EX-10.1



 






Exhibit 10.1




 





$300,000,000



CREDIT AGREEMENT


among


HENRY SCHEIN, INC.,


as Borrower,


The Several Lenders Parties Hereto,


JPMORGAN CHASE BANK, N.A.,


as Administrative Agent,


CITIBANK, N.A.,


as Syndication Agent,


HSBC BANK USA, N.A.,


LEHMAN COMMERCIAL PAPER INC.,


MELLON BANK, N.A.,


and


WELLS FARGO BANK, NATIONAL ASSOCIATION

as Co-Agents


Dated as of May 24, 2005



 




J.P. MORGAN SECURITIES INC., as Lead Arranger and Bookrunner



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	Section 1. DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	1.1 Defined Terms
	 	 	1	 
	 
	 	 	 	 
	1.2 Other Definitional Provisions
	 	 	21	 
	 
	 	 	 	 
	1.3 Rounding
	 	 	22	 
	 
	 	 	 	 
	1.4 References to Agreements and Laws
	 	 	22	 
	 
	 	 	 	 
	Section 2. AMOUNT AND TERMS OF COMMITMENTS
	 	 	22	 
	 
	 	 	 	 
	2.1 Revolving Credit Commitments
	 	 	22	 
	 
	 	 	 	 
	2.2 Procedure for Revolving Credit Borrowing
	 	 	23	 
	 
	 	 	 	 
	2.3 Swingline Commitment
	 	 	23	 
	 
	 	 	 	 
	2.4 Procedure for Swingline Borrowing; Refunding of Swingline Loans
	 	 	24	 
	 
	 	 	 	 
	2.5 Fees
	 	 	26	 
	 
	 	 	 	 
	2.6 Termination or Reduction of Commitments
	 	 	27	 
	 
	 	 	 	 
	2.7 Increase in Commitments
	 	 	27	 
	 
	 	 	 	 
	2.8 Repayment of Revolving Credit Loans
	 	 	28	 
	 
	 	 	 	 
	Section 3. CERTAIN PROVISIONS APPLICABLE TO THE LOANS
	 	 	29	 
	 
	 	 	 	 
	3.1 Optional and Mandatory Prepayments
	 	 	29	 
	 
	 	 	 	 
	3.2 Conversion and Continuation Options
	 	 	30	 
	 
	 	 	 	 
	3.3 Maximum Number of Tranches
	 	 	30	 
	 
	 	 	 	 
	3.4 Interest Rates and Payment Dates
	 	 	30	 
	 
	 	 	 	 
	3.5 Computation of Interest and Fees
	 	 	31	 
	 
	 	 	 	 
	3.6 Inability to Determine Interest Rate
	 	 	31	 
	 
	 	 	 	 
	3.7 Pro Rata Treatment and Payments
	 	 	32	 
	 
	 	 	 	 
	3.8 Illegality
	 	 	34	 
	 
	 	 	 	 
	3.9 Requirements of Law
	 	 	34	 
	 
	 	 	 	 
	3.10 Taxes
	 	 	35	 
	 
	 	 	 	 
	3.11 Break Funding Payments
	 	 	37	 
	 
	 	 	 	 
	3.12 Change of Lending Office; Removal of Lender
	 	 	38	 
	 
	 	 	 	 
	3.13 Evidence of Debt
	 	 	38	 






 




 

i







 







	 	 	 	 	 
	Section 4. LETTERS OF CREDIT
	 	 	39	 
	 
	 	 	 	 
	4.1 L/C Commitment
	 	 	39	 
	 
	 	 	 	 
	4.2 Procedure for Issuance of Letter of Credit
	 	 	39	 
	 
	 	 	 	 
	4.3 Fees and Other Charges
	 	 	40	 
	 
	 	 	 	 
	4.4 L/C Participations
	 	 	40	 
	 
	 	 	 	 
	4.5 Reimbursement Obligation of the Borrower
	 	 	41	 
	 
	 	 	 	 
	4.6 Obligations Absolute
	 	 	42	 
	 
	 	 	 	 
	4.7 Letter of Credit Payments
	 	 	42	 
	 
	 	 	 	 
	4.8 Cash Collateralization
	 	 	42	 
	 
	 	 	 	 
	4.9 Letter of Credit Rules
	 	 	43	 
	 
	 	 	 	 
	Section 5. REPRESENTATIONS AND WARRANTIES
	 	 	43	 
	 
	 	 	 	 
	5.1 Financial Condition
	 	 	43	 
	 
	 	 	 	 
	5.2 No Material Adverse Change
	 	 	44	 
	 
	 	 	 	 
	5.3 Organization; Powers
	 	 	44	 
	 
	 	 	 	 
	5.4 Authorization; Enforceability
	 	 	44	 
	 
	 	 	 	 
	5.5 Governmental Approvals; No Conflicts
	 	 	45	 
	 
	 	 	 	 
	5.6 No Material Litigation
	 	 	45	 
	 
	 	 	 	 
	5.7 Compliance with Laws and Agreements
	 	 	46	 
	 
	 	 	 	 
	5.8 Taxes
	 	 	46	 
	 
	 	 	 	 
	5.9 Purpose of Loans
	 	 	46	 
	 
	 	 	 	 
	5.10 Environmental Matters
	 	 	46	 
	 
	 	 	 	 
	5.11 Disclosure
	 	 	46	 
	 
	 	 	 	 
	5.12 Ownership of Property: Liens
	 	 	47	 
	 
	 	 	 	 
	5.13 ERISA
	 	 	47	 
	 
	 	 	 	 
	5.14 Subsidiaries
	 	 	47	 
	 
	 	 	 	 
	5.15 Investment and Holding Company Status
	 	 	47	 
	 
	 	 	 	 
	5.16 Guarantors
	 	 	47	 
	 
	 	 	 	 
	Section 6. CONDITIONS PRECEDENT
	 	 	48	 
	 
	 	 	 	 
	6.1 Conditions to Initial Loans and Letters of Credit
	 	 	48	 
	 
	 	 	 	 
	6.2 Conditions to Each Loan and Letter of Credit
	 	 	50	 
	 
	 	 	 	 





ii




 









 








	 	 	 	 	 
	Section 7. AFFIRMATIVE COVENANTS
	 	 	50	 
	 
	 	 	 	 
	7.1 Financial Statements
	 	 	51	 
	 
	 	 	 	 
	7.2 Certificates; Other Information
	 	 	52	 
	 
	 	 	 	 
	7.3 Conduct of Business and Maintenance of Existence
	 	 	52	 
	 
	 	 	 	 
	7.4 Payment of Obligations
	 	 	52	 
	 
	 	 	 	 
	7.5 Maintenance of Properties
	 	 	53	 
	 
	 	 	 	 
	7.6 Maintenance of Insurance
	 	 	53	 
	 
	 	 	 	 
	7.7 Books and Records
	 	 	53	 
	 
	 	 	 	 
	7.8 Inspection Rights
	 	 	53	 
	 
	 	 	 	 
	7.9 Compliance with Laws
	 	 	54	 
	 
	 	 	 	 
	7.10 Use of Proceeds
	 	 	54	 
	 
	 	 	 	 
	7.11 Notices
	 	 	54	 
	 
	 	 	 	 
	7.12 Guarantors
	 	 	55	 
	 
	 	 	 	 
	Section 8. NEGATIVE COVENANTS
	 	 	55	 
	 
	 	 	 	 
	8.1 Financial Covenants
	 	 	55	 
	 
	 	 	 	 
	8.2 Limitation on Liens
	 	 	56	 
	 
	 	 	 	 
	8.3 Limitation on Indebtedness
	 	 	57	 
	 
	 	 	 	 
	8.4 Fundamental Changes
	 	 	58	 
	 
	 	 	 	 
	8.5 Dispositions
	 	 	58	 
	 
	 	 	 	 
	8.6 ERISA
	 	 	59	 
	 
	 	 	 	 
	8.7 Transactions with Affiliates
	 	 	59	 
	 
	 	 	 	 
	8.8 Restrictive Agreements
	 	 	60	 
	 
	 	 	 	 
	Section 9. EVENTS OF DEFAULT
	 	 	60	 
	 
	 	 	 	 
	Section 10. THE ADMINISTRATIVE AGENT
	 	 	63	 
	 
	 	 	 	 
	10.1 Appointment
	 	 	63	 
	 
	 	 	 	 
	10.2 Delegation of Duties
	 	 	63	 
	 
	 	 	 	 
	10.3 Exculpatory Provisions
	 	 	63	 
	 
	 	 	 	 
	10.4 Reliance by Administrative Agent
	 	 	64	 
	 
	 	 	 	 
	10.5 Notice of Default
	 	 	64	 






iii




 









 








	 	 	 	 	 
	10.6 Non-Reliance on Administrative Agent and Other Lenders
	 	 	65	 
	 
	 	 	 	 
	10.7 Indemnification
	 	 	65	 
	 
	 	 	 	 
	10.8 Administrative Agent in Its Individual Capacity
	 	 	66	 
	 
	 	 	 	 
	10.9 Successor Administrative Agent
	 	 	66	 
	 
	 	 	 	 
	10.10 The Sole Lead Arranger, the Sole Bookrunner and the Syndication Agent
	 	 	66	 
	 
	 	 	 	 
	Section 11. MISCELLANEOUS
	 	 	67	 
	 
	 	 	 	 
	11.1 Amendments and Waivers
	 	 	67	 
	 
	 	 	 	 
	11.2 Notices
	 	 	68	 
	 
	 	 	 	 
	11.3 No Waiver; Cumulative Remedies
	 	 	69	 
	 
	 	 	 	 
	11.4 Survival of Representations and Warranties
	 	 	69	 
	 
	 	 	 	 
	11.5 Payment of Expenses and Taxes
	 	 	69	 
	 
	 	 	 	 
	11.6 Successors and Assigns; Participations and Assignments
	 	 	70	 
	 
	 	 	 	 
	11.7 Adjustments; Set-off
	 	 	74	 
	 
	 	 	 	 
	11.8 Counterparts
	 	 	75	 
	 
	 	 	 	 
	11.9 Severability
	 	 	75	 
	 
	 	 	 	 
	11.10 Integration
	 	 	75	 
	 
	 	 	 	 
	11.11 GOVERNING LAW
	 	 	75	 
	 
	 	 	 	 
	11.12 Submission To Jurisdiction; Waivers
	 	 	75	 
	 
	 	 	 	 
	11.13 Acknowledgements
	 	 	76	 
	 
	 	 	 	 
	11.14 Confidentiality
	 	 	76	 
	 
	 	 	 	 
	11.15 USA Patriot Act
	 	 	77	 
	 
	 	 	 	 
	11.16 Judgment
	 	 	77	 
	 
	 	 	 	 
	11.17 WAIVERS OF JURY TRIAL
	 	 	77	 






iv







 









 








SCHEDULES




	 	 	 
	Schedule I

	 	Names and Revolving Credit Commitments of Lenders
	Schedule II

	 	Existing Letters of Credit
	Schedule 5.10

	 	Disclosed Matters
	Schedule 5.14

	 	Subsidiaries
	Schedule 8.2

	 	Liens
	Schedule 8.3

	 	Subsidiary Indebtedness
	Schedule 8.8

	 	Restrictive Agreements
	 
	 	 
	EXHIBITS
	 	 
	 
	 	 
	Exhibit A

	 	Form of Revolving Credit Loan Borrowing Notice
	Exhibit B

	 	Form of Swingline Loan Borrowing Notice
	Exhibit C

	 	Form of Assumption Agreement
	Exhibit D

	 	Form of Exemption Certificate
	Exhibit E

	 	Form of Revolving Credit Note
	Exhibit F

	 	Form of Swingline Note
	Exhibit G

	 	Form of Opinion of Counsel to Borrower
	Exhibit H

	 	Form of Compliance Certificate
	Exhibit I

	 	Form of Assignment and Acceptance
	Exhibit J

	 	Form of Guarantee






v









 






 

v




     CREDIT AGREEMENT, dated as of May 24, 2005, among (i) Henry Schein, Inc., a Delaware
corporation (the “Borrower”), (ii) the several Lenders party hereto (the
“Lenders”), (iii) JPMorgan Chase Bank, N.A., as administrative agent, (iv) Citibank, N.A.,
as syndication agent (in such capacity, the “Syndication Agent”), and (v) HSBC Bank USA,
N.A., Mellon Bank, N.A., Lehman Commercial Paper Inc. and Wells Fargo, National Association, as
co-agents (in such capacity, the “Co-Agents”).



     The parties hereto hereby agree as follows:



SECTION 1. DEFINITIONS





1.1 Defined Terms.




As used in this Agreement, the following terms shall have the following meanings:



     “ABR”: for any day, a rate per annum (rounded upwards, if necessary, to the next
1/100 of 1%) equal to the greater of (a) the Prime Rate in effect on such day, and (b) the Federal
Funds Effective Rate in effect on such day plus 0.25%. For purposes hereof: “Prime Rate”
shall mean the rate of interest per annum publicly announced from time to time by JPMCB as its
prime rate in effect at its principal office in New York City (the Prime Rate not being intended to
be the lowest rate of interest charged by JPMCB in connection with extensions of credit to
debtors). Any change in the ABR due to a change in the Prime Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate.



     “ABR Loans”: Revolving Credit Loans bearing interest at a rate per annum determined
by reference to the ABR.



     “Adjusted LIBO Rate”: with respect to each day during each Interest Period pertaining
to a LIBOR Loan, a rate per annum determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):



LIBO Rate



1.00 — Eurocurrency Reserve Requirements



     “Administrative Agent”: JPMorgan Chase Bank, N.A., as the Administrative Agent for
the Lenders under this Agreement and the other Loan Documents.



     “Administrative Questionnaire”: an administrative questionnaire in a form supplied by
the Administrative Agent.



     “Affiliate”: as to any Person, any other Person (other than a Subsidiary) which,
directly or indirectly, is in control of, is controlled by, or is under common control with, such
Person. For purposes of this definition, “control” of a Person means the power, directly or
indirectly, either to (a) vote 25% or more of the securities having ordinary voting power for the
election of



 









 




directors of (or persons performing similar functions for) such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by contract or otherwise.




     “Agents”: the collective reference to the Administrative Agent, the Sole Lead
Arranger, the Sole Bookrunner and the Syndication Agent.



     “Aggregate Available Multicurrency Commitments”: as at any time of determination, an
amount in Dollars equal to the sum of the Available Multicurrency Commitments of all Lenders at
such time.



     “Aggregate Available Revolving Credit Commitments”: as at any time of determination
with respect to all Lenders, an amount in Dollars equal to the sum of the Available Revolving
Credit Commitments of all Lenders at such time.



     “Aggregate Multicurrency Commitments”: the obligations of the Lenders to make
Multicurrency Loans hereunder in an aggregate principal amount at any one time outstanding not to
exceed $100,000,000.



     “Aggregate Multicurrency Outstandings”: as at any time of determination with respect
to any Lender, the Dollar Equivalent of the principal amount of such Lender’s outstanding
Multicurrency Loans at such time.



     “Aggregate Revolving Credit Commitments”: as at any time of determination, the
aggregate amount of the Revolving Credit Commitments of all of the Lenders at such time.



     “Aggregate Revolving Credit Outstandings”: as at any time of determination with
respect to any Lender, an amount in Dollars equal to the sum of (a) the aggregate unpaid principal
amount of such Lender’s Revolving Credit Loans (in the case of outstanding Multicurrency Loans,
Aggregate Multicurrency Outstandings) on such date plus (b) such Lender’s Revolving Credit
Commitment Percentage of (i) the Aggregate Swingline Outstandings and (ii) the L/C Obligations.



     “Aggregate Swingline Outstandings”: as at any time of determination, the aggregate
unpaid principal amount of Swingline Loans at such time.



     “Agreement”: this Credit Agreement, as amended, supplemented or otherwise modified
from time to time.



     “Applicable Margin”: with respect to each day for LIBOR Loans, the applicable rate
per annum based on the Consolidated Leverage Ratio for such day, as set forth under the relevant
column heading below:





2









 





	 	 	 	 	 
	 	 	 	 	Applicable
	Tier	 	Ratio	 	Margin (bps)
	I
	 	32.75:1.00	 	47.5
	II
	 	<2.75:1.00 but 32.25:1.00	 	37.5
	III
	 	<2.25:1.00 but 31.50:1.00	 	31.0
	IV
	 	<1.50:1.00	 	27.0






     The Applicable Margin will be set on the day which is five Business Days following the receipt
by the Administrative Agent of the financial statements referenced in subsection 7.1(a) or
subsection 7.1(b), as the case may be, and shall apply to all LIBOR Loans (i.e., existing, new or
additional Loans, or Loans which are continuations or conversions) then outstanding (i.e., subject
to the below provisions, outstanding LIBOR Loans shall bear interest at the new Applicable Margin
from and after the date any such margin is reset in accordance with the provisions hereof; prior to
such time, such LIBOR Loans shall accrue interest based on the Applicable Margin relating to the
period immediately prior to the time such margin is reset in accordance with the provisions hereof)
or to be made on or after such date until, but not including, the next date on which the Applicable
Margin is reset in accordance with the provisions hereof; provided, however, that notwithstanding
the foregoing, if any financial statements are not received by the Administrative Agent within the
time period relating to such financial statements as provided in subsection 7.1(a) or subsection
7.1(b) as the case may be, the Applicable Margin on all LIBOR Loans then outstanding or to be made
on or after the date the Applicable Margin should have been reset in accordance with the foregoing
provisions (i.e., assuming timely delivery of the requisite financial statements), until the day
which is five Business Days following the receipt by the Administrative Agent of such financial
statements, will be 0.475%; and further provided, however, that the Lenders shall not in any way be
deemed to have waived any Event of Default or any remedies hereunder (including, without
limitation, remedies provided in Section 9) in connection with the provisions of the foregoing
proviso.



     “Application”: an application, in such form as the Issuing Lender may specify from
time to time, requesting the Issuing Lender to issue a Letter of Credit.



