit Party to the Agent, any Lender, the Arranger (or any Affiliate of any of
the foregoing) or any Person benefiting from indemnities made by any Credit
Party hereunder or under any other Loan Document, in each case of any kind or
nature, present or future, arising under this Agreement, the Existing Credit
Agreement or any other Loan Document, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising and however acquired.  The term includes, without limitation, all
interest, charges, expenses, fees, outside attorneys’ fees and disbursements,
paralegals’ fees (in each case whether or not allowed under the Federal
bankruptcy laws), and any other sum


 


14





















 


chargeable to any Credit Party under this Agreement, the Existing
Credit Agreement or any other Loan Document.


 


“Off-Balance
Sheet Liability” of a Person means, without duplication, the principal
component of (i) any Receivables Purchase Facility or any other repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person (other than the sale or disposition in the
ordinary course of business of accounts or notes receivable in connection with the
compromise or collection thereof consistent with customary industry practice
(and not as part of any bulk sale or financing of receivables)) or
(ii) any liability under any so-called “synthetic lease” or “tax ownership
operating lease” transaction entered into by such Person; provided that “Off-Balance Sheet
Liabilities” shall not include the principal component of the foregoing if such
principal component (a) is otherwise reflected as a liability on such
Person’s consolidated balance sheet or (b) is deducted from revenues in
determining such Person’s consolidated net income but is not thereafter added
back in calculating such Person’s Consolidated EBITDA.


 


“Off-Balance
Sheet Trigger Event” is defined in Section 7.15.


 


“Operating
Lease” of a Person means any lease of Property (other than a Capitalized Lease)
by such Person as lessee which has an original term (including any required
renewals and any renewals effective at the option of the lessor) of one year or
more.


 


“Other
Taxes” is defined in Section 3.5(ii).


 


“Outstanding
Credit Exposure” means, as to any Lender at any time, the sum of (i) the
aggregate principal amount of its Revolving Loans outstanding at such time, plus
(ii) an amount equal to its ratable obligation to purchase participations
in the aggregate principal amount of Swing Line Loans outstanding at such time,
plus (iii) an amount equal to its ratable obligation to purchase
participations in the LC Obligations at such time.


 


“Parent”
means United Stationers Inc., a Delaware corporation, and its permitted
successors and assigns (including, without limitation, a debtor in possession
on its behalf).


 


“Participants”
is defined in Section 12.2.1.


 


“Payment
Date” means the last day of each March, June, September and
December and the Facility Termination Date.


 


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


 


“Permitted
Acquisition” is defined in Section 6.13.5.


 


“Permitted
Customer Financing Guarantee” means any guaranty or repurchase or recourse
obligations of the Borrower, incurred in the ordinary course of business, in
respect of Indebtedness incurred by a customer of the Borrower; provided that
the Borrower’s obligations in respect of all such guarantees and other recourse
obligations shall not exceed $30,000,000 in the aggregate.


 


15





















 


“Permitted
Distribution Amount” is defined in Section 6.10.


 


“Permitted
Priority Liens” means any Liens permitted by Section 6.15 and
(i) arising by operation of applicable law (and not solely by contract)
and are perfected (other than by the filing of a financing statement or other
filing or control agreement) and accorded priority over the Agent’s Liens on
the Collateral by operation of applicable law, (ii) arising under any of
Sections 6.15.6, 6.15.7 or 6.15.23 or reflected on any title commitment issued
with any Collateral Document, or (iii) securing purchase money
Indebtedness, Capitalized Lease Obligations or Indebtedness described in the
first parenthetical of Section 6.14.12, in each case to the extent the
same are permitted to exist or otherwise be incurred hereunder.


 


“Permitted
Purchase Money Debt” is defined in Section 6.14.5.


 


“Person”
means any natural person, corporation, firm, joint venture, partnership,
limited liability company, association, enterprise, trust or other entity or
organization, or any government or political subdivision or any agency,
department or instrumentality thereof.


 


“Plan”
means an employee pension benefit plan, excluding any Multiemployer Plan, which
is covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code as to which the Parent or any member of the
Controlled Group may have any liability.


 


“Pricing
Schedule” means the Schedule identifying the Applicable Margin and
Applicable Fee Rate attached hereto and identified as such.


 


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


 


“Property”
of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated
by such Person.


 


“Pro
Rata Share” means, with respect to a Lender, a portion equal to a fraction the
numerator of which is such Lender’s Commitment at such time (in each case, as
adjusted from time to time in accordance with the provisions of this Agreement)
and the denominator of which is the Aggregate Commitment at such time, or, if
the Aggregate Commitment has been terminated, a fraction the numerator of which
is such Lender’s Outstanding Credit Exposure at such time and the denominator
of which is the sum of the Aggregate Outstanding Credit Exposure at such time.


 


“Purchase
Price” means the total consideration and other amounts payable in connection
with any Acquisition, including, without limitation, any portion of the
consideration payable in cash, all Indebtedness incurred or assumed in
connection with such Acquisition, but exclusive of the value of any capital
stock or other equity interests of the Parent, the Borrower or any Subsidiary
issued as consideration for such Acquisition.


 


“Purchasers”
is defined in Section 12.3.1.


 


16





















 


“Rate
Management Obligations” of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
Rate Management Transactions, and (ii) any and all cancellations, buy
backs, reversals, terminations or assignments of any Rate Management
Transactions.


 


“Rate
Management Transaction” means any transaction (including an agreement with
respect thereto) now existing or hereafter entered into by the Parent, the
Borrower or a Subsidiary which is a rate swap, basis swap, forward rate
transaction, equity or equity index swap, equity or equity index option, bond
option, interest rate option, foreign exchange transaction, cap transaction,
floor transaction, collar transaction, forward transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices or equity prices.


 


“Receivables
Purchase Documents” means any series of receivables purchase or sale
agreements, servicing agreements and other related agreements generally
consistent with terms contained in comparable structured finance transactions
pursuant to which the Parent, the Borrower or any of its Subsidiaries, in their
respective capacities as sellers or transferors of any receivables, sell or
transfer, directly or indirectly, to SPVs all of their respective right, title
and interest in and to (but not their obligations under) certain receivables
for further sale or transfer (or granting of Liens to other purchasers of or
investors in such assets or interests therein (and the other documents,
instruments and agreements executed in connection therewith)), as any such
agreements may be amended, restated, supplemented or otherwise modified from
time to time, or any replacement or substitution therefor.


 


“Receivables
Purchase Facility” means any securitization facility made available to the
Parent, the Borrower or any of its Subsidiaries, pursuant to which receivables
of the Parent, the Borrower or any of its Subsidiaries are transferred,
directly or indirectly, to one or more SPVs, and thereafter to certain
investors, pursuant to the terms and conditions of the Receivables Purchase
Documents.


 


“Regulation
D” means Regulation D of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor thereto or other regulation or
official interpretation of said Board of Governors relating to reserve
requirements applicable to member banks of the Federal Reserve System.


 


“Regulation
U” means Regulation U of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor or other regulation or
official interpretation of said Board of Governors relating to the extension of
credit by banks, non-banks and non-broker lenders for the purpose of purchasing
or carrying margin stocks applicable to member banks of the Federal Reserve
System.


 


“Regulation
X” means Regulation X of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor or other regulation or
official


 


17





















 


interpretation of said Board of Governors relating to the extension of
credit by foreign lenders for the purpose of purchasing or carrying margin
stock (as defined therein).


 


“Reimbursement
Obligations” means, at any time, with respect to any LC Issuer, the aggregate
of all obligations of the Borrower then outstanding under Section 2.20 to
reimburse such LC Issuer for amounts paid by such LC Issuer in respect of any
one or more drawings under Facility LCs issued by such LC Issuer; or, as the
context may require, all such Reimbursement Obligations then outstanding to
reimburse all of the LC Issuers.


 


“Required
Lenders” means Lenders in the aggregate having more than 50% of the Aggregate
Commitment or, if the Aggregate Commitment has been terminated, Lenders in the
aggregate holding more than 50% of the Aggregate Outstanding Credit Exposure.


 


“Reserve
Requirement” means, with respect to an Interest Period, the maximum aggregate
reserve requirement (including all basic, supplemental, marginal and other
reserves) which is imposed under Regulation D on “Eurocurrency liabilities” (as
defined in Regulation D).


 


“Restatement
Effective Date” means October 12, 2005.


 


“Revolving
Loan” means, with respect to a Lender, such Lender’s loan made pursuant to its
commitment to lend set forth in Section 2.1 (and any conversion or
continuation thereof) and includes any Existing Revolving Loan.


 


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


 


“Schedule”
refers to a specific schedule to this Agreement, unless another document
is specifically referenced.


 


“SEC”
means the United States Securities and Exchange Commission, and any successor
thereto.


 


“Section”
means a numbered section of this Agreement, unless another document is specifically
referenced.


 


“Secured
Obligations” means, collectively, (i) the Obligations and (ii) so
long as any Lender shall remain a Lender hereunder, all Rate Management
Obligations owing in connection with Rate Management Transactions to such
Lender or any Affiliate of such Lender.


 


“Security
Agreement” means the Security Agreement, dated as of March 21, 2003, by
and between the Borrower, the Parent and certain Subsidiaries of the Parent, as
grantors thereunder, and the Agent for the benefit of the Holders of Secured
Obligations, as the same may be amended, restated, supplemented or otherwise
modified from time to time.


 


 “Single Employer Plan” means a Plan maintained
by the Parent or any member of the Controlled Group for employees of the Parent
or any member of the Controlled Group.


 


18





















 


“Solvent”
means, when used with respect to the Parent and its Subsidiaries (on a
consolidated basis), that at the time of determination:


 


(i)            the fair value of their consolidated
assets (both at fair valuation and at present fair saleable value) is equal to
or in excess of the total amount of their consolidated liabilities, including
without limitation contingent liabilities; and


 


(ii)           they are then able and presently
expect to be able to pay their consolidated debts as they mature; and


 


(iii)          they have capital sufficient to carry
on their business as conducted.


 


With
respect to contingent liabilities (such as litigation, guarantees and pension
plan liabilities), such liabilities shall be computed at the amount which, in
light of all the facts and circumstances existing at the time, represent the
amount which can be reasonably be expected to become an actual or matured
liability.


 


“SPV”
means any special purpose entity established for the purpose of purchasing
receivables in connection with a receivables securitization transaction
permitted under the terms of this Agreement.


 


“Subsidiary”
of a Person means (i) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned or
controlled, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint
venture or similar business organization more than 50% of the ownership
interests having ordinary voting power of which shall at the time be so owned
or controlled.  Unless otherwise
expressly provided, all references herein to a “Subsidiary” shall mean a
Subsidiary of the Parent.


 


“Substantial
Portion” means, with respect to the Property of the Parent and its
Subsidiaries, Property which represents more than 10% of the consolidated
assets of the Parent and its Subsidiaries or property which is responsible for
more than 10% of the consolidated net sales or of the Consolidated Net Income
of the Parent and its Subsidiaries, in each case, as would be shown in the
consolidated financial statements of the Parent and its Subsidiaries as at the end
of the four fiscal quarter period ending with the fiscal quarter immediately
prior to the fiscal quarter in which such determination is made (or if
financial statements have not been delivered hereunder for that fiscal quarter
which ends the four fiscal quarter period, then the financial statements
delivered hereunder for the quarter ending immediately prior to that quarter).


 


“Swing
Line Borrowing Notice” is defined in Section 2.4.2.


 


“Swing
Line Commitment” means the obligation of the Swing Line Lender to make Swing
Line Loans up to a maximum principal amount of $25,000,000 at any one time
outstanding.


 


“Swing
Line Lender” means JPMorgan Chase or such other Lender which may succeed to its
rights and obligations as Swing Line Lender pursuant to the terms of this
Agreement.


 


19





















 


“Swing
Line Loan” means a Loan made available to the Borrower by the Swing Line Lender
pursuant to Section 2.4 and includes any “Swing Line Loan” made pursuant
to the Existing Credit Agreement and outstanding on the Restatement Effective
Date.


 


“Taxes”
means any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and any and all liabilities with respect to the
foregoing, but excluding Excluded
Taxes and Other Taxes.


 


“Term
Loan” is defined in Section 2.21.


 


“TOPCO”
means The Order People Company, a Delaware corporation.


 


“TOPCO
Investment” means the sum, without duplication, of (i) the aggregate
outstanding principal amount of all intercompany loans made on or after the
Restatement Effective Date from any Credit Party to TOPCO; (ii) all
outstanding Investments made on or after the Restatement Effective Date by any
Credit Party in TOPCO; and (iii) an amount equal to the net benefit derived
by TOPCO resulting from any non-arm’s-length transactions, or any other
transfer of assets conducted, in each case entered into on or after the
Restatement Effective Date, between any Credit Party, on the one hand, and
TOPCO, on the other hand, other than (a) transactions in the ordinary
course of business and (b) in respect of legal, accounting, reporting,
listing and similar administrative services provided by any Credit Party to
TOPCO in the ordinary course of business consistent with past practice.


 


“Transferee”
is defined in Section 12.4.


 


“Type”
means, with respect to any Advance, its nature as a Floating Rate Advance or a
Eurodollar Advance and with respect to any Revolving Loan, its nature as a
Floating Rate Loan or a Eurodollar Loan.


 


“Unmatured
Default” means an event which but for the lapse of time or the giving of
notice, or both, would constitute a Default.


 


“Weighted
Average Life to Maturity” means when applied to any Indebtedness at any date,
the number of years obtained by dividing (i) the sum of the products
obtained by multiplying (a) the amount of each then remaining installment,
sinking fund, serial maturity or other required scheduled payments of
principal, including payment at final maturity, in respect thereof, by
(b) the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment, by (ii) the then
outstanding principal amount of such Indebtedness.


 


“Wholly-Owned
Subsidiary” of a Person means (i) any Subsidiary all of the outstanding
voting securities (other than directors’ qualifying shares) of which shall at
the time be owned or controlled, directly or indirectly, by such Person or one
or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or
more Wholly-Owned Subsidiaries of such Person, or (ii) any partnership,
limited liability company, association, joint venture or similar business
organization 100% of the ownership interests having ordinary voting power of
which shall at the time be so owned or controlled.


 


20





















 


1.2.          Plural Forms. 
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.


 


ARTICLE II



THE CREDITS


 


2.1.          Existing Revolving Loans; Commitment.  


 


2.1.1  Existing Revolving Loans.  Prior to the Restatement Effective Date,
revolving loans were previously made to the Borrower under the Existing Credit
Agreement which remain outstanding as of the date of this Agreement (such
outstanding revolving loans being hereinafter referred to as the “Existing Revolving
Loans”).  Subject to the terms and
conditions set forth in this Agreement, the Borrower and each of the Lenders
agree that on the Restatement Effective Date but subject to the satisfaction of
the conditions precedent set forth in Sections 4.1 and 4.2 (as applicable), the
Existing Revolving Loans shall be reevidenced as Revolving Loans under this
Agreement and the terms of the Existing Revolving Loans shall be restated in
their entirety and shall be evidenced by this Agreement.


 


2.1.2  Commitment.  From and including the Restatement Effective
Date and prior to the Facility Termination Date, upon the satisfaction of the
conditions precedent set forth in Sections 4.1 and 4.2, as applicable, each
Lender severally and not jointly agrees, on the terms and conditions set forth
in this Agreement, to (i) make Revolving Loans to the Borrower in Dollars
from time to time and (ii) participate in Facility LCs issued upon the
request of the Borrower, in each case in an amount not to exceed in the aggregate
at any one time outstanding of its Pro Rata Share of the Available Aggregate
Commitment; provided that at no
time shall the Aggregate Outstanding Credit Exposure hereunder exceed the
Aggregate Commitment.  Subject to the
terms of this Agreement, the Borrower may borrow, repay and reborrow Revolving
Loans at any time prior to the Facility Termination Date.  The commitment of each Lender to lend
hereunder shall automatically expire on the Facility Termination Date.  The LC Issuers will issue Facility LCs
hereunder on the terms and conditions set forth in Section 2.20.


 


2.2.          Required Payments; Termination. 
(a) Any outstanding Advances and all other unpaid Secured
Obligations shall be paid in full by the Borrower on the Facility Termination
Date.  Notwithstanding the termination of
the Commitments under this Agreement on the Facility Termination Date, until
all of the Secured Obligations (other than contingent indemnity obligations)
shall have been fully paid and satisfied and all financing arrangements among
the Borrower and the Lenders hereunder and under the other Loan Documents shall
have been terminated, all of the rights and remedies under this Agreement and
the other Loan Documents shall survive.


 


(b)           Asset Sales and Insurance Proceeds.  Upon
(1) the consummation of any sale, lease, conveyance, transfer, casualty or
other disposition (“Asset Sale”) of Property (other than sales permitted under
Sections 6.12.1 through 6.12.9) by the Parent or any Subsidiary of the Parent,
except to the extent that the Net Cash Proceeds of such Asset Sale, when
combined with 


 


21





















 


the Net Cash Proceeds of all such Asset Sales
during the immediately preceding twelve-month period, do not exceed $35,000,000
for any such Asset Sale or series of related Asset Sales or (2) the
receipt by the Parent or any of its Subsidiaries of proceeds from insurance in
connection with any property loss or casualty, net of costs and taxes incurred
in connection with such loss or casualty (“Loss Proceeds”), except to the
extent that such Loss Proceeds, when combined with all other Loss Proceeds
received during the then current fiscal year, do not exceed $20,000,000, and in
each case, except as provided in the second sentence of this clause (b), within
five (5) Business Days after the Parent’s or any of its Subsidiaries’ (x)
receipt of any Net Cash Proceeds from any such Asset Sale or any such Loss
Proceeds, or (y) conversion to cash or Cash Equivalent Investments of non-cash
proceeds (whether principal or interest and including securities, release of
escrow arrangements or lease payments) received from any Asset Sale, the
Borrower shall make a mandatory prepayment of the Obligations, subject to the
provisions governing the application of payments set forth in Section 2.2(d),
in an amount equal to one hundred percent (100%) of such Net Cash Proceeds or
Loss Proceeds or such proceeds converted from non-cash to cash or Cash
Equivalent Investments.  Unless a Default
or Unmatured Default shall have occurred and is continuing, in the event that
the Borrower shall have given the Agent written notice within thirty (30) days
after an Asset Sale or event giving rise to such Loss Proceeds of its intention
to replace the assets or use such Net Cash Proceeds or Loss Proceeds, as
applicable, to acquire other assets useful in the business of the Parent and
its Subsidiaries (other than the acquisition of assets for use by TOPCO) (which
shall include, without limitation, assets acquired pursuant to a Permitted
Acquisition) within twelve (12) months following such Asset Sale or the receipt
of such Loss Proceeds, as applicable, then such Net Cash Proceeds or Loss
Proceeds shall not be subject to the provisions of the first sentence of this
clause (b) unless and to the extent that such applicable period shall have
expired without such replacement having been made.


 


(c)           Financings.  Upon the consummation of any
Financing by the Parent or any Subsidiary of the Parent, within five
(5) Business Days after the Parent’s or any of its Subsidiaries’ receipt
of any Net Cash Proceeds from such Financing, the Borrower shall make a
mandatory prepayment of the Obligations, subject to the provisions governing
the application of payments set forth in Section 2.2(d), in an amount
equal to one hundred percent (100%) of the excess over $50,000,000 (when taken
together with the Net Cash Proceeds of all other Financings after the
Restatement Effective Date) of all such Net Cash Proceeds.


 


(d)           Application of Designated Prepayments.  Each
mandatory prepayment required by clauses (b) and (c) of
this Section 2.2 shall be referred to herein as a “Designated
Prepayment.”  Designated Prepayments
shall be applied to repay Revolving Loans and shall automatically reduce
Commitments ratably in an amount equal to such Designated Prepayment.  Following the payment in full of the
Revolving Loans, the amount of each Designated Prepayment shall be applied
first to interest on the Reimbursement Obligations, then to principal on the
Reimbursement Obligations, then to fees on account of Facility LCs, then, to
the extent any L/C Obligations are contingent, deposited with the Agent as cash
collateral in respect of such L/C Obligations (up to an amount not to exceed
100% of such contingent obligations), and then any excess shall be returned to
the Borrower or paid to whomever may be legally entitled thereto at such time.


 


22





















 


(e)           Application and Priority of Prepayments.  With
respect to the reduction of the Revolving Loans on any date, Designated
Prepayments shall first be applied to Floating Rate Loans and to any Eurodollar
Rate Loans maturing on such date and then to subsequently maturing Eurodollar
Rate Loans in order of maturity.


 


2.3.          Ratable Loans; Types of Advances. 
(a) Each Advance hereunder (other than a Swing Line Loan) shall
consist of Revolving Loans made from the several Lenders ratably in proportion
to the ratio that their respective Commitments bear to the Aggregate
Commitment.


 


(b)           The Advances may be Floating Rate Advances or
Eurodollar Advances, or a combination thereof, selected by the Borrower in
accordance with Sections 2.8 and 2.9, or Swing Line Loans selected by the
Borrower in accordance with Section 2.4.


 


2.4.          Swing Line Loans.


 


2.4.1  Amount of Swing Line Loans.  Upon the satisfaction of the conditions
precedent set forth in Section 4.2 and, if such Swing Line Loan is to be
made on the date of the initial Credit Extension hereunder, the satisfaction of
the conditions precedent set forth in Section 4.1 as well, from and
including the Restatement Effective Date and prior to the Facility Termination
Date, the Swing Line Lender agrees, on the terms and conditions set forth in
this Agreement, to make Swing Line Loans in Dollars to the Borrower from time
to time in an aggregate principal amount not to exceed the Swing Line
Commitment, provided that
(i) the Aggregate Outstanding Credit Exposure shall not at any time exceed
the Aggregate Commitment and (ii) at no time shall the sum of (a) the
Swing Line Loans then outstanding, plus (b) the outstanding Revolving Loans made by the Swing Line
Lender pursuant to Section 2.1 (including its participation in any
Facility LCs), exceed the Swing Line Lender’s Commitment at such time.  Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow Swing Line Loans at any time prior to
the Facility Termination Date.


 


2.4.2  Borrowing Notice.  The Borrower shall deliver to the Agent and
the Swing Line Lender irrevocable notice (a “Swing Line Borrowing Notice”) not later
than 2:00 p.m. (Chicago time) on the Borrowing Date of each Swing Line
Loan, specifying (i) the applicable Borrowing Date (which date shall be a
Business Day), and (ii) the aggregate amount of the requested Swing Line
Loan which shall be an amount not less than $100,000.  The Swing Line Loans shall bear interest at
the Floating Rate or such other rate per annum as shall be agreed to by the
Swing Line Lender and the Borrower.


 


2.4.3  Making of Swing Line Loans.  Promptly after receipt of a Swing Line Borrowing
Notice, the Agent shall notify each Lender by fax or other similar form of
transmission, of the requested Swing Line Loan. 
Not later than 4:00 p.m. (Chicago time) on the applicable Borrowing
Date, the Swing Line Lender shall make available the Swing Line Loan, in funds
immediately available in Chicago, to the Agent at its address specified
pursuant to Article XIII.  The Agent
will promptly make the funds so received from the Swing Line Lender available to
the Borrower on the Borrowing Date at the Agent’s aforesaid address in an
account maintained and designated by the Borrower.


 


23





















 


2.4.4  Repayment of Swing Line Loans.  Each Swing Line Loan shall be paid in full by
the Borrower on or before the fifth (5th) Business Day after the
Borrowing Date for such Swing Line Loan. 
In addition, the Swing Line Lender (i) may at any time in its sole
discretion with respect to any outstanding Swing Line Loan, or (ii) shall,
on the fifth (5th) Business Day after the Borrowing Date of any
Swing Line Loan, require each Lender (including the Swing Line Lender) to make
a Revolving Loan in the amount of such Lender’s Pro Rata Share of such Swing
Line Loan (including, without limitation, any interest accrued and unpaid thereon),
for the purpose of repaying such Swing Line Loan.  Not later than 2:00 p.m. (Chicago time)
on the date of any notice received pursuant to this Section 2.4.4, each
Lender shall make available its required Revolving Loan, in funds immediately
available in Chicago to the Agent at its address specified pursuant to
Article XIII.  Revolving Loans made
pursuant to this Section 2.4.4 shall initially be Floating Rate Loans and
thereafter may be continued as Floating Rate Loans or converted into Eurodollar
Loans in the manner provided in Section 2.9 and subject to the other
conditions and limitations set forth in this Article II.  Unless a Lender shall have notified the Swing
Line Lender, prior to its making any Swing Line Loan, that any applicable
condition precedent set forth in Sections 4.1 or 4.2 had not then been
satisfied, such Lender’s obligation to make Revolving Loans pursuant to this
Section 2.4.4 to repay Swing Line Loans shall be unconditional,
continuing, irrevocable and absolute and shall not be affected by any
circumstances, including, without limitation, (a) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the Agent, the Swing Line Lender or any other Person, (b) the
occurrence or continuance of a Default or Unmatured Default, (c) any
adverse change in the condition (financial or otherwise) of the Borrower, or
(d) any other circumstances, happening or event whatsoever.  In the event that any Lender fails to make
payment to the Agent of any amount due under this Section 2.4.4, the Agent
shall be entitled to receive, retain and apply against such obligation the
principal and interest otherwise payable to such Lender hereunder until the
Agent receives such payment from such Lender or such obligation is otherwise
fully satisfied.  In addition to the
foregoing, if for any reason any Lender fails to make payment to the Agent of
any amount due under this Section 2.4.4, such Lender shall be deemed, at
the option of the Agent, to have unconditionally and irrevocably purchased from
the Swing Line Lender, without recourse or warranty, an undivided interest and
participation in the applicable Swing Line Loan in the amount of such Revolving
Loan, and such interest and participation may be recovered from such Lender together
with interest thereon at the Federal Funds Effective Rate for each day during
the period commencing on the date of demand and ending on the date such amount
is received.  On the Facility Termination
Date, the Borrower shall repay in full the outstanding principal balance of the
Swing Line Loans.


 


2.5.          Commitment Fee; Aggregate Commitment.


 


2.5.1  Commitment Fee.  The Borrower shall pay to the Agent, for the
account of the Lenders in accordance with their Pro Rata Shares of the
Aggregate Commitment, from and after the Restatement Effective Date until the
date on which the Aggregate Commitment shall be terminated in whole, a
commitment fee (the “Commitment Fee”) accruing at the rate of the then
Applicable Fee Rate on the daily average Available Aggregate Commitment
(excluding from the calculation thereof, the Swing Line Loans).