     “ Approved Fund”: as defined in subsection 11.6(b).



     “Assignee”: as defined in subsection 11.6(b).



     “Attorney Costs”: all reasonable fees and disbursements of any law firm or other
external counsel.



     “Australian Dollars”: the lawful currency of Australia.



     “Available Foreign Currencies”: Euro, Japanese Yen, Australian Dollars, Canadian
Dollars, Pounds Sterling, Swiss Francs and any other available and freely-convertible non-Dollar
currency in which dealings in deposits are carried out in the London interbank market which are
selected by the Borrower and approved by the Administrative Agent and each of the Lenders.



3









 





     “Available Multicurrency Commitment”: as at any time of determination with respect to
any Lender, an amount in Dollars equal to the excess, if any, of (a) the amount of such Lender’s
Multicurrency Commitment in effect at such time over (b) the Dollar Equivalent of the
Aggregate Multicurrency Outstandings of such Lender at such time.



     “Available Revolving Credit Commitment”: as at any time of determination with respect
to any Lender, an amount in Dollars equal to the excess, if any, of (a) the amount of such Lender’s
Revolving Credit Commitment in effect at such time over (b) the Aggregate Revolving Credit
Outstandings of such Lender at such time.



     “Borrower”: as defined in the preamble hereto.



     “Borrowing”: any extension of credit under this Agreement.



     “Borrowing Date”: any Business Day specified in a notice pursuant to Section 2 or
Section 4 as a date on which the Borrower requests the Lenders to extend credit, make Loans or
issue Letters of Credit hereunder.



     “British Pounds Sterling” and “Pounds Sterling”: the lawful currency of the United
Kingdom of Great Britain and Northern Ireland.



     “Business Day”: a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close; provided, that (a) if
such day relates to any Multicurrency Loan denominated in a currency other than Euro, such term
shall mean any such day on which dealings in deposits in the relevant currency are conducted by and
between banks in the applicable foreign currency or foreign exchange interbank market, (b) if such
day relates to any Multicurrency Loan denominated in Euro, such term shall mean Target Operating
Days, and (c) if such day relates to any LIBOR Loan in Dollars, such term shall mean a day other
than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or
required by law to close which is also a London Business Day.



     “Calculation Date”: the last Business Day of each calendar month and such other date
as may be reasonably determined by the Administrative Agent.



     “Canadian Dollars”: the lawful currency of Canada.



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



     “Change in Control”: any Person or “group” (within the meaning of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended) (A) shall have acquired beneficial



4









 




interest of 50% or more of any outstanding class of equity interests having ordinary voting power
in the election of the directors of the Borrower (other than the aggregate beneficial ownership of
the Persons who are officers or directors of the Borrower on the Closing Date) or (B) shall obtain
(i) the power (whether or not exercised) to elect a majority of the Borrower’s directors or (ii)
the board of directors of the Borrower shall not consist of a majority of Continuing Directors.




     “ CLO”: as defined in subsection 11.6(b).



     “Closing Date”: the date, on or before May 24, 2005, on which the conditions
precedent set forth in subsection 6.1 shall be satisfied.



     “Co-Agents”: as defined in the Preamble hereto.



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



     “Commitment Increase Date”: as defined in subsection 2.7(a).



     “Commitment Period”: the period from and including the Closing Date to but not
including the Termination Date.



     “Commitments”: the collective reference to the Revolving Credit Commitments,
Multicurrency Commitments, Swingline Commitments and L/C Commitment.



     “Committed Outstandings Percentage”: on any date with respect to any Lender, the
percentage which the Aggregate Revolving Credit Outstandings of such Lender constitutes of the
Aggregate Revolving Credit Outstandings of all Lenders.



     “Confidential Information Memorandum”: the Confidential Information Memorandum dated
April 2005 relating to the Borrower and this Agreement.



     “Consolidated EBITDA”: for any period, Consolidated Operating Income plus, without
duplication, (a) Consolidated Interest Income, (b) depreciation, (c) amortization and (d) the
Designated Charges of the Borrower and its Subsidiaries for such period, determined on a
consolidated basis and as calculated consistent with the manner disclosed by the Borrower in its
Annual Report on Form 10-K for the fiscal year ended December 25, 2004.



     “Consolidated Gross Profit”: for any period, net sales less cost of sales of the
Borrower and its Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP and as calculated consistent with the manner disclosed by the Borrower in its Annual
Report on Form 10-K for the fiscal year ended December 25, 2004.



     “Consolidated Interest Coverage Ratio”: at any date of determination, the ratio of
(a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on (or most
recently ended prior to) such date to (b) Consolidated Interest Expense for such period.



5









 





     “Consolidated Interest Expense”: for any period, total interest expense (including,
without limitation, rent or interest expense pursuant to Capital Lease Obligations that is treated
as interest in accordance with GAAP) of the Borrower and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP and as calculated consistent with the
manner disclosed by the Borrower in its Annual Report on Form 10-K for the fiscal year ended
December 25, 2004.



     “Consolidated Interest Income”: for any period, the interest income of the Borrower
and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP
and as calculated consistent with the manner disclosed by the Borrower in its Annual Report on Form
10-K for the fiscal year ended December 25, 2004.



     “Consolidated Leverage Ratio”: at any date of determination, the ratio of (a)
Consolidated Total Debt on such date to (b) Consolidated EBITDA for the period of the four fiscal
quarters ending on (or most recently ended prior to) such date.



     “Consolidated Operating Expenses”: for any period, total expenses related to salaries,
employee benefits and general and administrative expenses of the Borrower and its Subsidiaries
determined on a consolidated basis in accordance with GAAP and as calculated consistent with the
manner disclosed by the Borrower in its Annual Report on Form 10-K for the fiscal year ended
December 25, 2004.



     “Consolidated Operating Income”: for any period, Consolidated Gross Profit less
Consolidated Operating Expenses of the Borrower and its Subsidiaries determined on a consolidated
basis in accordance with GAAP and as calculated consistent with the manner disclosed by the
Borrower in its Annual Report on Form 10-K for the fiscal year ended December 25, 2004.



     “Consolidated Total Assets”: at any date of determination, the net book value of all
assets of the Borrower and its Subsidiaries determined on a consolidated basis in accordance with
GAAP and as calculated consistent with the manner disclosed by the Borrower in its Annual Report on
Form 10-K for the fiscal year ended December 25, 2004.



     “Consolidated Total Debt”: at any date of determination, the aggregate amount of all
Indebtedness of the Borrower and its Subsidiaries determined on a consolidated basis in accordance
with GAAP and as calculated consistent with the manner disclosed by the Borrower in its Annual
Report on Form 10-K for the fiscal year ended December 25, 2004.



     “Continuing Directors”: as to the Borrower, the directors of the Borrower on the
Closing Date and each other director of the Borrower whose nomination for election to the Board of
Directors of Borrower is recommended by a majority of the then Continuing Directors.



     “Contractual Obligation”: as to any Person, any provision of any security issued by
such Person or of any agreement, instrument or other undertaking to which such Person is a party or
by which it or any of its property is bound.



6









 





     “Default”: any event or circumstance that, with the giving of any notice, the passage
of time, or both, would be an Event of Default.



     “Designated Charges”: for any period, to the extent deducted in computing Consolidated
Operating Income, the aggregate of total (a) non-cash, non-recurring merger and integration costs,
and (b) non-cash, non-recurring restructuring costs, of the Borrower and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP and as calculated consistent
with the manner disclosed by the Borrower in its Annual Report on Form 10-K for the fiscal year
ended December 25, 2004.



     “Disclosed Matters”: the actions, suits and proceedings and the environmental matters
disclosed in Schedule 5.10.



     “Disposition” or “Dispose”: the sale, transfer, license or other disposition
(including any sale and leaseback transaction) of any property by any Person, including any sale,
assignment, transfer or other disposal, with or without recourse, of any notes or accounts
receivable or any rights and claims associated therewith.



     “Disposition Value”: (a) in the case of property that does not constitute Subsidiary
Stock, the book value thereof, valued at the time of such Disposition in good faith by the
Borrower, and (b) in the case of property that constitutes Subsidiary Stock, an amount equal to
that percentage of book value of the assets of the Subsidiary that issued such stock as is equal to
the percentage that the book value of such Subsidiary Stock represents of the book value of all of
the outstanding Equity Interests of such Subsidiary (assuming, in making such calculations, that
all securities convertible into such Equity Interests are so converted and giving full effect to
all transactions that would occur or be required in connection with such conversion) determined at
the time of the Disposition thereof, in good faith by the Borrower.



     “Dollar Equivalent”: with respect to an amount denominated in any currency other than
Dollars, the equivalent in Dollars of such amount determined at the Exchange Rate on the date of
determination of such equivalent in accordance with the provisions of the next sentence. In making
any determination of the Dollar Equivalent for purposes of calculating the amount of Loans to be
borrowed from the respective Lenders on any Borrowing Date, the Administrative Agent shall use the
relevant Exchange Rate in effect on the date on which the interest rate for such Loans is
determined pursuant to the provisions of this Agreement and the other Loan Documents.



     “Domestic Subsidiary”: any Subsidiary other than a Foreign Subsidiary.



     “Dollars” and “$”: lawful currency of the United States of America.



     “Environmental Laws”: all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, written notices or written and binding agreements issued,
promulgated or entered into by any Governmental Authority, relating to the pollution or the
protection of the



7









 




environment, preservation or reclamation of natural resources, the management, release or
threatened release of any Hazardous Material or imposing workers health and safety requirements.




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



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



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



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



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



     “Euro”: the single currency of participating member states of the European Union.



8









 





     “Eurocurrency Reserve Requirements”: for any day as applied to a Loan, the aggregate
(without duplication) of the rates (expressed as a decimal fraction) of reserve requirements
actually imposed on such day (including, without limitation, basic, supplemental, marginal and
emergency reserves) under any regulations of the Board of Governors of the Federal Reserve System
or other Governmental Authority having jurisdiction with respect thereto dealing with reserve
requirements prescribed for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of such Board) maintained by a member bank of such System. The
determination of Eurocurrency Reserve Requirements by the Administrative Agent shall be conclusive
in the absence of manifest error.



     “Event of Default”: any of the events specified in Section 9.



     “Excess Utilization Day”: any day on which the sum of the Aggregate Revolving Credit
Outstandings of all Lenders exceeds 50% of the Aggregate Revolving Credit Commitments.



     “Exchange Rate”: with respect to any non-Dollar currency on any date, the rate at
which such currency may be exchanged into Dollars, as set forth on such date on the relevant
Reuters currency page at or about 11:00 A.M., London time, on such date. In the event that such
rate does not appear on any Reuters currency page, the “Exchange Rate” with respect to such
non-Dollar currency shall be determined by reference to such other publicly available service for
displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrower or, in
the absence of such agreement, such “Exchange Rate” shall instead be the Spot Rate of exchange in
the interbank market where its foreign currency exchange operations in respect of such non-Dollar
currency are then being conducted, at or about 10:00 A.M., local time, on such date for the
purchase of Dollars with such non-Dollar currency, for delivery two Business Days later;
provided, that if at the time of any such determination, no such Spot Rate can reasonably
be quoted, the Administrative Agent after consultation with the Borrower may use any reasonable
method as the Administrative Agent deems applicable to determine such rate, and such determination
shall be conclusive absent manifest error. The Administrative Agent shall determine the Exchange
Rate on each Calculation Date. The Exchange Rates so determined shall become effective on the
first Business Day immediately following the relevant Calculation Date (a “Reset Date”) or
other determination, shall remain effective until the next succeeding Reset Date, and shall for all
purposes of this Agreement (other than Section 11.15 or any other provision expressly requiring the
use of a current Exchange Rate) be the Exchange Rates employed in converting any amounts between US
Dollars and Available Foreign Currencies.



     “Existing Facility”: the Credit Agreement, dated as of May 2, 2002, as amended, among
the Borrower, the several guarantors from time to time parties thereto, JPMCB, as administrative
agent for the lenders thereunder, Fleet National Bank, as syndication agent, and the several
lenders and other financial institutions or entities from time to time parties thereto.



     “Existing Letters of Credit”: those letters of credit which are individually
described on Schedule II.



9









 





     “Facility Fee Rate”: for each day during each calculation period, the rate per annum
based on the Consolidated Leverage Ratio for such day, as set forth below:



	 	 	 	 	 
	 	 	 	 	Facility Fee
	Tier	 	Ratio	 	(bps)
	I
	 	=2.75:1.00	 	15.0
	II
	 	<2.75:1.00 but 32.25:1.00	 	12.5
	III
	 	<2.25:1.00 but 31.50:1.00	 	9.0
	IV
	 	<1.50:1.00	 	8.0





The applicable Facility Fee will be set on the day which is five Business Days following the
receipt by the Administrative Agent of the financial statements referenced in subsection 7.1(a) or
subsection 7.1(b), as the case may be, and shall apply until, but not including, the next date on
which the applicable Facility Fee is reset in accordance with the provisions hereof; provided,
however, that notwithstanding the foregoing, if any financial statements are not received by the
Administrative Agent within the time period relating to such financial statements as provided in
subsection 7.1(a) or subsection 7.1(b), as the case may be, the applicable Facility Fee will be
0.150% until the day which is five Business Days following the receipt by the Administrative Agent
of such financial statements; and further provided, however, that the Lenders shall not in any way
be deemed to have waived any Event of Default or any remedies hereunder (including, without
limitation, remedies provided in Section 9) in connection with the provisions of the foregoing
proviso.




     “Fair Market Value”: at any time and with respect to any property, the sale value of
such property that would be realized in an arm’s-length sale at such time between an informed and
willing buyer and an informed and willing seller (neither being under a compulsion to buy or sell).



     “Fed Funds Loans”: Swingline Loans bearing interest at a rate per annum determined by
reference to the Federal Funds Effective Rate.



     “Federal Funds Effective Rate”: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it. Any change in the Federal Funds Effective
Rate shall be effective as of the opening of business on the effective date of such change.



     “Fee Commencement Date”: the Closing Date.



     “Financing Lease”: any lease of property, real or personal, the obligations of the
lessee in respect of which are Capital Lease Obligations on a balance sheet of the lessee.



10









 





     “Foreign Subsidiary”: any Subsidiary incorporated or otherwise organized in any
jurisdiction outside the United States of America, its territories and possessions.



     “Funding Commitment Percentage”: as at any date of determination, with respect to any
Lender, that percentage which the Available Revolving Credit Commitment of such Lender then
constitutes of the Aggregate Available Revolving Credit Commitments.



     “GAAP”: generally accepted accounting principles in the United States of America
consistently applied with respect to those utilized in preparing the audited financial statements
referred to in subsection 5.1.



     “Governmental Authority”: any nation or government, any state or other political
subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.



     “Guarantee Obligation”: as to any Person (the “guaranteeing person”), any
obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any
bank under any letter of credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary
obligations”) of any other unrelated third Person (the “primary obligor”) in any
manner, whether directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for
the purchase or payment of any such primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee Obligation is made or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith.



     “Guarantors”: any Subsidiary of the Borrower which guarantees any of the Indebtedness
or other obligations incurred under the Note Purchase Agreements, as amended, or any other debt
securities or bank debt issued by the Borrower (it being understood that undrawn commitments in
respect of bank credit facilities shall not constitute “bank debt” for purposes of this
definition).



     “Hazardous Material”: all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates,



11









 




asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature, to the extent regulated pursuant
to any Environmental Law.




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



     “Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services, (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all obligations of such person created or arising
under any conditional sale or other title retention agreement with respect to property acquired by
such Person, (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person,
contingent or otherwise, as an account party or applicant under or in respect of bankers’
acceptances, letters of credit, surety bonds or similar arrangements, (g) all indebtedness of such
Person, determined in accordance with GAAP, arising out of a Receivables Transaction, (h) all
Guarantee Obligations of such Person; (i) all obligations of such Person secured by (or for which
the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any
Lien on property (including accounts and contract rights) owned by such Person, whether or not such
Person has assumed or become liable for the payment of such obligation; provided,
however, that in the event that liability of such Person is non-recourse to such Person and
is recourse only to specified property owned by such Person, the amount of Indebtedness attributed
thereto shall not exceed the greater of the Fair Market Value of such property or the net book
value of such property, and (j) for the purposes of the definition of “Material Indebtedness” only
(except to the extent otherwise included above), all obligations of such Person in respect of Swap
Agreements; provided that for the purposes of the definition of “Material Indebtedness,” the
“principal amount” of the obligations of such Person in respect of any Swap Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting agreements) that such Person
would be required to pay if such Swap Agreement were terminated at such time. The Indebtedness of
any Person shall include the Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is actually liable therefor as a result
of such Person’s ownership interest in or other relationship with such entity, except to the extent
the terms of such Indebtedness expressly provide that such Person is not actually liable therefor.



     “Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan is
insolvent within the meaning of Section 4245 of ERISA.



     “Insolvent”: pertaining to a condition of Insolvency.



     “Interest Payment Date”: (a) as to any ABR Loan and as to any Fed Funds Loan, the
last day of each March, June, September and December; (b) as to any LIBOR Loan having an Interest
Period of three months or less, the last day of such Interest Period; (c) as to any LIBOR Loan
having an Interest Period longer than three months, each day which is three months, or a



12









 




whole multiple thereof, after the first day of such Interest Period and the last day of such
Interest Period; and (d) as to any Swingline Loan, the earlier to occur of (i) the maturity date
thereof and (ii) the date the same shall have been prepaid in accordance with the provisions of
this Agreement.