 


24





















 


All such
Commitment Fees payable hereunder shall be payable quarterly in arrears on each
Payment Date.  In addition, on the Restatement
Effective Date, the Borrower shall pay to the Agent for the ratable account of
the lenders then party to the Existing Credit Agreement, the accrued and unpaid
commitment fees under the Existing Credit Agreement through the Restatement
Effective Date.


 


2.5.2  Reductions in Aggregate Commitment.  The Borrower may permanently reduce the
Aggregate Commitment in whole, or in part, ratably among the Lenders in a
minimum amount of $5,000,000 (and in multiples of $1,000,000 if in excess
thereof), upon at least three (3) Business Days’ prior written notice to
the Agent, which notice shall specify the amount of any such reduction, provided,  however,
that the amount of the Aggregate Commitment may not be reduced below the
Aggregate Outstanding Credit Exposure. 
All accrued Commitment Fees shall be payable on the effective date of
any termination of the Commitments.


 


2.6.          Minimum Amount of Each Advance. 
Each Eurodollar Advance shall be in the minimum amount of $5,000,000
(and in multiples of $1,000,000 if in excess thereof), and each Floating Rate
Advance (other than an Advance to repay Swing Line Loans or to refund
Reimbursement Obligations) shall be in the minimum amount of $5,000,000 (and in
multiples of $1,000,000 if in excess thereof), provided,
however, that any Floating Rate
Advance may be in the amount of the Available Aggregate Commitment.


 


2.7.          Optional Principal Payments. 
The Borrower may from time to time pay, without penalty or premium, all
outstanding Floating Rate Advances (other than Swing Line Loans), or any
portion of the outstanding Floating Rate Advances (other than Swing Line
Loans), in a minimum aggregate amount of $1,000,000 or any integral multiple of
$100,000 in excess thereof, with notice to the Agent by 11:00 a.m.
(Chicago time) on the date of any anticipated repayment.  The Borrower may at any time pay, without
penalty or premium, all outstanding Swing Line Loans, or, in a minimum amount
of $100,000 and increments of $100,000 in excess thereof, any portion of the
outstanding Swing Line Loans, with notice to the Agent and the Swing Line
Lender by 12:00 noon (Chicago time) on the date of repayment.  The Borrower may from time to time pay,
subject to the payment of any funding indemnification amounts required by
Section 3.4 but without penalty or premium, all outstanding Eurodollar
Advances, or, in a minimum aggregate amount of $5,000,000 or any integral
multiple of $1,000,000 in excess thereof, any portion of the outstanding
Eurodollar Advances upon three (3) Business Days’ prior notice to the
Agent.


 


2.8.          Method of Selecting Types and Interest
Periods for New Advances.  The Borrower shall select the
Type of Advance and, in the case of each Eurodollar Advance, the Interest
Period applicable thereto from time to time; provided
that there shall be no more than eight (8) Interest Periods in effect with
respect to all of the Revolving Loans at any time, unless such limit has been
waived by the Agent in its sole discretion. 
The Borrower shall give the Agent irrevocable notice (a “Borrowing Notice”)
not later than 12:00 noon (Chicago time) on the Borrowing Date of each Floating
Rate Advance (other than a Swing Line Loan) and three (3) Business Days
before the Borrowing Date for each Eurodollar Advance, specifying:


 


(i)            the Borrowing Date, which shall be a
Business Day, of such Advance,


 


25





















 


(ii)           the aggregate amount of such Advance,


 


(iii)          the Type of Advance selected, and


 


(iv)          in the case of each Eurodollar Advance,
the Interest Period applicable thereto.


 


Not
later than 2:00 p.m. (Chicago time) on each Borrowing Date, each Lender
shall make available its Revolving Loan or Revolving Loans in Federal or other
funds immediately available in Chicago to the Agent at its address specified
pursuant to Article XIII.  The Agent
will promptly make the funds so received from the Lenders available to the
Borrower at the Agent’s aforesaid address in an account maintained and
designated by the Borrower.


 


2.9.          Conversion and Continuation of
Outstanding Advances; No Conversion or Continuation of Eurodollar Advances
After Default.  Floating Rate Advances (other than Swing Line
Advances) shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into Eurodollar Advances pursuant to this
Section 2.9 or are repaid in accordance with Section 2.7.  Each Eurodollar Advance shall continue as a
Eurodollar Advance until the end of the then applicable Interest Period
therefor, at which time such Eurodollar Advance shall be automatically converted
into a Floating Rate Advance unless (x) such Eurodollar Advance is or was
repaid in accordance with Section 2.7 or (y) the Borrower shall have given
the Agent a Conversion/Continuation Notice requesting that, at the end of such
Interest Period, such Eurodollar Advance continue as a Eurodollar Advance for
the same or another Interest Period. 
Subject to the terms of Section 2.6 and the payment of any funding
indemnification amounts required by Section 3.4, the Borrower may elect
from time to time to convert all or any part of an Advance of any Type (other
than a Swing Line Advance) into any other Type or Types of Advances.  Notwithstanding anything to the contrary
contained in this Section 2.9, during the continuance of a Default, the
Agent may (or shall at the direction of the Required Lenders), by notice to the
Borrower, declare that no Advance may be made as, converted to or, following
the expiration of any Interest Periods then in effect, continued as a
Eurodollar Advance.  The Borrower shall
give the Agent irrevocable notice (a “Conversion/Continuation Notice”) of each
conversion of an Advance or continuation of a Eurodollar Advance not later than
12:00 noon (Chicago time) on the same Business Day, in the case of a conversion
into a Floating Rate Advance, or three (3) Business Days, in the case of a
conversion into or continuation of a Eurodollar Advance, prior to the date of
the requested conversion or continuation, specifying:


 


(i)            the requested date, which shall be a
Business Day, of such conversion or continuation,


 


(ii)           the aggregate amount and Type of the
Advance which is to be converted or continued, and


 


(iii)          the amount of such Advance which is to be
converted into or continued as a Eurodollar Advance and the duration of the
Interest Period applicable thereto.


 


2.10.        Changes in Interest Rate, etc.  Each Floating Rate Advance (other than a Swing Line
Advance) shall bear interest on the outstanding principal amount thereof, for
each day from and including the date such Advance is made or is automatically
converted from a Eurodollar 


 


26





















 


Advance
into a Floating Rate Advance pursuant to Section 2.9, to but excluding the
date it is paid or is converted into a Eurodollar Advance pursuant to
Section 2.9 hereof, at a rate per annum equal to the Floating Rate for
such day.  Each Swing Line Loan shall
bear interest on the outstanding principal amount thereof, for each day from
and including the day such Swing Line Loan is made to but excluding the date it
is fully paid at a rate per annum equal to the Floating Rate for such day or at
such other rate per annum as shall be agreed to by the Swing Line Lender and
the Borrower.  Changes in the rate of
interest on that portion of any Advance maintained as a Floating Rate Advance
will take effect simultaneously with each change in the Alternate Base
Rate.  Each Eurodollar Advance shall bear
interest on the outstanding principal amount thereof from and including the
first day of the Interest Period applicable thereto to (but not including) the
last day of such Interest Period at the Eurodollar Rate applicable to such
Eurodollar Advance and otherwise in accordance with the terms hereof.  No Interest Period may end after the Facility
Termination Date.


 


2.11.        Rates Applicable After Default. 
During the continuance of a Default the Required Lenders may, at their
option, by notice to the Borrower (which notice may be revoked at the option of
the Required Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that (i) each Eurodollar Advance shall bear interest for the
remainder of the applicable Interest Period at a rate per annum equal to the
Floating Rate in effect from time to time plus 2% per annum,
(ii) each Floating Rate Advance and each Swing Line Loan shall bear
interest at a rate per annum equal to the Floating Rate in effect from time to
time plus 2% per annum, and (iii) the LC Fee described in the first
sentence of Section 2.20.4 shall be increased to a rate per annum equal to
the Applicable Margin for Eurodollar Loans in effect from time to time plus
2% per annum; provided that,
during the continuance of a Default under Section 7.2, 7.6 or 7.7, the
interest rates set forth in clauses (i) and (ii) above and the
increase in the LC Fee set forth in clause (iii) above shall be applicable
without any election or action on the part of the Agent, any LC Issuer or any
Lender.


 


2.12.        Method of Payment. 
All payments of the Obligations hereunder shall be made, without setoff,
deduction, or counterclaim, in immediately available funds to the Agent at the
Agent’s address specified pursuant to Article XIII, or at any other
Lending Installation of the Agent specified in writing by the Agent to the Borrower,
by 12:00 noon (Chicago time) on the date when due and shall (except with
respect to repayments of Swing Line Loans, and except in the case of
Reimbursement Obligations for which any LC Issuer has not been fully
indemnified by the Lenders, or as otherwise specifically required hereunder) be
applied ratably by the Agent among the Lenders. 
Each payment delivered to the Agent for the account of any Lender shall
be delivered promptly by the Agent to such Lender in the same type of funds
that the Agent received at its address specified pursuant to Article XIII
or at any Lending Installation specified in a notice received by the Agent from
such Lender.  Each reference to the Agent
in this Section 2.12 shall also be deemed to refer, and shall apply
equally, to the LC Issuers in the case of payments required to be made by the
Borrower to the LC Issuers pursuant to Section 2.20.6.


 


2.13.        Noteless Agreement; Evidence of
Indebtedness.  (i) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Revolving Loan
made by such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.


 


27





















 


(ii)           The Agent shall also maintain accounts in
which it will record (a) the date and the amount of each Revolving Loan
made hereunder, the Type thereof and the Interest Period (in the case of a
Eurodollar Advance) with respect thereto, (b) the amount of any principal
or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder, (c) the original stated amount of each Facility LC
and the amount of LC Obligations (including specifying Reimbursement
Obligations) outstanding at any time, (d) the effective date and amount of
each Assignment Agreement delivered to and accepted by it and the parties
thereto pursuant to Section 12.3, (e) the amount of any sum received
by the Agent hereunder from the Borrower and each Lender’s share thereof, and
(f) all other appropriate debits and credits as provided in this
Agreement, including, without limitation, all fees, charges, expenses and
interest.


 


(iii)          The entries maintained in the accounts
maintained pursuant to paragraphs (i) and (ii) above shall be prima facie evidence (absent manifest
error) of the existence and amounts of the Obligations therein recorded; provided,  however,
that the failure of the Agent or any Lender to maintain such accounts or any
error therein shall not in any manner affect the obligation of the Borrower to
repay the Obligations in accordance with their terms.


 


(iv)          Any Lender may request that its Revolving
Loans or, in the case of the Swing Line Lender, the Swing Line Loans, be
evidenced by a promissory note in substantially the form of Exhibit D with
appropriate changes for notes evidencing Swing Line Loans (a “Note”).  In such event, the Borrower shall prepare, execute
and deliver to such Lender such Note payable to the order of such Lender or its
registered assigns.  Thereafter, the
Revolving Loans evidenced by such Note and interest thereon shall at all times
(prior to any assignment pursuant to Section 12.3) be represented by one
or more Notes payable to the order of the payee named therein, except to the
extent that any such Lender subsequently returns any such Note for cancellation
and requests that such Revolving Loans once again be evidenced as described in
paragraphs (i) and (ii) above.


 


2.14.        Telephonic Notices. 
The Borrower hereby authorizes the Lenders and the Agent to extend,
convert or continue Advances, effect selections of Types of Advances and to
transfer funds based on telephonic notices made by any person or persons the
Agent or any Lender in good faith believes to be acting on behalf of the
Borrower, it being understood that the foregoing authorization is specifically
intended to allow Borrowing Notices and Conversion/Continuation Notices to be
given telephonically.  The Borrower
agrees to deliver promptly to the Agent a written confirmation, signed by an
Authorized Officer, if such confirmation is requested by the Agent or any
Lender, of each telephonic notice.  If
the written confirmation differs in any material respect from the action taken
by the Agent and the Lenders, the records of the Agent and the Lenders shall
govern absent manifest error.


 


2.15.        Interest Payment Dates; Interest and Fee
Basis.  Interest accrued on each Floating Rate
Advance shall be payable in arrears on each Payment Date, commencing with the
first such date to occur after the Restatement Effective Date, on any date on
which the Floating Rate Advance is prepaid, whether due to acceleration or
otherwise, and at maturity.  Interest
accrued on each Eurodollar Advance shall be payable on the last day of its
applicable Interest Period, on any date on which the Eurodollar Advance is
prepaid, whether by acceleration or otherwise, and at maturity.  Interest accrued 


 


28





















 


on each
Eurodollar Advance having an Interest Period longer than three (3) months
shall also be payable on the last day of each three-month interval during such
Interest Period.  LC Fees and all other
fees hereunder and interest on Eurodollar Advances shall be calculated for
actual days elapsed on the basis of a 360-day year.  Interest on Floating Rate Advances shall be
calculated for actual days elapsed on the basis of a 365/366-day year.  Interest on Swing Line Loans shall be
calculated on a basis agreed to by the Swing Line Lender and the Borrower.  Interest shall be payable for the day an
Advance is made but not for the day of any payment on the amount paid if
payment is received prior to 12:00 noon (Chicago time) at the place of
payment.  If any payment of principal of
or interest on an Advance, any fees or any other amounts payable to the Agent
or any Lender hereunder shall become due on a day which is not a Business Day,
such payment shall be made on the next succeeding Business Day and, in the case
of a principal payment, such extension of time shall be included in computing
interest, fees and commissions in connection with such payment.  In addition, on the Restatement Effective
Date, the Borrower shall pay to the Agent for the ratable account of the
lenders then party to the Existing Credit Agreement the accrued and unpaid
interest under the Existing Credit Agreement through the Restatement Effective
Date.


 


2.16.        Notification of Advances, Interest Rates,
Prepayments and Commitment Reductions; Availability of Loans. 
Promptly after receipt thereof, the Agent will notify each Lender of the
contents of each Aggregate Commitment reduction notice, Borrowing Notice, Swing
Line Borrowing Notice, Conversion/Continuation Notice, and repayment notice
received by it hereunder.  Promptly after
notice from the applicable LC Issuer, the Agent will notify each Lender of the
contents of each request for issuance of a Facility LC hereunder.  The Agent will notify the Borrower and each
Lender of the interest rate applicable to each Eurodollar Advance promptly upon
determination of such interest rate and will give the Borrower and each Lender
prompt notice of each change in the Alternate Base Rate.  Not later than 2:00 p.m. (Chicago time)
on each Borrowing Date, each Lender shall make available its Revolving Loan or
Revolving Loans in funds immediately available in Chicago to the Agent at its
address specified pursuant to Article XIII.  The Agent will promptly make the funds so
received from the Lenders available to the Borrower at the Agent’s aforesaid
address in an account maintained and designated by the Borrower.


 


2.17.        Lending Installations. 
Each Lender may book its Revolving Loans and its participation in any LC
Obligations and the LC Issuers may book the Facility LCs issued by it at any
Lending Installation selected by such Lender or LC Issuer, as applicable, and
may change its Lending Installation from time to time.  All terms of this Agreement shall apply to
any such Lending Installation and the Revolving Loans, Facility LCs,
participations in LC Obligations and any Notes issued hereunder shall be deemed
held by each Lender or LC Issuer, as applicable, for the benefit of any such
Lending Installation.  Each Lender and LC
Issuer may, by written notice to the Agent and the Borrower in accordance with
Article XIII, designate replacement or additional Lending Installations
through which Revolving Loans will be made by it or Facility LCs will be issued
by it and for whose account Revolving Loan payments or payments with respect to
Facility LCs are to be made.  In
addition, each such Lender that books its Revolving Loans and its participation
in any LC Obligations at any Lending Installation and each LC Issuer that books
the Facility LCs issued by it at any Lending Installation as provided in this
Section 


 


29





















 


2.17,
(i) shall keep a register for the registration relating to each such
Revolving Loan, LC Obligation and Facility LC, as applicable, specifying such
Lending Installation’s name, address and entitlement to payments of principal
and interest or any other payments with respect to such Revolving Loan, LC
Obligation and Facility LC, as applicable, and each transfer thereof and the
name and address of each transferee and (ii) shall collect, prior to the
time such Lending Installation receives payment with respect to such Revolving
Loans, LC Obligations and Facility LCs, as applicable as the case may be, from
each such Lending Installation, the appropriate forms, certificates, and statements
described in Section 3.5 (and updated as required by Section 3.5) as
if Lending Installation were a Lender under Section 3.5.


 


2.18.        Non-Receipt of Funds by the Agent. 
Unless the Borrower or a Lender, as the case may be, notifies the Agent
prior to the date on which it is scheduled to make payment to the Agent of
(i) in the case of a Lender, the proceeds of a Revolving Loan or
(ii) in the case of the Borrower, a payment of principal, interest or fees
to the Agent for the account of the Lenders, that it does not intend to make
such payment, the Agent may assume that such payment has been made.  The Agent may, but shall not be obligated to,
make the amount of such payment available to the intended recipient in reliance
upon such assumption.  If such Lender or
the Borrower, as the case may be, has not in fact made such payment to the
Agent, the recipient of such payment shall, on demand by the Agent, repay to
the Agent the amount so made available together with interest thereon in
respect of each day during the period commencing on the date such amount was so
made available by the Agent until the date the Agent recovers such amount at a
rate per annum equal to (x) in the case of payment by a Lender, the Federal
Funds Effective Rate for such day for the first three days and, thereafter, the
interest rate applicable to the relevant Revolving Loan or (y) in the case of
payment by the Borrower, the interest rate applicable to the relevant Revolving
Loan.


 


2.19.        Replacement of Lender. 
If (i) the Borrower is required pursuant to Section 3.1, 3.2
or 3.5 to make any additional payment to any Lender or if any Lender’s
obligation to make or continue, or to convert Floating Rate Advances into,
Eurodollar Advances shall be suspended pursuant to Section 3.3,
(ii) any Lender becomes insolvent and its assets become subject to a
receiver, liquidator, trustee, custodian or other Person having similar powers,
(iii) any Lender refuses to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement requiring the consent
of all Lenders (or all affected Lenders) pursuant to Section 8.2 and the
same have been approved by the Required Lenders, or (iv) any Lender
defaults on its obligation to make available its Pro Rata Share of any Advance
or to fund its Pro Rata Share of any unreimbursed payment as required by this
Agreement (or such Lender has notified the Borrower and the Agent in writing
that it does not intend to comply with is obligations under this Agreement)
(any Lender in clauses (i) through (iv) above being an “Affected
Lender”), the Borrower may elect to terminate or replace the Commitment of such
Affected Lender, provided that no
Default or Unmatured Default shall have occurred and be continuing at the time
of such termination or replacement unless the same shall be waived in
connection with such termination or replacement, and provided  further
that, concurrently with such termination or replacement, (a) if the
Affected Lender is being replaced, another bank or other entity which is
reasonably satisfactory to the Borrower and the Agent shall agree, as of such
date, to purchase for cash the Outstanding Credit Exposure of such Affected
Lender pursuant to an Assignment Agreement substantially in the form of
Exhibit C and to become a Lender for all purposes under this Agreement and
to assume all obligations of such Affected 


 


30





















 


Lender
to be terminated as of such date and to comply with the requirements of
Section 12.3 applicable to assignments, (b) in the case of
replacement, the replacement Lender shall pay to the Affected Lender an amount
equal to the sum of (1) an amount equal to the principal of, and all
accrued interest on, all outstanding Credit Exposure of such Affected Lender
and (2) an amount equal to all accrued but unpaid fees owing to such
Affected Lender under this Agreement, and, to the extent not paid by the
purchasing Lender, the Borrower shall pay to such Affected Lender in
immediately available funds on the day of such replacement (x) all interest,
fees and other amounts then accrued but unpaid to such Affected Lender by the
Borrower hereunder to and including the date of termination, including without
limitation payments due to such Affected Lender under Sections 3.1, 3.2 and
3.5, and (y) an amount, if any, equal to the payment which would have been due
to such Affected Lender on the day of such replacement under Section 3.4
had the Revolving Loans of such Affected Lender been prepaid on such date
rather than sold to the replacement Lender, in each case to the extent not paid
by the purchasing Lender, and (c) if the Affected Lender is being
terminated, the Borrower shall pay to such Affected Lender an amount equal to
the sum of (1) an amount equal to the principal of, and all accrued
interest to an including the date of termination on, all outstanding Credit
Exposure of such Affected Lender plus (2) an amount equal to all
accrued but unpaid fees to an including the date of termination owing to such
Affected Lender under this Agreement plus (3) all amounts due to
such Affected Lender under Sections 3.1, 3.2 and 3.5 and any amount due to such
Affected Lender under Section 3.4.


 


2.20.        Facility LCs.


 


2.20.1  Issuance.  The LC Issuers hereby agree, on the terms and
conditions set forth in this Agreement, to issue standby letters of credit in
Dollars (each, together with each letter of credit issued or deemed to be
issued pursuant to the Existing Credit Agreement and outstanding on the
Restatement Effective Date, a “Facility LC”) and to renew, extend, increase,
decrease or otherwise modify each Facility LC (“Modify,” and each such action,
a “Modification”), from time to time from and including the Restatement
Effective Date and prior to the Facility Termination Date upon the request of
the Borrower; provided that
immediately after each such Facility LC is issued or Modified, (i) the
aggregate amount of the outstanding LC Obligations shall not exceed $90,000,000
and (ii) the Aggregate Outstanding Credit Exposure shall not exceed the Aggregate
Commitment.  No Facility LC shall have an
expiry date later than the earlier of (x) the fifth Business Day prior to the
Facility Termination Date and (y) one year after its issuance; provided that any Facility LC with a
one-year tenor may provide for the renewal thereof for additional one year
periods (which, subject to the next succeeding proviso, may extend beyond the
date referred to in clause (x) above); provided,
however, that, subject to the
terms of Section 2.20.11, on or before the 10th day prior to the Facility
Termination Date the Borrower may request and the LC Issuers hereby agree to
issue Facility LCs with (or to Modify Facility LCs to have) an expiry date on
or after the Facility Termination Date but not later than the twelve-month anniversary
of the Facility Termination Date.


 


2.20.2  Participations.  Upon (a) the Restatement Effective Date
with respect to each Facility LC issued and outstanding under the Existing
Credit Agreement and (b) the issuance or Modification by the applicable LC
Issuer of each other Facility LC in 


 


31





















 


accordance with
this Section 2.20, such LC Issuer shall be deemed, without further action
by any party hereto, to have unconditionally and irrevocably sold to each Lender,
and each Lender shall be deemed, without further action by any party hereto, to
have unconditionally and irrevocably purchased from such LC Issuer, a
participation in such Facility LC (and each Modification thereof) and the
related LC Obligations in proportion to its Pro Rata Share.


 


2.20.3  Notice.  Subject to Section 2.20.1, the Borrower
shall give the applicable LC Issuer notice prior to 10:00 a.m. (Chicago
time) at least three (3) Business Days prior to the proposed date of
issuance or Modification of each Facility LC (or such shorter period as shall
be agreed to by the Borrower, the Agent and the LC Issuer), specifying the
beneficiary, the proposed date of issuance (or Modification) and the expiry
date of such Facility LC, and describing the proposed terms of such Facility LC
and the nature of the transactions proposed to be supported thereby.  The applicable LC Issuer shall promptly
notify the Agent, and, upon issuance only, the Agent shall promptly notify each
Lender, of the contents thereof and of the amount of such Lender’s
participation in such Facility LC.  The
issuance or Modification by any LC Issuer of any Facility LC shall, in addition
to the conditions precedent set forth in Article IV (the satisfaction of
which such LC Issuer shall have no duty to ascertain), be subject to the
conditions precedent that such Facility LC shall be reasonably satisfactory to
such LC Issuer and that the Borrower shall have executed and delivered such
application agreement and/or such other instruments and agreements relating to
such Facility LC as such LC Issuer shall have reasonably requested (each, a
“Facility LC Application”).  In the event
of any conflict between the terms of this Agreement and the terms of any Facility
LC Application, the terms of this Agreement shall control.


 


2.20.4  LC Fees.  The Borrower shall pay to the Agent, for the
account of the Lenders ratably in accordance with their respective Pro Rata
Shares, a letter of credit fee at a per annum rate equal to the Applicable
Margin for Eurodollar Loans in effect from time to time on the average daily
undrawn amount under such Facility LC, such fee to be payable in arrears on
each Payment Date.  The Borrower shall
also pay to each LC Issuer for its own account (x) in arrears on each Payment
Date, a per annum fronting fee in an amount agreed upon between the Borrower
and such LC Issuer multiplied by the average daily undrawn amount under
such Facility LC, and (y) documentary and processing charges in connection with
the issuance, or Modification cancellation, negotiation, or transfer of, and
draws under Facility LCs in accordance with the applicable LC Issuer’s standard
schedule for such charges as in effect from time to time.  Each fee described in this
Section 2.20.4 shall constitute an “LC Fee”.


 


2.20.5  Administration; Reimbursement by Lenders.  Upon receipt from the beneficiary of any
Facility LC of any demand for payment under such Facility LC, the applicable LC
Issuer shall notify the Agent and the Agent shall promptly notify the Borrower
and each other Lender as to the amount to be paid by such LC Issuer as a result
of such demand and the proposed payment date to such beneficiary (the “LC
Payment Date”); provided,  however, that the failure of such LC
Issuer to so notify the Borrower shall not in any manner affect the obligations
of the Borrower to reimburse such LC Issuer pursuant to
section 2.20.6.  The responsibility
of each LC Issuer to the Borrower 


 


32





















 


and each Lender
shall be only to determine that the documents (including each demand for
payment) delivered under each Facility LC issued by such LC Issuer in
connection with such presentment shall be in conformity in all material
respects with such Facility LC.  Each LC
Issuer shall endeavor to exercise the same care in the issuance and
administration of the Facility LCs issued by such LC Issuer as it does with
respect to letters of credit in which no participations are granted, it being
understood that in the absence of any gross negligence or willful misconduct by
the applicable LC Issuer, each Lender shall be unconditionally and irrevocably
liable without regard to the occurrence of any Default or any condition
precedent whatsoever, to reimburse such LC Issuer on demand for (i) such Lender’s
Pro Rata Share of the amount of each payment made by such LC Issuer under each
Facility LC issued by such LC Issuer to the extent such amount is not
reimbursed by the Borrower pursuant to Section 2.20.6 below, plus
(ii) interest on the foregoing amount to be reimbursed by such Lender, for
each day from the date of the applicable LC Issuer’s demand for such
reimbursement (or, if such demand is made after 12:00 noon (Chicago time) on
such date, from the next succeeding Business Day) to the date on which such
Lender pays the amount to be reimbursed by it, at a rate of interest per annum
equal to the Federal Funds Effective Rate for the first three (3) days
and, thereafter, at a rate of interest equal to the rate applicable to Floating
Rate Advances.  In the event any LC
Issuer shall receive any payment from any Lender pursuant to this
Section 2.20.5, the Agent (acting for this purpose solely as agent of the
Borrower) (i) shall keep a register for the registration relating to each
such Reimbursement Obligation, specifying such participating Lender’s name,
address and entitlement to payments with respect to such participating Lender’s
share of the principal amount of any Reimbursement Obligation and interest
thereon with respect to its respective participations, and each transfer
thereof and the name and address of each transferee and (ii) shall
collect, prior to the time such participating Lender receives payment with
respect to such participation, from each such participating Lender the
appropriate forms, certificates, and statements described in Section 3.5
(and updated as required by Section 3.5) as if such participating Lender
were a Lender under Section 3.5.