     “Interest Period”: with respect to any LIBOR Loan:



     (i) initially, the period commencing on the Borrowing Date or conversion date, as the case may
be, with respect to such LIBOR Loan and ending one, two, three or six months thereafter, as
selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and



     (ii) thereafter, each period commencing on the last day of the next preceding Interest Period
applicable to such LIBOR Loan and ending one, two, three or six months thereafter, as selected by
the Borrower by irrevocable notice to the Administrative Agent not less than three Business Days,
in the case of LIBOR Loans in Dollars, and four Business Days, in the case of LIBOR Loans in
Available Foreign Currencies, prior to the last day of the then current Interest Period with
respect thereto; provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:



     (1) if any Interest Period would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;



     (2) any Interest Period in respect of any Loan made by any Lender that would otherwise extend
beyond the Termination Date applicable to such Lender shall end on such Termination Date; and



     (3) any Interest Period that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar month.



     “IRS”: The United States Internal Revenue Service and any successor governmental
agency performing a similar function.



     “Issuing Lender”: JPMCB, in its capacity as issuer of any Letter of Credit,
and its successors. The Issuing Lender may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of the Issuing Lender, in which case the term “Issuing
Lender” shall include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.



     “Japanese Yen”: the official legal currency of Japan.



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



13









 





     “Judgment Currency”: as defined in subsection 11.15.



     “L/C Commitment”: the obligation of the Issuing Lender to issue Letters of Credit
pursuant to Section 4 with respect to which the resulting L/C Obligations at any one time
outstanding shall not exceed $30,000,000.



     “L/C Fee Payment Date”: the last day of each March, June, September and December and
the last day of the Commitment Period.



     “L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate then
undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount
of drawings under Letters of Credit that have not then been reimbursed pursuant to subsection 4.5.



     “L/C Participants”: the collective reference to all the Lenders other than the
Issuing Lender.



     “Lender Affiliate”: (a) any Affiliate of any Lender, (b) any Person that is
administered or managed by any Lender and that is engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the ordinary course of
its business and (c) with respect to any Lender which is a fund that invests in commercial loans
and similar extensions of credit, any other fund that invests in commercial loans and similar
extensions of credit and is managed or advised by the same investment advisor as such Lender or by
an Affiliate of such Lender or investment advisor.



     “Lenders”: as defined in the preamble hereto, and any other Person that shall have
become a party hereto pursuant to an Assignment and Assumption (as defined in subsection 11.6),
other than any such Person that ceases to be a party hereto pursuant to an Assignment and
Assumption; provided, that unless the context otherwise requires, each reference herein to
the Lenders shall be deemed to include any Approved Fund.



     “Letters of Credit”: as defined in subsection 4.1(a).



     “LIBOR Loans”: Revolving Credit Loans with respect to which the rate of interest is
based upon the Adjusted LIBO Rate.



     “LIBO Rate”: with respect to each day during each Interest Period pertaining to a
LIBOR Loan denominated in Dollars or any Available Foreign Currency, the rate per annum determined
by the Administrative Agent to be the offered rate for deposits in the currency in which such LIBOR
Loan is denominated with a term comparable to such Interest Period that appears on the applicable
Telerate Page (or on any successor or substitute page or service, or any successor to or substitute
for such page or service, providing rate quotations comparable to those currently provided on such
page or service, as reasonably determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to deposits in the currency in which
such LIBOR Loan is denominated in the London interbank



14









 




market) at approximately 11:00 A.M., London time, two Business Days prior to the beginning of
such Interest Period; provided, however, that if at any time for any reason such
offered rate for any such currency shall not be available, “LIBO Rate” shall mean, with respect to
each day during each Interest Period pertaining to a LIBOR Loan denominated in such currency, the
rate per annum reasonably determined by the Administrative Agent as the rate of interest at
which deposits in the relevant currency for delivery on the first day of such Interest Period in
same day funds in the amount of $5,000,000 and with a term equivalent to such Interest Period would
be offered by JPMCB’s London branch or London Affiliate to major banks in the London interbank
market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period. The determination of the LIBO Rate by the Administrative Agent
shall be conclusive in the absence of manifest error.




     “Lien”: any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention agreement and any
Financing Lease having substantially the same economic effect as any of the foregoing).



     “Loan”: any Revolving Credit Loan, extension of credit under or pursuant to Section
4, or Swingline Loan, as the case may be.



     “Loan Documents”: this Agreement, any Notes, the Administrative Agent/Sole Lead
Arranger Fee Letter (as defined in subsection 2.5(c)), each Application, any Guarantee executed and
delivered pursuant to subsection 7.12 and all other instruments and documents heretofore or
hereafter executed or delivered to or in favor of any Lender or the Administrative Agent in
connection with the Loans made and transactions contemplated by this Agreement.



     “London Business Day”: any day on which banks in London are open for general banking
business, including dealings in foreign currency and exchange.



     “Majority Lenders”: (a) at any time prior to the termination of the Revolving Credit
Commitments, Lenders whose Revolving Credit Commitment Percentages aggregate more than 50%; and (b)
notwithstanding the foregoing, for purposes of declaring the Loans to be due and payable pursuant
to Section 9, and at any time after the termination of the Revolving Credit Commitments, Lenders
whose Aggregate Revolving Credit Outstandings aggregate more than 50% of the Aggregate Revolving
Credit Outstandings of all Lenders.



     “Material Adverse Effect”: a material adverse effect on (i) the business, assets,
property or condition (financial or otherwise) of the Borrower and its Subsidiaries, taken as a
whole, or (ii) the validity or enforceability of any of the Loan Documents or the rights or
remedies of the Administrative Agent and the Lenders thereunder, provided that events, developments
or circumstances (“Changes”) (including general economic or political conditions) generally
affecting the Borrower’s industry which are not reasonably likely to have a material adverse effect
on (x) the business, assets, property or condition (financial or otherwise) of the Borrower and its
Subsidiaries, taken as a whole, or (y) the validity or enforceability of any of the Loan



15









 




Documents or the rights or remedies of the Administrative Agent or Lenders thereunder, will
not be deemed Changes for purposes of determining whether a Material Adverse Effect shall have
occurred.




     “Material Indebtedness”: Indebtedness (other than the Loans and Letters of Credit) of
any one or more of the Borrower and its Subsidiaries in an aggregate principal amount exceeding
$40,000,000.



     “Multicurrency Commitment”: as to any Lender, the obligation of such Lender to make
Multicurrency Loans to the Borrower hereunder in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule I
under the heading “Multicurrency Commitment,” and that such amount may be modified from time to
time in accordance with the provisions of this Agreement.



     “Multicurrency Commitment Percentage”: as to any Lender at any time, the percentage
which such Lender’s Multicurrency Commitment at such time constitutes of the Aggregate
Multicurrency Commitments at such time.



     “Multicurrency Loans”: Revolving Credit Loans made in Available Foreign Currencies.



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



     “1998 Noteholders”: any Person who holds notes of the Company issued pursuant to the
Note Purchase Agreements on or about September 25, 1998 (of any successor thereof).



     “1999 Noteholders”: any Person who holds notes of the Company issued pursuant to the
Note Purchase Agreements on or about June 30, 1999 (of any successor thereof).



     “Non-Excluded Taxes”: as defined in subsection 3.10.



     “Notes”: the collective reference to any Revolving Credit Notes and any Swingline
Notes.



     “Note Purchase Agreements”: those certain Note Purchase Agreements dated as of June
30, 1999 and September 25, 1998, respectively, as amended, between the Borrower and the various
note holders party thereto.



     “Obligations”: collectively, the unpaid principal of and interest on the Loans and
all other obligations and liabilities of the Borrower under this Agreement and the other Loan
Documents to which it is a party (including, without limitation, interest accruing at the then
applicable rate provided in this Agreement or any other applicable Loan Document after the maturity
of the Loans and interest accruing at the then applicable rate provided in this Agreement or any
other applicable Loan Document after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding, relating to the Borrower,



16









 




whether or not a claim for post-filing or post-petition interest is allowed in such
proceeding), whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, the Notes, the other Loan Documents, Swap Agreements entered into with Lenders or their
Affiliates or any other document made, delivered or given in connection therewith, in each case
whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all Attorney Costs of counsel to the
Administrative Agent or to the Lenders that are required to be paid by the Borrower pursuant to the
terms of this Agreement or any other Loan Document).




     “Participant”: as defined in subsection 11.6(c).



     “PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
of Title IV of ERISA and each successor thereto.



     “Person”: an individual, partnership, corporation, business trust, limited liability
company, joint stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.



     “Plan”: at a particular time, any “employee pension benefit plan,” as such term is
defined in Section 3(2) of ERISA and which is subject to Title IV of ERISA and/or Section 412 of
the Code, other than a Multiemployer Plan, and in respect of which the Borrower or an ERISA
Affiliate is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an “employer” as defined in Section 3(5) of ERISA or to which the Borrower or an
ERISA Affiliate contributes or has an obligation to contribute.



     “Prime Rate”: as defined in the definition of “ABR” in this subsection 1.1.



     “Receivables”: any accounts receivable of any Person, including, without limitation,
any thereof constituting or evidenced by chattel paper, instruments or general intangibles, and all
proceeds thereof and rights (contractual and other) and collateral related thereto.



     “Receivables Subsidiary”: any special purpose, bankruptcy-remote Subsidiary that
purchases Receivables generated by the Borrower or any of its Subsidiaries.



     “Receivables Transaction”: any transaction or series of transactions providing for the
financing of Receivables of the Borrower or any of its Subsidiaries, involving one or more sales,
contributions or other conveyances by the Borrower or any of its Subsidiaries of its/their
Receivables to Receivables Subsidiaries which finance the purchase thereof by means of the
incurrence of Indebtedness or otherwise. Notwithstanding anything contained in the foregoing to
the contrary: (a) no portion of the Indebtedness (contingent or otherwise) with respect to any
Receivables Transactions shall (i) be guaranteed by the Borrower or any of its Subsidiaries, (ii)
involve recourse to the Borrower or any of its Subsidiaries (other than the relevant Receivables
Subsidiary), or (iii) require or involve any credit support or credit enhancement from the Borrower
or any of its Subsidiaries (other than the relevant Receivables Subsidiary), provided



17









 




that the Borrower and its Subsidiaries will be permitted to agree to representations,
warranties, covenants and indemnities that are reasonably customary in accounts receivable
securitization transactions of the type contemplated (none of which representations, warranties,
covenants or indemnities will result in recourse to the Borrower or any of its Subsidiaries (other
than the relevant Receivables Subsidiary) beyond the limited recourse that is reasonably customary
in accounts receivable securitization transactions of the type contemplated); and (b) the
securitization facility and structure relating to such Receivables Transactions shall be on market
terms and conditions customary for Receivables transactions of the type contemplated.




     “Refunded Swingline Loans”: as defined in subsection 2.4.



     “Refunding Date”: as defined in subsection 2.4.



     “Register”: as defined in subsection 11.6(b).



     “Reimbursement Obligation”: the obligation of the Borrower to reimburse the Issuing
Lender pursuant to subsection 4.5(a) for amounts drawn under Letters of Credit.



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



     “Reorganization”: with respect to any Multiemployer Plan, the condition that such
plan is in reorganization within the meaning of Section 4241 of ERISA.



     “Requirement of Law”: as to any Person, the certificate of incorporation and by-laws
or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.



     “Responsible Officer”: with respect to any Person, the chief executive officer and
the president of such Person as well as, in the case of the Borrower, the Vice President and
General Counsel of the Borrower, and in the case of any Guarantor (if any), a duly elected Vice
President of such Guarantor (if any), or, with respect to financial matters, the chief financial
officer and the treasurer of such Person.



     “Revolving Credit Commitment”: as to any Lender, the obligation of such Lender to
make Revolving Credit Loans to the Borrower and to acquire participations in Letters of Credit and
Swingline Loans hereunder in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender’s name on Schedule I under the heading


     “Revolving Credit Commitment,” as such amount may be modified from time to time in
accordance with the provisions of this Agreement.



     “Revolving Credit Commitment Percentage”: as to any Lender at any time, the
percentage which such Lender’s Revolving Credit Commitment at such time constitutes of the



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Aggregate Revolving Credit Commitments at such time (or, if the Revolving Credit Commitments
have terminated or expired, the percentage which (a) the Aggregate Revolving Credit Outstandings of
such Lender at such time then constitutes of (b) the Aggregate Revolving Credit Outstandings of all
Lenders at such time).




     “Revolving Credit Loans”: as defined in subsection 2.1.



     “Revolving Credit Note”: as defined in subsection 3.13(d).



     “Revolving Lender”: each Lender that has a Revolving Credit Commitment hereunder or
that holds Revolving Credit Loans.



     “Significant Subsidiary”:



          (a) each domestic (i.e., incorporated or organized in the United States or any state or
territory thereof; hereinafter, “domestic”) wholly-owned Subsidiary or other entity formed or
acquired by the Borrower or any direct or indirect Subsidiary (whether existing at the date hereof,
or formed or acquired after the date hereof), if such Subsidiary or entity, after giving effect to
the formation/acquisition of the same, has total assets that exceed five percent of the domestic
“Consolidated Total Assets,” valued as of the occurrence/closing of such formation/acquisition or
as of the last day of any fiscal year thereafter; and




          (b) each domestic Subsidiary or entity (whether existing at the date hereof, or formed or
acquired after the date hereof) in which the Borrower or any Guarantor (if any) has, directly or
indirectly, a 66.67% or greater but less than 100% ownership interest which becomes or is a
Subsidiary if such Subsidiary or entity, after giving effect to the formation/acquisition of the
same, has total assets that exceed five percent of the domestic “Consolidated Total Assets,” valued
as of the occurrence/closing of such formation/acquisition or as of the last day of any fiscal year
thereafter.




     “Signing Date”: the date on which the Lenders have signed this Agreement.



     “Single Employer Plan”: any Plan which is covered by Title IV of ERISA, but which is
not a Multiemployer Plan.



     “Sole Bookrunner”: as defined in the preamble hereto.



     “Spot Rate”: for a currency means the rate quoted by JPMCB as the spot rate for the
purchase by JPMCB of such currency with another currency through its principal foreign exchange
trading office at approximately 11:00 a.m., New York time, on the date two Business Days prior to
the date on which the foreign exchange transaction is made.



     “Subsidiary”: as to any Person (“parent”), a corporation, partnership or other entity
of which shares of stock or other ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by reason of the happening of a



19









 




contingency) to elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this
Agreement shall refer to a direct or indirect Subsidiary or Subsidiaries of the Borrower.




     “Subsidiary Stock”: with respect to any Person, the Equity Interests of any
Subsidiary of such Person.



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



     “Swingline Commitment”: the obligation of the Swingline Lender to make Swingline
Loans pursuant to subsection 2.3 in an aggregate principal amount at any one time outstanding not
to exceed $15,000,000.



     “Swingline Lender”: JPMCB, in its capacity as the lender of Swingline Loans.



     “Swingline Loans”: as defined in subsection 2.3.



     “Swingline Note”: as defined in subsection 3.13(e).



     “Swingline Participation Amount”: as defined in subsection 2.4(c).



     “Swiss Francs”: the lawful currency of Switzerland.



     “Syndication Agent”: as defined in the preamble hereto.



     “Target Operating Day”: any day that is not (a) a Saturday or Sunday, (b) Christmas
Day or New Year’s Day or (c) any other day on which the Trans-European Real-time Gross Settlement
Operating System (or any successor settlement system) is not operating (as determined in good faith
by the Administrative Agent).



     “Taxes”: any and all taxes, levies, imposts, duties, fees, assessments or other
charges of whatever nature imposed by any jurisdiction or by any political subdivision or taxing
authority thereon or therein and all interest penalties or similar liabilities with respect
thereto.



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     “Termination Date”: (a) May 24, 2010, or (b) such earlier date upon which the
Aggregate Revolving Credit Commitments may be terminated in accordance with the terms hereof.



     “Transferee”: as defined in subsection 11.6(e).



     “Type”: as to any Revolving Credit Loan, its nature as an ABR Loan or a LIBOR Loan;
as to any Swingline Loan, its nature as an ABR Loan or a Fed Funds Loan.



     “Utilization Fee Rate”: 0.10% per annum.



          1.2 Other Definitional Provisions




          (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in any Notes or any other Loan Documents delivered pursuant hereto.




          (b) As used herein or in any of the other Loan Documents, accounting terms relating to the
Borrower and its Subsidiaries not defined in subsection 1.1, and accounting terms partly defined in
subsection 1.1, but only to the extent not so defined, shall have the respective meanings given to
them under GAAP. If at any time any change in GAAP or in the manner in which the Borrower shall be
required or permitted to disclose its financial results in its filings with the Securities and
Exchange Commission (i.e., a change which is inconsistent with the manner disclosed by the Borrower
in its Annual Report on Form 10-K for the fiscal year ended December 25, 2004) would affect the
computation of any financial ratio or requirement set forth in any Loan Document, and either the
Borrower or the Majority Lenders shall so request, the Administrative Agent, the Lenders and the
Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change (subject to the approval of the Majority Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance
with GAAP and as calculated consistent with the manner disclosed by the Borrower in its Annual
Report on Form 10-K for the fiscal year ended December 25, 2004 prior to such change therein and
(ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements
and other documents required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made before and after
giving effect to such change.




     (c) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section, subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified. In the computation of periods of time from a specified date to a later
specified date, the word “from” means “from and including;” the words “to” and “until” each mean
“to but excluding;” and the word “through” means “to and including.” Each reference to “basis
points” or “bps” shall be interpreted in accordance with the convention that 100 bps = 1.0%.



21









 





          (d) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.




          1.3 Rounding




          Any financial ratios required to be maintained by the Borrower pursuant to this
Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).




          1.4 References to Agreements and Laws




          Unless otherwise expressly provided herein, (a) references to agreements (including the Loan
Documents) and other contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only to the extent that
such amendments, restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Law shall include all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting such Law.