 


2.20.6  Reimbursement by Borrower.  The Borrower shall be irrevocably and
unconditionally obligated to reimburse the LC Issuers on or before the first
Business Day after the applicable LC Payment Date (the “LC Reimbursement Date”)
for any amounts paid by any LC Issuer upon any drawing under any Facility LC
issued by such LC Issuer, without presentment, demand, protest or other
formalities of any kind; provided
that neither the Borrower nor any Lender shall hereby be precluded from
asserting any claim for direct (but not consequential) damages suffered by the
Borrower or such Lender to the extent, but only to the extent, caused by
(i) the willful misconduct or gross negligence of the applicable LC Issuer
in determining whether a request presented under any Facility LC issued by it
complied with the terms of such Facility LC or (ii) the applicable LC
Issuer’s failure to pay under any Facility LC issued by it after the
presentation to it of a request strictly complying with the terms and
conditions of such Facility LC.  Unless
the Borrower shall have otherwise notified the Agent and the applicable LC
Issuer prior to 12:00 noon (Chicago time) on the LC Reimbursement Date with
respect to any Facility LC, the Borrower shall be deemed to have elected to
borrow Revolving Loans from the Lenders, as of such LC Reimbursement Date,
equal in amount to the amount of the unpaid Reimbursement Obligations with
respect to such Facility LC.  Subject to
the 


 


33





















 


satisfaction of
the applicable conditions precedent set forth in Article IV, such
Revolving Loans shall be made as of the LC Reimbursement Date automatically and
without notice.  Such Revolving Loans
shall constitute a Floating Rate Advance, the proceeds of which Advance shall
be used to repay such Reimbursement Obligation. 
If, for any reason, the Borrower fails to repay a Reimbursement
Obligation on applicable LC Reimbursement Date and, for any reason, the Lenders
are unable to make or have no obligation to make Revolving Loans, then such
Reimbursement Obligation shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to (x) the rate applicable to Floating
Rate Advances for such day if such day falls on or before the applicable LC
Reimbursement Date and (y) the sum of 2% plus the rate applicable to
Floating Rate Advances for such day if such day falls after such LC
Reimbursement Date.  Each LC Issuer will
pay to each Lender ratably in accordance with its Pro Rata Share all amounts
received by it from the Borrower for application in payment, in whole or in
part, of the Reimbursement Obligation in respect of any Facility LC issued by
such LC Issuer, but only to the extent such Lender has made payment to such LC
Issuer in respect of such Facility LC pursuant to Section 2.20.5.


 


2.20.7  Obligations Absolute.  The Borrower’s obligations under this Section 2.20
shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against any LC Issuer, any Lender or any
beneficiary of a Facility LC.  The
Borrower further agrees with the LC Issuers and the Lenders that the LC Issuers
and the Lenders shall not be responsible for, and the Borrower’s Reimbursement
Obligation in respect of any Facility LC shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements
thereon, even if such documents should in fact prove to be in any or all
respects invalid, fraudulent or forged, or any dispute between or among the
Borrower, any of its Affiliates, the beneficiary of any Facility LC or any
financing institution or other party to whom any Facility LC may be transferred
or any claims or defenses whatsoever of the Borrower or of any of its
Affiliates against the beneficiary of any Facility LC or any such transferee.  No LC Issuer shall be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Facility LC.  The Borrower agrees that any action taken or
omitted by any LC Issuer or any Lender under or in connection with each
Facility LC and the related drafts and documents, if done without gross
negligence or willful misconduct, shall be binding upon the Borrower and shall
not put any LC Issuer or any Lender under any liability to the Borrower.  Nothing in this Section 2.20.7 is
intended to limit the right of the Borrower to make a claim against any LC
Issuer for damages as contemplated by the proviso to the first sentence of
Section 2.20.6.


 


2.20.8  Actions of LC Issuers.  Each LC Issuer shall be entitled to rely, and
shall be fully protected in relying, upon any Facility LC, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by such LC
Issuer.  Each LC Issuer shall be fully
justified in failing or refusing to take any action 


 


34





















 


under this
Agreement unless it shall first have received such advice or concurrence of the
Required Lenders as it reasonably deems appropriate or it shall first be
indemnified to its reasonable satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. Notwithstanding any other provision of this
Section 2.20, each LC Issuer shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement in accordance with a
request of the Required Lenders, and such request and any action taken or failure
to act pursuant thereto shall be binding upon the Lenders and any future
holders of a participation in any Facility LC.


 


2.20.9  Indemnification.  The Borrower hereby agrees to indemnify and
hold harmless each Lender, each LC Issuer and the Agent, and their respective
directors, officers, agents and employees from and against any and all claims
and damages, losses, liabilities, reasonable costs or expenses which such
Lender, such LC Issuer or the Agent may incur (or which may be claimed against
such Lender, such LC Issuer or the Agent by any Person whatsoever) by reason of
or in connection with the issuance, execution and delivery or transfer of or
payment or failure to pay under any Facility LC or any actual or proposed use
of any Facility LC, including, without limitation, any claims, damages, losses,
liabilities, reasonable costs or expenses which any LC Issuer may incur by
reason of or in connection with (i) the failure of any other Lender to
fulfill or comply with its obligations to such LC Issuer hereunder (but nothing
herein contained shall affect any rights the Borrower may have against any
defaulting Lender) or (ii) by reason of or on account of such LC Issuer
issuing any Facility LC which specifies that the term “Beneficiary” included
therein includes any successor by operation of law of the named Beneficiary,
but which Facility LC does not require that any drawing by any such successor
Beneficiary be accompanied by a copy of a legal document, satisfactory to such
LC Issuer, evidencing the appointment of such successor Beneficiary; provided that the Borrower shall not be
required to indemnify any Lender, any LC Issuer or the Agent for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, (x) caused by the willful misconduct or gross negligence of the
applicable LC Issuer in determining whether a request presented under any
Facility LC issued by such LC Issuer complied with the terms of such Facility
LC or (y) caused by any LC Issuer’s failure to pay under any Facility LC issued
by such LC Issuer after the presentation to it of a request strictly complying
with the terms and conditions of such Facility LC, or (z) with respect to taxes
and amounts relating thereto (payments with respect to which shall be governed solely
and exclusively by Section 3.5). 
Nothing in this Section 2.20.9 is intended to limit the obligations
of the Borrower under any other provision of this Agreement.


 


2.20.10  Lenders’ Indemnification. 
Each Lender shall, ratably in accordance with its Pro Rata Share,
indemnify each LC Issuer, its affiliates and their respective directors,
officers, agents and employees (to the extent not reimbursed by the Borrower)
against any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from such indemnitees’ gross negligence or willful misconduct or the applicable
LC Issuer’s failure to pay under any Facility LC issued by such LC Issuer after
the presentation to it of a request strictly complying with the terms and
conditions of such Facility LC) that such indemnitees may suffer or incur 


 


35





















 


in connection with
this Section 2.20 or any action taken or omitted by such indemnitees hereunder.


 


2.20.11  Facility LC Collateral Account.  The Borrower agrees that it will, upon the
reasonable request of the Agent or the Required Lenders and until the final
expiration date of any Facility LC and thereafter as long as any amount is
payable to the LC Issuers or the Lenders in respect of any Facility LC,
maintain a special collateral account pursuant to arrangements satisfactory to
the Agent (the “Facility LC Collateral Account”) at the Agent’s office at the
address specified pursuant to Article XIII, in the name of the Borrower
but under the sole dominion and control of the Agent, for the benefit of the
Lenders and the LC Issuers, and in which the Borrower shall have no interest
other than as set forth in Section 8.1. 
The Borrower hereby pledges, assigns and grants to the Agent, on behalf
of and for the ratable benefit of the Lenders and the LC Issuers, a security
interest in all of the Borrower’s right, title and interest in and to all funds
which may from time to time be on deposit in the Facility LC Collateral Account
to secure the prompt and complete payment and performance of the Secured
Obligations.  The Agent will invest any
funds on deposit from time to time in the Facility LC Collateral Account in Cash
Equivalent Investments as directed by the Borrower (in the absence of a
Default).  On or before the 10th day
prior to the Facility Termination Date, the Borrower shall pay to the Agent an
amount in immediately available funds, which funds shall be held in the
Facility LC Collateral Account, equal to 1.05 multiplied by the
aggregate amount of the outstanding LC Obligations in respect of Facility LCs
with an expiry date on or after the Facility Termination Date.  Nothing in this Section 2.20.11 shall
either obligate the Agent to require the Borrower to deposit any funds in the
Facility LC Collateral Account or limit the right of the Agent to release any
funds held in the Facility LC Collateral Account in each case other than as
required by Section 8.1 and the immediately preceding sentence.


 


2.20.12  Rights as a Lender.  In its capacity as a Lender, each LC Issuer
shall have the same rights and obligations as any other Lender.


 


2.21.        Increase of Aggregate Commitment. 
Subject to Section 2.5 and the other terms and conditions of this
Agreement, at any time prior to the Facility Termination Date, the Borrower
may, on the terms set forth below, request that (a) the Aggregate
Commitment hereunder be increased by an amount up to $100,000,000 and/or
(b) term loans be issued hereunder (such term loans being “Term Loans”) on
terms and conditions (including, without limitation, pricing, amortization,
prepayment and related interest rate hedging) reasonably acceptable to the
Agent in an aggregate principal amount up to $100,000,000; provided, however,
that (i) no such increase shall cause the Aggregate Commitment plus all
Term Loans to exceed (x) $375,000,000 minus (y) any reduction in the
Commitments under Sections 2.2 or 2.5.2 and all theretofore scheduled principal
payments or prepayments in respect of any Term Loans, (ii) an increase in
the Aggregate Commitment or issuance of Term Loans hereunder may only be made
at a time when no Default or Unmatured Default shall have occurred and be
continuing or would result therefrom and (iii) no Lender’s Commitment shall
be increased, nor shall any Lender have any commitment to make any Term Loan,
under this Section 2.21 without its consent.  In the event of such a requested increase in
the Aggregate Commitment or issuance of Term Loans, any financial institution
selected by the Borrower and the Arranger, and 


 


36





















 


reasonably acceptable to
the Agent, may become a Lender or increase its Commitment or issue such Term
Loans and may set the amount of its Commitment or Term Loan, as applicable, at
a level agreed to by the Borrower and the Agent.  In the event that the Borrower and one or
more of the Lenders (or other financial institutions) shall agree upon such an
increase in the Aggregate Commitment and/or issuance of Term Loans (i) the
Borrower, the Agent and each Lender or other financial institution increasing
its Commitment or extending a new Commitment or Term Loan shall enter into an
amendment to this Agreement setting forth the amounts of the Commitments and
Term Loans, as applicable, as so increased, providing that the financial
institutions extending new Commitments or Term Loans shall be Lenders for all
purposes under this Agreement, and setting forth such additional provisions as
the Agent shall consider reasonably appropriate and (ii) the Borrower
shall furnish, if requested, a new Note to each financial institution that is
extending a new Commitment or Term Loan or increasing its Commitment.  No such amendment shall require the approval
or consent of any Lender whose Commitment is not being increased.  Upon the execution and delivery of such
amendment as provided above, and upon satisfaction of such other conditions as
the Agent may reasonably specify upon the request of the financial institutions
that are extending new Commitments and/or making Term Loans (including, without
limitation, the Agent administering the reallocation of any outstanding
Revolving Loans ratably among the Lenders with Commitments after giving effect
to each such increase in the Aggregate Commitment, and the delivery of
certificates, evidence of corporate authority and legal opinions on behalf of
the Borrower), this Agreement shall be deemed to be amended accordingly.  All such additional Commitments and Term
Loans shall be secured equally and ratably with the other Loans hereunder.


 


ARTICLE III



YIELD PROTECTION; TAXES


 


3.1.          Yield Protection. 
If, on or after the Restatement Effective Date, the adoption of any law
or any governmental or quasi-governmental rule, regulation, policy, guideline
or directive (whether or not having the force of law), or any change in any
such law, rule, regulation, policy, guideline or directive or in the
interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or any LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:


 


(i)            imposes or increases or deems applicable
any reserve, assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation or any LC Issuer
(other than reserves and assessments taken into account in determining the
interest rate applicable to Eurodollar Advances), or


 


(ii)           imposes any other condition the result of
which is to increase the cost to any Lender, any applicable Lending
Installation or any LC Issuer of making, funding or maintaining its Commitment
or Eurodollar Loans or of issuing or participating in Facility LCs, or reduces
any amount receivable by any Lender or any applicable Lending Installation or
any LC Issuer in connection with its 


 


37





















 


Commitment or
Eurodollar Loans or Facility LCs (including participations therein), or
requires any Lender or any applicable Lending Installation or any LC Issuer to
make any payment calculated by reference to the amount of Commitment or
Eurodollar Loans or Facility LCs (including participations therein) held or
interest or LC Fees received by it, in each case, by an amount deemed material
by such Lender or such LC Issuer, as applicable, 


 


and
the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or such LC Issuer of making or maintaining its
Eurodollar Loans or Commitment or of issuing or participating in Facility LCs,
as applicable, or to reduce the return received by such Lender or applicable
Lending Installation or LC Issuer in connection with such Eurodollar Loans or
Commitment, or Facility LCs (including participations therein), but in all
events, excluding any increase in cost or reduction in return with respect to
taxes and amounts relating thereto (payment with respect to which shall be
governed solely and exclusively by Section 3.5), then, within 15 days of
demand, accompanied by the written statement required by Section 3.6, by
such Lender or LC Issuer, the Borrower shall pay such Lender or LC Issuer such
additional amount or amounts as will compensate such Lender or LC Issuer for
such increased cost or reduction in amount received.


 


3.2.          Changes in Capital Adequacy Regulations. 
If a Lender or any LC Issuer determines the amount of capital required
or expected to be maintained by such Lender or such LC Issuer, any Lending
Installation of such Lender or such LC Issuer or any corporation controlling such
Lender or such LC Issuer is increased by a material amount as a result of a
Change, but excluding any adoption, change or interpretation or administration
or compliance with respect to taxes and amounts relating thereto (payment with
respect to which shall be governed solely and exclusively by Section 3.5),
then, within 15 days of demand, accompanied by the written statement required
by Section 3.6, by such Lender or such LC Issuer, the Borrower shall pay
such Lender or such LC Issuer the amount necessary to compensate for any
shortfall in the rate of return on the portion of such increased capital which
such Lender or such LC Issuer determines is attributable to this Agreement, its
Outstanding Credit Exposure or its Commitment to make Revolving Loans and issue
or participate in Facility LCs, as applicable, hereunder (after taking into
account such Lender’s or such LC Issuer’s policies as to capital
adequacy).  In determining such
additional amounts, each Lender will act reasonably and in good faith and will
use allocation and attribution methods which are reasonable.  “Change” means (i) any change after the
Restatement Effective Date in the Risk-Based Capital Guidelines or
(ii) any adoption of, or change in, or change in the interpretation or
administration of any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the Restatement Effective Date which affects the
amount of capital required or expected to be maintained by any Lender or any LC
Issuer or any Lending Installation or any corporation controlling any Lender or
any LC Issuer.  “Risk-Based Capital
Guidelines” means (i) the risk-based capital guidelines in effect in the
United States on the Restatement Effective Date, including transition rules,
and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of
the Basle Committee on Banking Regulation and Supervisory Practices Entitled
“International Convergence of Capital Measurements and Capital Standards,”
including transition rules, and any amendments to such regulations adopted
prior to the Restatement Effective Date.


 


38





















 


3.3.          Availability of Types of Advances. 
If (x) any Lender determines that maintenance of its Eurodollar Loans at
a suitable Lending Installation would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, or (y) prior
to the commencement of any Interest Period with respect to a Eurodollar Loan
the Required Lenders determine that (i) the interest rate applicable to
Eurodollar Advances does not accurately reflect the cost of making or
maintaining Eurodollar Advances, or (ii) no reasonable basis exists for
determining the Eurodollar Base Rate, then such Lender shall promptly give
notice to the Borrower and the Agent (by telephone, promptly confirmed in
writing) and thereafter, the Agent shall suspend the availability of Eurodollar
Advances and require any affected Eurodollar Advances to be repaid or converted
to Floating Rate Advances on the respective last days of the then current
Interest Periods with respect to such Revolving Loans or within such earlier
period as required by law, subject to the payment of any funding
indemnification amounts required by Section 3.4 until such time as the
Agent notifies the Borrower and the Lenders that the circumstances giving rise
to such initial notice no longer exist, and any Notice of Borrowing or Notice
of Conversion/Continuation given by the Borrower with respect to Eurodollar
Loans which have not yet been incurred (including by way of conversion) shall
be deemed rescinded by the Borrower.


 


3.4.          Funding Indemnification. 
If any payment of a Eurodollar Advance occurs on a date which is not the
last day of the applicable Interest Period, whether because of acceleration,
prepayment or otherwise, or a Eurodollar Advance is not made or continued, or a
Floating Rate Advance is not converted into a Eurodollar Advance, on the date
specified by the Borrower for any reason other than default by the Lenders, or
a Eurodollar Advance is not prepaid on the date specified by the Borrower for
any reason, the Borrower will indemnify each Lender for any reasonable loss or
cost incurred by it resulting therefrom, including, without limitation, any
reasonable loss or cost in liquidating or employing deposits acquired to fund
or maintain such Eurodollar Advance, but excluding any loss or cost relating to
taxes and amounts relating thereto (payment with respect to which shall be
governed solely and exclusively by Section 3.5).


 


3.5.          Taxes. 
(i) Except as provided in this Section 3.5, all payments by
the Borrower to or for the account of any Lender or the Agent hereunder or
under any Note shall be made free and clear of and without deduction for any
and all Taxes.  If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Agent, (a) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 3.5)
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, (b) the
Borrower shall make such deductions, (c) the Borrower shall pay the full
amount deducted to the relevant authority in accordance with applicable law and
(d) the Borrower shall furnish to the Agent the original copy of a receipt
evidencing payment thereof or, if a receipt cannot be obtained with reasonable
efforts, such other evidence of payment as is reasonably acceptable to the
Agent, in each case within 30 days after such payment is made.


 


(ii)           In addition, the Borrower shall pay any
present or future stamp or documentary taxes and any other excise or property
taxes, charges or similar levies which arise from any payment made hereunder or
under any Note or Facility LC Application or from the execution or delivery of,
or otherwise with respect to, this Agreement, 


 


39





















 


any Note, any
Facility LC Application, or any other Loan Document (“Other Taxes”).


 


(iii)          The Borrower shall indemnify the Agent
and each Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable under this
Section 3.5) paid by the Agent or such Lender as a result of its
Commitment, any Credit Extensions made by it hereunder, any Facility LC issued
or participated in by it hereunder, or otherwise in connection with its
participation in this Agreement and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto.  Payments due under this indemnification shall
be made within 30 days of the date the Agent or such Lender makes demand
therefor pursuant to Section 3.6.


 


(iv)          Each Lender and the Agent that is not a
United States Person (as such term is defined in Section 7701(a)(30) of
the Code for United States federal income tax purposes) (each a “Non-U.S.
Lender”) agrees that it will, not more than ten Business Days after the date on
which it becomes a party to this Agreement (but in any event before a payment
is due to it hereunder), (i) deliver to each of the Borrower and the Agent
two (2) duly completed copies of United States Internal Revenue Service
Form W-8BEN or W-8ECI or successor forms, certifying in either case that
such Non-U.S. Lender is entitled to receive payments under this Agreement or
under any Note without deduction or withholding of any United States federal
income taxes, or (ii) in the case of a Non-U.S. Lender that is fiscally
transparent, deliver to the Agent and the Borrower two (2) duly completed
copies of a United States Internal Revenue Service Form W-8IMY or
successor form together with the applicable accompanying duly completed copies
of United States Internal Revenue Service applicable Forms W-8 or W-9 or
successor forms, as the case may be, in each case establishing that each
beneficial owner of the payments to be made under this Agreement or any Note is
entitled to receive payments under this Agreement or any Note without deduction
or withholding of any United States federal income taxes, and applicable
withholding statements, or (iii) any other applicable form, certificate or
document specifically requested by the Borrower or the Agent and prescribed by
the United States Internal Revenue Service establishing as to such Lender’s,
the Agent’s or such beneficial owner’s, as the case may be, entitlement to such
exemption from United States withholding tax with respect to all payments to be
made hereunder or under any Note.  Each
Lender and the Agent that is United States person (as such term is defined in
Section 7701(a)(30) of the Code) for U.S. federal income tax purposes
(other than each such Lender and the Agent, as the case may be, that is treated
as an exempt recipient based on the indicators described in U.S. Treasury
Regulation Section 1.6049-4(c)(1)(ii)) shall deliver at the time(s) and in
the manner(s) described above with respect to the other Internal Revenue
Service Forms, to the Borrower and the Agent, two (2) accurate and
complete original signed copies of Internal Revenue Service Form W-9 (or
successor form) certifying that such person is exempt from United States backup
withholding tax on payments made hereunder or on any Note.  Each Lender and the Agent further undertakes
to deliver to each of the Borrower and the Agent renewals or additional copies
of such form (or any 


 


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successor form)
(x) on or before the date that such form expires or becomes obsolete, (y) after
the occurrence of any event requiring a change in the most recent forms so
delivered by it, and (z) from time to time upon reasonable request by the
Borrower or the Agent.  All forms or
amendments described in the preceding sentence shall certify that such Lender,
the Agent or such applicable beneficial owner, as the case may be, is entitled
to receive payments under this Agreement or under any Note without deduction or
withholding of any United States federal income taxes, and in the case where
such Lender has delivered a Form W-8IMY (or successor form), such Lender
delivers all forms or amendments, including duly completed United States
Internal Revenue Service applicable Forms W-8s or W-9s (or successor forms), in
each case establishing that each beneficial owner of the payments to be made
under this Agreement or any Note is entitled to receive payments under this
Agreement or any Note without deduction or withholding of any United States
federal income taxes, and applicable withholding statements, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender, the Agent or such
applicable beneficial owner, as the case may be, from duly completing and
delivering any such form or amendment with respect to it and such applicable
beneficial owner and such Lender or the Agent, as the case may be, advises the
Borrower and the Agent that it and such applicable beneficial owner is not capable
of receiving payments without any deduction or withholding of United States
federal income tax.


 


(v)           For any period during which a Lender or
the Agent has failed to provide the Borrower and the Agent with an appropriate
form referred to in clause (iv) above in each case establishing that the
Agent or such Lender, and in the case where such Lender has delivered a
Form W-8IMY (or successor form), each beneficial owner of the payments to
be made under this Agreement or any Note, is entitled to receive payments under
this Agreement or any Note without deduction or withholding of any United
States Federal income taxes (unless such failure is due to a change in treaty,
law or regulation, or any change in the interpretation or administration
thereof by any governmental authority, occurring subsequent to the date on
which a form originally was required to be provided), such Lender or the Agent,
as applicable, shall not be entitled to any increase in payments or to
indemnification under this Section 3.5 with respect to Taxes imposed by
the United States as a result of such failure; provided
that, should a Lender or the Agent, as the case may be, which is otherwise
exempt from or subject to a reduced rate of withholding tax become subject to
Taxes because of its failure to deliver a form required under clause
(iv) above, the Borrower shall take such steps as such Lender shall
reasonably request to assist such Lender to recover such Taxes.


 


(vi)          Any Lender or Agent that is entitled to
an exemption from or reduction of withholding tax with respect to payments
under this Agreement or any Note pursuant to the law of any relevant
jurisdiction or any treaty shall deliver to the 


 


41





















 


Borrower (with a
copy to the Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced
rate.  For any period during which a
Lender or the Agent, as applicable, has failed to provide the Borrower and the
Agent with such properly completed and executed documentation, such Lender or
the Agent, as applicable, shall not be entitled to any increase in payments or
to indemnification under this Section 3.5.


 


(vii)         If the U.S. Internal Revenue Service or
any other governmental authority of the United States or any other country or
any political subdivision thereof asserts a claim that the Agent or the
Borrower did not properly withhold tax from amounts paid to or for the account
of any Lender or beneficial owner (because the appropriate form was not
delivered or properly completed, because such Lender failed to notify the Agent
and the Borrower of a change in circumstances which rendered its exemption from
withholding ineffective, or for any other reason), such Lender or beneficial
owner shall indemnify the Agent and the Borrower fully for all amounts paid,
directly or indirectly, by the Agent or the Borrower, as the case may be, as
tax, withholding therefor, or otherwise, including penalties and interest, and
including taxes imposed by any jurisdiction on amounts payable to the Agent
under this subsection, together with all costs and expenses related thereto
(including attorneys fees of attorneys for the Agent).  The obligations of the Lenders under this
Section 3.5(vii) shall survive the payment of the Obligations and
termination of this Agreement.


 


(viii)        If any Lender or the Agent determines
that it has actually received any refund of Taxes paid by the Borrower for such
Lender or the Agent pursuant to this Section 3.5, such Lender or the Agent
shall reimburse the Borrower in an amount equal to such refund, after tax, and
net of all expenses incurred by such Lender or Agent in connection with such refund.