          SECTION 2. AMOUNT AND TERMS OF COMMITMENTS




          2.1 Revolving Credit Commitments




          (a) Subject to the terms and conditions hereof, each Lender severally agrees to make revolving
credit loans (“Revolving Credit Loans”) in Dollars or in any Available Foreign Currency to
the Borrower from time to time during the Commitment Period so long as after giving effect thereto
(i) the Available Revolving Credit Commitment of each Lender is greater than or equal to zero, (ii)
the Aggregate Revolving Credit Outstandings of all Lenders do not exceed the Aggregate Revolving
Credit Commitments and (iii) the Aggregate Multicurrency Outstandings of all Lenders do not exceed
the Aggregate Multicurrency Commitments. All Revolving Credit Loans shall be made by the Lenders
on a pro-rata basis in accordance with their respective Revolving Credit Commitment Percentages.
During the Commitment Period, the Borrower may use the Revolving Credit Commitments by borrowing,
prepaying the Revolving Credit Loans in whole or in part, and reborrowing, all in accordance with
the terms and conditions hereof. Any Lender may cause its Multicurrency Loans to be made by any
branch, affiliate or international banking facility of such Lender, provided, that such
Lender shall remain responsible for all of its obligations hereunder and no additional taxes, costs
or other burdens shall be imposed upon the Borrower or the Administrative Agent as a result
thereof.




          (b) The Revolving Credit Loans may from time to time be (i) LIBOR Loans, (ii) ABR Loans or
(iii) a combination thereof, as determined by the Borrower and notified to the Administrative Agent
in accordance with subsections 2.2 and 3.2, provided that (x) each Multicurrency Loan shall
be a LIBOR Loan and (y) no Revolving Credit Loan shall be made as a LIBOR Loan after the day that
is one month prior to the Termination Date.




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          2.2 Procedure for Revolving Credit Borrowing




          (a) The Borrower may request a Revolving Credit Loan during the Commitment Period on any
Business Day, provided that the Borrower shall give the Administrative Agent irrevocable
notice prior to 10:00 A.M., New York City time, (a) three Business Days prior to the requested
Borrowing Date, if all or any part of the requested Revolving Credit Loans are to be LIBOR Loans in
Dollars, (b) four Business Days prior to the requested Borrowing Date, if all or any part of the
requested Revolving Credit Loans are to be LIBOR Loans in Available Foreign Currencies, or (c) on
the requested Borrowing Date, with respect to ABR Loans. Each such borrowing request may be given
by telephone or by delivery of a written borrowing request. Any such written borrowing request
shall be substantially in the form of Exhibit A, duly completed and executed by the
Borrower. Any such telephonic borrowing request shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written borrowing request which shall be substantially in
the form of Exhibit A, duly completed and executed by the Borrower.




          (b) Each Borrowing request shall specify (i) the amount to be borrowed, (ii) the requested
Borrowing Date, (iii) whether the borrowing is to be comprised of LIBOR Loans, ABR Loans or a
combination thereof, (iv) if the borrowing is to be entirely or partly comprised of LIBOR Loans,
the amount of such LIBOR Loan and the length of the initial Interest Period therefor, and (v) if
the borrowing is to be entirely or partly comprised of Multicurrency Loans, the requested Available
Foreign Currency and the amount of such borrowing.




          (c) Each borrowing under the Revolving Credit Commitments (other than a borrowing under
subsection 2.4 and 4.2) shall be in an amount equal to (x) in the case of ABR Loans, $5,000,000 or
a whole multiple of $1,000,000 in excess thereof (or, if the Aggregate Available Revolving Credit
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of LIBOR Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of any such notice
from the Borrower, the Administrative Agent shall promptly notify each Lender thereof. Prior to
11:00 A.M. New York City time in the case of LIBOR Loans, and prior to 12:00 Noon New York City
time in the case of ABR Loans, on the Borrowing Date requested by the Borrower in accordance with
the provisions hereof, each Lender will make an amount equal to its Funding Commitment Percentage
of the principal amount of the Revolving Credit Loans requested to be made on such Borrowing Date
available to the Administrative Agent for the account of the Borrower at the New York office of the
Administrative Agent specified in subsection 11.2 (or such other funding office for the relevant
Available Foreign Currency which is specified from time to time by the Administrative Agent by
notice to the Borrower and the Lenders) in funds immediately available (in the relevant Available
Foreign Currency for Multicurrency Loans), to the Administrative Agent. Such borrowing will then
be made available to the Borrower by the Administrative Agent crediting the account of the Borrower
on the books of such office with the aggregate of the amounts made available to the Administrative
Agent by the Lenders and in like funds as received by the Administrative Agent.




          2.3 Swingline Commitment




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     Subject to the terms and conditions hereof, the Swingline Lender agrees to make a portion of
the credit otherwise available to the Borrower under the Revolving Credit Commitments from time to
time during the Commitment Period by making swingline Loans (“Swingline Loans”) in Dollars
to the Borrower so long as after giving effect thereto (i) the Aggregate Swingline Outstandings
shall not exceed the Swingline Commitment and (ii) the Aggregate Revolving Credit Outstandings of
all Lenders shall not exceed the Aggregate Revolving Credit Commitments; provided that a
Swingline Loan may not be used to refinance an outstanding Swingline Loan. During the Commitment
Period, the Borrower may use the Swingline Commitment by borrowing, repaying and reborrowing, all
in accordance with the terms and conditions hereof. The Borrower shall repay each Swingline Loan
within thirty (30) Business Days of the Borrowing Date of such Swingline Loan. All repayments
under this Agreement on account of Swingline Loans shall be made in Dollars in immediately
available funds to the Swingline Lender for its own account not later than 1:00 p.m. New York City
time on the date any such payment is due to the office of JPMCB specified in subsection 11.2.



          2.4 Procedure for Swingline Borrowing; Refunding of Swingline Loans




          (a) Whenever the Borrower desires that the Swingline Lender make a Swingline Loan, it shall
give the Swingline Lender irrevocable telephonic notice, which telephonic notice must be received
by the Swingline Lender not later than 1:00 P.M., New York City time, on the proposed Borrowing
Date, specifying (i) the amount to be borrowed, (ii) whether the borrowing is to be comprised of
Fed Funds Loans or ABR Loans and (iii) the requested Borrowing Date (which shall be a Business Day
during the Commitment Period). Each such telephonic borrowing request shall be confirmed promptly
by hand delivery or telecopy to the Swingline Lender of a written borrowing request which shall be
substantially in the form of Exhibit B, duly completed and executed by the Borrower. Each
borrowing under the Swingline Commitment shall be in an amount equal to $500,000 or a whole
multiple of $100,000 in excess thereof. Not later than 3:00 P.M., New York City time, on the
Borrowing Date specified in a notice in respect of Swingline Loans, the Swingline Lender shall make
available to the Administrative Agent for the account of the Borrower at the New York office of the
Administrative Agent specified in subsection 11.2 an amount in immediately available funds equal to
the amount of the Swingline Loan to be made by the Swingline Lender. The Administrative Agent
shall make the proceeds of such Swingline Loan available to the Borrower on such Borrowing Date by
depositing such proceeds in the account of the Borrower with the Administrative Agent on such
Borrowing Date in immediately available funds. The Administrative Agent shall give the other
Lenders prompt notice of each extension by the Swingline Lender of a Swingline Loan.




          (b) The Swingline Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to
act on its behalf), on one Business Day’s notice given by the Swingline Lender to the Lenders (with
a copy to the Borrower) no later than 12:00 Noon, New York City time, request each Lender
(including the Swingline Lender in its capacity as a Lender having a Revolving Credit Commitment)
to make, and each Lender hereby agrees to make, an ABR Loan, in an amount equal to such Lender’s
Revolving Credit Commitment Percentage of the aggregate amount of the Swingline Loans (the
“Refunded Swingline Loans”) outstanding on the date of such notice, to repay the Swingline
Lender. Each Lender shall make the amount of such ABR

24









 








Loan available to the Administrative Agent at the New York office of the Administrative Agent
specified in subsection 11.2 in immediately available funds, not later than 10:00 A.M., New York
City time, one Business Day after the date of such notice. The proceeds of such ABR Loans shall be
immediately made available by the Administrative Agent to the Swingline Lender for application by
the Swingline Lender to the repayment of the Refunded Swingline Loans. The Borrower irrevocably
authorizes the Swingline Lender to charge the Borrower’s accounts with the Administrative Agent (up
to the amount available in each such account) in order to immediately pay the amount of such
Refunded Swingline Loans to the extent amounts received from the Lenders are not sufficient to
repay in full such Refunded Swingline Loans if such deficiency is not otherwise reimbursed by the
Borrower on the Business Day following a written request for such reimbursement to the Borrower by
the Swingline Lender (without prejudice to any rights Borrower may have against any such Lender
which did not provide its pro rata portion to repay in full such Refunded Swingline Loans). If
such amount is not in fact made available to the Administrative Agent by any Lender, the Swingline
Lender shall be entitled to recover such amount on demand from such Lender together with accrued
interest thereon for each day from the date such amount is required to be paid, at the Federal
Funds Effective Rate. If such Lender does not pay such amount as provided above, and until such
time as such Lender makes the required payment, the Swingline Lender shall be deemed to continue to
have outstanding Swingline Loans in the amount of such unpaid participation obligation for all
purposes of the Loan Documents other than those provisions requiring the other Lenders to purchase
a participation therein, and all amounts paid or payable by the Borrower on account of Swingline
Loans which would otherwise comprise such Lender’s Swingline Participation Amount (had such Lender
purchased and funded its participation therein) shall continue to be for the sole account of the
Swingline Lender. Further, such Lender shall be deemed to have assigned any and all payments made
of principal and interest on its Revolving Credit Loans, amounts due with respect to any Letters of
Credit (or its participation interests therein) and any other amounts due to it hereunder to the
Swingline Lender to fund ABR Loans in the amount of the participation in Swingline Loans that such
Lender failed to purchase and fund pursuant to this subsection 2.4(b), until such amount has been
purchased and funded.




          (c) If, prior to the time an ABR Loan would have otherwise been made pursuant to subsection
2.4(b), one of the events described in subsections 9(f) or (g) shall have occurred and be
continuing with respect to the Borrower or if for any other reason, as determined by the Swingline
Lender in its sole discretion, ABR Loans may not be made as contemplated by subsection 2.4(b), each
Lender shall, on the date such ABR Loan was to have been made pursuant to the notice referred to in
subsection 2.4(b) (the “Refunding Date”), purchase for cash an undivided participating
interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the
“Swingline Participation Amount”) equal to (i) such Lender’s Revolving Credit Commitment
Percentage times (ii) the sum of the aggregate principal amount of Swingline Loans then
outstanding that were to have been repaid with such ABR Loans, and upon the purchase of any such
participating interest the then outstanding Swingline Loans shall bear interest at the rate then
applicable to ABR Loans.




          (d) Whenever, at any time after the Swingline Lender has received from any Lender such
Lender’s Swingline Participation Amount, the Swingline Lender receives any payment on account of
the Swingline Loans, the Swingline Lender will distribute to such Lender

25









 








its Swingline Participation Amount (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender’s participating interest was outstanding and
funded and, in the case of principal and interest payments, to reflect such Lender’s pro
rata portion of such payment if such payment is not sufficient to pay the principal of and
interest on all Swingline Loans then due); provided, however, that in the event
that such payment received by the Swingline Lender is required to be returned, such Lender will
return to the Swingline Lender any portion thereof previously distributed to it by the Swingline
Lender.




          (e) Each Lender’s obligation to make the Loans referred to in subsection 2.4(b) and to
purchase participating interests pursuant to subsection 2.4(c) shall be absolute and unconditional
and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment,
defense or other right that such Lender or the Borrower may have against the Swingline Lender, the
Borrower or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a
Default or an Event of Default or the failure to satisfy any of the other conditions specified in
Section 6; (iii) any adverse change in the condition (financial or otherwise) of the Borrower; (iv)
any breach of this Agreement or any other Loan Document by the Borrower or any other Lender; or (v)
any other circumstance, happening or event whatsoever, whether or not similar to any of the
foregoing.




          2.5 Fees




          (a) Facility Fee. The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a facility fee for the period from and including the Fee Commencement Date
to the Termination Date, computed at the Facility Fee Rate on the average daily amount of the
Revolving Credit Commitment of such Lender (regardless of usage) during the period for which
payment is made, payable quarterly in arrears on the last day of each March, June, September and
December and on the Termination Date, commencing on the first of such dates to occur after the date
hereof.




          (b) Utilization Fee. The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a utilization fee for each Excess Utilization Day during the period from and
including the Fee Commencement Date to the Termination Date, computed at the Utilization Fee Rate
on the average daily amount of the Aggregate Revolving Credit Outstandings of such Lender for each
Excess Utilization Day during the period for which payment is made, payable quarterly in arrears on
the last day of each March, June, September and December and on the Termination Date, commencing on
the first of such dates to occur after the date hereof.




          (c) Arrangement and Agency Fees . The Borrower shall pay an arrangement fee to the
Sole Lead Arranger for the Sole Lead Arranger’s own account, and shall pay an agency fee to the
Administrative Agent for the Administrative Agent’s own account, in the amounts and at the times
specified in the letter agreement, dated April 19, 2005 (the “Administrative Agent/Sole
Lead Arranger Fee Letter”), between the Borrower, the Sole Lead Arranger and the
Administrative Agent. Such fees shall be fully earned when paid and shall be nonrefundable for
any reason whatsoever.




26









 








          2.6 Termination or Reduction of Commitments




     The Borrower shall have the right, upon not less than five Business Days’ notice to the
Administrative Agent, to terminate the Aggregate Revolving Credit Commitments or, from time to
time, to reduce the amount of the Aggregate Revolving Credit Commitments; provided that no
such termination or reduction shall be permitted if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, either (a) the Aggregate Available
Revolving Credit Commitments would not be greater than or equal to zero or (b) the Available
Revolving Credit Commitments of any Lender would not be greater than or equal to zero. Any such
reduction shall be in an amount equal to $5,000,000 or if greater, a whole multiple of $1,000,000
in excess thereof, and shall reduce permanently the Aggregate Revolving Credit Commitments then in
effect. The Administrative Agent shall give each Lender prompt notice of any notice received from
the Borrower pursuant to this subsection 2.6. Simultaneously with any such reduction, a pro-rata
reduction in the Aggregate Multicurrency Commitments and the Swingline Commitment shall be deemed
to have occurred.



          2.7 Increase in Commitments




          (a) The Borrower may at any time propose that the Aggregate Revolving Credit Commitments
hereunder be increased (each such proposed increase being a “Commitment Increase”), by
notice to the Administrative Agent specifying the existing Lender(s) (the “Increasing
Lender(s)”) and/or the additional lenders (the “Assuming Lender(s)”) that will be
providing the additional Commitment(s) and the date on which such increase is to be effective (the
“Commitment Increase Date”), which shall be a Business Day at least three Business Days
after delivery of such notice and prior to the Termination Date; provided that:





     (i) the minimum aggregate amount of each proposed Commitment Increase shall be (A)
$10,000,000 in the case of an Assuming Lender and (B) $2,500,000 in the case of an
Increasing Lender;




     (ii) immediately after giving effect to such Commitment Increase, the Aggregate
Revolving Credit Commitments hereunder shall not exceed $400,000,000;




     (iii) no Event of Default shall have occurred and be continuing on such Commitment
Increase Date or shall result from the proposed Commitment Increase; and




     (iv) the representations and warranties contained in Section 5 and in the other Loan
Documents shall be true correct in all material respects on and as of the Commitment
Increase Date as if made on and as of such date (or, if any such representation and warranty
is expressly stated to have been made as of a specific date, as of such specific date).



          (b) Any Assuming Lender shall become a Lender hereunder as of such Commitment Increase Date
and the Commitment of any Increasing Lender and any such Assuming Lender shall be increased as of
such Commitment Increase Date; provided that:




27









 









     (i) the Administrative Agent shall have received on or prior to 9:00 a.m., New
York City time, on such Commitment Increase Date a certificate of a duly authorized
officer of the Borrower stating that each of the applicable conditions to such
Commitment Increase set forth in clause (a) of this subsection has been satisfied;




     (ii) with respect to each Assuming Lender, the Administrative Agent shall have
received, on or prior to 9:00 a.m., New York City time, on such Commitment Increase
Date, an assumption agreement in substantially the form of Exhibit C (an
“Assumption Agreement”) duly executed by such Assuming Lender and the
Borrower and acknowledged by the Administrative Agent; and




     (iii) each Increasing Lender shall have delivered to the Administrative Agent,
on or prior to 9:00 a.m., New York City time, on such Commitment Increase Date,
confirmation in writing satisfactory to the Administrative Agent as to its increased
Commitment, with a copy of such confirmation to the Borrower.



          (c) Upon its receipt of confirmation from a Lender that it is increasing its Commitment
hereunder, together with the certificate referred to in clause (b)(i) above, the Administrative
Agent shall (A) record the information contained therein in the Register and (B) give prompt notice
thereof to the Borrower; provided that absent such Lender’s confirmation of such a Commitment
Increase as aforesaid, such Lender will be under no obligation to increase its Commitment
hereunder. Upon its receipt of an Assumption Agreement executed by an Assuming Lender, together
with the certificate referred to in clause (b)(i) above, the Administrative Agent shall, if such
Assumption Agreement has been completed and is in substantially the form of Exhibit C, (x)
accept such Assumption Agreement, (y) record the information contained therein in the Register and
(z) give prompt notice thereof to the Borrower.




          (d) In the event that the Administrative Agent shall have received notice from the Borrower as
to any agreement with respect to a Commitment Increase on or prior to the relevant Commitment
Increase Date and the actions provided for in clause (b) above shall have occurred by 9:00 a.m.,
New York City time, on such Commitment Increase Date, the Administrative Agent shall notify the
Lenders (including any Assuming Lenders) of the occurrence of such Commitment Increase promptly on
such date by facsimile transmission or electronic messaging system. On the date of such Commitment
Increase, the Borrower shall (i) prepay the outstanding Revolving Credit Loans (if any) in full,
(ii) simultaneously borrow new Revolving Credit Loans hereunder in an amount equal to such
prepayment, so that, after giving effect thereto, the Revolving Credit Loans are held ratably by
the Lenders in accordance with the respective Revolving Credit Commitments of such Lenders (after
giving effect to such Commitment Increase) and (iii) pay to the Lenders the amounts, if any,
payable under subsection 3.11.




          2.8 Repayment of Revolving Credit Loans




          The Borrower hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender (except as may be otherwise provided in subsection 2.4) the then unpaid
principal amount of each Revolving Credit Loan of such Lender on the


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Termination Date (or such earlier date on which the Revolving Credit Loans become due and payable
pursuant to Section 9 or otherwise). The Borrower hereby further agrees to pay interest on the
unpaid principal amount of the Revolving Credit Loans from time to time outstanding from the date
hereof until payment in full thereof at the rates per annum, and on the dates, set forth in
subsection 3.4.




SECTION 3. CERTAIN PROVISIONS



APPLICABLE TO THE LOANS



          3.1 Optional and Mandatory Prepayments




          (a) The Borrower may at any time and from time to time prepay outstanding Revolving Credit
Loans or Swingline Loans, in whole or in part, without premium or penalty (other than any amounts
payable pursuant to subsection 3.11 if such prepayment is of LIBOR Loans and is made on a day other
than the last day of the Interest Period with respect thereto), (i) upon at least four Business
Days’ irrevocable notice to the Administrative Agent in the case of Revolving Credit Loans and (ii)
in the case of Swingline Loans, irrevocable notice to the Administrative Agent by not later than
3:00 P.M., New York City time, on the Business Day immediately preceding the date of prepayment, in
each case ((i) and (ii) above) specifying the date and amount of prepayment and whether the
prepayment is of LIBOR Loans, ABR Loans, a combination thereof, if of a combination thereof, the
amount allocable to each, or of Swingline Loans. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. If any such notice is given, the
amount specified in such notice shall be due and payable by the Borrower on the date specified
therein. Partial prepayments of Multicurrency Loans shall be in an aggregate principal amount the
Dollar Equivalent of which is at least $5,000,000 or an integral multiple of $1,000,000 in excess
thereof. Partial prepayments of Revolving Credit Loans denominated in Dollars shall be in an
aggregate principal amount of at least $5,000,000 or an integral multiple of $1,000,000 in excess
thereof. Partial prepayments of Swingline Loans shall be in an aggregate principal amount which is
at least $100,000 or an integral multiple of $100,000 in excess thereof.




          (b) (i) If, at any time during the Commitment Period, for any reason the Aggregate Revolving
Credit Outstandings of all Lenders exceed the Aggregate Revolving Credit Commitments then in
effect, the Borrower shall, without notice or demand, immediately prepay the Loans in an amount
that equals or exceeds the amount of such excess (or, in the case of L/C Obligations after all
Loans have been prepaid, cash collateralize such L/C Obligations in accordance with the provisions
of subsection 4.8).




               (ii) If, at any time during the Commitment Period, for any reason either (A) the Aggregate
Multicurrency Outstandings exceed 105% of the Aggregate Multicurrency Commitments, (B) the
Aggregate Swingline Outstandings exceeds the Aggregate Swingline Commitment or (C) the L/C
Obligations exceed the L/C Commitment, the Borrower shall, without notice or demand, immediately
prepay the Multicurrency Loans and/or the Swingline Loans and/or cash collateralize the L/C
Obligations in accordance with the provisions of subsection 4.8, as the case may be, in amounts
such that any such excess is eliminated.



29









 





               (iii) Each prepayment of Loans pursuant to this subsection 3.1(b) shall be accompanied by any
amounts payable under subsection 3.11 in connection with such prepayment.



          3.2 Conversion and Continuation Options




          (a) The Borrower may elect from time to time to convert LIBOR Loans to ABR Loans by giving the
Administrative Agent at least two Business Days’ prior irrevocable notice of such election. The
Borrower may elect from time to time to convert ABR Loans to LIBOR Loans by giving the
Administrative Agent at least three Business Days’ prior irrevocable notice of such election in the
case of LIBOR Loans in Dollars and at least four Business Days’ prior irrevocable notice of such
election in the case of LIBOR Loans in Available Foreign Currencies. Any such notice of conversion
to LIBOR Loans shall specify the length of the initial Interest Period therefor. Upon receipt of
any such notice the Administrative Agent shall promptly notify each Lender thereof. All or any
part of outstanding LIBOR Loans and ABR Loans may be converted as provided herein, provided
that (i) no Multicurrency Loan may be converted to an ABR Loan, (ii) no Loan may be converted into
a LIBOR Loan when any Event of Default has occurred and is continuing and the Administrative Agent
has or the Majority Lenders have determined that such a conversion is not appropriate and (iii) no
Loan may be converted into a LIBOR Loan after the date that is one month prior to the Termination
Date.




          (b) Any LIBOR Loans may be continued as such upon the expiration of the then current Interest
Period with respect thereto by the Borrower giving notice to the Administrative Agent, in
accordance with the applicable provisions of the term “Interest Period” set forth in subsection
1.1, of the length of the next Interest Period to be applicable to such Loans, provided
that no LIBOR Loan may, except as provided in the following proviso, be continued as such (A) when
any Event of Default has occurred and is continuing and the Administrative Agent has or the
Majority Lenders have determined that such a continuation is not appropriate or (B) after the date
that is one month prior to the Termination Date, and provided, further, that if the
Borrower shall fail to give such notice or if such continuation is not permitted, (x) with respect
to any such Loans which are Multicurrency Loans, the Borrower shall be deemed to have specified an
Interest Period of one month and (y) all such other Loans shall be automatically converted to ABR
Loans on the last day of such then expiring Interest Period. Upon receipt of any notice pursuant
to this subsection 3.2(b), the Administrative Agent shall promptly notify each Lender thereof.




          3.3 Maximum Number of Tranches




          Notwithstanding anything contained herein to the contrary, after giving effect to any
Borrowing, unless consented to by the Administrative Agent in its sole discretion, (a) there shall
not be more than twelve different Interest Periods in effect in respect of all Revolving Credit
Loans at any one time outstanding, and (b) there shall not be more than eight different
Multicurrency Loans in respect of all Revolving Credit Loans at any one time outstanding.




          3.4 Interest Rates and Payment Dates




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          (a) Each LIBOR Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Adjusted LIBO Rate determined for such Interest Period
plus the Applicable Margin in effect for such day.




          (b) Each ABR Loan shall bear interest at a rate per annum equal to the ABR.




          (c) Each Multicurrency Loan shall be a LIBOR Loan.




          (d) Each Swingline Loan shall bear interest, at the election of the Borrower, at a rate per
annum (rounded upwards, if necessary, to the next 1/100 of one percent) equal to (a) the ABR or (b)
the sum of the Federal Funds Effective Rate in effect on each applicable day plus the
Applicable Margin.




          (e) If all or a portion of (i) any principal of any Loan, (ii) any interest payable thereon,
(iii) any facility fee or (iv) any other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), the principal of the Loans and any
such overdue interest, facility fee or other amount shall bear interest at a rate per annum which
is (x) in the case of principal, the rate that would otherwise be applicable thereto pursuant to
the foregoing provisions of this subsection plus 2% or (y) in the case of any such overdue
interest, facility fee or other amount, the rate described in paragraph (b) of this subsection plus
2%, in each case from the date of such non-payment until such overdue principal, interest, facility
fee or other amount is paid in full (as well after as before judgment).




          (f) Interest pursuant to this subsection shall be payable in arrears on each Interest Payment
Date provided that interest accruing pursuant to paragraph (e) of this subsection shall be
payable from time to time on demand.




          3.5 Computation of Interest and Fees




          (a) Whenever (i) interest is calculated on the basis of the Prime Rate or (ii) Multicurrency
Loans are denominated in British Pounds Sterling, interest shall be calculated on the basis of a
365 (or 366, as the case may be) day year for the actual days elapsed; and, otherwise, interest and
fees shall be calculated on the basis of a 360-day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the Lenders of each
determination of an Adjusted LIBO Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements, shall become effective as of the
opening of business on the day on which such change becomes effective. The Administrative Agent
shall as soon as practicable notify the Borrower and the Lenders of the effective date and the
amount of each such change in interest rate.




          (b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver
to the Borrower a statement showing the quotations used by the Administrative Agent in determining
any interest rate pursuant to subsection 3.4(a), (b) or (c).




          3.6 Inability to Determine Interest Rate




31









 








     If prior to the first day of any Interest Period:



          (a) the Administrative Agent shall have determined in good faith (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period, or




          (b) the Administrative Agent shall have received notice from the Majority Lenders that the
Adjusted LIBO Rate determined or to be determined for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (as given in good faith and conclusively certified by such
Lenders) of making or maintaining their affected Loans during such Interest Period, the
Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the
Lenders as soon as practicable thereafter. If such notice is given, (w) any LIBOR Loans
(excluding Multicurrency Loans) requested to be made on the first day of such Interest Period
shall be made as ABR Loans, provided, that, notwithstanding the provisions of subsection
2.2, the Borrower may cancel the request for such LIBOR Loan (including Multicurrency Loans) by
written notice to the Administrative Agent one Business Day prior to the first day of such
Interest Period and the Borrower shall not be subject to any liability pursuant to subsection 3.11
with respect to such cancelled request, (x) any Loans that were to have been converted on the
first day of such Interest Period to LIBOR Loans (excluding Multicurrency Loans) shall be
continued as ABR Loans, and (y) any outstanding LIBOR Loans (excluding Multicurrency Loans) shall
be converted, on the first day of such Interest Period, to ABR Loans, and (z) any Multicurrency
Loans to which such Interest Period relates shall be repaid on the first day of such Interest
Period. Until such notice has been withdrawn by the Administrative Agent, no further LIBOR Loans
shall be made or continued as such, nor shall the Borrower have the right to convert ABR Loans to
LIBOR Loans.




          3.7 Pro Rata Treatment and Payments




          (a) Except to the extent provided elsewhere in this Agreement to the contrary, each payment of
principal or interest in respect of the Loans shall be made pro rata according to
the amounts then due and owing to the respective Lenders.




          (b) Each Borrowing by the Borrower of Revolving Credit Loans from the Lenders hereunder shall
be made pro rata according to the Funding Commitment Percentages of the Lenders in
effect on the date of such Borrowing. Each payment by the Borrower on account of any facility fee
hereunder and any reduction of the Revolving Credit Commitments of the Lenders shall be allocated
by the Administrative Agent among the Lenders pro rata according to the Revolving
Credit Commitment Percentages of the Lenders. Each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro
rata according to the respective outstanding principal amounts of the Revolving Credit Loans then
due and owing to the Lenders. All payments (including prepayments) to be made by the Borrower
hereunder in respect of amounts denominated in Dollars, whether on account of principal, interest,
fees or otherwise, shall be made without set off or counterclaim and shall be made prior to 12:00
Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of
the Lenders, at the Administrative

32









 








Agent’s office specified in subsection 11.2, in Dollars and in immediately available funds.
All payments (including prepayments) to be made by the Borrower hereunder with respect to principal
and interest on Multicurrency Loans shall be made without set off or counterclaim and shall be made
prior to 12:00 Noon, New York City time, on the due date thereof, to the Administrative Agent, for
the account of the Lenders, at the Administrative Agent’s office specified in subsection 11.2, in
the Available Foreign Currency with respect to which such Multicurrency Loan is denominated and in
immediately available funds. The Administrative Agent shall distribute such payments to the
Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than
payments on the LIBOR Loans) becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day, and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during such extension. If
any payment on a LIBOR Loan becomes due and payable on a day other than a Business Day, the
maturity of such payment shall be extended to the next succeeding Business Day (and, with respect
to payments of principal, interest thereon shall be payable at the then applicable rate during such
extension) unless the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately preceding Business
Day.




          (c) Unless the Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent, and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If
such amount is not made available to the Administrative Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to (i) the daily average of the greater of (A) the Federal Funds
Effective Rate and (B) a rate determined by the Administrative Agent in accordance with banking
industry rates on interbank compensation (in the case of a borrowing of Revolving Credit Loans
denominated in Dollars) and (ii) the greater of (A) the daily average of the greater of (1) the
Federal Funds Effective Rate and (2) a rate determined by the Administrative Agent in accordance
with banking industry rates on interbank compensation or (B) the Administrative Agent’s reasonable
estimate of its average daily cost of funds (in the case of a borrowing of Multicurrency Loans), in
each case for the period until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection shall be conclusive in the absence of manifest
error. If such Lender’s share of such borrowing is not made available to the Administrative Agent
by such Lender within three Business Days of such Borrowing Date, the Administrative Agent shall
also be entitled to recover such amount with interest thereon equal to (x) the rate per annum
applicable to ABR Loans hereunder (in the case of a borrowing of Revolving Credit Loans denominated
in Dollars) and (y) the greater of (1) the rate per annum applicable to ABR Loans hereunder or (2)
the Administrative Agent’s reasonable estimate of its average daily cost of funds plus the
Applicable Margin applicable to Multicurrency Loans (in the case of a borrowing of Multicurrency
Loans), on demand, from the Borrower (without prejudice to any rights Borrower may have against any
such Lender).




33









 








          3.8 Illegality




     Notwithstanding any other provision herein, if any Lender determines that the adoption of or
any change in any Requirement of Law or any change in the interpretation or application thereof
after the date hereof shall make it unlawful for such Lender to make or maintain LIBOR Loans or
Multicurrency Loans as contemplated by this Agreement, then, on notice thereof by such Lender to
the Borrower through the Administrative Agent, (a) the commitment of such Lender hereunder to make
LIBOR Loans or Multicurrency Loans, continue LIBOR Loans or Multicurrency Loans as such and convert
ABR Loans to LIBOR Loans shall forthwith be suspended until such Lender notifies the Administrative
Agent and the Borrower that the circumstances giving rise to such determination no longer exists
(which notification shall be promptly given to Borrower after the Administrative Agent receives
actual knowledge thereof), (b) such Lender’s Loans then outstanding as LIBOR Loans (excluding
Multicurrency Loans), if any, shall be converted automatically to ABR Loans on the respective last
days of the then current Interest Periods with respect to such Loans or within such earlier period
as required by law and (c) such Lender’s Multicurrency Loans shall be prepaid on the last day of
the then current Interest Period with respect thereto or within such earlier period as required by
law. If any such conversion or prepayment of a LIBOR Loan occurs on a day which is not the last
day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender
such amounts, if any, as may be required pursuant to subsection 3.11.



          3.9 Requirements of Law




          (a) If the adoption of or any change in any Requirement of Law or any change in the
interpretation or application thereof or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:





     (i) shall subject any Lender to any tax of any kind whatsoever with respect to
this Agreement, any Note, any Letter of Credit, any Application, any LIBOR Loan, or
any Multicurrency Loan made by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for Non-Excluded Taxes covered by subsection
3.10 and changes in the rate of tax on the overall net income or franchise taxes (in
lieu of net income taxes) of such Lender imposed by the jurisdiction where such
Lender’s principal or lending office is located);




     (ii) shall impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other extensions of credit
by, or any other acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Adjusted LIBO Rate; or




     (iii) shall impose on such Lender any other condition;


and the result of any of the foregoing is to increase the cost to such Lender, by an amount which
such Lender deems to be material, of making, converting into, continuing or maintaining LIBOR

34









 








Loans or Multicurrency Loans, or issuing or participating in Letters of Credit or to reduce any
amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly
pay such Lender such additional amount or amounts as will compensate such Lender for such increased
cost or reduced amount receivable.




          (b) If any Lender shall have determined that after the date hereof the adoption of or any
change in any Requirement of Law regarding capital adequacy or any change in the interpretation or
application thereof or compliance by such Lender or any corporation controlling such Lender with
any request or directive regarding capital adequacy (whether or not having the force of law) from
any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the
rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations
hereunder or under any Letter of Credit to a level below that which such Lender or such corporation
could have achieved but for such adoption, change or compliance (taking into consideration such
Lender’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, the Borrower shall promptly pay to such Lender
such additional amount or amounts as will compensate such Lender or such corporation for such
reduction.




          (c) If any Lender becomes entitled to claim any additional amounts pursuant to this
subsection, it shall notify the Borrower (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled; provided that if such Lender fails to notify the
Borrower that such Lender intends to claim any such reimbursement or compensation within 120 days
after such Lender has knowledge of its claim therefor, the Borrower shall not be obligated to
compensate such Lender for the amount of such Lender’s claim accruing prior to the date which is
120 days before the date on which such Lender first notifies the Borrower that it intends to make
such claim; it being understood that the calculation of the actual amounts may not be practicable
within such period and such Lender may provide such calculation as soon as reasonably practicable
thereafter without affecting or limiting the Borrower’s payment obligations hereunder. A
certificate as to any additional amounts payable pursuant to this subsection submitted by such
Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive in the absence
of manifest error. The agreements in this subsection shall survive the termination of this
Agreement and each other Loan Document and the payment of the Loans and all other amounts payable
hereunder and thereunder.




          3.10 Taxes




          (a) All payments made by the Borrower under any Loan Document shall be made free and clear of,
and without deduction or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding net
income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having executed, delivered
or performed its obligations or received a payment

35









 








under, or enforced, any Loan Document). If any such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be
withheld from any amounts payable to the Administrative Agent or any Lender hereunder or under any
other Loan Document, the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in such Loan Document, provided, however, that
the Borrower shall not be required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection. Whenever any Non-Excluded Taxes
are payable by the Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt received by the Borrower showing payment thereof.
If the Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or
fails to remit to the Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders for any incremental
taxes, interest or penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure. The agreements in this subsection shall survive the termination of
this Agreement and each other Loan Document and the payment of the Loans and all other amounts
payable hereunder and thereunder.