 


3.6.          Lender Statements; Survival of Indemnity. 
Each Lender shall notify the Borrower of any event occurring after the
Restatement Effective Date entitling such Lender to compensation under
Section 3.1, 3.2, 3.4 or 3.5 as promptly as practicable, but in any event
within 45 days, after such Lender obtains actual knowledge thereof; provided
that if any Lender fails to give such notice within 45 days after it obtains
actual knowledge of such an event, such Lender shall, with respect to
compensation payable under Sections 3.1, 3.2, 3.4 or 3.5 in respect of any
costs resulting from such event, only be entitled to payment for costs incurred
from and after the date 45 days prior to the date that such Lender does give
such notice.  Together with each notice
required by the previous sentence, any Lender requesting compensation shall
deliver a certificate of such Lender to the Borrower (with a copy to the Agent)
as to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5.  Such written certificate shall (i) set
forth in reasonable detail the calculations upon which such Lender determined
such amount and shall be final, conclusive and binding on the Borrower in the
absence of manifest error and (ii) set forth that it is the policy or
general practice of such Lender to request compensation for comparable costs in
similar circumstances under comparable provisions of other credit agreements
for comparable customers.  Determination
of amounts payable under such Sections in connection with a Eurodollar Loan
shall be calculated as though each Lender funded its Eurodollar Loan through 


 


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the purchase of a deposit
of the type, currency and maturity corresponding to the deposit used as a
reference in determining the Eurodollar Rate applicable to such Revolving Loan,
whether in fact that is the case or not. 
Unless otherwise provided herein, the amount specified in the written
certificate of any Lender shall be payable within fifteen (15) days after
receipt by the Borrower of such written certificate.  The obligations of the Borrower under
Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and
termination of this Agreement.


 


3.7.          Alternative Lending Installation.  To the extent reasonably possible, each Lender shall
designate an alternate Lending Installation with respect to its Eurodollar
Loans to reduce any liability of the Borrower to such Lender under Sections
3.1, 3.2 and 3.5 or to avoid the unavailability of Eurodollar Advances under
Section 3.3, so long as such designation is not, in the judgment of such
Lender, reasonably disadvantageous to such Lender.  A Lender’s designation of an alternative
Lending Installation shall not affect the Borrower’s rights under Section 2.19
to replace a Lender.


 


ARTICLE IV


 


CONDITIONS PRECEDENT


 


4.1.          Effectiveness of Commitments. 
This Agreement shall not become effective, nor shall any Lender be
required to make any Credit Extension hereunder, unless all legal matters
incident to the making of the initial Credit Extension shall be satisfactory to
the Lenders and their counsel and on or before October 31, 2005 the
following conditions precedent have been satisfied or waived by the Required
Lenders and the Borrower has furnished to the Agent with sufficient copies for
the Lenders:


 


4.1.1  Copies of the articles or certificate of
incorporation (or the equivalent thereof) of each Credit Party, in each case,
together with all amendments thereto, and a certificate of good standing, each
certified by the appropriate governmental officer in its jurisdiction of
organization.


 


4.1.2  Copies, certified by the Secretary or
Assistant Secretary (or the equivalent thereof) of each Credit Party, in each
case, of its by-laws and of its Board of Directors’ resolutions and of
resolutions or actions of any other body authorizing the execution of the Loan
Documents to which such Credit Party is a party.


 


4.1.3  An incumbency certificate, executed by the
Secretary or Assistant Secretary (or the equivalent thereof) of each Credit
Party which shall identify by name and title and bear the signatures of the
Authorized Officers and any other officers of each such Credit Party authorized
to sign the Loan Documents to which it is a party, upon which certificate the
Agent and the Lenders shall be entitled to rely until informed of any change in
writing by the applicable Credit Party.


 


4.1.4  A certificate reasonably acceptable to the
Agent, signed by the chief financial officer of the Parent, stating that on the
initial Credit Extension Date (a) no Default or Unmatured Default has
occurred and is continuing, (b) all of the representations and warranties
in Article V shall be true and correct in all material 


 


43





















 


respects as of
such date and (c) except as disclosed in the Identified Disclosure
Documents, no material adverse change in the business, condition (financial or
otherwise), operations, Properties or prospects of the Parent and its
Subsidiaries taken as a whole, or the Borrower and its Subsidiaries taken as a
whole, has occurred since December 31, 2004.


 


4.1.5  An initial compliance certificate, dated as
of the Restatement Effective Date and reflecting calculations as of
June 30, 2005, in substantially the form of Exhibit B hereto.


 


4.1.6  Written opinions of the Credit Parties’ US
counsel, in form and substance reasonably satisfactory to the Agent and
addressed to the Lenders, in substantially the form of Exhibit A hereto.


 


4.1.7  Any Notes requested by a Lender pursuant to
Section 2.13 payable to the order of each such requesting Lender or its
registered assigns.


 


4.1.8  A certificate of value, solvency and other
appropriate factual information in form and substance reasonably satisfactory
to the Agent and Arranger from the chief financial officer or treasurer of the
Parent (on behalf of the Parent and its Subsidiaries) in his or her
representative capacity supporting the conclusions that as of the initial
Credit Extension Date the Parent and its Subsidiaries on a consolidated basis
are Solvent and will be Solvent subsequent to incurring the Indebtedness
contemplated under the Loan Documents.


 


4.1.9  Evidence satisfactory to the Agent that the
Borrower has paid to the Agent and the Arranger the fees agreed to in the fee
letter dated August 19, 2005, among the Agent, the Arranger and the
Borrower.


 


4.1.10  Such other documents as any Lender or its
counsel may have reasonably requested, including, without limitation, those
documents set forth in Exhibit F hereto.


 


4.2.          Each Credit Extension. 
The Lenders shall not (except as otherwise set forth in
Section 2.4.4 with respect to Revolving Loans extended for the purpose of
repaying Swing Line Loans) be required to make any Credit Extension unless on
the applicable Credit Extension Date:


 


4.2.1  There exists no Default or Unmatured Default.


 


4.2.2  The representations and warranties contained
in Article V are true and correct in all material respects as of such
Credit Extension Date except to the extent any such representation or warranty
is stated to relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct in all material
respects on and as of such earlier date.


 


Each Borrowing Notice, request for issuance of a
Facility LC or Swing Line Borrowing Notice, as the case may be, or request for
issuance of a Facility LC, with respect to each such Credit Extension shall
constitute a representation and warranty by the Borrower that the conditions
contained in Sections 4.2.1 and 4.2.2 have been satisfied.


 


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ARTICLE V



REPRESENTATIONS AND WARRANTIES


 


Each of the Parent and the Borrower represents and
warrants to each Lender and the Agent as of each of (i) the Restatement
Effective Date, (ii) the date of the initial Credit Extension hereunder
(if different from the Restatement Effective Date) and (iii) each date as
required by Section 4.2:


 


5.1.          Existence and Standing. 
Each of the Parent and its Subsidiaries (i) is a corporation,
partnership (in the case of Subsidiaries other than the Borrower only) or
limited liability company duly incorporated or organized, as the case may be,
validly existing and (to the extent such concept applies to such entity) in
good standing under the laws of its jurisdiction of incorporation or
organization, (ii) has all requisite corporate, partnership or limited
liability company power and authority, as the case may be, to own, operate and
encumber its Property and (iii) is qualified to do business and is in good
standing (to the extent such concept applies to such entity) in all jurisdictions
where the nature of the business conducted by it makes such qualification
necessary and where failure to so qualify would reasonably be expected to have
a Material Adverse Effect.


 


5.2.          Authorization and Validity. 
Each Credit Party has the requisite corporate, partnership or limited
liability company, as the case may be, power and authority and legal right to
execute and deliver the Loan Documents to which it is a party and to perform
its obligations thereunder.  The
execution and delivery by each Credit Party of the Loan Documents to which it
is a party and the performance of its obligations thereunder have been duly
authorized by requisite corporate, partnership or limited liability company, as
the case may be, proceedings, and the Loan Documents to which each Credit Party
is a party constitute legal, valid and binding obligations of such Credit Party
enforceable against such Credit Party in accordance with their terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, fraudulent
conveyances, reorganization or similar laws relating to or affecting the
enforcement of creditors’ rights generally; (ii) general equitable
principles (whether considered in a proceeding in equity or at law); and
(iii) requirements of reasonableness, good faith and fair dealing.


 


5.3.          No Conflict; Government Consent. 
Neither the execution and delivery by any Credit Party of the Loan
Documents to which it is a party, nor the consummation by such Credit Party of
the transactions therein contemplated, nor compliance by such Credit Party with
the provisions thereof will violate (i) any applicable law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on such
Credit Party or (ii) such Credit Party’s articles or certificate of incorporation,
partnership agreement, certificate of partnership, articles or certificate of
organization, by-laws, or operating agreement or other management agreement, as
the case may be, or (iii) the provisions of any indenture or material
instrument or agreement to which such Credit Party is a party or is subject, or
by which it, or its Property, may be bound or affected, or conflict with, or
constitute a default under, or result in or require, the creation or imposition
of any Lien in, of or on the Property of such Credit Party pursuant to the
terms of any such indenture or material instrument or agreement (other than any
Lien of the Agent on behalf of the Holders of Secured Obligations).  Other than the filing of UCC financing
statements and intellectual property-related filings in the applicable filing
offices to perfect the Liens of the


 


45





















 


Agent in
favor of the Holders of Secured Obligations granted pursuant to the Loan
Documents, no order, consent, adjudication, approval, license, authorization,
or validation of, or filing, recording or registration with, or exemption by,
or other action in respect of any governmental or public body or authority, or
any subdivision thereof, which has not been obtained by any Credit Party, is
required to be obtained by such Credit Party in connection with the execution
and delivery of the Loan Documents, the borrowings under this Agreement, the
payment and performance by the Credit Parties of the Obligations or the legality,
validity, binding effect or enforceability of any of the Loan Documents except
where the failure to so make or obtain, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect.


 


5.4.          Financial Statements.  The
December 31, 2004 consolidated financial statements of the Parent and its
Subsidiaries heretofore delivered to the Agent and the Lenders were prepared in
accordance with generally accepted accounting principles in effect on the date
such statements were prepared and fairly present in all material respects the
consolidated financial condition and operations of the Parent and its
Subsidiaries at such date and the consolidated results of their operations for
the period then ended.


 


5.5.          Material Adverse Change. 
Since December 31, 2004, except as disclosed in the Identified
Disclosure Documents, there has been no change in the business, condition
(financial or otherwise), operations, Properties or prospects of the Parent and
its Subsidiaries taken as a whole, or the Borrower and its Subsidiaries taken
as a whole, which would reasonably be expected to have a Material Adverse
Effect.


 


5.6.          Taxes.  The Parent,
the Borrower and the Subsidiaries have filed all United States federal tax
returns and all other tax returns which are required to be filed and have paid
all taxes shown to be due thereon or pursuant to any assessment received by the
Parent, the Borrower or any Subsidiaries, except in respect of such taxes, if
any, (i) as are being contested in good faith and as to which adequate
reserves have been provided in accordance with Agreement Accounting Principles
and as to which no Lien exists (except as permitted by Section 6.15.1) or
(ii) as to which the failure to file such return or pay such taxes would
not reasonably be expected to have a Material Adverse Effect.  As of the Restatement Effective Date, the
United States income tax returns of the Parent, the Borrower and the
Subsidiaries have been audited by the Internal Revenue Service through the
fiscal year ended December 31, 1998, and, as of the Restatement Effective
Date, no Liens have been filed and no claims are being asserted with respect to
such taxes shown to be due on such returns. 
The charges, accruals and reserves on the books of the Parent, the Borrower
and the Subsidiaries in respect of any taxes or other governmental charges are
adequate under Agreement Accounting Principles.


 


5.7.          Litigation and Contingent Obligations. 
There is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their executive
officers, threatened against the Parent, the Borrower or any Subsidiaries which
would reasonably be expected to have a Material Adverse Effect or which seeks
to prevent, enjoin or delay the making of any Revolving Loans.  As of December 31, 2004, other than any
liability incident to any litigation, arbitration or proceeding which would not
reasonably be expected to have a Material Adverse Effect, none of the Parent,
the Borrower or any Subsidiary had any contingent obligations required to be
reflected on the Parent’s consolidated balance sheet in


 


46





















 


accordance
with generally accepted accounting principles, and not provided for or
disclosed in the financial statements referred to in Section 5.4, in an
aggregate amount in excess of $10,000,000.


 


5.8.          Subsidiaries. 
Schedule 5.8 contains an accurate list of all Subsidiaries of the
Parent as of the Restatement Effective Date, setting forth their respective
jurisdictions of organization and the percentage of their respective capital
stock or other ownership interests owned by the Parent or other
Subsidiaries.  All of the issued and
outstanding shares of capital stock or other ownership interests of such
Subsidiaries have been (to the extent such concepts are relevant with respect
to such ownership interests) duly authorized and issued and are fully paid and
non-assessable.


 


5.9.          ERISA.  During the
twelve consecutive month period prior to the Restatement Effective Date, the
date of the initial Credit Extension and the date of any subsequent Credit
Extension, (i) no formal step has been taken to terminate any Plan, other
than a standard termination under Section 4041(b) of ERISA and (ii) no
contribution failure has occurred with respect to any Plan sufficient to give
rise to a Lien under Section 302(f) of ERISA.  During the twelve consecutive month period
prior to the Restatement Effective Date, the date of the initial Credit
Extension and the date of any subsequent Credit Extension, neither the Parent
nor any other member of the Controlled Group has incurred, or is reasonably
expected to incur, pursuant to Section 4201 of ERISA, any withdrawal
liability to Multiemployer Plans that would reasonably be expected to exceed in
the aggregate $20,000,000.  Each Plan
complies with all applicable requirements of law and regulations except with
respect to non-compliance that would not reasonably be expected to have a
Material Adverse Effect.  During the
twelve consecutive month period prior to the Restatement Effective Date, the
date of the initial Credit Extension and the date of any subsequent Credit
Extension, neither the Parent nor any other member of the Controlled Group has
withdrawn from any Multiemployer Plan within the meaning of Title IV of ERISA
or initiated steps to do so, and, to the knowledge of the Parent, no steps have
been taken to reorganize or terminate, within the meaning of Title IV of ERISA,
any Multiemployer Plan which withdrawal, reorganization or termination would
reasonably be expected to exceed in the aggregate $20,000,000.


 


5.10.        Accuracy of Information. 
The written information, exhibits or reports furnished by the Parent,
the Borrower or any Subsidiary to the Agent or to any Lender in connection with
the negotiation of, or compliance with, the Loan Documents (other than
projected and pro forma information), considered as a whole, do not contain any
material misstatement of fact or omit to state a material fact or any fact
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not materially misleading.  The projected and pro forma financial
information furnished by or on behalf of the Parent, the Borrower or any
Subsidiary to the Agent or any Lender in connection with the negotiation of, or
compliance with, the Loan Documents, were prepared in good faith based upon
assumptions believed to be reasonable at the time.


 


5.11.        Regulation U. 
Neither the Parent, the Borrower nor any Subsidiary is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or ultimate of
buying or carrying margin stock (as defined in Regulation U), and after
applying the proceeds of each Credit Extension, margin stock


 


47





















 


(as
defined in Regulation U) constitutes less than 25% of the value of those assets
of the Parent, the Borrower and the Subsidiaries which are subject to any
limitation on sale, pledge, or any other restriction hereunder.


 


5.12.        Compliance With Laws. 
The Parent, the Borrower and the Subsidiaries have complied with all
applicable statutes, rules, regulations, orders and restrictions of any
domestic or foreign government or any instrumentality or agency thereof having
jurisdiction over the conduct of their respective businesses or the ownership
of their respective Property, except to the extent any failure to so comply,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.


 


5.13.        Ownership of Properties. 
The Parent, the Borrower and the Subsidiaries have good title, free of
all Liens other than those permitted by Section 6.15, to all of the assets
reflected in the Parent’s most recent consolidated financial statements
provided to the Agent, as owned by the Parent, the Borrower and the
Subsidiaries except (i) assets sold or otherwise transferred as permitted
under Section 6.12 and (ii) to the extent the failure to hold such title
would not reasonably be expected to have a Material Adverse Effect.


 


5.14.        Plan Assets; Prohibited Transactions. 
None of the Credit Parties is an entity deemed to hold “plan assets”
within the meaning of 29 C.F.R. § 2510.3-101 of an employee benefit plan
(as defined in Section 3(3) of ERISA) which is subject to Title I of
ERISA or any plan (within the meaning of Section 4975 of the Code), and
assuming the accuracy of the representations and warranties made in
Section 9.12 and in any assignment made pursuant to Section 12.3.3,
neither the execution of this Agreement nor the making of Revolving Loans
hereunder gives rise to a prohibited transaction within the meaning of
Section 406 of ERISA or Section 4975 of the Code.


 


5.15.        Environmental Matters. 
To the knowledge of the Borrower, no facts, circumstances or conditions
currently exist with respect to the Parent and its Subsidiaries that would
reasonably be expected to result in the Parent or such Subsidiary incurring
liability under Environmental Law that would reasonably be expected to have a
Material Adverse Effect. Neither the Parent, the Borrower nor any Subsidiary
has received any notice to the effect that its operations are not in material
compliance with any of the requirements of applicable Environmental Laws or are
the subject of any federal or state investigation evaluating whether any
remedial action is needed to respond to a release of any toxic or hazardous
waste or substance into the environment, which non-compliance or remedial
action would reasonably be expected to have a Material Adverse Effect.


 


5.16.        Investment Company Act. 
Neither the Parent, the Borrower nor any Subsidiary is an “investment
company” or a company “controlled” by an “investment company”, within the
meaning of the Investment Company Act of 1940, as amended.


 


5.17.        Public Utility Holding Company Act. 
Neither the Parent, the Borrower nor any Subsidiary is a “holding
company”, or an “affiliate” of a “holding company”, or a “subsidiary company”
of a “holding company”, as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.


 


48





















 


5.18.        Insurance.  The Parent
maintains, and has caused the Borrower and each Subsidiary to maintain, with
financially sound and reputable insurance companies insurance on their Property
in such amounts, subject to such deductibles and self-insurance retentions and
covering such properties and risks as is consistent with sound business
practice for Persons engaged in the same or similar business and which are
similarly situated to the Borrower.


 


5.19.        Solvency.  After giving
effect to (i) the Credit Extensions to be made on the Restatement
Effective Date or such other date as Credit Extensions requested hereunder are
made, (ii) the other transactions contemplated by this Agreement and the
other Loan Documents, and (iii) the payment and accrual of all transaction
costs with respect to the foregoing, the Parent and its Subsidiaries taken as a
whole are Solvent.


 


5.20.        Collateral Documents. 
The Collateral Documents create, as security for the obligations
purported to be secured thereby, a valid and enforceable interest in and Lien
on all of the Properties covered thereby in favor of the Agent, and upon the
filing of any financing statements, notices or mortgages contemplated thereby
in the offices specified therein, such Liens shall be superior to and prior to
the right of all third Persons (other than Liens permitted under
Section 6.15, provided that
nothing herein shall be deemed to constitute an agreement to subordinate any of
the Liens of the Agent under the Loan Documents to any Liens otherwise
permitted under Section 6.15 (other than Permitted Priority Liens)) and
subject to no other Liens (other than Liens permitted under Section 6.15).


 


5.21.        No Default or Unmatured Default. 
No Default or Unmatured Default has occurred and is continuing.


 


ARTICLE VI



COVENANTS


 


During the term of this Agreement, unless the
Required Lenders shall otherwise consent in writing:


 


6.1.          Financial Reporting. 
The Parent and the Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, and the Borrower will furnish to
the Agent (which shall furnish copies to the Lenders via IntraLinks or other
similar password protected, restricted internet site):


 


6.1.1  Within 90 days after the close of each of the
Parent’s fiscal years (commencing with the fiscal year ending December 31,
2005), financial statements prepared in accordance with Agreement Accounting
Principles on a consolidated basis for itself and its Subsidiaries, including
balance sheets as of the end of such period, statements of income and
statements of cash flows, accompanied by (a) an audit opinion, unqualified
as to scope, of a nationally recognized firm of independent public accountants
or other independent public accountants reasonably acceptable to the Required
Lenders and (b) a certificate of said accountants that, in the course of their
examination necessary for their opinion, they have obtained no knowledge of any
Default


 


49





















 


under any of
Sections 6.21 through 6.24 insofar as such Sections relate to accounting
matters, or if, in the opinion of such accountants, any Default shall exist,
stating the nature and status thereof.


 


6.1.2  Within 45 days after the close of the first
three (3) quarterly periods of each of the Parent’s fiscal years, for the
Parent and its Subsidiaries, consolidated unaudited balance sheets as at the
close of each such period and consolidated statements of income and a statement
of cash flows for the period from the beginning of such fiscal year to the end
of such quarter, all certified as to fairness of presentation, in all material
respects, compliance with Agreement Accounting Principles by its chief
financial officer, controller or treasurer.


 


6.1.3  Together with (i) the financial
statements required under Sections 6.1.1 and 6.1.2, a compliance certificate in
substantially the form of Exhibit B signed by its chief financial officer,
controller or treasurer showing the calculations necessary to determine
compliance with this Agreement, which certificate shall also state that no
Default or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof, and (ii) each compliance
certificate described in clause (i) relating to the financial statements
required under Section 6.1.1, supplements to the schedules to the Security
Agreement and the Intellectual Property Security Agreements reflecting any
matter hereafter arising which, if existing or occurring at the Restatement
Effective Date, would have been required to be set forth on the schedules
delivered as of the Restatement Effective Date, provided that notwithstanding that any such supplement may
disclose the existence or occurrence of events, facts or circumstances which
are either prohibited by the terms of this Agreement or any other Loan
Documents or which result in the material breach of any representation or
warranty, such supplement shall not be deemed either an amendment thereof or a
waiver of such breach unless expressly consented to in writing by Agent and the
requisite number of Lenders under Section 8.2, and no such amendments,
except as the same may be consented to in a writing which expressly includes a
waiver, shall be or be deemed a waiver by the Agent or any Lender of any
Default disclosed therein, and any items disclosed in any such supplemental disclosures
shall be included in the calculation of any limits, baskets or similar
restrictions contained in this Agreement or any of the other Loan Documents.


 


6.1.4  Within 60 days after the close of each of the
Parent’s fiscal years, a copy of the plan and forecast consisting of a
projected balance sheet, income statements and cash flow statements, and any
narrative prepared with respect thereto, of the Parent and its Subsidiaries for
the upcoming fiscal year prepared in such detail as shall be reasonably satisfactory
to the Agent.


 


6.1.5  Within 270 days after the close of each
fiscal year of the Parent, if applicable, a copy of the actuarial report
showing the funding status of each Single Employer Plan as of the valuation
date occurring in such fiscal year, certified by an actuary enrolled under
ERISA.


 


6.1.6  As soon as possible and in any event within
10 days after (i) the inception of any formal step to terminate any Plan,
other than a standard termination under Section


 


50





















 


4041(b) of
ERISA, (ii) a contribution failure with respect to any Plan sufficient to
give rise to a Lien under Section 302(f) of ERISA, or (iii) the
making of any application under Section 303 of ERISA for the waiver of the
minimum funding requirements under Section 302(a) of ERISA, notice of
any such event and the action which the Parent proposes to take with respect
thereto.


 


6.1.7  As soon as possible and in any event within
10 days after receipt by the Parent, the Borrower or any Subsidiary, a copy of
(a) any notice or claim to the effect that the Parent, the Borrower or any
Subsidiary is or may be liable to any Person as a result of the release by the
Parent, the Borrower, any Subsidiary, or any other Person of any toxic or hazardous
waste or substance into the environment, and (b) any notice alleging any
violation of any Environmental Law by the Parent, the Borrower or any
Subsidiary, which, in either case, would reasonably be expected to have a
Material Adverse Effect.


 


6.1.8  Promptly upon the filing thereof, copies of
all registration statements and annual, quarterly, monthly or other regular
reports which the Parent, the Borrower or any Subsidiary publicly files with
the SEC.


 


6.1.9  Such other information (including
non-financial information) as the Agent or any Lender may from time to time
reasonably request.


 


6.2.          Use of Proceeds. 
The Parent and the Borrower will, and will cause each Subsidiary to, use
the proceeds of the Credit Extensions for general corporate purposes, including,
without limitation, for working capital, Permitted Acquisitions, distributions
permitted under Section 6.10 and payment of fees and expenses incurred in
connection with this Agreement.  The
Borrower shall use the proceeds of Credit Extensions in compliance with all
applicable legal and regulatory requirements and any such use shall not result
in a violation of any such requirements, including, without limitation,
Regulation U and X.


 


6.3.          Notice of Default. 
Within five (5) Business Days after an Authorized Officer becomes
aware thereof, the Borrower will give notice in writing to the Lenders of the
occurrence of (i) any Default or Unmatured Default and (ii) any other
development, financial or otherwise, which would reasonably be expected to have
a Material Adverse Effect.


 


6.4.          Conduct of Business. 
The Parent and the Borrower will, and will cause each Subsidiary to,
carry on and conduct its business in substantially the same fields of
enterprise as conducted by the Parent or its Subsidiaries as of the Restatement
Effective Date and those reasonably related thereto and reasonable extensions
thereof, and do all things necessary (subject to Section 6.11) to remain
duly incorporated or organized, validly existing and (to the extent such
concept applies to such entity) in good standing as a corporation, partnership
or limited liability company in its jurisdiction of incorporation or
organization, as the case may be, and remain qualified to do business and
remain in good standing (to the extent such concept applies to such entity) in
all jurisdictions where the nature of the business conducted by it makes such
qualification necessary and where failure to so qualify would reasonably be
expected to have a Material Adverse Effect.


 


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6.5.          Taxes.  The Parent
and the Borrower will, and will cause each Subsidiary to, timely file complete
and correct United States federal and foreign, state and local tax returns
required by law and pay when due all taxes, assessments and governmental
charges and levies upon it or its income, profits or Property, except
(i) those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside in
accordance with Agreement Accounting Principles and with respect to which no
Lien exists or (ii) those taxes, assessments, charges and levies which by
reason of the amount involved or the remedies available to the applicable
taxing authority would not reasonably be expected to have a Material Adverse
Effect.


 


6.6.          Insurance.  The Parent
and the Borrower will, and will cause each Subsidiary to, maintain with
financially sound and reputable insurance companies insurance on their Property
in such amounts, subject to such deductibles and self-insurance retentions, and
covering such properties and risks as is consistent with sound business
practice for Persons engaged in the same or similar business and which
similarly situated to the Borrower, and the Borrower will furnish to the Agent
upon request full information as to the insurance carried.  The Borrower shall deliver to the Agent
endorsements in form and substance acceptable to the Agent (x) to all policies
covering risk of loss or damage to tangible property of the Parent, the
Borrower and each Guarantor naming the Agent as loss payee and (y) to all
general liability and other liability policies naming the Agent as an
additional insured.  In the event the
Parent, the Borrower or any Subsidiary at any time or times hereafter shall
fail to obtain or maintain any of the policies or insurance required herein or
to pay any premium in whole or in part relating thereto, then the Agent,
without waiving or releasing any obligations or resulting Default hereunder,
may at any time or times thereafter (but shall be under no obligation to do so)
obtain and maintain such policies of insurance and pay such premiums.  All sums so disbursed by the Agent shall
constitute part of the Obligations, payable as provided in this Agreement.


 


6.7.          Compliance with Laws. 
The Parent and the Borrower will, and will cause each Subsidiary to,
comply with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject including, without
limitation, all Environmental Laws and Section 302 and Section 906 of
the Sarbanes-Oxley Act of 2002, except where the failure to do so, individually
or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.


 


6.8.          Maintenance of Properties. 
Subject to Section 6.12, the Parent and the Borrower will, and will
cause each Subsidiary to, do all things necessary to maintain, preserve,
protect and keep its Property used in the operation of its business in good
repair, working order and condition (ordinary wear and tear and casualty
excepted), and make all necessary and proper repairs, renewals and replacements
so that its business carried on in connection therewith may be properly
conducted at all times, except where the failure to do so, individually or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect.


 


6.9.          Inspection; Keeping of Books and Records. 
The Parent and the Borrower will, and will cause each Subsidiary to,
permit upon two (2) Business Days’ prior written notice to the Borrower
(except when a Default or Unmatured Default has occurred and is continuing, in
which case no prior notice will be required) the Agent and the Lenders (after
notice to and coordination with, the Agent), by their respective
representatives and agents, to inspect any of the Property,


 


52





















 


books
and financial records of the Parent, the Borrower and each Subsidiary, to
examine and make copies of the books of accounts and other financial records of
the Parent, the Borrower and each Subsidiary, and to discuss the affairs,
finances and accounts of the Parent, the Borrower and each Subsidiary with, and
to be advised as to the same by, their respective officers at such reasonable
times and intervals as the Agent or any Lender may designate.  The exercise of the rights under the
preceding sentence (i) by or on behalf of any Lender shall, unless
occurring at a time when a Default or Unmatured Default shall be continuing, be
at such Lender’s expense and (ii) by or on behalf of the Agent, other than
the first such inspection occurring during any calendar year or any inspections
occurring at a time when a Default or Unmatured Default is continuing, shall be
at the Agent’s expense; all other such inspections shall be at the Borrower’s
expense.  The Parent and the Borrower
shall keep and maintain, and cause each of the Subsidiaries to keep and
maintain, in all material respects, complete, accurate and proper books of
record and account in which entries in conformity with Agreement Accounting
Principles shall be made of all dealings and transactions in relation to their
respective businesses and activities.  If
a Default has occurred and is continuing, the Parent and the Borrower, upon the
Agent’s request, shall turn over copies of any such records to the Agent or its
representatives.


 


6.10.        Dividends.  The Parent
and the Borrower will not, nor will they permit any Subsidiary to, declare or
pay any dividend or make any distribution on its capital stock (other than
dividends payable in its own capital stock) or redeem, repurchase or otherwise
acquire or retire any of its capital stock at any time outstanding, except that
(i) any Subsidiary of the Borrower may declare and pay dividends or make
distributions to the Borrower or to any other Subsidiary of the Borrower,
(ii) any Subsidiary of the Borrower which is not a Wholly-Owned Subsidiary
may pay dividends to its shareholders generally so long as the Borrower or its
respective Subsidiary which owns the equity interest or interests in the
Subsidiary paying such dividends receives at least its proportionate share
thereof, (iii) the Borrower may declare or make any dividend of the
capital stock of TOPCO to the Parent, (iv) the Borrower may declare and
make dividends or distributions to the Parent to enable the Parent to, and the
Parent may (a) pay any income, franchise or like taxes, (b) pay its
operating expenses (including, without limitation, legal, accounting,
reporting, listing and similar expenses) in an aggregate amount not exceeding
$2,000,000 in any fiscal year and (c) so long as no Default or Unmatured
Default shall be continuing or result therefrom, repurchase its common stock
and warrants and/or redeem or repurchase vested management options, in each
case, from directors, officers and employees of the Parent and its
Subsidiaries, and (v) so long as no Default or Unmatured Default shall be
continuing or result therefrom, the Borrower may make distributions to the
Parent and the Parent may redeem, repurchase, acquire or retire an amount of
its capital stock or warrants or options therefor, or declare and pay any
dividend or make any distribution on its capital stock, in the aggregate,
calculated as of the date such distribution is made by the Borrower, up to the
sum of (1) the greater of (a) $250,000,000 and (b) an amount
equal to (x) $250,000,000 plus (y) 25% of Consolidated Net Income (or minus 25%
of any loss) in each fiscal quarter beginning with the fiscal quarter ending
June 30, 2005, plus (2) the net cash proceeds received by the Parent
or the Borrower from the exercise of stock options issued to the directors,
officers and employees of the Parent, the Borrower or the Borrower’s
Subsidiaries; all such permitted amounts actually paid under this clause
(v) during any period being the “Permitted Distribution Amount” for such
period.


 


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6.11.        Merger.  The Parent
and the Borrower will not, nor will they permit any Subsidiary to, merge or
consolidate with or into any other Person, except that:


 


6.11.1  A Guarantor may merge into (i) the
Borrower, provided the Borrower
shall be the continuing or surviving corporation, or (ii) another
Guarantor or any other Person that becomes a Guarantor promptly upon the
completion of the applicable merger or consolidation.


 


6.11.2  A Subsidiary that is not a Guarantor and not
required to be a Guarantor may merge or consolidate with or into any other
Person; provided, however, that if the equity interests of
such Subsidiary have been pledged to the Agent as Collateral, then such merger
or consolidation shall not be permitted unless such Subsidiary is the surviving
entity of such merger or consolidation or the equity interest of the surviving
entity have been pledged to the Agent as Collateral or such merger or
consolidation is approved in writing by the Agent prior to the consummation
thereof.


 


6.11.3  The Borrower or any Subsidiary of the
Borrower may consummate any merger or consolidation in connection with any
Permitted Acquisition; provided
that in any such merger or consolidation to which the Borrower is a party, the
Borrower shall be the continuing or surviving corporation.


 


6.12.        Sale of Assets. 
The Parent and the Borrower will not, nor will they permit any
Subsidiary to, lease, sell, transfer or otherwise dispose of its Property to
any other Person, except:


 


6.12.1  Sales of inventory in the ordinary course of
business.


 


6.12.2  A disposition of assets (i) by the
Parent or any Subsidiary to any Credit Party, (ii) by a Subsidiary that is
not a Guarantor and not required to be a Guarantor to any other Subsidiary,
(iii) subject to Section 6.24, by any Credit Party to any Foreign
Subsidiary and (iv) subject to Section 6.25, by any Credit Party to
TOPCO.


 


6.12.3  A disposition of (i) obsolete property,
property no longer used in the business of the Parent, the Borrower or any
Subsidiary or other assets in the ordinary course of business of the Parent,
the Borrower or any Subsidiary and (ii) the properties identified on
Schedule 6.12.


 


6.12.4  A disposition of assets for an aggregate
purchase price of up to $275,000,000 at any one time outstanding pursuant to,
and in accordance with, Receivables Purchase Facilities unless (a) a
Default has occurred and is continuing under Sections 7.6 or 7.7, or (b) the
Agent shall have given written notice to the Borrower prohibiting dispositions
under this Section 6.12 following the occurrence of a Default under
clauses (i), (ii) or, solely with respect to interest, (iii) of
Section 7.2.


 


6.12.5  Transfers of condemned Property to the
respective governmental authority or agency that has condemned the same
(whether by deed in lieu of condemnation or otherwise), and the transfer of
Properties that have been subject to a casualty to the respective insurer (or
its designee) of such Property as part of an insurance settlement.


 


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6.12.6  The license or sublicense of software,
trademarks, and other intellectual property which do not materially interfere
with the business of the Parent and its Subsidiaries, taken as a whole.


 


6.12.7  Consignment arrangements (as consignor or
consignee) or similar arrangements for the sale of goods in the ordinary course
of business of the Parent and its Subsidiaries, taken as a whole.


 


6.12.8  The discount or sale, in each case without
recourse and in the ordinary course of business, of receivables more than 90
days overdue and arising in the ordinary course of business, but only in
connection with the compromise or collection thereof consistent with customary
industry practice (and not as part of any bulk sale or financing of
receivables).


 


6.12.9  Leases or subleases or licenses of real
property to other Persons not materially interfering with the business of the
Parent and its Subsidiaries, taken as a whole.


 


6.12.10  Leases, sales or other dispositions of its
Property that (i) are for consideration consisting at least seventy-five
percent (75%) of cash, (ii) are for not less than fair market value, and
(iii) together with all other Property of the Parent, the Borrower and the
Subsidiaries previously leased, sold or disposed of (other than dispositions
otherwise permitted by this Section 6.12) as permitted by this
Section 6.12.10 during the twelve-month period ending with the month in which
any such lease, sale or other disposition occurs, do not exceed $30,000,000 in
the aggregate.


 


6.13.        Investments and Acquisitions. 
The Parent and the Borrower will not, nor will they permit any
Subsidiary to, make or suffer to exist any Investments (including without
limitation, loans and advances to, and other Investments in, Subsidiaries), or
to create any Subsidiary or to become or remain a partner in any partnership or
joint venture, or to make any Acquisition of any Person, except:


 


6.13.1  Cash and Cash Equivalent Investments.


 


6.13.2  Existing Investments in Subsidiaries and
other Investments in existence on the Restatement Effective Date and described
in Schedule 6.13 and any renewal or extension of any such Investments that
does not increase the amount of the Investment being renewed or extended as
determined as of such date of renewal or extension.


 


6.13.3  Investments in trade receivables or received
in connection with the bankruptcy or reorganization of suppliers and customers
and in settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business.


 


6.13.4  Investments consisting of intercompany loans
permitted under Section 6.14.6.


 


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6.13.5  Acquisitions meeting the following
requirements or otherwise approved by the Required Lenders (each such
Acquisition constituting a “Permitted Acquisition”):


 


(i)            as of the date of the consummation of
such Acquisition, no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition, and the representation and
warranty contained in Section 5.11 shall be true both before and after
giving effect to such Acquisition;


 


(ii)           such Acquisition is initiated by Borrower
and consummated on a non-hostile basis and consummated pursuant to a negotiated
acquisition agreement approved by the board of directors or other applicable
governing body of the seller or entity to be acquired;


 


(iii)          the business to be acquired in such
Acquisition is similar or reasonably related to one or more of the lines of
business in which the Parent, the Borrower and the Subsidiaries are engaged on
the Restatement Effective Date;


 


(iv)          as of the date of the consummation of
such Acquisition, all material governmental and corporate approvals required in
connection therewith shall have been obtained;


 


(v)           with respect to each Permitted
Acquisition with respect to which the Purchase Price shall be greater than
$75,000,000, not less than ten (10) days prior to the consummation of such
Permitted Acquisition, the Borrower shall have delivered to the Agent a pro
forma consolidated balance sheet, income statement and cash flow statement of
the Parent and the Subsidiaries (the “Acquisition Pro Forma”), based on the
Parent’s most recent financial statements delivered pursuant to
Section 6.1 and taking into account such Permitted Acquisition (including,
for purposes of Consolidated EBITDA, factually supportable and identifiable
costs savings and expenses), the funding of all Credit Extensions in connection
therewith (and the use of the proceeds thereof) and the repayment of any
Indebtedness in connection with such Permitted Acquisition, and such
Acquisition Pro Forma shall reflect that, on a pro forma basis, the Parent
would have been in compliance with the financial covenants set forth in
Sections 6.21 through 6.23, inclusive, for the four fiscal quarter period
reflected in the compliance certificate most recently delivered to the Agent
pursuant to Section 6.1.3 prior to the consummation of such Permitted
Acquisition (giving effect to each of the adjustments described above as if
made on the first day of such period); and


 


(vi)          prior to, or with respect to clauses
(A) and (B) below, concurrently with, the consummation of, each such
Permitted Acquisition, the Borrower shall deliver to the Agent a documentation,
information and certification package in form and substance reasonably
acceptable to the Agent, including, without limitation;


 


(A)          in the case of an Acquisition by or of a
Domestic Subsidiary, the Collateral Documents necessary for the perfection of a
first priority security interest (subject to Liens permitted under
Section 6.15, provided


 


56





















 


that nothing herein shall be deemed to constitute an
agreement to subordinate any of the Liens of the Agent under the Loan Documents
to any Liens otherwise permitted under Section 6.15 (other than Permitted
Priority Liens)) in all of the assets to be acquired or the equity interests
and assets of the entity to be acquired, or, in the case of the Acquisition of
a Material Foreign Subsidiary, all of the applicable Collateral Documents
required by Section 6.23, together with opinions of counsel, if requested
by the Agent, in each case in form and substance reasonably acceptable to the
Agent;


 


(B)           a supplement to the Guaranty if the Permitted
Acquisition is an Acquisition of equities and the target company would qualify
as a Domestic Subsidiary after the Acquisition but will not be merged with the
Borrower or any existing Domestic Subsidiary;


 


(C)           with respect to each Permitted Acquisition
the Purchase Price of which shall be greater than $75,000,000, the financial
statements of the target entity, if any, delivered by the seller(s) to the
purchaser;


 


(D)          a copy of the acquisition agreement for such
Acquisition, together with drafts of the material schedules thereto;


 


(E)           a copy of all documents, instruments and
agreements with respect to any Indebtedness to be incurred or assumed in
connection with such Acquisition; and


 


(F)           such other documents or information as shall
be reasonably requested by the Agent or any Lender.


 


6.13.6  Investments constituting promissory notes and
other non-cash consideration received in connection with any transfer of assets
permitted under Section 6.12.10.


 


6.13.7  Investments (x) constituting customer
advances not to exceed $20,000,000 at any one time outstanding and (y) arising
as a result of any required payment under any Permitted Customer Financing
Guaranty.


 


6.13.8  Extensions of trade credit in the ordinary
course of business consistent with the Parent’s, the Borrower’s and the
Subsidiaries’ past practices.


 


6.13.9  Investments constituting Rate Management
Transactions permitted under Section 6.17.


 


6.13.10  Subject to Section 6.25, additional
Investments in TOPCO.


 


6.13.11  Subject to Section 6.24, the creation or
formation of new Subsidiaries (as opposed to the Acquisition of new
Subsidiaries), so long as all applicable requirements under Section 6.23
shall have been, or concurrently therewith are, satisfied.


 


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6.13.12  Investments constituting expenditures for any
purchase or other acquisition of any asset which would be classified as a fixed
or capital asset on a consolidated balance sheet of the Parent and its
Subsidiaries prepared in accordance with Agreement Accounting Principles to the
extent otherwise permitted under this Agreement.


 


6.13.13  Investments by (i) the Parent and its
Subsidiaries in any Credit Party, (ii) any Subsidiary which is not a
Guarantor and is not required to be a Guarantor in any other Subsidiary which
is not a Guarantor and is not required to be a Guarantor and (iii) subject
to Section 6.24, any Credit Party in any Foreign Subsidiary.


 


6.13.14  Deposits made in the ordinary course of
business and referred to in Sections 6.15.4, 6.15.6 and 6.15.7.


 


6.13.15  Investments in connection with any
Receivables Purchase Facility permitted under this Agreement.


 


6.13.16  Additional Investments in an amount not to
exceed $20,000,000 at any one time outstanding.


 


6.14.        Indebtedness. 
The Parent and the Borrower will not, nor will they permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:


 


6.14.1  The Obligations.


 


6.14.2  Indebtedness existing on the Restatement
Effective Date and described in Schedule 6.14, and any replacement,
renewal, refinancing or extension of any such Indebtedness that (i) does
not exceed the aggregate principal amount (plus accrued interest and any
applicable premium and associated fees and expenses) of the Indebtedness being
replaced, renewed, refinanced or extended, (ii) does not have a Weighted
Average Life to Maturity at the time of such replacement, renewal, refinancing
or extension that is less than the Weighted Average Life to Maturity of the
Indebtedness being replaced, renewed, refinanced or extended and
(iii) does not rank at the time of such replacement, renewal, refinancing
or extension senior to the Indebtedness being replaced, renewed, refinanced or
extended.


 


6.14.3  Indebtedness arising under Rate Management
Transactions;


 


6.14.4  Amounts owing under Receivables Purchase
Facilities which in the aggregate at any time do not exceed $275,000,000.


 


6.14.5  Secured or unsecured purchase money
Indebtedness (including Capitalized Leases) incurred by the Parent, the
Borrower or any Subsidiary after the Restatement Effective Date to finance the
acquisition of assets used in its business, if (i) such Indebtedness does
not exceed the lower of the fair market value or the cost of the applicable
fixed assets (and related services purchased and ancillary expenses incurred in
connection therewith) on the date acquired, (ii) such Indebtedness does
not exceed $25,000,000 in the aggregate outstanding at any time, and
(iii) any Lien securing such


 


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Indebtedness is
permitted under Section 6.15 (such Indebtedness being referred to herein
as “Permitted Purchase Money Indebtedness”).


 


6.14.6  Indebtedness arising from intercompany loans
and advances made by (i) the Parent or any Subsidiary to any Credit Party,
(ii) any Subsidiary that is not a Guarantor to any other Subsidiary that
is not a Guarantor, (iii) subject to Section 6.24, any Credit Party
to any Foreign Subsidiary or (iv) subject to Section 6.25, any Credit
Party to TOPCO; provided that all
such Indebtedness shall be expressly subordinated to the Secured Obligations.


 


6.14.7  Indebtedness incurred or assumed by the
Parent, the Borrower or any Subsidiary in connection with a Permitted
Acquisition but not created in contemplation of such event.


 


6.14.8  Indebtedness constituting Contingent
Obligations otherwise permitted by Section 6.19.


 


6.14.9  Indebtedness under (i) performance bonds
and surety bonds and (ii) bank overdrafts outstanding for not more than
two (2) Business Days, in each case incurred in the ordinary course of
business.


 


6.14.10  To the extent the same constitutes
Indebtedness, obligations in respect of earn-out arrangements permitted
pursuant to a Permitted Acquisition.


 


6.14.11  Subordinated Indebtedness (including
(a) senior subordinated debentures or notes (which may be guaranteed by
the Parent and the Borrower’s Subsidiaries) issued to finance the Purchase
Price of any Permitted Acquisition and (b) Indebtedness of the Borrower
and its Subsidiaries owing to the seller in any Permitted Acquisition), so long
as (i) no Default or Unmatured Default shall be continuing as of the date
of issuance thereof and the Borrower shall have delivered to the Agent a pro
forma consolidated balance sheet, income statement and cash flow statement of
the Parent and the Subsidiaries (the “Debt Incurrence Pro Forma”), based on the
Parent’s most recent financial statements delivered pursuant to
Section 6.1 and taking into account the issuance of such Indebtedness (and
the use of the proceeds thereof), and such Debt Incurrence Pro Forma shall
reflect that, on a pro forma basis, the Parent would have been in compliance
with the financial covenants set forth in Sections 6.21, 6.22 and 6.23 for the
four fiscal quarter period reflected in the compliance certificate most
recently delivered to the Agent pursuant to Section 6.1.3 prior to the
issuance and use of the proceeds of such Indebtedness (giving effect to the
issuance of such Indebtedness (and the use of the proceeds thereof) as if made
on the first day of such period) and (ii) such subordinated Indebtedness
is unsecured, shall have a maturity date no earlier than the Facility
Termination Date, shall not provide for any voluntary or mandatory principal
prepayments or amortization prior to the Facility Termination Date, and shall
have terms in respect of interest rate, covenants, defaults and subordination
reasonably acceptable to the Agent.


 


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6.14.12  Additional Indebtedness (including
Indebtedness arising from agreements with any governmental authority or public
subdivision or agency thereof relating to the construction of buildings, and
the purchase and installation of equipment, to be used in the business of the
Parent and its Subsidiaries) in an aggregate outstanding principal amount not
to exceed $40,000,000 at any time.


 


6.15.        Liens.  The Parent
and the Borrower will not, nor will they permit any Subsidiary to, create,
incur, or suffer to exist any Lien in, of or on the Property of the Parent, the
Borrower or any Subsidiary, except:


 


6.15.1  Liens, if any, securing Secured Obligations.


 


6.15.2  Liens for taxes, assessments or governmental
charges or levies on its Property to the extent non-payment of such taxes is
otherwise permitted by this Agreement.


 


6.15.3  Liens imposed by law, such as landlords’,
wage earners’, carriers’, warehousemen’s and mechanics’ liens and other similar
liens arising in the ordinary course of business which secure payment of
obligations not more than 45 days past due or which are being contested in good
faith by appropriate proceedings and for which adequate reserves in accordance
with Agreement Accounting Principles shall have been set aside on its books.


 


6.15.4  Liens arising out of pledges or deposits
under worker’s compensation laws, unemployment insurance, old age pensions, or
other social security or retirement benefits, or similar legislation.


 


6.15.5  Liens existing on the Restatement Effective
Date and described in Schedule 6.15.


 


6.15.6  Deposits securing liability to insurance
carriers under insurance or self-insurance arrangements.


 


6.15.7  Deposits to secure the performance of bids,
trade contracts (other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business.


 


6.15.8  Easements, reservations, rights-of-way,
restrictions, survey exceptions and other similar encumbrances and minor title
imperfections as to real property of the Parent, the Borrower and the
Subsidiaries which, in the aggregate, are not material in amount and that do
not materially interfere with the ordinary conduct of the business of the
Parent, the Borrower or such Subsidiary conducted at the property subject
thereto.


 


6.15.9  Liens arising by reason of any judgment,
decree or order of any court or other governmental authority, but only to the
extent and for an amount and for a period not resulting in Default under
Section 7.8.


 


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6.15.10  Liens arising in connection with a
Receivables Purchase Facility permitted under Section 6.14.4.


 


6.15.11  Liens existing on any specific fixed asset of
any Subsidiary of the Borrower at the time such Subsidiary becomes a Subsidiary
and not created in contemplation of such event.


 


6.15.12  Liens on any specific fixed asset securing
Indebtedness incurred or assumed for the purpose of financing or refinancing
all or any part of the cost of acquiring or constructing such asset; provided that such Lien attaches to such
asset concurrently with or within six (6) months after the acquisition or
completion or construction thereof.


 


6.15.13  Liens existing on any specific fixed asset of
any Subsidiary of the Borrower at the time such Subsidiary is merged or
consolidated with or into the Borrower or any other Subsidiary and not created
in contemplation of such event.


 


6.15.14  Liens existing on any specific fixed asset
prior to the acquisition thereof by the Borrower or any Subsidiary and not
created in contemplation thereof; provided
that such Liens do not encumber any other property or assets, other than
improvements thereon and proceeds thereof.


 


6.15.15  Liens arising out of the refinancing,
extension, renewal or refunding of any Indebtedness secured by any Lien
permitted under Sections 6.15.5 and 6.15.11 through 6.15.14; provided that (i) such Indebtedness
is not secured by any additional assets, other than improvements thereon and
proceeds thereof, and (ii) the amount of such Indebtedness secured by any
such Lien is not increased.


 


6.15.16  Liens securing Permitted Purchase Money
Indebtedness; provided that such
Liens shall not apply to any property of the Parent, the Borrower or any
Subsidiary other than that purchased with the proceeds of such Permitted
Purchase Money Indebtedness other than improvements thereon and proceeds
thereof.


 


6.15.17  Liens in respect of Capitalized Lease
Obligations to the extent permitted hereunder and Liens arising under any
equipment, furniture or fixtures leases or Property consignments to the Parent,
the Borrower or any Subsidiary for which the filing of a precautionary
financing statement is permitted under the Collateral Documents.


 


6.15.18  Licenses, leases or subleases granted to
others in the ordinary course of business consistent with the Parent’s, the
Borrower’s and the Subsidiaries’ past practices that do not materially
interfere with the conduct of the business of the Parent, the Borrower and the
Subsidiaries taken as a whole.


 


6.15.19  Statutory and contractual landlords’ Liens
under leases to which the Parent, the Borrower or any Subsidiary is a party.


 


6.15.20  Liens in favor of a banking institution arising
as a matter of applicable law encumbering deposits (including the right of
set-off) held by such banking


 


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institutions
incurred in the ordinary course of business and which are within the general
parameters customary in the banking industry.


 


6.15.21  Liens in favor of customs and revenue
authorities arising as a matter of applicable law to secure the payment of
customs’ duties in connection with the importation of goods.


 


6.15.22  Any interest or title of a lessor, sublessor,
licensee or licensor under any lease or license agreement permitted by this
Agreement.


 


6.15.23  Liens encumbering cash deposits in an amount
not to exceed $30,000,000 to secure Permitted Customer Financing Guarantees.


 


6.15.24  Liens not otherwise permitted under this
Section 6.15 to the extent attaching to Properties and assets with an
aggregate fair market value not in excess of, and securing liabilities not in
excess of $15,000,000, in the aggregate at any one time outstanding.


 


6.16.        Affiliates.  Except as
otherwise permitted by this Agreement, the Parent and the Borrower will not
enter into, directly or indirectly, or permit any Subsidiary to enter into,
directly or indirectly, any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate (other than the Parent and, subject to
Section 6.24 and Section 6.25, its Subsidiaries) except in the
ordinary course of business and pursuant to the reasonable requirements of the
Parent’s, the Borrower’s or such Subsidiary’s business and upon fair and
reasonable terms no less favorable to the Parent, the Borrower or such
Subsidiary than the Parent, the Borrower or such Subsidiary would obtain in a
comparable arm’s-length transaction, except that any Affiliate who is an
individual may serve as a director, officer, employee or consultant of the
Parent or any of its Subsidiaries and may receive reasonable compensation for
his or her services in such capacity.


 


6.17.        Financial Contracts. 
The Parent and the Borrower will not, nor will they permit any
Subsidiary to, enter into or remain liable upon any Rate Management
Transactions except for those entered into (i) by the Borrower and it
Subsidiaries in the ordinary course of business for bona fide hedging purposes
and not for speculative purposes and (ii) by any SPV in connection with a
Receivables Purchase Facility permitted hereunder.