          (b) Each Lender (or Transferee) that is not a citizen or resident of the United States of
America, a corporation, partnership or other entity created or organized in or under the laws of
the United States of America (or any jurisdiction thereof), or any estate or trust that is subject
to federal income taxation regardless of the source of its income (a “Non-U.S. Lender”)
shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant, to
the Lender from which the related participation shall have been purchased) two copies of either
U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender
claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of “portfolio interest” a statement substantially in the form of
Exhibit D and a Form W-8BEN, or any subsequent versions thereof or successors thereto
properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or a
reduced rate of, U.S. federal withholding tax on all payments by the Borrower under this Agreement
and the other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on or before
the date it becomes a party to any Loan Document (or, in the case of any Participant, on or before
the date such Participant purchases the related participation). In addition, each Non-U.S. Lender
shall deliver such forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any
time it determines that it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of this paragraph, a Non-U.S.
Lender shall not be required to deliver any form pursuant to this paragraph that such Non-U.S.
Lender is not legally able to deliver.




          (c) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty

36









 








to which such jurisdiction is a party, with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed
by applicable law or reasonably requested by the Borrower, 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, provided that such Lender is legally entitled to
complete, execute and deliver such documentation and in such Lender’s reasonable judgment such
completion, execution or submission would not materially prejudice the legal position of such
Lender.




          (d) If any Lender or the Administrative Agent receives a refund or credit in respect of any
amounts paid by the Borrower pursuant to this section 3.10, which refund or credit in the sole good
faith judgment of such Lender or Administrative Agent is allocable to such payment, it shall notify
the Borrower of such refund or credit and shall, within 20 days after receipt, repay such refund or
credit to the Borrower net of all out-of-pocket expenses of such Lender or the Administrative
Agent; provided, however, that the Borrower, upon the request of such Lender or the Administrative
Agent, agrees to repay the amount paid over to the Borrower to such Lender or the Administrative
Agent in the event such Lender or the Administrative Agent is required to repay such refund or
credit.




          3.11 Break Funding Payments




          The Borrower agrees to indemnify each Lender and to hold each Lender harmless from any loss or
expense which such Lender may sustain or incur, including, to the extent any of the Loans are
denominated in any Available Foreign Currency, the losses and expenses of such Lender attributable
to the premature unwinding of any Hedging Agreement entered into by such Lender in respect of the
foreign currency exposure attributable to such Loan, as a consequence of (a) default by the
Borrower in making a conversion into or continuation of LIBOR Loans, after the Borrower has given a
notice requesting the same in accordance with the provisions of this Agreement, (b) default by the
Borrower in making any prepayment after the Borrower has given a notice thereof in accordance with
the provisions of this Agreement or any other Loan Document, or (c) the making of a prepayment of
LIBOR Loans, or the conversion of LIBOR Loans to ABR Loans, on a day which is not the last day of
an Interest Period with respect thereto or (d) any assignment as a result of a request by the
Borrower pursuant to subsection 3.12 of any LIBOR Loan. Such indemnification may include an amount
equal to the excess, if any, of (i) the amount of interest which would have accrued on the amount
so prepaid or converted, or not so borrowed, prepaid, converted or continued, for the period from
the date of such prepayment or conversion or of such failure to borrow, prepay, convert or continue
to the last day of such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such failure) at the
applicable rate of interest for such Loans provided for herein over (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Lender on such amount by
placing such amount on deposit for a comparable period with leading banks in the interbank
eurodollar market. This covenant shall survive the termination of this Agreement and each other
Loan Document and the payment of the Loans and all other amounts payable hereunder and thereunder.
A certificate as to any additional amounts payable pursuant to this subsection submitted by such
Lender to the

37









 








Borrower (with a copy to the Administrative Agent) shall be conclusive in the absence of
manifest error.




          3.12 Change of Lending Office; Removal of Lender




          Each Lender agrees that if it makes any demand for payment under subsection 3.9 or 3.10(a), or
if any adoption or change of the type described in subsection 3.8 shall occur with respect to it,
(i) it will use reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as determined in its
sole discretion) to designate a different lending office if the making of such a designation would
reduce or obviate the need for the Borrower to make payments under subsection 3.9 or 3.10(a), or
would eliminate or reduce the effect of any adoption or change described in subsection 3.8 or (ii)
it will, upon at least five Business Days’ notice from the Borrower to such Lender and the
Administrative Agent, assign, pursuant to and in accordance with the provisions of subsection 11.6,
to one or more Assignees designated by the Borrower all, but not less than all, of such Lender’s
rights and obligations hereunder, without recourse to or warranty by, or expense to, such Lender,
for a purchase price equal to the outstanding principal amount of each Revolving Credit Loan then
owing to such Lender plus any accrued but unpaid interest thereon and any accrued but
unpaid facility fees and utilization fees owing thereto and, in addition, all additional costs and
reimbursements, expense reimbursements and indemnities, if any, owing in respect of such Lender’s
Commitment hereunder at such time (including any amount that would be payable under subsection 3.11
if such assignment were, instead, a prepayment in full of all amounts owing to such Lender and also
including all amounts then payable to such Lender pursuant to subsections 3.9 and/or 3.10) shall be
paid to such Lender.




          3.13 Evidence of Debt




          (a) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing indebtedness of the Borrower to such Lender resulting from each Loan of such Lender from
time to time, including the amounts of principal and interest payable and paid to such Lender from
time to time under this Agreement.




          (b) The Administrative Agent shall maintain the Register pursuant to subsection 11.6(b), and a
subaccount therein for each Lender, in which shall be recorded (i) in the case of Revolving Credit
Loans and Swingline Loans, the amount of each Revolving Credit Loan or Swingline Loan made
hereunder, the Type thereof and each Interest Period applicable thereto, (ii) in the case of
Multicurrency Loans, the amount and currency of each Multicurrency Loans and each Interest Period
applicable thereto, (iii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder and (iv) both the amount of any sum received
by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.




          (c) The entries made in the Register and the accounts of each Lender maintained pursuant to
subsection 3.13(a) shall, to the extent permitted by applicable law, be prima facie
evidence of the existence and amounts of the obligations of the Borrower therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain the

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Register or any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to such Borrower by
such Lender in accordance with the terms of this Agreement.




          (d) The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the
Borrower will execute and deliver to such Lender a promissory note of the Borrower evidencing the
Revolving Credit Loans of such Lender, substantially in the form of Exhibit E with
appropriate insertions as to date and principal amount (a “Revolving Credit Note”).




          (e) The Borrower agrees that, upon the request of the Swingline Lender, the Borrower will
execute and deliver to such Lender a promissory note of the Borrower evidencing the Swingline Loans
of such Lender, substantially in the form of Exhibit F with appropriate insertions (a
“Swingline Note”).




SECTION 4. LETTERS OF CREDIT




          4.1 L/C Commitment




          (a) Subject to the terms and conditions hereof, the Issuing Lender, in reliance on the
agreements of the other Lenders set forth in subsection 4.4(a), agrees to issue standby letters of
credit (“Letters of Credit”) for the account of the Borrower on any Business Day during the
Commitment Period in such form as may be approved from time to time by the Issuing Lender;
provided that the Issuing Lender shall have no obligation to issue any Letter of Credit if,
after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment or
(ii) the Aggregate Revolving Credit Outstandings would exceed the Aggregate Revolving Credit
Commitments. Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no later
than the date that is one Business Day prior to the Termination Date. The Existing Letters of
Credit will be deemed Letters of Credit issued on the Closing Date for all purposes hereunder.




          (b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if
such issuance would conflict with, or cause the Issuing Lender or any L/C Participant to exceed any
limits imposed by, any applicable Requirement of Law.




          4.2 Procedure for Issuance of Letter of Credit




          The Borrower may from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an Application
therefor, completed to the satisfaction of the Issuing Lender, and such other certificates,
documents and other papers and information as the Issuing Lender may reasonably request. Upon
receipt of any Application, the Issuing Lender will process such Application and the certificates,
documents and other papers and information delivered to it in connection therewith in accordance
with its customary procedures, provided that if the Borrower furnishes to the Issuing Lender all of
the foregoing documentation by no later than 12:00 P.M. on the day which is at least two Business
Days prior to the proposed date of issuance, such issuance shall occur by no later than 5:00 P.M.
on the proposed date of issuance. The Issuing Lender shall furnish a copy of such Letter of Credit
to the Borrower promptly following the issuance thereof

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and shall deliver the original thereof in accordance with the relevant Application. The Issuing
Lender shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to
the Lenders, notice of the issuance of each Letter of Credit (including the amount thereof).




          4.3 Fees and Other Charges




          (a) The Borrower will pay a fee on all outstanding Letters of Credit at a per annum rate equal
to the Applicable Margin in effect from time to time with respect to LIBOR Loans, shared ratably
among the Revolving Lenders and payable quarterly in arrears on each L/C Fee Payment Date after the
issuance date (it being understood that with respect to the Existing Letters of Credit, the
issuance date shall be deemed to be the Closing Date). In addition, the Borrower shall pay to the
Issuing Lender for its own account a fronting fee of 0.125% per annum on the undrawn and unexpired
amount of each Letter of Credit, payable quarterly in arrears on each L/C Fee Payment Date after
the issuance date (it being understood that with respect to the Existing Letters of Credit, the
issuance date shall be deemed to be the Closing Date).




          (b) In addition to the foregoing fees, the Borrower shall pay or reimburse the Issuing Lender
for such normal and customary costs and expenses as are incurred or charged by the Issuing Lender
in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of
Credit.




          4.4 L/C Participations




          (a) The Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant,
and, to induce the Issuing Lender to issue Letters of Credit, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender, on the
terms and conditions set forth below, for such L/C Participant’s own account and risk an undivided
interest equal to such L/C Participant’s Revolving Credit Commitment Percentage in the Issuing
Lender’s obligations and rights under and in respect of each Letter of Credit and the amount of
each draft paid by the Issuing Lender thereunder. Each L/C Participant unconditionally and
irrevocably agrees with the Issuing Lender that, if a draft is paid under any Letter of Credit for
which the Issuing Lender is not reimbursed in full by the Borrower in accordance with the terms of
this Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at the Issuing
Lender’s address for notices specified herein an amount equal to such L/C Participant’s Revolving
Credit Commitment Percentage of the amount of such draft, or any part thereof, that is not so
reimbursed; provided, however, that subject to subsection 4.4(b) hereof, notwithstanding anything
in this Agreement to the contrary, in respect of each drawing under any Letter of Credit, the
maximum amount that shall be payable by any L/C Participant, whether as a Revolving Credit Loan
pursuant to subsection 4.5 and/or as a participation pursuant to this subsection 4.4(a), shall not
exceed such L/C Participant’s Revolving Credit Commitment Percentage of the amount of such draft,
or any part thereof, that is not so reimbursed by the Borrower.




          (b) If any amount required to be paid by any L/C Participant to the Issuing Lender pursuant to
subsection 4.4(a) in respect of any unreimbursed portion of any payment made by the Issuing Lender
under any Letter of Credit is not paid to the Issuing Lender on the date such

40









 








payment is due, but is paid to the Issuing Lender within three Business Days after the date
such payment is due, such L/C Participant shall pay to the Issuing Lender on demand an amount equal
to the product of (i) such amount, times (ii) the daily average of the greater of (A) the Federal
Funds Effective Rate and (B) a rate determined by the Administrative Agent in accordance with
banking industry rates on interbank compensation during the period from and including the date such
payment is required to the date on which such payment is immediately available to the Issuing
Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to subsection 4.4(a) is not made available to the Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, the Issuing Lender shall
be entitled to recover from such L/C Participant, on demand, such amount with interest thereon
calculated from such due date at the rate per annum applicable to ABR Loans. A certificate of the
Issuing Lender submitted to any L/C Participant with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error. Notwithstanding anything
contained herein to the contrary, until a L/C Participant funds any amount required to be paid by
such L/C Participant to the Issuing Lender pursuant to subsection 4.4(a), interest allocable to or
in respect of such amount shall be solely for the account of the Issuing Lender.




          (c) Whenever, at any time after the Issuing Lender has made payment under any Letter of Credit
and has received from any L/C Participant its pro rata share of such payment in
accordance with subsection 4.4(a), the Issuing Lender receives any payment related to such Letter
of Credit (whether directly from the Borrower or otherwise, including proceeds of collateral
applied thereto by the Issuing Lender), or any payment of interest on account thereof, the Issuing
Lender will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by the Issuing
Lender shall be required to be returned by the Issuing Lender, such L/C Participant shall return to
the Issuing Lender the portion thereof previously distributed by the Issuing Lender to it.




          4.5 Reimbursement Obligation of the Borrower




          The Borrower agrees to reimburse the Issuing Lender on the Business Day next succeeding the
Business Day on which the Issuing Lender notifies the Borrower of the date and amount of a draft
presented under any Letter of Credit and paid by the Issuing Lender for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses incurred by the Issuing
Lender in connection with such payment. Each such payment shall be made to the Issuing Lender in
Dollars and in immediately available funds. Interest shall be payable on any such amounts from the
date on which the relevant draft is paid until payment in full at the rate set forth in (i) until
the Business Day next succeeding the date of the relevant notice, subsection 3.4(b) and (ii)
thereafter, subsection 3.4(d). Each drawing under any Letter of Credit shall (unless an event of
the type described in subsection 9(c), or (h) shall have occurred and be continuing with respect to
the Borrower, in which case the procedures specified in subsection 4.4 for funding by L/C
Participants shall apply) constitute a request by the Borrower to the Administrative Agent for a
borrowing pursuant to subsection 2.2 of ABR Loans in the amount of such drawing (and the minimum
borrowing amount in such subsection shall not apply to such borrowing). The Borrowing Date with
respect to such borrowing shall be the first date

41









 








on which a borrowing of Revolving Credit Loans could be made, pursuant to subsection 2.2, if the
Administrative Agent had received a notice of such borrowing at the time the Administrative Agent
receives notice from the relevant Issuing Lender of such drawing under such Letter of Credit.




          4.6 Obligations Absolute




          The Borrower’s obligations under this Section 4 shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the
Borrower may have or have had against the Issuing Lender, any L/C Participant, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with the Issuing Lender and the L/C
Participants that the Issuing Lender and the L/C Participants shall not be responsible for, and the
Borrower’s Reimbursement Obligations under subsection 4.5 shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among
the Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any beneficiary of such
Letter of Credit or any such transferee. The Issuing Lender and the L/C Participants shall not be
liable for, and the Borrower’s Reimbursement Obligations under subsection 4.5 shall not be affected
by, any error, omission, interruption or delay in transmission, dispatch or delivery of any message
or advice, however transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Issuing Lender. The Borrower
agrees that any action taken or omitted by the Issuing Lender under or in connection with any
Letter of Credit or the related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards of care specified in the Uniform Commercial
Code of the State of New York, shall be binding on the Borrower and shall not result in any
liability of the Issuing Lender or any L/C Participant to the Borrower.




          4.7 Letter of Credit Payments




          If any draft shall be presented for payment under any Letter of Credit, the Issuing Lender
shall promptly notify the Borrower of the date and amount thereof. The responsibility of the
Issuing Lender to the Borrower in connection with any draft presented for payment under any Letter
of Credit shall, in addition to any payment obligation expressly provided for in such Letter of
Credit, be limited to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in conformity with
 such Letter of Credit.




          4.8 Cash Collateralization 




          If an Event of Default shall occur and be continuing and the Borrower receives notice from the
Administrative Agent or the Majority Lenders demanding the deposit of cash collateral pursuant to
this paragraph, the Borrower shall immediately deposit into an account established and maintained
on the books and records of the Administrative Agent, which account

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may be a “securities account” (within the meaning of Section 8-501 of the Uniform Commercial
Code as in effect in the State of New York), in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the L/C Obligations as of such date plus
any accrued and unpaid interest thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to the Borrower described in paragraph (e) or (i) of Section 9. Such deposit shall be
held by the Administrative Agent as collateral for the L/C Obligations under this Agreement, and
for this purpose the Borrower hereby grants a security interest to the Administrative Agent for the
benefit of the Lenders in such collateral account and in any financial assets (as defined in the
Uniform Commercial Code as in effect in the State of New York) or other property held therein. The
Administrative Agent shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment of such deposits,
which investments shall be made at the option and sole discretion of the Administrative Agent and
at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such account shall be applied
by the Administrative Agent to reimburse the Issuing Lender for L/C Obligations for which it has
not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower in respect of the other L/C Obligations at such time or,
if the maturity of the Loans has been accelerated but subject to the consent of the Issuing Lender,
be applied to satisfy other Obligations; provided, however, that the Borrower shall be entitled to
all deposits in such account at such time as no Event of Default shall then exist.




          4.9 Letter of Credit Rules




     Unless otherwise expressly agreed by the Issuing Lender and the Borrower, when a Letter of
Credit is issued (including any such agreement applicable to an Existing Letter of Credit), the
rules of the “International Standby Practices 1998” published by the Institute of International
Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance)
shall apply to such Letter of Credit.



SECTION 5. REPRESENTATIONS AND WARRANTIES




     To induce the Administrative Agent and the Lenders to enter into this Agreement and to make
the Loans and issue or participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:



          5.1 Financial Condition




          (a) The consolidated and consolidating balance sheets of the Borrower and its consolidated
Subsidiaries as at December 25, 2004 and December 27, 2003, respectively, and the related
consolidated and consolidating statements of operations and of cash flows for the fiscal years
ended on such dates, reported on by BDO Seidman, LLP, copies of which have heretofore been
furnished to each Lender, present fairly, in all material respects, the consolidated and
consolidating financial condition of the Borrower and its consolidated Subsidiaries as at such

43









 








dates, and the consolidated and consolidating results of their operations and of their cash
flows for the fiscal years then ended. All such financial statements, including the related
schedules and notes thereto, were, as of the date prepared, prepared in accordance with GAAP
applied consistently throughout the periods involved (except as otherwise expressly noted therein,
and show all material Indebtedness and other liabilities, direct or contingent, of the Borrower and
each of its Subsidiaries as of the dates thereof, including liabilities for taxes, material
commitments and Indebtedness. Neither the Borrower nor any of its consolidated Subsidiaries had,
at the date of the most recent balance sheets referred to above, any material Guarantee Obligation,
material contingent liability or material liability for taxes, or any material long-term lease or
material forward or long-term commitment, including, without limitation, any interest rate or
foreign currency swap or exchange transaction, which is not reflected in the foregoing statements
or in the notes thereto.