 


6.18.        Subsidiary Covenants. 
The Parent and the Borrower will not, and will not permit any Subsidiary
(other than any SPV) to, create or otherwise cause to become effective any
consensual encumbrance or restriction of any kind on the ability of any
Subsidiary (other than any SPV) (i) to pay dividends or make any other distribution
on its stock, (ii) to pay any Indebtedness or other obligation owed to the
Parent, the Borrower or any Subsidiary, (iii) to make loans or advances or
other Investments in the Parent, the Borrower or any Subsidiary, or
(iv) to sell, transfer or otherwise convey any of its property to the
Parent, the Borrower or any Subsidiary, except for such encumbrances or
restrictions existing under or by reason of (a) this Agreement and the
other Loan Documents, (b) documents governing Indebtedness permitted under
Section 16.14.11, (c) customary provisions restricting subletting or
assignment of any lease governing any leasehold interest of the Parent or any
of its Subsidiaries, (d) customary


 


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provisions
restricting assignment of any licensing agreement or other contract entered
into by Parent and its Subsidiaries in the ordinary course of business,
(e) restrictions on the transfer of any asset pending the close of the
sale of such asset and (f) restrictions on the transfer of any assets
subject to a Lien permitted by Section 6.15.


 


6.19.        Contingent Obligations. 
The Parent and the Borrower will not, nor will they permit any
Subsidiary to, make or suffer to exist any Contingent Obligation (including,
without limitation, any Contingent Obligation with respect to the obligations
of a Subsidiary), except Contingent Obligations arising with respect to
(i) this Agreement and the other Loan Documents, (ii) customary
indemnification obligations in favor of purchasers in connection with asset
dispositions permitted hereunder, (iii) customary indemnification
obligations under such Person’s charter and bylaws (or equivalent formation
documents), (iv) indemnities in favor of the Persons issuing title
insurance policies insuring the title to any property, (v) guarantees of
(a) real property leases and (b) personal property Operating Leases,
in each case entered into in the ordinary course of business by the Parent or
any of the Subsidiaries, (vi) other Contingent Obligations constituting
guarantees of Indebtedness permitted under Section 6.14, provided that to the extent such
Indebtedness is subordinated to the Secured Obligations each such Contingent
Obligation shall be subordinated to the Secured Obligations on terms reasonably
acceptable to the Agent, (vii) non-financial indemnities and guarantees of
performance made in the ordinary course of business by the Parent or any
Subsidiary that would not, individually or in the aggregate, have a Material
Adverse Effect and (viii) Permitted Customer Financing Guarantees.


 


6.20.        Leverage Ratio. 
The Parent and the Borrower will not permit the ratio (the “Leverage
Ratio”), determined as of the end of each of its fiscal quarters, of
(i) Consolidated Funded Indebtedness to (ii) Consolidated EBITDA for
the then most-recently ended four fiscal quarters to be greater than 3.00 to
1.00.  The Leverage Ratio shall be
calculated as of the last day of each fiscal quarter of the Parent based upon
(a) for Consolidated Funded Indebtedness, Consolidated Funded Indebtedness
as of the last day of each such fiscal quarter and (b) for Consolidated
EBITDA, the actual amount as of the last day of each fiscal quarter for the
most recently ended four consecutive fiscal quarters; provided that the Leverage Ratio shall be
calculated, with respect to Permitted Acquisitions, on a pro forma basis
reasonably satisfactory to the Agent, broken down by fiscal quarter in the
Parent’s reasonable judgment.


 


6.21.        Minimum Consolidated Net Worth. 
The Parent and the Borrower will at all times maintain Consolidated Net
Worth of not less than (i) $600,000,000 minus (ii) amounts
expended by Parent on or after August 1, 2005 in connection with
repurchases or redemptions of its capital stock under Section 6.10  plus (iii) 50% of Consolidated
Net Income (if positive) earned in each fiscal quarter beginning
with the fiscal quarter ending June 30, 2005, plus (iv) 50% of
the Net Cash Proceeds resulting from issuances of the Parent’s or any
Subsidiary’s capital stock.


 


6.22.        Capital Expenditures. 
The Parent and the Borrower will not, nor will they permit any
Subsidiary to expend, for Consolidated Capital Expenditures in the acquisition
of fixed assets in any fiscal year in the aggregate for the Parent and its
Subsidiaries, in excess of (i) $75,000,000 for the period from
January 1, 2005 through December 31, 2005; and (ii) $75,000,000
for the period from January 1 through December 31 for each fiscal
year thereafter, plus any amount permitted to be expended in the immediately
preceding fiscal year (pursuant to


 


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the
absolute dollar limitation for such preceding fiscal year and not pursuant to
any carryover provision from a prior fiscal year) but not expended.


 


6.23.        Subsidiary Collateral
Documents; Subsidiary Guarantors.  The Parent and the Borrower shall execute or
shall cause to be executed:


 


(i)            on the date any Person becomes a Subsidiary
of the Parent, if such Subsidiary is a Domestic Subsidiary, (a) a
supplement to the Security Agreement in favor of the Agent for the benefit of
the Holders of Secured Obligations with respect to all of the equity interests
of such Person owned by the Parent and its Domestic Subsidiaries; (b) a
supplement to the Guaranty pursuant to which such Domestic Subsidiary (other
than an SPV) shall become a Guarantor; (c) a supplement to the Security
Agreement pursuant to which such Domestic Subsidiary (other than an SPV) shall
become a grantor thereunder and the other documents required thereby;
(d) Intellectual Property Security Agreements with respect to such
Domestic Subsidiary’s (other than an SPV) intellectual property; and
(e) Collateral Documents in respect of such Domestic Subsidiary’s (other
than an SPV) real property (other than leased property) with a fair market value
greater than or equal to $2,000,000, in each case to provide the Agent with a
first priority perfected security interest therein and Lien thereon (subject to
Liens permitted under Section 6.15, provided
that nothing herein shall be deemed to constitute an agreement to subordinate
any of the Liens of the Agent under the Loan Documents to any Liens otherwise
permitted under Section 6.15 (other than Permitted Priority Liens));


 


(ii)           on the date any Person becomes a Material
Foreign Subsidiary, as soon as practicable but in any event within thirty (30)
days following the date on which such Person became a Material Foreign
Subsidiary, a pledge agreement or share mortgage in favor of the Agent for the
benefit of the Holders of Secured Obligations with respect to 65% of all of the
outstanding equity interests of such Material Foreign Subsidiary; provided, however, in the event that any
such Material Foreign Subsidiary is a Wholly-Owned Subsidiary of a Guarantor in
connection with which all of the requirements of clause (i) above have
been satisfied, and the activities of such Guarantor are limited to owning the
equity interests of its Subsidiaries, then, the Agent, at its option, may waive
the requirement for the pledge of any of the equities of such Material Foreign
Subsidiary under this clause (ii); provided,
further, that if at any time any
Material Foreign Subsidiary issues or causes to be issued equity interests,
such that the aggregate amount of the equity interests of Material Foreign
Subsidiary pledged to the Agent for the benefit of the Holders of Secured
Obligations is less than 65% of all of the outstanding equity interests of such
Person, the Parent shall (A) promptly notify the Agent of such deficiency
and (B) deliver or cause to be delivered any agreements, instruments,
certificates and other documents as the Agent may reasonably request all in
form and substance reasonably satisfactory to the Agent in order to cause all
of the equities of such Material Foreign Subsidiary owned by the Parent and its
Subsidiaries (but not in excess of 65% of all of the outstanding equities
thereof) to be pledged to the Agent for the benefit of the Holders of Secured
Obligations; and


 


(iii)          in either such case the Parent and the
Borrower shall deliver or cause to be delivered to the Agent all such pledge
agreements, guarantees, security agreements and


 


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other Collateral Documents, together with
appropriate corporate resolutions and other documentation (including opinions,
if reasonably requested by the Agent, UCC financing statements (and the Parent
and the Borrower hereby authorize the preparation and filing of all necessary
UCC financing statements), real estate title insurance policies, environmental
reports, the stock certificates representing the equities subject to such
pledge, stock powers with respect thereto executed in blank, and such other
documents as shall be reasonably requested to perfect the Lien of such pledge)
in each case in form and substance reasonably satisfactory to the Agent, and
the Agent shall be reasonably satisfied that it has a first priority perfected
pledge of or charge over the Collateral related thereto.


 


6.24.        Foreign Subsidiary Investments. 
The Parent and the Borrower will not, nor will they permit any other
Credit Party to, enter into or suffer to exist Foreign Subsidiary Investments
at any time in an aggregate amount greater than (i) for all Foreign
Subsidiary Investments in Canadian Subsidiaries, the sum of
(a) $40,000,000 plus (b) the aggregate amount of all
receivables attributable to Canadian operations of the Parent and its
Subsidiaries and transferred to such Canadian Subsidiaries in connection with
the initial capitalization thereof, provided
that the excess over $25,000,000 of all such Foreign Subsidiary Investments
described in clause (a) above shall be evidenced by an intercompany note
issued to a Credit Party in respect of which the Agent shall have a first
priority security interest under the Collateral Documents, or (ii) for all
other Foreign Subsidiary Investments, $13,000,000.


 


6.25.        TOPCO Investments. 
So long as TOPCO shall not be a Guarantor, the Parent and the Borrower
will not, nor will they permit any other Credit Party to, enter into or suffer
to exist TOPCO Investments at any time in an aggregate amount greater than
$1,000,000.


 


ARTICLE VII



DEFAULTS


 


The occurrence of any one or more of the following
events shall constitute a Default:


 


7.1.          Any representation or warranty made or
deemed made by or on behalf of the Parent, the Borrower or any Subsidiary to
the Lenders or the Agent under or in connection with this Agreement, any Credit
Extension, or any certificate or information delivered in connection with this
Agreement or any other Loan Document shall be false in any material respect on
the date as of which made or deemed made.


 


7.2.          Nonpayment of (i) principal of any
Revolving Loan when due, (ii) any Reimbursement Obligation within one
Business Day after the same becomes due, or (iii) interest upon any
Revolving Loan or any Commitment Fee, LC Fee or other Obligations under any of
the Loan Documents within five (5) Business Days after such interest, fee
or other Obligation becomes due.


 


7.3.          The breach by (i) the Parent or the
Borrower of any of the terms or provisions of any of Sections 6.2 or 6.3
or any of Sections 6.10 through 6.16, inclusive, Sections 6.18 through 6.22,
inclusive, or Sections 6.24 or 6.25 or (ii) by any Credit Party of any of
the terms or


 


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provisions
of any of Section 4.1.1 (to the extent that the non-compliance therewith
by such Credit Party would independently give rise to a Default under clause
(i) of this Section 7.3), 4.1.3 or clauses (i) or (ii) of
Section 4.1.4 of the Security Agreement.


 


7.4.          The breach by the Borrower (other than a
breach which constitutes a Default under another Section of this
Article VII) or any other Credit Party of any of the terms or provisions
of this Agreement or any other Loan Document to which it is a party which is
not remedied within (i) five (5) Business Days after the occurrence
thereof with respect to any breach of Section 6.1 and (ii) thirty
(30) days after written notice from the Agent or any Lender to the Borrower of
any other such breach.


 


7.5.          Failure of the Parent, the Borrower or
any Subsidiary to pay when due any Material Indebtedness (beyond the applicable
grace period with respect thereto, if any); or the default by the Parent, the
Borrower or any Subsidiary in the performance (beyond the applicable grace
period with respect thereto, if any) of any term, provision or condition
contained in any agreement under which Material Indebtedness is outstanding, or
any other event shall occur or condition exist, the effect of which default,
event or condition is to cause, or to permit the holder(s) of such Material
Indebtedness or the lender(s) under any such agreement to cause, such Material
Indebtedness to become due prior to its stated maturity or any commitment to
lend under any such agreement to be terminated prior to its stated expiration
date; or any Material Indebtedness of the Parent, the Borrower or any
Subsidiary shall be declared to be due and payable or required to be prepaid or
repurchased (other than by a regularly scheduled payment or specified mandatory
prepayment) prior to the stated maturity thereof; or the Parent, the Borrower
or any Subsidiary shall not pay, or admit in writing its inability to pay, its
debts generally as they become due.


 


7.6.          Any Credit Party or any Material Foreign
Subsidiary shall (i) have an order for relief entered with respect to it
under the Federal bankruptcy laws as now or hereafter in effect, (ii) make
a general assignment for the benefit of creditors, (iii) apply for, seek,
consent to, or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any Substantial Portion of
its Property, (iv) institute any proceeding seeking an order for relief
under the Federal bankruptcy laws as now or hereafter in effect or seeking to
adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of it or
its debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, (v) take any corporate or partnership action to
authorize or effect any of the foregoing actions set forth in this
Section 7.6 or (vi) fail to contest on a timely basis in good faith
any appointment or proceeding described in Section 7.7.


 


7.7.          Without the application, approval or
consent of any Credit Party or any Material Foreign Subsidiary, a receiver,
trustee, examiner, liquidator or similar official shall be appointed for such
Credit Party or such Material Foreign Subsidiary or any Substantial Portion of
its Property, or a proceeding described in Section 7.6(iv) shall be
instituted against any Credit Party or any Material Foreign Subsidiary and such
appointment continues undischarged or such proceeding continues undismissed or
unstayed for a period of 60 consecutive days.


 


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7.8.          The Parent, the Borrower or any
Subsidiary shall fail within 60 days to pay, bond or otherwise discharge one or
more (i) judgments or orders for the payment of money in excess of
$10,000,000 (or the equivalent thereof in currencies other than Dollars) in the
aggregate, or (ii) nonmonetary judgments or orders which, individually or
in the aggregate, would reasonably be expected to have a Material Adverse
Effect, which judgment(s), in any such case, is/are not (a) stayed on
appeal or otherwise being appropriately contested in good faith or
(b) paid in full or otherwise fully covered (subject to any applicable
deductible) by third-party insurers under the Parent’s or any Subsidiary’s
insurance policies.


 


7.9.          Any formal step is taken to terminate any
Plan, other than a standard termination under Section 4041(b) of
ERISA, or a contribution failure has occurred with respect to any Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA.


 


7.10.        Any Change in Control shall occur.


 


7.11.        The Parent or any other member of the
Controlled Group shall have been notified by the sponsor of a Multiemployer
Plan that it has incurred, pursuant to Section 4201 of ERISA, withdrawal
liability to such Multiemployer Plan in an amount which, when aggregated with
all other amounts required to be paid to Multiemployer Plans by the Parent or
any other member of the Controlled Group as withdrawal liability (determined as
of the date of such notification), exceeds $20,000,000.


 


7.12.        The Parent or any other member of the
Controlled Group shall have been notified by the sponsor of a Multiemployer
Plan that such Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, if as a result of such reorganization
or termination the aggregate annual contributions of the Parent and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased, in the aggregate, over the amounts contributed to such Multiemployer
Plans for the respective plan years of such Multiemployer Plans immediately
preceding the plan year in which the reorganization or termination occurs by an
amount exceeding $20,000,000.


 


7.13.        The Parent, the Borrower or any
Subsidiary shall (i) be the subject of any proceeding or investigation
pertaining to the release by the Parent, the Borrower or any Subsidiary or any
other Person of any toxic or hazardous waste or substance into the environment,
or (ii) violate any Environmental Law, which, in the case of an event
described in clause (i) or clause (ii), has resulted in liability to the
Parent, the Borrower or any Subsidiary in an amount equal to $20,000,000 or
more, which liability is not paid, bonded or otherwise discharged within 60
days or which is not stayed on appeal and being appropriately contested in good
faith.


 


7.14.        Any Loan Document shall fail to remain in
full force or effect against any Credit Party party thereto (except to the
extent such Credit Party has been released from its obligations thereunder in
accordance with this Agreement or such other Loan Document or such Loan
Document has expired or terminated in accordance with its terms) or any Credit
Party shall assert that its obligations thereunder are discontinued, invalid or
unenforceable for any reason (other than those enumerated in the first
parenthetical above); the Liens created by the Collateral


 


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Documents
shall at any time not constitute a valid and perfected Lien on the Collateral
intended to be covered thereby (to the extent perfection by filing,
registration, recordation, or possession is required herein or therein) in favor
of the Agent, having the priority contemplated by the Collateral Documents
(except to the extent such Liens have been released in accordance with this
Agreement or such other Loan Document)


 


7.15.        An event (such event, an “Off-Balance
Sheet Trigger Event”) shall occur which (i) permits the investors or
purchasers in respect of Off-Balance Sheet Liabilities of the Parent, any
Subsidiary or any SPV to require the amortization or liquidation of such
Off-Balance Sheet Liabilities as a result of the non-payment of any Off-Balance
Sheet Liability having an aggregate outstanding principal amount (or similar
outstanding liability) greater than or equal to $25,000,000 and (x) such
Off-Balance Sheet Trigger Event shall not be remedied or waived within the
later to occur of the tenth day after the occurrence thereof or the expiry date
of any grace period related thereto under the agreement evidencing such
Off-Balance Sheet Liabilities, or (y) such investors shall require the
amortization or liquidation of such Off-Balance Sheet Liabilities as a result
of such Off-Balance Sheet Trigger Event, or (ii) causes the replacement or
substitution of the Parent, any Subsidiary or any SPV as the servicer under the
agreements evidencing such Off-Balance Sheet Liabilities; provided, however,
that this Section 7.15 shall not apply on any date with respect to
(a) any voluntary request by the Parent, any Subsidiary or any SPV for an
above-described amortization or liquidation so long as the aforementioned
investors or purchasers cannot independently require on such date such
amortization or liquidation or (b) any scheduled amortization or
liquidation at the stated maturity of the facility evidencing such Off-Balance
Sheet Liabilities.


 


ARTICLE VIII



ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES


 


8.1.          Acceleration. 
(i) If any Default described in Section 7.6 or 7.7 occurs with
respect to any Credit Party, the obligations of the Lenders to make Revolving
Loans hereunder and the obligation and power of the LC Issuers to issue
Facility LCs shall automatically terminate and the Secured Obligations shall
immediately become due and payable without any election or action on the part
of the Agent, any LC Issuer or any Lender, and the Borrower will be and become
thereby unconditionally obligated, without any further notice, act or demand,
to pay the Agent an amount in immediately available funds, which funds shall be
held in the Facility LC Collateral Account, equal to (x) the amount of LC
Obligations at such time minus (y) the amount or deposit in the Facility
LC Collateral Account at such time which is free and clear of all rights and
claims of third parties and has not been applied against the Obligations (the
“Collateral Shortfall Amount”).  If any
other Default occurs, the Required Lenders (or the Agent with the consent of
the Required Lenders) may (a) terminate or suspend the obligations of the
Lenders to make Loans hereunder and the obligation and power of the LC Issuers
to issue Facility LCs, or declare the Secured Obligations to be due and
payable, or both, whereupon, in the case of a termination, the Secured
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives and/or (b) upon notice to the Borrower and in addition to
the continuing right to demand payment of all amounts payable under this
Agreement, make demand on the Borrower to pay, and the Borrower will forthwith
upon such demand and without any further notice or act


 


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pay to
the Agent the Collateral Shortfall Amount which funds shall be deposited in the
Facility LC Collateral Account.


 


(ii)           If at any time while any Default is
continuing, the Agent determines that the Collateral Shortfall Amount at such
time is greater than zero, the Agent may make demand on the Borrower to pay,
and the Borrower will, forthwith upon such demand and without any further
notice or act, pay to the Agent the Collateral Shortfall Amount, which funds shall
be deposited in the Facility LC Collateral Account.


 


(iii)          The Agent may at any time or from time to
time after funds are deposited in the Facility LC Collateral Account, apply
such funds to the payment of the Secured Obligations and any other amounts as
shall from time to time have become due and payable by the Borrower to the
Lenders or the LC Issuers under the Loan Documents.


 


(iv)          At any time while any Default is
continuing, neither the Borrower nor any Person claiming on behalf of or
through the Borrower shall have any right to withdraw any of the funds held in
the Facility LC Collateral Account. After all of the Secured Obligations have
been paid in full in cash (or, with respect to any Reimbursement Obligations,
the Facility LCs have been returned and cancelled or back-stopped to the
Agent’s reasonable satisfaction) and the Aggregate Commitment has been
terminated, any funds remaining in the Facility LC Collateral Account shall be
returned by the Agent to the Borrower or paid to whomever may be legally
entitled thereto at such time.


 


(v)           If, after acceleration of the maturity of
the Obligations or termination of the obligations of the Lenders to make Loans
and the obligation and power of the LC Issuers to issue Facility LCs hereunder
as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to any Credit Party) and before any
judgment or decree for the payment of the Obligations due shall have been
obtained or entered, the Required Lenders (in their sole discretion) shall so
direct, the Agent shall, by notice to the Borrower, rescind and annul such
acceleration and/or termination.


 


8.2.          Amendments.  Subject to
the provisions of this Section 8.2, the Required Lenders (or the Agent
with the consent in writing of the Required Lenders) and the Parent and the
Borrower may enter into agreements supplemental hereto for the purpose of
adding or modifying any provisions to the Loan Documents or changing in any
manner the rights of the Lenders or the Parent or the Borrower hereunder or
thereunder or waiving any Default hereunder or thereunder; provided, however, that no such
supplemental agreement shall, without the consent of each Lender affected
thereby:


 


(i)            Extend the Facility Termination Date, extend
the final maturity of any Revolving Loan or extend the expiry date of any
Facility LC in respect of which the requirements of Section 2.20.11 shall
not have been satisfied to a date after the Facility Termination Date, or
postpone any regularly scheduled payment of principal of any Revolving Loan or
forgive all or any portion of the principal amount thereof, or any
Reimbursement Obligation related thereto, or reduce the rate or extend the time
of payment of interest or fees thereon or Reimbursement Obligations related thereto
(other than (x) a waiver of the application of the default rate of interest or
LC Fees pursuant to


 


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Section 2.11 hereof and (y) any reduction of
the amount of or any extension of the payment date for the mandatory payments
required under Section 2.2 or other modification of Section 2.2 to
reflect the issuance of Term Loans hereunder, in each case which shall only
require the approval of the Required Lenders);


 


(ii)           Except as provided in Section 2.21, increase
the amount of the Commitment of any Lender hereunder;


 


provided, further,
however, that no such supplemental agreement shall, without the consent
of each Lender (which is not a defaulting Lender under the provisions of Sections
2.19 or 9.2):


 


(a)           Other than to reflect the issuance of Term
Loans hereunder on a ratable basis, reduce the percentage specified in the
definition of Required Lenders or any other percentage of Lenders specified to
be the applicable percentage in this Agreement to act on specified matters or
amend the definition of “Pro Rata Share”;


 


(b)           Permit the Borrower to assign its rights or
obligations under this Agreement;


 


(c)           Amend this Section 8.2 other than to
reflect the issuance of Term Loans hereunder;


 


(d)           Other than in connection with a transaction
permitted under this Agreement, release the Agent’s Lien on all or
substantially all of the Collateral;


 


(e)           Amend Section 11.2 in a manner that
would alter the pro rata sharing of payments required thereby; or


 


(f)            Other than in connection with a transaction
permitted under this Agreement, release the Parent or any Guarantor from its
obligations under the Guaranty.


 


No
amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent.  The Agent may waive payment of the fee
required under Section 12.3.3 without obtaining the consent of any other
party to this Agreement.  No amendment of
any provision of this Agreement relating to the Swing Line Lender or any Swing
Line Loan shall be effective without the written consent of the Swing Line
Lender.  No amendment of any provision of
this Agreement relating to any LC Issuer shall be effective without the written
consent of such LC Issuer.


 


8.3.          Preservation of Rights. 
No delay or omission of the Lenders, the LC Issuers or the Agent to
exercise any right under the Loan Documents shall impair such right or be
construed to be a waiver of any Default or an acquiescence therein, and the
making of a Credit Extension notwithstanding the existence of a Default or
Unmatured Default or the inability of the Borrower to satisfy the conditions
precedent to such Credit Extension shall not constitute any waiver or
acquiescence.  Any single or partial
exercise of any such right shall not preclude other or further exercise thereof
or the exercise of any other right, and no waiver, amendment or other variation
of the terms, conditions or provisions of the Loan Documents whatsoever shall
be valid unless in writing signed by, or by the Agent with the consent of, the
requisite number of Lenders


 


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required
pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth.  All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Agent, the LC Issuers and the Lenders until all of
the Secured Obligations (other than contingent indemnity claims) have been paid
in full.


 


ARTICLE IX



GENERAL PROVISIONS


 


9.1.          Survival of Representations. 
All representations and warranties of the Parent and the Borrower
contained in this Agreement shall survive the making of the Credit Extensions
herein contemplated.


 


9.2.          Governmental Regulation. 
Anything contained in this Agreement to the contrary notwithstanding,
neither any LC Issuer nor any Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.


 


9.3.          Headings. 
Section headings in the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.


 


9.4.          Entire Agreement. 
The Loan Documents embody the entire agreement and understanding among
the Borrower, the Parent, the Agent, the LC Issuers and the Lenders and
supersede all prior agreements and understandings among the Borrower, the
Parent, the Agent, the LC Issuers and the Lenders relating to the subject
matter thereof other than those contained in the fee letter described in
Section 10.13 which shall survive and remain in full force and effect
during the term of this Agreement.


 


9.5.          Several Obligations; Benefits of this
Agreement.  The respective obligations of the Lenders
hereunder are several and not joint and no Lender shall be the partner or agent
of any other (except to the extent to which the Agent is authorized to act as
such).  The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender
from any of its obligations hereunder. 
This Agreement shall not be construed so as to confer any right or
benefit upon any Person other than the parties to this Agreement and their
respective successors and assigns, provided,
however, that the parties hereto expressly agree that the Arranger
shall enjoy the benefits of the provisions of Sections 9.6, 9.10 and 10.11 to
the extent specifically set forth therein and shall have the right to enforce
such provisions on its own behalf and in its own name to the same extent as if
it were a party to this Agreement.


 


9.6.          Expenses; Indemnification.


 


(i)            The Borrower shall reimburse the Agent
and the Arranger for any reasonable out-of-pocket expenses (including
reasonable outside attorneys’ and paralegals’ fees and expenses of and fees for
other advisors and professionals engaged by the Agent or the Arranger and,
unless a Default shall be continuing, with the consent of the Borrower), but
excluding any costs, charges or expenses with respect to taxes and amounts
relating thereto (payment with respect to which shall be


 


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governed solely
and exclusively by Section 3.5), paid or incurred by the Agent or the
Arranger in connection with the investigation, preparation, negotiation,
documentation, execution, delivery, syndication, distribution (including,
without limitation, via the internet), review, amendment, modification and
administration of the Loan Documents. 
The Borrower also agrees to reimburse the Agent, the Arranger, the LC
Issuers and the Lenders for any out-of-pocket expenses (including outside
attorneys’ and paralegals’ fees and expenses of outside attorneys and
paralegals for the Agent, the Arranger, the LC Issuers and the Lenders, but
only to the extent such fees and disbursements were incurred by attorneys in a
single law firm (and any replacement or successor firm thereof) selected by the
Agent), but excluding any costs, charges or expenses with respect to taxes and
amounts relating thereto (payment with respect to which shall be governed
solely and exclusively by Section 3.5), paid or incurred by the Agent, the
Arranger, any LC Issuer or any Lender in connection with the collection and
enforcement of the Loan Documents.


 


(ii)           The Borrower hereby further agrees to
indemnify the Agent, the Arranger, each LC Issuer, each Lender, their
respective affiliates, and each of their directors, officers, employees,
trustees, investment advisors, attorneys, advisors and agents against all
losses, claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or preparation
therefor whether or not the Agent, the Arranger, any LC Issuer, any Lender or
any affiliate is a party thereto, and all outside attorneys’ and paralegals’
fees and expenses of outside attorneys and paralegals of the party seeking
indemnification), but excluding any losses, claims, damages, penalties,
judgments, liabilities and expenses with respect to taxes and amounts related
thereto (payment with respect to which shall be governed solely and exclusively
by Section 3.5), which any of them may pay or incur arising out of or
relating to this Agreement, the other Loan Documents, the transactions
contemplated hereby or the direct or indirect application or proposed application
of the proceeds of any Credit Extension hereunder except to the extent that
they have resulted from the gross negligence or willful misconduct or solely by
reason of the breach of the express terms of this Agreement of the party
seeking indemnification.  The obligations
of the Borrower under this Section 9.6 shall survive the termination of
this Agreement.


 


9.7.          Numbers of Documents. 
All statements, notices, closing documents, and requests hereunder shall
be furnished to the Agent with sufficient counterparts so that the Agent may
furnish one to each of the Lenders, to the extent that the Agent deems
necessary.


 


9.8.          Accounting.  Except as
provided to the contrary herein, all accounting terms used in the calculation
of any financial covenant or test shall be interpreted and all accounting
determinations hereunder in the calculation of any financial covenant or test
shall be made in accordance with Agreement Accounting Principles.


 


9.9.          Severability of Provisions. 
Any provision in any Loan Document that is held to be inoperative,
unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction,
be inoperative, unenforceable, or invalid without affecting the remaining
provisions in that


 


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jurisdiction
or the operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.


 


9.10.        Nonliability of Lenders. 
The relationship between the Borrower on the one hand and the Lenders,
the LC Issuers and the Agent on the other hand shall be solely that of borrower
and lender.  Neither the Agent (except to
the limited extent as provided by Section 12.3.4 relating to maintaining
the Register), the Arranger, the LC Issuers nor any Lender shall have any
fiduciary responsibilities to the Borrower or any other Credit Party.  Neither the Agent, the Arranger, the LC
Issuers nor any Lender undertakes any responsibility to the Borrower or any
other Credit Party to review or inform any Credit Party of any matter in
connection with any phase of any Credit Party’s business or operations.  Each of the Parent and the Borrower agrees
that neither the Agent, the Arranger, the LC Issuers nor any Lender shall have
liability to the Parent or the Borrower (whether sounding in tort, contract or
otherwise) for losses suffered by the Parent or the Borrower in connection
with, arising out of, or in any way related to, the transactions contemplated
and the relationship established by the Loan Documents, or any act, omission or
event occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence or willful misconduct of, or solely by
reason of the breach of the express terms of the Loan Documents by, the party
from which recovery is sought.  Neither
the Agent, the Arranger, the LC Issuers nor any Lender shall have any liability
with respect to, and each of the Parent and the Borrower hereby waives,
releases and agrees not to sue for, any special, indirect, consequential or
punitive damages suffered by the Parent, the Borrower or any Subsidiary in
connection with, arising out of, or in any way related to the Loan Documents or
the transactions contemplated thereby.


 


9.11.        Confidentiality. 
Each Lender agrees to hold any confidential information which it may
receive from the Borrower pursuant to this Agreement in confidence in
accordance with its respective customary practices (but in any event in
accordance with reasonable confidentiality practices), except for disclosure
(i) to its Affiliates and to other Lenders and their respective
Affiliates, for use solely in connection with the transactions contemplated
hereby, (ii) to legal counsel, accountants, and other professional
advisors to such Lender or to a Transferee who are expected to be involved in
the evaluation of such information in connection with the transactions
contemplated hereby, in each case which have been informed as to the
confidential nature of such information, (iii) to regulatory officials
having jurisdiction over it, (iv) to any Person as required by law,
regulation, or legal process in respect of which, to the extent permitted by
applicable law, such Lender shall have used commercially reasonable efforts to
give the Borrower reasonable prior notice and the opportunity to contest such
disclosure, (v) of information that presently or hereafter becomes
available to such Lender on a non-confidential basis from a source other than
the Parent and its Subsidiaries and other than as a result of disclosure not
otherwise permitted by this Section 9.11, (vi) to any Person in
connection with any legal proceeding to which such Lender is a party,
(vii) to such Lender’s direct or indirect contractual counterparties in
credit derivative transactions or to legal counsel, accountants and other
professional advisors to such counterparties, in each case which have been
informed as to the confidential nature of such information and agree to be
bound by this Section 9.11 or other similar terms of confidentiality,
(viii) permitted by Section 12.4 and (ix) to rating agencies if
requested or required by such agencies in connection with a rating relating to
the Credit Extensions hereunder.  Notwithstanding anything to the contrary set
forth herein or in any other


 


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agreement
to which the parties hereto are parties or by which they are bound, the
obligations of confidentiality contained herein and therein (the
“Confidentiality Obligations”), as they relate to the transactions contemplated
by this Agreement, shall not apply to the “tax structure” or “tax treatment” of
the transactions contemplated by this Agreement (as these terms are used in Section 1.6011-4(b)(3) (or
any successor provision) of the Treasury Regulations (the “Confidentiality
Regulation”) promulgated under Section 6011 of the Internal Revenue Code
of 1986, as amended); and each party hereto (and any employee, representative,
or agent of any party hereto) may disclose to any and all persons, without
limitation of any kind, the “tax structure’’ and “tax treatment” of the
transactions contemplated by this Agreement (as these terms are defined in the
Confidentiality Regulation).  In addition,
each party hereto acknowledges that it has no proprietary or exclusive rights
to any tax matter or tax idea related to the transactions contemplated by this
Agreement.


 


9.12.        Lenders Not Utilizing Plan Assets. 
Each Lender and Designated Lender represents and warrants that none of
the consideration used by such Lender or Designated Lender to make its Loans
constitutes for any purpose of ERISA or Section 4975 of the Code assets of
any “plan” as defined in Section 3(3) of ERISA or Section 4975
of the Code and the rights and interests of such Lender or Designated Lender in
and under the Loan Documents shall not constitute such “plan assets” under
ERISA.


 


9.13.        Nonreliance. 
Each Lender hereby represents that it is not relying on or looking to
any margin stock (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for herein.


 


9.14.        Disclosure.  The Borrower,
the Parent and each Lender, including the LC Issuers, hereby acknowledge and
agree that each Lender and/or its Affiliates from time to time may hold
investments in, make other loans to or have other relationships with the
Borrower and its Affiliates.


 


9.15.        Performance of Obligations. 
Each of the Parent and the Borrower agrees that the Agent may, but shall
have no obligation to (i) at any time, pay or discharge taxes, liens,
security interests or other encumbrances levied or placed on any Collateral to
the extent the same would constitute a Default hereunder if actually levied or
imposed and (ii) after the occurrence and during the continuance of a
Default make any payment or perform any act required of the Parent, the
Borrower or any Subsidiary under any Loan Document or take any other action
which the Agent in its discretion deems necessary or desirable to protect or
preserve the Collateral, including, without limitation, any action to (x)
effect any repairs or obtain any insurance called for by the terms of any of
the Loan Documents and to pay all or any part of the premiums therefor and the
costs thereof and (y) pay any rents payable by the Parent, the Borrower or
any Subsidiary which are more than 30 days past due, or as to which the
landlord has given notice of termination, under any lease.  The Agent shall use its best efforts to give
the Borrower notice of any action taken under this Section 9.15 prior to
the taking of such action or promptly thereafter provided the failure to give
such notice shall not affect the Borrower’s obligations in respect
thereof.  The Borrower agrees to pay the
Agent, upon demand, the principal amount of all funds advanced by the Agent
under this Section 9.15, together with interest thereon at the rate from
time to time applicable to Floating Rate Loans from the date of such advance
until the outstanding principal balance thereof is paid in full.  If the Borrower fails to make payment in


 


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respect
of any such advance under this Section 9.15 within one (1) Business
Day after the date the Borrower receives written demand therefor from the
Agent, the Agent shall promptly notify each Lender and each Lender agrees that
it shall thereupon make available to the Agent, in Dollars in immediately
available funds, the amount equal to such Lender’s Pro Rata Share of such
advance.  If such funds are not made
available to the Agent by such Lender within one (1) Business Day after
the Agent’s demand therefor, the Agent will be entitled to recover any such
amount from such Lender together with interest thereon at the Federal Funds
Effective Rate for each day during the period commencing on the date of such
demand and ending on the date such amount is received.  The failure of any Lender to make available
to the Agent its Pro Rata Share of any such unreimbursed advance under this
Section 9.15 shall neither relieve any other Lender of its obligation
hereunder to make available to the Agent such other Lender’s Pro Rata Share of
such advance on the date such payment is to be made nor increase the obligation
of any other Lender to make such payment to the Agent.  All outstanding principal of, and interest
on, advances made under this Section 9.15 shall constitute Obligations
secured by the Collateral until paid in full by the Borrower.


 


9.16.        USA PATRIOT Act. 
Each Lender hereby notifies the Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow such
Lender to identify the Borrower in accordance with the Act.


 


9.17.        No Duties Imposed on Syndication Agents
or Documentation Agents. None of the Persons identified on the cover page to this
Agreement, the signature pages to this Agreement or otherwise in this
Agreement as a “Syndication Agent” or a “Documentation Agent” shall have any
right, power, obligation, liability, responsibility or duty under this
Agreement other than, if such Person is a Lender, those applicable to all
Lenders as such.  Without limiting the
foregoing, none of the Persons identified on the cover page to this
Agreement, the signature pages to this Agreement or otherwise in this
Agreement as a “Syndication Agent” or a “Documentation Agent” shall have or be
deemed to have any fiduciary duty to or fiduciary relationship with any
Lender.  Each Lender acknowledges that it
has not relied, and will not rely, on any of the Persons so identified in
deciding to enter into this Agreement or in taking or not taking action
hereunder.


 


ARTICLE X



THE AGENT


 


10.1.        Appointment; Nature of Relationship. 
JPMorgan Chase is hereby appointed by each of the Lenders as its
contractual representative (herein referred to as the “Agent”) hereunder and
under each other Loan Document, and each of the Lenders irrevocably authorizes
the Agent to act as the contractual representative of such Lender with the
rights and duties expressly set forth herein and in the other Loan Documents.  The Agent agrees to act as such contractual
representative upon the express conditions contained in this
Article X.  Notwithstanding the use
of the defined term “Agent,” it is expressly understood and agreed that the
Agent shall not have any fiduciary responsibilities to any of the Holders of
Secured Obligations by reason of this Agreement or any other Loan Document and
that the Agent is merely acting as the contractual representative of the
Lenders with only those duties as are expressly set forth in this Agreement


 


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and the
other Loan Documents.  In its capacity as
the Lenders’ contractual representative, the Agent (i) does not hereby
assume any fiduciary duties to any of the Holders of Secured Obligations,
(ii) is a “representative” of the Holders of Secured Obligations within
the meaning of the term “secured party” as defined in the New York Uniform
Commercial Code and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. 
Each of the Lenders, for itself and on behalf of its Affiliates as
Holders of Secured Obligations, hereby agrees to assert no claim against the
Agent on any agency theory or any other theory of liability for breach of
fiduciary duty, all of which claims each Holder of Secured Obligations hereby
waives.


 


10.2.        Powers.  The Agent
shall have and may exercise such powers under the Loan Documents as are
specifically delegated to the Agent by the terms of each thereof, together with
such powers as are reasonably incidental thereto.  The Agent shall have no implied duties or
fiduciary duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Agent.


 


10.3.        General Immunity. 
Neither the Agent nor any of its directors, officers, agents or
employees shall be liable to the Parent, the Borrower, any Subsidiary or any
Lender or Holder of Secured Obligations for any action taken or omitted to be
taken by it or them hereunder or under any other Loan Document or in connection
herewith or therewith except to the extent such action or inaction is
determined in a final, non-appealable judgment by a court of competent
jurisdiction to have arisen from the gross negligence or willful misconduct of
such Person or solely by reason of the breach of the express terms thereof by
such Person.


 


10.4.        No Responsibility for Loans, Recitals,
etc.  Neither the Agent nor any of its directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into, or verify (a) any statement, warranty or representation made
in connection with any Loan Document or any borrowing hereunder; (b) the
performance or observance of any of the covenants or agreements of any obligor
under any Loan Document, including, without limitation, any agreement by an
obligor to furnish information directly to each Lender; (c) the
satisfaction of any condition specified in Article IV, except receipt of
items required to be delivered solely to the Agent; (d) the existence or
possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith;
(f) the value, sufficiency, creation, perfection or priority of any Lien
in any Collateral; or (g) the financial condition of the Parent, the
Borrower, any Subsidiary or any guarantor of any of the Obligations or of any
of the Parent’s, the Borrower’s, such Subsidiary’s or any such guarantor’s
respective Subsidiaries.  The Agent shall
have no duty to disclose to the Lenders information that is not required to be
furnished by the Parent or the Borrower to the Agent at such time, but is
voluntarily furnished by the Parent or the Borrower to the Agent (either in its
capacity as Agent or in its individual capacity).


 


10.5.        Action on Instructions of Lenders. 
The Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and under any other Loan Document in
accordance with written instructions signed by the Required Lenders (or all of
the Lenders in the event that and to the extent that this Agreement expressly
requires such approval), and such instructions and any action taken or failure
to act pursuant thereto shall be binding on all of the


 


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Lenders.  The Lenders hereby acknowledge that the Agent
shall be under no duty to take any discretionary action permitted to be taken
by it pursuant to the provisions of this Agreement or any other Loan Document
unless it shall be requested in writing to do so by the Required Lenders (or
all of the Lenders in the event that and to the extent that this Agreement
expressly requires such approval).  The
Agent shall be fully justified in failing or refusing to take any action
hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.


 


10.6.        Employment of Agents and Counsel. 
The Agent may execute any of its duties as Agent hereunder and under any
other Loan Document by or through employees, agents, and attorneys-in-fact and
shall not be answerable to the Lenders, except as to money or securities
received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care.  The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the
Lenders and all matters pertaining to the Agent’s duties hereunder and under
any other Loan Document.


 


10.7.        Reliance on Documents; Counsel. 
The Agent shall be entitled to rely upon any Note, notice, consent,
certificate, affidavit, letter, telegram, statement, paper or document believed
by it to be genuine and correct and to have been signed or sent by the proper
person or persons, and, in respect to legal matters, upon the opinion of
counsel selected by the Agent, which counsel may be employees of the Agent.


 


10.8.        Agent’s Reimbursement and Indemnification. 
The Lenders agree to reimburse and indemnify the Agent ratably in
proportion to the Lenders’ Pro Rata Shares of the Aggregate Commitment (or, if
the Aggregate Commitment has been terminated, of the Aggregate Outstanding
Credit Exposure) (i) for any amounts not reimbursed by the Borrower for
which the Agent is entitled to reimbursement by any Credit Party under the Loan
Documents, (ii) for any other expenses incurred by the Agent on behalf of
the Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents (including, without
limitation, for any expenses incurred by the Agent in connection with any
dispute between the Agent and any Lender or between two or more of the Lenders)
and (iii) for any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Agent in any way relating to or arising out of the Loan Documents or any other
document delivered in connection therewith or the transactions contemplated
thereby (including, without limitation, for any such amounts incurred by or
asserted against the Agent in connection with any dispute between the Agent and
any Lender or between two or more of the Lenders), or the enforcement of any of
the terms of the Loan Documents or of any such other documents, provided that (i) no Lender shall be
liable for any of the foregoing to the extent any of the foregoing is found in
a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Agent and
(ii) any indemnification required pursuant to
Section 3.5(vii) shall, notwithstanding the provisions of this Section 10.8,
be paid by the relevant Lender in accordance with the provisions thereof.  The obligations of the Lenders under this
Section 10.8 shall survive payment of the Secured Obligations and
termination of this Agreement.


 


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10.9.                        Notice of Default.  The Agent
shall not be deemed to have knowledge or notice of the occurrence of any
Default or Unmatured Default hereunder unless the Agent has received written
notice from a Lender or the Borrower referring to this Agreement describing
such Default or Unmatured Default and stating that such notice is a “notice of
default”.  In the event that the Agent
receives such a notice, the Agent shall give prompt notice thereof to the
Lenders.


 


10.10.                  Rights as a Lender.  In the event
the Agent is a Lender, the Agent shall have the same rights and powers
hereunder and under any other Loan Document with respect to its Commitment and
its Credit Extensions as any Lender and may exercise the same as though it were
not the Agent, and the term “Lender” or “Lenders” shall, at any time when the
Agent is a Lender, unless the context otherwise indicates, include the Agent in
its individual capacity.  The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Parent, the
Borrower or any Subsidiary in which the Parent, the Borrower or such Subsidiary
is not restricted hereby from engaging with any other Person.  The Agent, in its individual capacity, is not
obligated to remain a Lender.


 


10.11.                  Lender Credit Decision.  Each Lender
acknowledges that it has, independently and without reliance upon the Agent,
the Arranger or any other Lender and based on the financial statements prepared
by the Parent or the Borrower and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement and the other Loan Documents.  Each Lender also acknowledges that it will,
independently and without reliance upon the Agent, the Arranger 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 and the other Loan Documents.  Except as expressly set forth herein, the
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Parent, the Borrower or
any of their respective Subsidiaries that is communicated to or obtained by the
Person serving as Agent for any of its Affiliates in any capacity.


 


10.12.                  Successor Agent.  The Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrower, such resignation to be effective upon the appointment of a successor
Agent or, if no successor Agent has been appointed, forty-five days after the
retiring Agent gives notice of its intention to resign.  The Agent may be removed at any time with or
without cause by written notice received by the Agent from the Required
Lenders, such removal to be effective on the date specified by the Required
Lenders.  Upon any such resignation or
removal, the Required Lenders shall, with the prior written approval of the
Borrower (which approval shall be required only so long as no Default shall be
continuing), have the right to appoint, on behalf of the Borrower and the
Lenders, a successor Agent.  If no
successor Agent shall have been so appointed by the Required Lenders within
forty-five days after the resigning Agent’s giving notice of its intention to
resign, then the resigning Agent may appoint, on behalf of the Borrower and the
Lenders, a successor Agent. 
Notwithstanding the previous sentence, the Agent may at any time without
the consent of the Borrower or any Lender, appoint any of its Affiliates which
is a commercial bank as a successor Agent hereunder.  If the Agent has resigned or been removed and
no successor Agent has been appointed, the Lenders may perform all the duties
of the Agent hereunder and the Borrower shall make all payments in respect of
the Obligations to the applicable Lender and for all other purposes shall


 


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deal directly with the
Lenders.  No successor Agent shall be
deemed to be appointed hereunder until such successor Agent has accepted the
appointment.  Any such successor Agent shall
be a commercial bank having capital and retained earnings 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, privileges
and duties of the resigning or removed Agent. 
Upon the effectiveness of the resignation or removal of the Agent, the
resigning or removed Agent shall be discharged from any further duties and
obligations hereunder and under the Loan Documents.  After the effectiveness of the resignation or
removal of an Agent, the provisions of this Article X shall continue in
effect for the benefit of such Agent in respect of any actions taken or omitted
to be taken by it while it was acting as the Agent hereunder and under the
other Loan Documents.  In the event that there
is a successor to the Agent by merger, or the Agent assigns its duties and
obligations to an Affiliate pursuant to this Section 10.12, then the term “Prime
Rate” as used in this Agreement shall mean the prime rate, base rate or other
analogous rate of the new Agent.


 


10.13.                  Agent and Arranger Fees.  The Borrower
agrees to pay to the Agent and the Arranger, for their respective accounts, the
fees agreed to by the Borrower, the Agent and the Arranger pursuant to that
certain letter agreement dated August 19, 2005, or as otherwise agreed in
writing from time to time.


 


10.14.                  Delegation to Affiliates. 
The Parent, the Borrower and the Lenders agree that the Agent may
delegate any of its duties under this Agreement to any of its Affiliates.  Any such Affiliate (and such Affiliate’s
directors, officers, agents and employees) which performs duties in connection
with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the Agent is
entitled under Articles IX and X.


 


10.15.                  Collateral Documents.  (a) Each
Lender authorizes the Agent to enter into and remain subject to each of the
Collateral Documents to which it is a party and to take all action contemplated
by such documents.  Each Lender agrees that
no Holder of Secured Obligations (other than the Agent) shall have the right
individually to seek to realize upon the security granted by any Collateral
Document, it being understood and agreed that such rights and remedies may be
exercised solely by the Agent for the benefit of the Holders of Secured
Obligations upon the terms of the Collateral Documents.


 


(b)  In the event that any Collateral is
hereafter pledged by any Person as collateral security for the Secured
Obligations, the Agent is hereby authorized to execute and deliver on behalf of
the Holders of Secured Obligations any Loan Documents necessary or appropriate
to grant and perfect a Lien on such Collateral in favor of the Agent on behalf
of the Holders of Secured Obligations.


 


(c)  The Lenders hereby authorize the Agent, at
its option and in its discretion, to release any Lien granted to or held by the
Agent upon any Collateral (i) upon termination of the Commitments and
payment and satisfaction of all of the Obligations (other than contingent
indemnity obligations and Rate Management Obligations) at any time arising
under or in respect of this Agreement or the Loan Documents or the transactions
contemplated hereby or thereby; (ii) as permitted by, but only in
accordance with, the terms of the applicable Loan Document; or (iii) if
approved, authorized or ratified in writing by the Required Lenders, unless
such release is


 


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required
to be approved by all of the Lenders hereunder. 
Upon request by the Agent at any time, the Lenders will confirm in
writing the Agent’s authority to release particular types or items of
Collateral pursuant to this Section 10.15.


 


(d)  Upon any sale or transfer of assets
constituting Collateral which is permitted pursuant to the terms of any Loan
Document, or consented to in writing by the Required Lenders or all of the
Lenders, as applicable, and upon at least three (3) Business Days’ prior
written request by the Borrower to the Agent, the Agent shall (and is hereby irrevocably
authorized by the Lenders to) execute such documents as may be necessary to
evidence the release of the Liens granted to the Agent for the benefit of the
Holders of Secured Obligations herein or pursuant hereto upon the Collateral
that was sold or transferred; provided,
however, that (i) the Agent
shall not be required to execute any such document on terms which, in the Agent’s
opinion, would expose the Agent to liability or create any obligation or entail
any consequence other than the release of such Liens without recourse or
warranty, and (ii) such release shall not in any manner discharge, affect
or impair the Secured Obligations or any Liens upon (or obligations of the
Borrower or any Credit Party) all interests retained by the Borrower or any
Credit Party, including (without limitation) the proceeds of the sale, all of
which shall continue to constitute part of the Collateral.


 


10.16.                  Quebec Security.  For greater
certainty, and without limiting the powers of the Agent hereunder or under any of
the other Loan Documents, each of the Lenders hereby acknowledges that the
Agent shall, for purposes of holding any security granted by the Borrower on
the Borrower’s property pursuant to the laws of the Province of Quebec to
secure payment of any bond (the “Bond”), be the holder of an irrevocable power
of attorney (fondé de pouvoir)
(within the meaning of the Civil Code of
Quebec) for all present and future Lenders and in particular for all
present and future holders of the Bond. 
Each of the Agent and the Lenders hereby irrevocably constitutes, to the
extent necessary, the Agent as the holder of an irrevocable power of attorney (fondé de pouvoir) (within the meaning of Article 2692
of the Civil Code of Quebec) in
order to hold security granted by the Borrower in the Province of Quebec to
secure the Bond.  Each Lender hereby
further constitutes and appoints the Agent as mandatary in order to hold the
Bond for and on behalf of the Lenders. 
Each eligible assignee hereunder shall be deemed to have confirmed and
ratified the constitution of the Agent as the holder of such irrevocable power
of attorney (fondé de pouvoir)
and the constitution and appointment of the Agent as mandatary to hold the
Bonds for and on behalf of the Lender by the execution of the relevant
Assignment Agreement.  Notwithstanding
the provisions of Section 32 of the An
Act respecting the special powers of legal persons (Quebec), the
Agent may acquire and be the holder of the Bond. The Borrower hereby
acknowledges that the Bonds constitute a title of indebtedness, as such term is
used in Article 2692 of the Civil Code
of Quebec.


 


ARTICLE XI



SETOFF; RATABLE PAYMENTS


 


11.1.                        Setoff.  In addition
to, and without limitation of, any rights of the Lenders under applicable law,
if any Default occurs and continues, any and all deposits (including all
account balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time owing by any Lender or any
Affiliate of any Lender to or for the credit


 


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or account of any Credit
Party may be offset and applied toward the payment of the Secured Obligations
then due and owing to such Lender, and each Lender shall endeavor to give
notice of any such set-off to the Borrower, provided
that the failure of any Lender to give such notice shall not in any way limit
any Lender’s rights under this Section 11.1.


 


11.2.                        Ratable Payments.  If any
Lender, whether by setoff or otherwise, has payment made to it upon its Outstanding
Credit Exposure (other than payments received pursuant to Section 3.1,
3.2, 3.4 or 3.5) in a greater proportion than that received by any other
Lender, such Lender agrees, promptly upon demand, to purchase a participation
in the Aggregate Outstanding Credit Exposure held by the other Lenders so that
after such purchase each Lender will hold its Pro Rata Share of the Aggregate
Outstanding Credit Exposure.  If any
Lender, whether in connection with setoff or amounts which might be subject to
setoff or otherwise, receives Collateral or other protection for its
Obligations or such amounts which may be subject to setoff, such Lender agrees,
promptly upon demand, to take such action necessary such that all Lenders share
in the benefits of such collateral ratably in proportion to their respective
Pro Rata Shares of the Aggregate Outstanding Credit Exposure.  In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.