          (b) As of the date hereof, there are no material liabilities or obligations of the Borrower or
any of its Subsidiaries, whether direct or indirect, absolute or contingent, or matured or
unmatured, other than (i) as disclosed or provided for in the financial statements and notes
thereto which are referred to above, or (ii) which are disclosed elsewhere in this Agreement or in
the Schedules hereto, or (iii) arising in the ordinary course of business since December 25, 2004
or (iv) created by this Agreement. As of the date hereof, the written information, exhibits and
reports furnished by the Borrower to the Lenders in connection with the negotiation of this
Agreement, taken as a whole, are complete and correct in all material respects.




          5.2 No Material Adverse Change




          Since December 25, 2004, there has been no development or event which has had or could
reasonably be expected to have a Material Adverse Effect.




          5.3 Organization; Powers




          Each of the Borrower and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the requisite corporate or
other applicable power and authority, and the legal right, to own and operate its property, to
lease the property it operates as lessee and to conduct the business in which it is currently
engaged, (c) is duly qualified as a foreign corporation or other applicable entity and in good
standing (or equivalent status) under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification and (d) is in
compliance with all Requirements of Law (provided that no representation or warranty is made in
this subsection 5.3(d) with respect to Requirements of Law referred to in subsections 5.8, 5.10,
5.14 or 5.15), except to the extent that the failure of the foregoing clauses (a) (only with
respect to Subsidiaries of the Borrower which are not Guarantors), (c) and (d) to be true and
correct could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.




          5.4 Authorization; Enforceability




          Each of the Borrower and its Subsidiaries has the requisite corporate or other applicable
power and authority, and the legal right, to make, deliver and perform the Loan

44









 








Documents to which it is a party, if any, and, in the case of the Borrower, to borrow hereunder and
has taken all necessary corporate action to authorize (in the case of the Borrower) the borrowings
on the terms and conditions of this Agreement, any Notes and any Applications and to authorize the
execution, delivery and performance of the Loan Documents to which it is a party. No consent or
authorization of, filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required with respect to the Borrower or any of its Subsidiaries
in connection with the borrowings hereunder or with the execution, delivery, performance, validity
or enforceability of the Loan Documents to which the Borrower or any Guarantor (if any) is a party.
This Agreement and each other Loan Document to which the Borrower or any Guarantor (if any) is, or
is to become, a party has been or will be, duly executed and delivered on behalf of the Borrower or
such Guarantor (if any). This Agreement and each other Loan Document to which the Borrower or any
Guarantor (if any) is, or is to become, a party constitutes or will constitute, a legal, valid and
binding obligation of the Borrower or such Guarantor (if any), as the case may be, enforceable
against the Borrower or such Guarantor (if any), as the case may be, in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.




          5.5 Governmental Approvals; No Conflicts




          The execution, delivery and performance of the Loan Documents, the borrowings hereunder and
the use of the proceeds thereof will not violate any Requirement of Law or Contractual Obligation
of the Borrower or of any of its Subsidiaries which could reasonably be expected to have a Material
Adverse Effect and will not result in, or require, the creation or imposition of any Lien on any of
its or their respective properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation which could reasonably be expected to have a Material Adverse Effect




          5.6 No Material Litigation




          No litigations, investigations or proceedings of or before any arbitrator or Governmental
Authority are pending or, to the knowledge of the Borrower, threatened by or against the Borrower
or any of its Subsidiaries or against any of its or their respective properties (a) with respect to
any of the Loan Documents or any of the transactions contemplated hereby or thereby, or (b) as to
which (i) there is a reasonable likelihood of an adverse determination and (ii) that, if adversely
determined, would, individually or in the aggregate, have a Material Adverse Effect.




45









 








          5.7 Compliance with Laws and Agreements




          Each of the Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all Contractual
Obligations binding upon it or its property, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No Default
has occurred and is continuing.




          5.8 Taxes




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




          5.9 Purpose of Loans




          The purpose of the Loans is to finance the working capital and general corporate needs of the
Borrower and its Subsidiaries, including, but not limited to, acquisitions.




          5.10 Environmental Matters




          (a) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability or has
actual knowledge of a potential claim that is reasonably likely to result in Environmental
Liability to the Borrower or any of its Subsidiaries or (iii) has received written notice of any
claim with respect to any Environmental Liability.




          (b) Since the date of this Agreement, with respect to any Environmental Liability, there has
been no change in the status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse Effect.




          5.11 Disclosure




          The statements and information contained herein and in any of the information provided to the
Administrative Agent or the Lenders in writing (other than financial projections) in connection
with or pursuant to this Agreement, taken as a whole, do not contain any untrue statement of any
material fact, or omit to state a fact necessary in order to make such statements or information
not misleading in any material respect, in each case in light of the circumstances under which such
statements were made or information provided as of the date so provided. The financial projections
contained in the April 2005 Confidential Information Memorandum,

46









 








furnished to the Administrative Agent and the Lenders in writing in connection with this Agreement,
have been prepared in good faith based upon assumptions which were in the Borrower’s judgment
reasonable when such projections were made, it being acknowledged that such projections are subject
to the uncertainty inherent in all projections of future results and that there can be no assurance
that the results set forth in such projections will in fact be realized.




          5.12 Ownership of Property: Liens




          Each of the Borrower and its Subsidiaries has good record and marketable title in fee simple
to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of
its business, except for such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.




          5.13 ERISA




          No ERISA Event has occurred or is reasonably expected to occur that, when taken together with
all other such ERISA Events for which liability is reasonably expected to occur, could reasonably
be expected to result in a Material Adverse Effect. The present value of all accumulated benefit
obligations under each Plan (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $20,000,000 the fair market value of the assets of
such Plan, and the present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such amounts, exceed by
more than $20,000,000 the fair market value of the assets of all such underfunded Plans.




          5.14 Subsidiaries




          The Borrower has no Subsidiaries other than those specifically disclosed in Part (a) of
Schedule 5.14 (other than those which are “shell” or “inactive” Subsidiaries, as such terms are
defined in subsection 8.4(d)) and has no equity investments in any other corporation or entity
other than those specifically disclosed in Part (b) of Schedule 5.14.




          5.15 Investment and Holding Company Status




          Neither the Borrower nor any of its Subsidiaries is (a) an “investment company” as defined in,
or subject to regulation under, the Investment Company Act of 1940 or (b) a “holding company” as
defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935.




          5.16 Guarantors




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          As of the Closing Date and after giving effect to the transactions contemplated hereby, no
Subsidiary has issued or is subject to any Guarantee Obligation in respect of any debt securities
or bank debt of the Borrower other than in respect of the Note Purchase Agreements.




SECTION 6. CONDITIONS PRECEDENT




          6.1 Conditions to Initial Loans and Letters of Credit




          The agreement of each Lender to make the initial Loan requested to be made by it, or the
Issuing Lender to issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction on the Closing Date of the following conditions precedent:




          (a) Unless waived by all the Lenders, the Administrative Agent’s receipt of the following,
each of which shall be originals unless otherwise specified, each properly executed by a
Responsible Officer of the Borrower or a Guarantor, as the case may be (to the extent there are any
Guarantors as of the Closing Date), each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form and substance
reasonably satisfactory to the Administrative Agent and its legal counsel:





     (i) executed counterparts of this Agreement, sufficient in number for
distribution to the Administrative Agent, each Lender, the Borrower and each
Guarantor (to the extent there are any Guarantors as of the Closing Date);




     (ii) Revolving Credit Notes executed by the Borrower in favor of each Lender
requesting such a Note, each in a principal amount equal to such Lender’s
Commitment;




     (iii) a Swingline Note executed by the Borrower in favor of the Swingline
Lender (if it requests such a Note) in the principal amount of the Swingline
Commitment;




     (iv) such certificates of resolutions or other action, incumbency certificates
and/or other certificates of Responsible Officers of the Borrower and/or any of the
Guarantors (to the extent there are any Guarantors as of the Closing Date) as the
Administrative Agent may require to evidence the identities, authority and capacity
of each Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents;




     (v) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each of the Borrower and each Guarantor (to the
extent there are any Guarantors as of the Closing Date) is duly organized or formed,
validly existing and in good standing, including certified copies of the
organization documents and certificates of good standing with respect to the
Borrower and the Guarantors (to the extent there are any Guarantors as of the
Closing Date);



48









 






     (vi) a certificate signed by a Responsible Officer of the Borrower certifying
that the conditions specified in subsections 6.2(a) and (b) have been satisfied as
of the Closing Date (including, solely for purposes of this Section 6.1, the
representations made in subsections 5.2 and 5.6);




     (vii) an opinion of counsel to the Borrower and the Guarantors (to the extent
there are any Guarantors as of the Closing Date) in substantially the form set forth
in Exhibit G;




     (viii) evidence that the Existing Facility has been or concurrently with the
Closing Date is being terminated, all Indebtedness and obligations of the Borrower
incurred thereunder have been, or with the initial Revolving Credit Loans hereunder
on the Closing Date will be, repaid and the Borrower and its Subsidiaries released
from all liability thereunder (except such as by their express terms survive such
repayment and termination), and all Liens, if any, securing obligations under the
Existing Facility have been or concurrently with the Closing Date are being
released;




     (ix) a compliance certificate in the form attached hereto as Exhibit H,
signed by a Responsible Officer of the Borrower dated as of the Closing Date
demonstrating compliance with the financial covenants contained in subsection 8.1 as
of the end of the fiscal quarter most recently ended prior to the Closing Date; and




     (x) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent or the Majority Lenders may reasonably require.



          (b) Any fees required to be paid on or before the Closing Date shall have been paid.




          (c) The Borrower shall have paid all Attorney Costs of the Administrative Agent to the extent
invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall
constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter preclude a final settling of
accounts between the Borrower and the Administrative Agent).




          (d) In the good faith judgment of the Administrative Agent and the Lenders:





     (i) there shall not have occurred or become known to the Administrative Agent
or any of the Lenders any event, condition, situation or status since the date of
the information contained in the financial and business projections, budgets, pro
forma data and forecasts concerning the Borrower and its Subsidiaries delivered to
the Administrative Agent and the Lenders prior to the Closing Date that has had or
could reasonably be expected to result in a Material Adverse Effect;



49









 






     (ii) no litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding shall be pending or threatened which could
reasonably be likely to result in a Material Adverse Effect; and




     (iii) the Borrower shall have received all approvals, consents and waivers, and
shall have made or given all necessary filings and notices, as shall be required to
consummate the transactions contemplated hereby without the occurrence of any
material default under, conflict with or violation of (A) any applicable law, rule,
regulation, order or decree of any Governmental Authority or arbitral authority or
(B) any agreement, document or instrument to which the Borrower or any Subsidiary is
a party or by which any of them or their properties is bound.



          6.2 Conditions to Each Loan and Letter of Credit




          The agreement of each Lender to make any Loan requested to be made by it on any date, or the
Issuing Lender to issue, amend, renew or extend any Letter of Credit (including, without
limitation, its initial Loan) is subject to the satisfaction of the following conditions precedent:




          (a) Representations and Warranties.




          Each of the representations and warranties made by the Borrower in or pursuant to the Loan
Documents (excluding the representations made in subsections 5.2 and 5.6) shall be true and correct
in all material respects on and as of such date as if made on and as of such date (or, if such
representation or warranty is expressly stated to have been made as of a specific date, as of such
specific date).




          (b) No Default.




          No Default or Event of Default shall have occurred and be continuing on such date or after
giving effect to the Loans requested to be made or the Letter(s) of Credit requested to be issued,
amended, renewed or extended.




          (c) Other Documents.




          The Administrative Agent shall have received, in form and substance reasonably satisfactory to
it, such other assurances, certificates, documents or consents related to the foregoing as the
Administrative Agent or the Majority Lenders reasonably may require.



Each Borrowing (and request for the same) by the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date hereof that the conditions contained in
this subsection have been satisfied.




SECTION 7. AFFIRMATIVE COVENANTS




     The Borrower hereby agrees that, so long as the Commitments (or any of them) remain in effect,
any Letter of Credit is outstanding or any amount is owing to any Lender or the



50









 




Administrative Agent hereunder or under any other Loan Document, the Borrower shall, and
(except in the case of delivery of financial information, reports and notices) shall cause each of
its Subsidiaries to:




          7.1 Financial Statements.




          Furnish to each Lender:




          (a) as soon as available, but in any event within 90 days (or, to the extent the Borrower is a
reporting company under the Securities Act of 1933, as amended, such shorter period as shall be
required under the applicable rules of the Securities and Exchange Commission for the filing of its
annual report on Form 10-K) after the end of each fiscal year of the Borrower, a copy of the
audited consolidated and consolidating balance sheets of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related consolidated and consolidating statements
of operations and stockholders’ equity and of cash flows for such year, setting forth in each case
in comparative form the figures as of the end of and for the previous year, reported on without a
qualification arising out of the scope of the audit, by BDO Seidman, LLP or any other independent
certified public accountants of nationally recognized standing reasonably acceptable to the
Majority Lenders, including an executive summary of the management letter prepared by such
accountants; provided, however, that if a Default or Event of Default shall have occurred and shall
be continuing, the full text of such management letter shall be provided to the Administrative
Agent; and




          (b) as soon as available, but in any event not later than 45 days (or, to the extent the
Borrower is a reporting company under the Securities Act of 1933, as amended, such shorter period
as shall be required under the applicable rules of the Securities and Exchange Commission for the
filing of its quarterly report on Form 10-Q) after the end of each of the first three quarterly
periods of each fiscal year of the Borrower, the unaudited consolidated and consolidating balance
sheets of the Borrower and its consolidated Subsidiaries as at the end of each such quarter and the
related unaudited consolidated and consolidating statements of operations and of cash flows for
such quarter and the portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the figures as of the end of and for the corresponding period or
periods in the previous year, all certified by a Responsible Officer of the Borrower as being
fairly stated in all material respects (subject to normal, recurring, year-end audit adjustments
and the absence of GAAP notes thereto).




          (c) All such financial statements shall be prepared in reasonable detail and in accordance
with GAAP applied consistently throughout the periods reflected therein and with prior periods
(subject, in the case of the aforesaid quarterly financial statements, to normal, recurring,
year-end audit adjustments and the absence of GAAP notes thereto).




51









 








          7.2 Certificates; Other Information




          Furnish to the Administrative Agent and each of the Lenders:




          (a) simultaneously with the delivery of the financial statements referred to in subsections
7.1(a) and (b), a certificate of the chief financial officer of the Borrower, certifying that to
the best of his knowledge (i) no Default or Event of Default has occurred and is continuing or, if
a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof
and the action which is proposed to be taken with respect thereto, with computations demonstrating
compliance (or non-compliance, as the case may be) with the covenants contained in subsection 8.1,
and (ii) such financial statements have been prepared in accordance with GAAP (subject in the case
of subsection 7.1(b) to normal, recurring, year-end adjustments and except for the absence of GAAP
notes thereto);




          (b) promptly, such additional financial and other information as the Administrative Agent or
any Lender through the Administrative Agent may from time to time reasonably request;




          (c) promptly after the same are available, and in any event within five (5) Business Days
after the sending or filing thereof, copies of all proxy statements, financial statements and
reports which the Borrower or any of its Subsidiaries sends to its stockholders, and copies of all
regular, periodic and special reports and all registration statements which the Borrower or any
such Subsidiary files with the Securities and Exchange Commission or any governmental authority
which may be substituted therefor, or with any national securities exchange or state securities
administration; and




          (d) simultaneously with the delivery of the annual financial statements referred to in
subsection 7.1(a), a certificate of the independent public accountants who audited such statements
to the effect that, in making the examination necessary for the audit of such statements, they have
obtained no knowledge of any condition or event which constitutes a Default or Event of Default, or
if such accountants shall have obtained knowledge of any such condition or event, specifying in
such certificate each such condition or event of which they have knowledge and the nature and
status thereof.




          7.3 Conduct of Business and Maintenance of Existence




          (a) Preserve, renew and keep in full force and effect its corporate existence and good
standing under the laws of its jurisdiction of organization (except as could not in the aggregate
be reasonably expected to have a Material Adverse Effect or as otherwise permitted hereunder, (b)
take all reasonable action to maintain all rights, privileges and franchises necessary in the
normal conduct of its business, and (c) comply with all Contractual Obligations and Requirements of
Law, except to the extent that failure to comply therewith could not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.




          7.4 Payment of Obligations




52









 








          Pay and discharge all of its obligations and liabilities as the same shall become due and
payable, including (a) all tax liabilities, assessments and governmental charges or levies upon it
or its properties or assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained
by the Borrower or such Subsidiary, (b) all lawful claims which, if unpaid, would by law become a
Lien upon its property (other than Liens permitted by subsection 8.2); and (c) all Indebtedness, as
and when due and payable (after giving effect to any applicable grace periods), (i) but subject to
any subordination provisions contained in any instrument or agreement evidencing such Indebtedness
and (ii) unless the same are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being maintained by the Borrower or
such Subsidiary.




          7.5 Maintenance of Properties




          (a) Maintain, preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary wear and tear excepted,
and (b) make all necessary repairs thereto and renewals and replacements thereof except where the
failure to do so could not reasonably be expected to have a Material Adverse Effect.




          7.6 Maintenance of Insurance




          Maintain, with financially sound and reputable insurance companies, insurance in such amounts
and against such risks as are maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.




          7.7 Books and Records




          Maintain (a) proper books of record and account in conformity with GAAP consistently applied
in which all entries required by GAAP shall be made of all financial transactions and matters
involving the assets and business of the Borrower and its Subsidiaries, and (b) such books of
record and account in conformity with all applicable requirements of any Governmental Authority
having regulatory jurisdiction over the Borrower or any of its Subsidiaries, except where the
failure to so comply would not result in a Material Adverse Effect.