 


ARTICLE XII



BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS


 


12.1.                        Successors and Assigns; Designated Lenders.


 


12.1.1  Successors
and Assigns.  The terms and
provisions of the Loan Documents shall be binding upon and inure to the benefit
of the Borrower, the Parent, the Agent and the Lenders and their respective
successors and assigns permitted hereby, except that (i) neither the
Parent nor the Borrower shall have any right to assign its rights or
obligations under the Loan Documents without the prior written consent of each
Lender, (ii) any assignment by any Lender must be made in compliance with Section 12.3,
and (iii) any transfer by Participants must be made in compliance with Section 12.2.  Any attempted assignment or transfer by any
party not made in compliance with this Section 12.1 shall be null and
void, unless such attempted assignment or transfer is treated as a
participation in accordance with Section 12.3.2.  The parties to this Agreement acknowledge
that clause (ii) of this Section 12.1 relates only to absolute
assignments and this Section 12.1 does not prohibit assignments creating
security interests, including, without limitation, (x) any pledge or assignment
by any Lender of all or any portion of its rights under this Agreement and any
Note to a Federal Reserve Bank, (y) in the case of a Lender which is a Fund,
any pledge or assignment of all or any portion of its rights under this
Agreement and any Note to its trustee in support of its obligations to its
trustee or (z) any pledge or assignment by any Lender of all or any portion of
its rights under this Agreement and any Note to direct or indirect contractual
counterparties in credit derivative transactions relating to the Revolving
Loans; provided,  however, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 12.3.  The
Agent may treat the Person which made any Revolving Loan or which holds any
Note as the owner thereof for all purposes


 


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hereof unless and
until such Person complies with Section 12.3; provided,  however,
that the Agent may in its discretion (but shall not be required to) follow
instructions from the Person which made any Revolving Loan or which holds any
Note to direct payments relating to such Revolving Loan or Note to another
Person.  Any assignee of the rights to
any Revolving Loan or any Note agrees by acceptance of such assignment to be
bound by all the terms and provisions of the Loan Documents.  Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of the rights to any Revolving Loan (whether or not a Note
has been issued in evidence thereof), shall be conclusive and binding on any
subsequent holder or assignee of the rights to such Revolving Loan.


 


12.1.2  Designated
Lenders.


 


(i)                                     Subject to the terms and conditions set
forth in this Section 12.1.2, any Lender may from time to time elect to
designate an Eligible Designee to provide all or any part of the Revolving
Loans to be made by such Lender pursuant to this Agreement; provided that the designation of an
Eligible Designee by any Lender for purposes of this Section 12.1.2 shall
be subject to the approval of the Agent (which consent shall not be
unreasonably withheld or delayed).  Upon
the execution by the parties to each such designation of an agreement in the
form of Exhibit E hereto (a “Designation Agreement”) and the acceptance
thereof by the Agent, the Eligible Designee shall become a Designated Lender
for purposes of this Agreement.  The
Designating Lender shall thereafter have the right to permit the Designated
Lender to provide all or a portion of the Revolving Loans to be made by the
Designating Lender pursuant to the terms of this Agreement and the making of
the Revolving Loans or portion thereof shall satisfy the obligations of the
Designating Lender to the same extent, and as if, such Revolving Loan was made
by the Designating Lender.  As to any
Revolving Loan made by it, each Designated Lender shall have all the rights a
Lender making such Revolving Loan would have under this Agreement and
otherwise; provided, (x) that all
voting rights under this Agreement shall be exercised solely by the Designating
Lender, (y) each Designating Lender shall remain solely responsible to the
other parties hereto for its obligations under this Agreement, including the
obligations of a Lender in respect of Revolving Loans made by its Designated
Lender and (z) no Designated Lender shall be entitled to reimbursement under Article III
hereof for any amount which would exceed the amount that would have been
payable by the Borrower to the Lender from which the Designated Lender obtained
any interests hereunder.  No additional
Notes shall be required with respect to Revolving Loans provided by a
Designated Lender; provided, however, to the extent any Designated
Lender shall advance funds, the Designating Lender shall be deemed to hold the
Notes in its possession as an agent for such Designated Lender to the extent of
the Revolving Loan funded by such Designated Lender.  Such Designating Lender shall act as
administrative agent for its Designated Lender and give and receive notices and
communications hereunder.  Any payments
for the account of any Designated Lender shall be paid to its Designating
Lender as administrative agent for such Designated Lender and neither the
Borrower nor the Agent shall be responsible for any Designating Lender’s
application of such


 


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payments.  In addition, any Designated Lender may (1) with
notice to, but without the consent of the Borrower or the Agent, assign all or
portions of its interests in any Revolving Loans to its Designating Lender or
to any financial institution consented to by the Agent and, so long as no
Default shall be continuing, the Borrower, providing liquidity and/or credit
facilities to or for the account of such Designated Lender and (2) subject
to advising any such Person that such information is to be treated as
confidential in accordance with Section 9.11, disclose on a confidential
basis any non-public information relating to its Revolving Loans to any rating
agency, commercial paper dealer or provider of any guarantee, surety or credit
or liquidity enhancement to such Designated Lender.  In addition, each such Designating Lender
that elects to designate an Eligible Designee and such Eligible Designee
becomes a Designated Lender, (i) shall keep a register for the
registration relating to each such Revolving Loan, specifying such Designated
Lender’s name, address and entitlement to payments of principal and interest
with respect to such Revolving Loan and each transfer thereof and the name and
address of each transferees and (ii) shall collect, prior to the time such
Designated Lender receives payment with respect to such Revolving Loans from
each such Designated Lender, the appropriate forms, certificates, and
statements described in Section 3.5 (and updated as required by Section 3.5)
as if such Designated Lender were a Lender under Section 3.5.


 


(ii)                                  Each party to this Agreement hereby
agrees that it shall not institute against, or join any other Person in
instituting against, any Designated Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other proceedings under
any federal or state bankruptcy or similar law for one year and a day after the
payment in full of all outstanding senior indebtedness of any Designated
Lender; provided that the
Designating Lender for each Designated Lender hereby agrees to indemnify, save
and hold harmless each other party hereto for any loss, cost, damage and
expense arising out of its inability to institute any such proceeding against
such Designated Lender.  This Section 12.1.2
shall survive the termination of this Agreement.


 


12.2.                        Participations.


 


12.2.1  Permitted
Participants; Effect.  Any Lender may
at any time sell to one or more banks or other entities (“Participants”)
participating interests in any Outstanding Credit Exposure of such Lender, any
Note held by such Lender, any Commitment of such Lender or any other interest
of such Lender under the Loan Documents. 
In the event of any such sale by a Lender of participating interests to
a Participant, such Lender’s obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, such Lender shall remain the
owner of its Outstanding Credit Exposure and the holder of any Note issued to
it in evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and the
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under the Loan Documents.  In addition, each such Lender that


 


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sells any
participating interest to a Participant under this Section 12.2.1, (i) shall
keep a register for the registration relating to each such participation,
specifying such Participant’s name, address and entitlement to payment of
principal and interest with respect to such participation and each transfer
thereof and the name and address of each transferee, and (ii) shall
collect prior to the time such Participant receives payments with respect to
such participation, from each such Participant the appropriate forms,
certificates and statements described in Section 3.5 (and updated as
required by Section 3.5) as if such Participant were a Lender under Section 3.5.


 


12.2.2  Voting
Rights.  Each Lender shall retain the
sole right to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than any
amendment, modification or waiver with respect to any Credit Extension or
Commitment in which such Participant has an interest which would require
consent of all of the Lenders pursuant to the terms of Section 8.2.


 


12.2.3  Benefit
of Certain Provisions.  Each of the
Parent and the Borrower agrees that each Participant shall be deemed to have
the right of setoff provided in Section 11.1 in respect of its
participating interest in amounts owing under the Loan Documents to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under the Loan Documents, provided
that each Lender shall retain the right of setoff provided in Section 11.1
with respect to the amount of participating interests sold to each
Participant.  The Lenders agree to share
with each Participant, and each Participant, by exercising the right of setoff provided
in Section 11.1, agrees to share with each Lender, any amount received pursuant
to the exercise of its right of setoff, such amounts to be shared in accordance
with Section 11.2 as if each Participant were a Lender.  Each of the Parent and the Borrower further
agrees that each Participant shall be entitled to the benefits of Sections 3.1,
3.2, 3.4 and 3.5 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to Section 12.3, provided that (i) a Participant shall
not be entitled to receive any greater payment under Section 3.1, 3.2, 3.4
or 3.5 than the Lender who sold the participating interest to such Participant
would have received had it retained such interest for its own account, unless
the sale of such interest to such Participant is made with the prior written
consent of the Borrower, and (ii) each Participant agrees to comply with
the provisions of Section 3.5 to the same extent as if it were a Lender.


 


12.3.                        Assignments.


 


12.3.1  Permitted
Assignments.  Any Lender may at any
time assign to one or more banks or other entities (“Purchasers”) all or any
part of its rights and obligations under the Loan Documents.  Such assignment shall be evidenced by an
agreement substantially in the form of Exhibit C or in such other form as
may be agreed to by the parties thereto (each such agreement, an “Assignment
Agreement”).  Each such assignment with
respect to a Purchaser which is not a Lender or an Affiliate of a Lender or an
Approved Fund shall, unless otherwise consented to in writing by the Borrower
and the Agent, either be in an amount equal to the entire applicable
Outstanding Credit Exposure of the assigning Lender or (unless each of the
Agent and, prior to the occurrence and continuance of a Default, the Borrower,
otherwise consents) be in an


 


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aggregate amount
not less than $5,000,000. The amount of the assignment shall be based on the
Outstanding Credit Exposure subject to the assignment, determined as of the
date of such assignment or as of the “Trade Date,” if the “Trade Date” is
specified in the Assignment Agreement.


 


12.3.2  Consents.  The consent of the Borrower shall be required
prior to an assignment becoming effective unless the Purchaser is a Lender, an
Affiliate of a Lender or an Approved Fund (other than a Lender or Affiliate of
a Lender or an Approved Fund that becomes a Lender solely by means of the
settlement of a credit derivative), provided
that the consent of the Borrower shall not be required if (i) a Default
has occurred and is continuing or (ii) if such assignment is in connection
with the physical settlement of any Lender’s obligations to direct or indirect
contractual counterparties in credit derivative transactions relating to the
Revolving Loans; provided that
the assignment without the Borrower’s consent pursuant to clause (ii) shall
not increase the Borrower’s liability under Section 3.5.  The consent of the Agent shall be required
prior to an assignment becoming effective unless the Purchaser is a Lender, an
Affiliate of a Lender or an Approved Fund (other than a Lender or Affiliate of
a Lender or an Approved Fund that becomes a Lender solely by means of the
settlement of a credit derivative).  Any
consent required under this Section 12.3.2 shall not be unreasonably
withheld or delayed.


 


12.3.3  Effect;
Effective Date.  Upon (i) delivery
to the Agent of an Assignment Agreement, together with any consents required by
Sections 12.3.1 and 12.3.2, and (ii) payment of a $3,500 fee to the Agent
by the assigning Lender or the Purchaser for processing such assignment (unless
such fee is waived by the Agent or unless such assignment is made to such
assigning Lender’s Affiliate), such assignment shall become effective on the
effective date specified in such assignment. 
The Assignment Agreement shall contain a representation and warranty by
the Purchaser to the effect that none of the funds, money, assets or other
consideration used to make the purchase and assumption of the Commitment and
Outstanding Credit Exposure under the applicable Assignment Agreement
constitutes “plan assets” as defined under ERISA and that the rights, benefits
and interests of the Purchaser in and under the Loan Documents will not be “plan
assets” under ERISA.  On and after the
effective date of such assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and any other Loan Document executed by or on
behalf of the Lenders and shall have all the rights, benefits and obligations
of a Lender under the Loan Documents, to the same extent as if it were an
original party thereto, and the transferor Lender shall be released from any
further obligations with respect to the Outstanding Credit Exposure assigned to
such Purchaser without any further consent or action by the Borrower, the
Parent, the Lenders or the Agent.  In the
case of an assignment covering all of the assigning Lender’s rights, benefits
and obligations under this Agreement, such Lender shall cease to be a Lender
hereunder but shall continue to be entitled to the benefits of, and subject to,
those provisions of this Agreement and the other Loan Documents which survive
payment of the Obligations and termination of the Loan Documents.  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this Section 12.3
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Section 12.2.  Upon the consummation of any assignment to a
Purchaser pursuant to this Section 12.3.3, the


 


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transferor Lender,
the Agent and the Borrower shall, if the transferor Lender or the Purchaser
desires that its Revolving Loans be evidenced by Notes, make appropriate
arrangements so that, upon cancellation and surrender to the Borrower of the
Notes (if any) held by the transferor Lender, new Notes or, as appropriate,
replacement Notes are issued to such transferor Lender, if applicable, and new
Notes or, as appropriate, replacement Notes, are issued to such Purchaser, in
each case in principal amounts reflecting their respective Commitments (or, if
the Facility Termination Date has occurred, their respective Outstanding Credit
Exposure), as adjusted pursuant to such assignment.  Each Purchaser shall not be entitled to
receive any greater payment under Section 3.5 than the transferor Lender
would have received had such transfer not occurred.


 


12.3.4  Register.  The Agent, acting solely for this purpose as
an agent of the Borrower (and the Borrower hereby designates the Agent to act
in such capacity), shall maintain at one of its offices in Chicago, Illinois a
copy of each Assignment and Assumption delivered to it and a register (the “Register”)
for the recordation of (a) the names and addresses of the Lenders and the
Commitments of each Lender pursuant to the terms hereof, (b) the date and
the amount of each Revolving Loan made hereunder, the Type thereof and the
Interest Period (in the case of a Eurodollar Advance) with respect thereto, and
the amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder, (c) the original
stated amount of each Facility LC and the amount of LC Obligations (including
specifying Reimbursement Obligations) outstanding at any time, (d) whether
a Lender is an original lender or the assignee of another Lender pursuant to an
assignment under this Section 12.3 and the effective date and amount of
each Assignment Agreement delivered to and accepted by it and the parties
thereto pursuant to Section 12.3, (e) the amount of any sum received
by the Agent hereunder from the Borrower and each Lender’s share thereof, and (f) all
other appropriate debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and interest.  The entries in the Register shall be
conclusive, and the Borrower, the Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary.  The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.


 


12.4.                        Dissemination of Information. 
Each of the Parent and the Borrower authorizes each Lender to disclose
to any Participant or Purchaser or any other Person acquiring an interest in
the Loan Documents by operation of law (each a “Transferee”) and any
prospective Transferee any and all information in such Lender’s possession
concerning the creditworthiness of the Parent, the Borrower and the
Subsidiaries; provided that each
Transferee and prospective Transferee agrees to be bound by Section 9.11
of this Agreement.


 


12.5.                        Tax Certifications.  If any
interest in any Loan Document is transferred to any Transferee, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5(iv) and (vi).


 


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12.6.                        Reimbursement Obligations. 
For purposes of this Article XII, with respect to each Letter of
Credit, if an LC Issuer transfers its rights with respect to the Borrower’s
obligation to pay Reimbursement Obligations in respect of such Letter of
Credit, such LC Issuer shall give notice of such transfer to the Agent for
notation in the Register.


 


ARTICLE XIII



NOTICES


 


13.1.                        Notices.  Except as
otherwise permitted by Section 2.14, all notices, requests and other
communications to any party hereunder shall be in writing (including electronic
transmission, facsimile transmission or similar writing) and shall be given to
such party: (x) in the case of the Parent, the Borrower, the LC Issuers, or the
Agent, at its address or facsimile number set forth on the signature pages hereof,
(y) in the case of the Lenders, at its address or facsimile number set forth in
its Administrative Questionnaire or (z) in the case of any party, at such other
address or facsimile number as such party may hereafter specify for the purpose
by notice to the Agent and the Borrower in accordance with the provisions of
this Section 13.1.  Each such
notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given
by mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, or (iii) if given by any
other means, when delivered (or, in the case of electronic transmission,
received) at the address specified in this Section; provided that notices to the Agent under Article II
shall not be effective until received.


 


13.2.                        Change of Address.  The Borrower,
the Parent, the Agent, any LC Issuer and any Lender may each change the address
for service of notice upon it by a notice in writing to the other parties
hereto.


 


ARTICLE XIV



COUNTERPARTS


 


This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart.  This Agreement shall be
effective when it has been executed by the Borrower, the Parent, the Agent, the
LC Issuers and the Lenders and each party has notified the Agent by facsimile
transmission or telephone that it has taken such action.


 


ARTICLE XV



CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL


 


15.1.                        CHOICE OF LAW.  THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION AND OTHER THAN SECTION 10.16
OF THIS AGREEMENT) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS, INCLUDING


 


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SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK BUT OTHERWISE WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS, OF THE STATE OF NEW YORK, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.


 


15.2.                        CONSENT TO JURISDICTION.  EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK
STATE COURT SITTING IN THE STATE, COUNTY AND CITY OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND EACH PARTY
HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY
WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS
AN INCONVENIENT FORUM.  NOTHING HEREIN
SHALL LIMIT THE RIGHT OF ANY PARTY HERETO TO BRING PROCEEDINGS AGAINST ANY
OTHER PARTY HERETO OR ANY HOLDER OF SECURED OBLIGATIONS IN THE COURTS OF ANY
OTHER JURISDICTION;  PROVIDED THAT EACH OF THE PARENT AND THE
BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY
PROCEEDING BROUGHT BY ANY OF THE AGENT, ANY LC ISSUER, ANY LENDER OR AN OTHER
HOLDER OF SECURED OBLIGATIONS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO (1) REALIZE
ON ANY SECURITY FOR THE OBLIGATIONS OR (2) TO ENFORCE A JUDGEMENT OR OTHER
COURT ORDER IN FAVOR OF SUCH PERSON.


 


15.3.                        WAIVER OF JURY TRIAL.  THE BORROWER, THE PARENT, THE AGENT, EACH LC
ISSUER, EACH LENDER, AND EACH OTHER HOLDER OF SECURED OBLIGATIONS HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP
ESTABLISHED THEREUNDER.


 


ARTICLE XVI


 


NO NOVATION; CONTINUATION; REFERENCES TO THIS

AGREEMENT IN LOAN DOCUMENTS


 


16.1.                        No Novation; Continuation. 
It is the express intent of the parties hereto that this Agreement (i) shall
re-evidence the Borrower’s indebtedness under the Existing Credit Agreement, (ii) is
entered into in substitution for, and not in payment of, the obligations of the
Borrower under the Existing Credit Agreement and (iii) is in no way
intended to constitute a novation of any of the Borrower’s indebtedness which
was evidenced by the Existing Credit Agreement or any of the other Loan
Documents.  All Loans made and Secured
Obligations incurred under the Existing Credit Agreement which are outstanding
on the Restatement Effective Date shall continue as Loans and Secured
Obligations under (and shall be governed by


 


88





















 


the terms of) this
Agreement. Without limiting the foregoing, upon the effectiveness hereof: (a) all
Letters of Credit issued (or deemed issued) under the Existing Credit Agreement
which remain outstanding on the Restatement Effective Date shall continue as
Facility LCs under (and shall be governed by the terms of) this Agreement, (b) all
Secured Obligations constituting Rate Management Obligations with any Lender or
any Affiliate of any Lender which are outstanding on the Restatement Effective
Date shall continue as Secured Obligations under this Agreement and the other
Loan Documents, (c) the Agent shall make such reallocations of each Lender’s
“Outstanding Credit Exposure” under the Existing Credit Agreement as are
necessary in order that each such Lender’s Outstanding Credit Exposure hereunder
reflects such Lender’s Pro Rata Share of the outstanding Aggregate Outstanding
Credit Exposure and (d) the Existing Revolving Loans of each Departing
Lender shall be repaid in full (accompanied by any accrued and unpaid interest
and fees thereon), each Departing Lender’s “Commitment” under the Existing
Credit Agreement shall be terminated and each Departing Lender shall not be a
Lender hereunder.


 


16.2.                        References to This Agreement In Other Loan Documents. 
Upon the effectiveness of this Agreement, on and after the date hereof,
each reference in any other Loan Document to the Existing Credit Agreement
(including any reference therein to “the Credit Agreement,” “thereunder,” “thereof,”
“therein” or words of like import referring thereto) shall mean and be a
reference to this Agreement.


 


The remainder of this page is
intentionally blank


 


89





















 


IN WITNESS WHEREOF, the Borrower, the Parent, the
Lenders, the LC Issuers and the Agent have executed this Agreement as of the
date first above written.


 


 


	
   

  	
  UNITED STATIONERS SUPPLY CO.,

  
	
   

  	
   as the Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Brian S. Cooper

  
	
   

  	
  Title:

  	
  Senior Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
  Notice Information:

  
	
   

  	
   

  
	
   

  	
  2200 East Golf Road

  
	
   

  	
  Des Plaines, Illinois 60016

  
	
   

  	
  Attn: General Counsel

  
	
   

  	
  Telephone: (847) 699-5000

  
	
   

  	
  Facsimile: (847) 699-1805

  
	
   

  	
   

  
	
   

  	
  With a copy to:

  
	
   

  	
   

  
	
   

  	
  2200 East Golf Road

  
	
   

  	
  Des Plaines, Illinois 60016

  
	
   

  	
  Attn: Treasurer

  
	
   

  	
  Telephone: (847) 627-2170

  
	
   

  	
  Facsimile: (847) 699-0027

  
					



 


90





















 


	
   

  	
  UNITED STATIONERS INC.,

  
	
   

  	
  as a Credit Party

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Brian S. Cooper

  
	
   

  	
  Title:

  	
  Senior Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
  Notice Information:

  
	
   

  	
   

  
	
   

  	
  2200 East Golf Road

  
	
   

  	
  Des Plaines, Illinois 60016

  
	
   

  	
  Attn: General Counsel

  
	
   

  	
  Telephone: (847) 699-5000

  
	
   

  	
  Facsimile: (847) 699-1805

  
	
   

  	
   

  
	
   

  	
  With a copy to:

  
	
   

  	
   

  
	
   

  	
  2200 East Golf Road

  
	
   

  	
  Des Plaines, Illinois 60016

  
	
   

  	
  Attn: Treasurer

  
	
   

  	
  Telephone: (847) 627-2170

  
	
   

  	
  Facsimile: (847) 699-0027

  
					



 


91





















 


	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
  (successor by merger to Bank One, NA (Illinois)),

  individually, as an LC Issuer, and as Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Sabir Hashmy

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Notice Information:

  
	
   

  	
   

  	
   

  
	
   

  	
  131 S. Dearborn St., Fl. 6

  
	
   

  	
  Chicago, IL 60603

  
	
   

  	
  Attn: Nathan Bloch

  
	
   

  	
  Telephone: (312) 325-3094

  
	
   

  	
  Facsimile: (312) 325-3077

  



 


92





















 


	
   

  	
  PNC BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Dorothy G.W. Brailer

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


93





















 


	
   

  	
  U.S. BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  R. Michael Newton

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


94





















 


	
   

  	
  KEYBANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Frank Jancar

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


95





















 


	
   

  	
  LASALLE BANK MIDWEST, N.A.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Eric Haege

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


96





















 


	
   

  	
  COMERICA BANK as Lender and a LC Issuing

  Bank

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Felicia M. Maxwell

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


97





















 


	
   

  	
  FIFTH THIRD BANK (CHICAGO), a Michigan

  Banking Corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Kim Puszczewicz

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


98





















 


	
   

  	
  THE NORTHERN
  TRUST COMPANY

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Ashish S.
  Bhagwat

  
	
   

  	
  Title:

  	
  Vice-President

  
					



 


99





















 


	
   

  	
  UNION BANK
  OF CALIFORNIA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Matthew R. Krajniak

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  
					



 


100





















 


	
   

  	
  ASSOCIATED BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Daniel Holzhauer

  
	
   

  	
  Title:

  	
  AVP

  
					



 


101





















 


	
   

  	
  HIBERNIA NATIONAL BANK

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Andrew Booth

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


102





















 


	
   

  	
  The undersigned Departing Lender hereby

  acknowledges and agrees that, from and after the

  Restatement Effective Date, it is no longer a party

  to the Existing Credit Agreement.

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF SCOTLAND,

  
	
   

  	
  as a Departing Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Joseph Fratus

  
	
   

  	
  Title:

  	
  First Vice President

  
					



 


103





















 


	
   

  	
  The undersigned Departing Lender hereby

  acknowledges and agrees that, from and after the

  Restatement Effective Date, it is no longer a party

  to the Existing Credit Agreement.

  
	
   

  	
   

  	
   

  
	
   

  	
  OAK BROOK BANK, as a Departing Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Henry Wessel

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


104





















 


	
   

  	
  The
  undersigned Departing Lender hereby

  acknowledges and agrees that, from and after the

  Restatement Effective Date, it is no longer a party

  to the Existing Credit Agreement.

  
	
   

  	
   

  	
   

  
	
   

  	
  RZB FINANCE,
  LLC, CONNECTICUT

  
	
   

  	
  OFFICE, as a
  Departing Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John A.
  Valiska

  
	
   

  	
  Title:

  	
  First Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Christoph
  Hoedl

  
	
   

  	
  Title:

  	
  Group Vice
  President

  
					



 


105





















 


	
   

  	
  The
  undersigned Departing Lender hereby

  acknowledges and agrees that, from and after the

  Restatement Effective Date, it is no longer a party

  to the Existing Credit Agreement.

  
	
   

  	
   

  	
   

  
	
   

  	
  FIRST BANK,
  as a Departing Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Mark B.
  Monson

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 


106





















 


	
   

  	
  The undersigned Departing
  Lender hereby

  acknowledges and agrees that, from and after the

  Restatement Effective Date, it is no longer a party

  to the Existing Credit Agreement.

  
	
   

  	
   

  	
   

  
	
   

  	
  TRANSAMERICA BUSINESS
  CAPITAL CORPORATION, as a Departing Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Brian P. Schwinn

  
	
   

  	
  Title:

  	
  Duly Authorized Signatory

  
					



 


107