          7.8 Inspection Rights




          Subject to subsection 11.14, permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its officers and independent public accountants, at
such reasonable times during normal business hours as may be reasonably desired, upon reasonable
advance notice to a Responsible Officer of the Borrower or such Guarantor (if any), as the case may
be; provided, however, that (a) the Lenders shall use reasonable efforts to
coordinate with the Administrative Agent in order to minimize the number


53









 








of such inspections and discussions; (b) with respect to access for environmental inspections, the
Administrative Agent shall only have the right to inspect once every twelve months unless the
Administrative Agent has reason to believe that a condition exists or an event has occurred which
reasonably could give rise to liability under the Environmental Laws and (c) when an Event of
Default has occurred and is continuing, the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the foregoing at the expense
of the Borrower at any time during normal business hours and without advance notice.




          7.9 Compliance with Laws




          Comply with all laws, rules, regulations and orders of any Governmental Authority applicable
to it or its property, including all Environmental Laws, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.




          7.10 Use of Proceeds




          Use the proceeds of Loans to refinance existing Indebtedness under the Existing Facility, for
general corporate purposes of the Borrower and its Subsidiaries in the ordinary course of business,
including for acquisitions. No part of the proceeds of any loans will be used, whether directly or
indirectly, for any purpose that entails violation of any of the Regulations of the Board of
Governors of the Federal Reserve System, including Regulations T, U and X.




          7.11 Notices




          Promptly give notice to the Administrative Agent and each Lender upon obtaining actual
knowledge of:




          (a) the occurrence of any Default or Event of Default;




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




          (c) the following events, as soon as possible and in any event within 30 days after the
Borrower knows thereof: (i) the occurrence or reasonably expected occurrence of any ERISA Event
with respect to any Plan, (ii) a failure to make any required contribution to a Plan within the
period required by applicable law, (iii) the creation of any Lien in favor of the PBGC or a Plan or
any withdrawal from, or the termination, Reorganization or Insolvency of, any Multiemployer Plan or
(iv) the institution of proceedings or the taking of any other similar action by the PBGC or the
Borrower or any ERISA Affiliate or any Multiemployer Plan with respect to the withdrawal from, or
the terminating, Reorganization or Insolvency of, any Plan, other than the termination of any
Single Employer Plan that is not a distress termination pursuant to Section 4041(c) of ERISA where,
with respect to any event listed above, the amount of liability the

54









 







Borrower or any ERISA Affiliate could reasonably be expected to have a Material Adverse
Effect; and




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




Each notice delivered pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence or development referred
to therein and stating what action the Borrower proposes to take with respect thereto.




          7.12 Guarantors




          Except as otherwise provided in the immediately succeeding sentence, simultaneously with any
Subsidiary becoming, but only for so long as such Subsidiary shall be, a guarantor under or with
respect to any Indebtedness or other obligations under the Note Purchase Agreements or any other
debt securities or bank debt (it being understood that undrawn commitments in respect of bank
credit facilities shall not constitute “bank debt” for purposes of this definition) issued by the
Borrower, cause such Person to enter into a Guarantee in the form of Exhibit J (or such
other agreement in form and substance reasonably acceptable to the Majority Lenders), and thereupon
such Person shall become a Guarantor hereunder for all purposes. Notwithstanding the immediately
preceding sentence, no Subsidiary shall be required to enter into a Guarantee prior to September
30, 2005 as a result of the existence of any Guarantee Obligation of such Subsidiary under the Note
Purchase Agreements so long as on or prior to September 30, 2005, the Company has obtained releases
of such Guarantee Obligations from at least 75% of each of the 1998 Noteholders and 1999
Noteholders, respectively, of the Guarantee Obligations made in favor of such holders under the
Note Purchase Agreements.




SECTION 8. NEGATIVE COVENANTS




     The Borrower hereby agrees that, so long as the Commitments (or any of them) remain in effect,
any Letter of Credit remains outstanding, or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly (or, in the case of subsection 8.3,
the Borrower will not permit any of its Subsidiaries to, directly or indirectly):



          8.1 Financial Covenants




          (a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio at any time
during any period of four consecutive fiscal quarters of the Borrower to exceed 3.0 to 1.0.




          (b) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio as of the last day of any period of four consecutive fiscal quarters of the Borrower to be
less than 4.0 to 1.0.




55









 








                    8.2 Limitation on Liens




  Create, incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, except for:




                    (a) Liens for taxes not yet due or which are being contested in good faith by appropriate
proceedings, provided that adequate reserves with respect thereto are maintained on the
books of the Borrower or its Subsidiaries, as the case may be, in conformity with GAAP;




                    (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 30 days
or which are being contested in good faith by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;




                    (c) pledges or deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security legislation and deposits made in the
ordinary course of business securing liability to insurance carriers under insurance or
self-insurance arrangements;




                    (d) deposits to secure the performance of bids, trade or government 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;




                    (e) easements, rights-of-way, restrictions, building, zoning and other similar encumbrances or
restrictions, utility agreements, covenants, reservations and encroachments and other similar
encumbrances, or leases or subleases, incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not, in the aggregate, materially detract
from the value of the properties of the Borrower and its Subsidiaries, taken as a whole, or
materially interfere with the ordinary conduct of the business of the Borrower and its
Subsidiaries, taken as a whole;




                    (f) Liens securing Indebtedness in respect of capital leases and purchase money obligations
for fixed or capital assets; provided that (i) such Liens do not at any time encumber any property
other than the property financed by such Indebtedness, (ii) the Indebtedness secured thereby does
not exceed the cost or fair market value, whichever is lower, of the property being acquired on the
date of acquisition and (iii) such Indebtedness was not incurred in connection with, or in
anticipation or contemplation of, an acquisition;




                    (g) Liens on the assets of Receivable Subsidiaries created pursuant to any Receivables
Transaction permitted pursuant to subsection 8.3(a);




                    (h) Liens created or arising pursuant to any Loan Documents;




                    (i) Liens granted by any Subsidiary in favor of the Borrower;




56









 







          (j) judgment and other similar Liens arising in connection with court proceedings in an
aggregate amount not in excess of $1,000,000 (except to the extent covered by independent
third-party insurance) provided that the execution or other enforcement of such Liens is
effectively stayed and the claims secured thereby are being actively contested in good faith and by
appropriate proceedings;




          (k) any Lien on any Property of the Borrower or any Subsidiary existing on the Closing Date
and set forth on Schedule 8. 2 or any extension, renewal or refinancing thereof; provided
that (i) such Lien shall not apply to any other property or asset of the Borrower or any
Subsidiary, (ii) such Lien shall secure only those obligations which it secures as of the date
hereof and (iii) in the case of any extension, renewal or refinancing thereof, (x) there is no
increase in the obligations so secured and (y) such Lien does not secure additional assets not
subject to the Lien then being extended or renewed;




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




          (m) Liens arising from precautionary UCC financing statements regarding operating leases or
consignments; or




          (n) Liens (not otherwise permitted hereunder) which secure obligations or Indebtedness of the
Borrower or any of its Subsidiaries not exceeding the greater of (x) $100,000,000 or (y) 5% of
Consolidated Total Assets at the time such Indebtedness is incurred.




          8.3 Limitation on Indebtedness




          Create, issue, incur, assume, become liable in respect of or suffer to exist:




          (a) any Indebtedness pursuant to any Receivables Transaction, except for Indebtedness pursuant
to all Receivables Transactions that is (i) non-recourse with respect to the Borrower and its
Subsidiaries (other than any Receivables Subsidiary) and (ii) in an aggregate principal amount at
any time outstanding not exceeding 10% of Consolidated Total Assets at such time; or




          (b) any Indebtedness of any of the Subsidiaries other than (i) Indebtedness of any Receivables
Subsidiary pursuant to any Receivables Transaction permitted under subsection 8.3(a), (ii) any
Indebtedness of any Subsidiary as a guarantor under or pursuant to any of those certain Note
Purchase Agreements dated as of June 30, 1999 and September 25, 1998, as amended, respectively,
between the Borrower and the various note holders thereunder, so long as such Subsidiaries are
Guarantors, (iii) any Indebtedness of any Subsidiary existing on the



57









 








Closing Date and set forth on Schedule 8.3 and any refinancing thereof; provided, that
the then outstanding principal amount thereof is not increased and the weighted average maturity
thereof is not decreased, (iv) any Indebtedness of any Subsidiary which is a Guarantor, (v) any
Indebtedness of any Subsidiary owed to the Borrower or any other Subsidiary, (vi) any Indebtedness
arising in respect of capital leases or purchase money obligations incurred in accordance with
subsection 8.2(h), and (vii) any other Indebtedness of Subsidiaries in an aggregate principal
amount at any time outstanding not to exceed the greater of (x) $100,000,000 or (y) 5% of
Consolidated Total Assets at the time such Indebtedness is incurred.




          8.4 Fundamental Changes




          Liquidate, windup or dissolve (or suffer any liquidation or dissolution), or merge,
consolidate with or into, or convey, transfer, lease, sell, assign or otherwise dispose of (whether
in one transaction or in a series of transactions) all or substantially all of its assets (whether
now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default
or Event of Default exists or would result therefrom:




          (a) any Subsidiary may merge with (i) the Borrower, provided that the Borrower shall be the
continuing or surviving Person, or (ii) any one or more Subsidiaries, provided that (A) when any
wholly-owned Subsidiary is merging with another Subsidiary, such wholly-owned Subsidiary shall be
the continuing or surviving Person and (B) when any Foreign Subsidiary is merging with a Domestic
Subsidiary, such Domestic Subsidiary shall be the continuing or surviving Person;




          (b) any (i) Subsidiary may sell, transfer, contribute, convey or otherwise dispose of all or
substantially all of its assets (upon voluntary liquidation or otherwise), to the Borrower or to a
Domestic Subsidiary; provided that if the transferor in such a transaction is a wholly-owned
Subsidiary, then the transferee must also be a wholly-owned Subsidiary; or (ii) Foreign Subsidiary
may sell, transfer, contribute, convey or otherwise dispose of all of its assets (upon voluntary
liquidation or otherwise), to any other Foreign Subsidiary;




          (c) any Subsidiary formed solely for the purpose of effecting an acquisition may be merged or
consolidated with any other Person; provided that the continuing or surviving corporation of such
merger or consolidation shall be a Subsidiary;




          (d) “Inactive” or “shell” Subsidiaries (i.e., a Person that is not engaged in any business and
that has total assets of $500,000 or less) may be dissolved or otherwise liquidated, provided that
all of the assets and properties of any such Subsidiaries are transferred to the Borrower or
another Subsidiary upon dissolution/liquidation; and




          (e) the Borrower may merge or consolidate with any Person, provided that the Borrower shall be
the continuing or surviving Person.




          8.5 Dispositions




          Make any Disposition or enter into any agreement to make any Disposition, except:




58








 








          (a) Dispositions of obsolete, out-moded or worn-out property, whether now owned or hereafter
acquired, in the ordinary course of business;




          (b) Dispositions of inventory in the ordinary course of business;




          (c) Dispositions of property by any Subsidiary to the Borrower or to any other Subsidiary;




          (d) Dispositions of Receivables pursuant to Receivables Transactions permitted under
subsection 8.3(a);




          (e) the nonexclusive license of intellectual property of the Borrower or any of its
Subsidiaries to third parties in the ordinary course of business;




          (f) without limitation to clause (a), the Borrower and its Subsidiaries may sell or exchange
specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is
used (or contractually committed to be used) to acquire (and results within one year of such sale
or exchange in the acquisition of) replacement items of machinery or equipment of reasonably
equivalent Fair Market Value; and




          (g) other Dispositions where (i) in the good faith opinion of the Borrower, the Disposition is
an exchange for consideration having a Fair Market Value at least equal to that of the property
Disposed of and is in the best interest of the Borrower or the applicable Subsidiary, as the case
may be; (ii) immediately after giving effect to such Disposition, no Default or Event of Default
would exist; and (iii) immediately after giving effect to such Disposition, the Disposition Value
of all property that was the subject thereof in any fiscal four quarter period of the Borrower plus
the Fair Market Value of any other property Disposed of during such four quarter period does not
equal or exceed 15% of Consolidated Total Assets as of the end of the then most recently ended
fiscal quarter of Borrower.




          8.6 ERISA




          Engage in a transaction which could be subject to Section 4069 or 4212(c) of ERISA, or permit
any Plan to (a) engage in any non-exempt “prohibited transaction” (as defined in Section 406 of
ERISA or Section 4975 of the Code); (b) fail to comply with ERISA or any other applicable Laws; or
(c) incur any material “accumulated funding deficiency” (as defined in Section 412 of the Code or
Section 302 of ERISA), which, with respect to any event listed above, could reasonably be expected
to have a Material Adverse Effect.




          8.7 Transactions with Affiliates




          Enter into any transaction of any kind with any Affiliate of the Borrower, other than for
compensation and upon fair and reasonable terms with Affiliates in transactions that are otherwise
permitted hereunder no less favorable to the Borrower or any Subsidiary than would be obtained in a
comparable arm’s-length transaction with a Person other than an Affiliate, provided, the foregoing
restriction shall not apply to (a) any transaction between the Borrower and any of its Subsidiaries
or between any of its Subsidiaries, (b) reasonable and customary fees



59









 








paid to members of the Boards of Directors of the Borrower and its Subsidiaries, (c) transactions
effected as part of a Receivables Transaction or (d) compensation arrangements of officers and
other employees of the Borrower and its Subsidiaries entered into in the ordinary course of
business.




          8.8 Restrictive Agreements




          Enter into, incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (a) the ability of the Borrower or any Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets, or (b) the ability of
any Subsidiary to pay dividends or other distributions with respect to any shares of its capital
stock or to make or repay loans or advances to the Borrower or any other Subsidiary or to Guarantee
Indebtedness of the Borrower or any other Subsidiary; provided that (i) the foregoing shall
not apply to restrictions and conditions imposed by law or by this Agreement, (ii) the foregoing
shall not apply to restrictions and conditions existing on the date hereof identified on Schedule
8.8 (but shall apply to any extension or renewal of, or any amendment or modification expanding the
scope of, any such restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be
sold and such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by
this Agreement if such restrictions or conditions apply only to the property or assets securing
such Indebtedness and (v) clause (a) of the foregoing shall not apply to customary provisions in
leases and other contracts restricting the assignment thereof.




SECTION 9. EVENTS OF DEFAULT




          Any of the following shall constitute an Event of Default:




          (a) The Borrower shall fail to pay any principal of any Loan or any Reimbursement Obligation
when due in accordance with the terms thereof or hereof; or the Borrower shall fail to pay any
interest on any Loan, or any fee or other amount payable hereunder, within three Business Days
after any such interest or other amount becomes due in accordance with the terms thereof or hereof;




          (b) Any representation or warranty made or deemed made by the Borrower or any Guarantor (if
any) herein or in any other Loan Document or which is contained in any certificate, document or
financial or other statement furnished by it at any time under or in connection with this Agreement
shall prove to have been incorrect or misleading in any material respect when made or deemed made
or furnished;




          (c) (i) The Borrower shall default in the observance or performance of any covenant contained
in subsection 7.10, subsection 7.11, subsection 7.12 or Section 8; or (ii) the Borrower shall
default in the observance or performance of any covenant contained in subsection 7.1, and such
default shall continue unremedied for a period of 10 days; or (iii) the Borrower shall default in
the observance or performance of any other agreement contained in this

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Agreement (other than as provided above in this Section), and such default described in this
clause (c)(iii) shall continue unremedied for a period of 30 days; provided that if any
such default covered by this clause (c)(iii), (x) is not capable of being remedied within such
30-day period, (y) is capable of being remedied within an additional 30-day period and (z) the
Borrower is diligently pursuing such remedy during the period contemplated by (x) and (y) and has
advised the Administrative Agent as to the remedy thereof, the first 30-day period referred to in
this clause (c)(iii) shall be extended for an additional 30-day period but only so long as (A) the
Borrower continues to diligently pursue such remedy, (B) such default remains capable of being
remedied within such period and (C) any such extension could not reasonably be expected to have a
Material Adverse Effect;




          (d) The Borrower or any Subsidiary shall fail to make any payment (whether of principal or
interest and regardless of amount) in respect of any Material Indebtedness, when and as the same
shall become due and payable (after giving effect to all applicable grace periods, if any);




          (e) An event or condition occurs that results in any Material Indebtedness becoming due prior
to its scheduled maturity or that enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent
on its or their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (e) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets securing such Indebtedness;




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




          (g) The Borrower, any Guarantor (if any) or any Significant Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (f) of this Section, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower, any Guarantor (if any) or any Significant Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) take any action for the purpose of effecting any of the foregoing or (vii) shall
become unable, admit in writing its inability or fail generally to pay its debts as they become due




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          (h) An ERISA Event shall have occurred that, in the reasonable credit judgment of the Required
Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect;




          (i) Any Loan Document, at any time after its execution and delivery and for any reason other
than the agreement of all the Lenders or satisfaction in full of all the Obligations, ceases to be
in full force and effect, or is declared by a court of competent jurisdiction to be null and void,
invalid or unenforceable in any respect; or the Borrower or any Guarantor (if any) denies that it
has any or further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document; one or more judgments (to the extent not covered by
insurance where insurance coverage has been acknowledged) for the payment of money in an aggregate
amount in excess of $40,000,000 shall be rendered against the Borrower, any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce
any such judgment; or




          (j) a Change in Control shall occur;



then, and in any such event, (A) if such event is an Event of Default specified in paragraph (f) or
paragraph (g) above, automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the
other Loan Documents (including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented the documents
required thereunder) shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i) with the consent of
the Majority Lenders, the Administrative Agent may, or upon the request of the Majority Lenders,
the Administrative Agent shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with the consent of the
Majority Lenders, the Administrative Agent may, or upon the request of the Majority Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents required thereunder) to
be due and payable forthwith, whereupon the same shall immediately become due and payable. In the
case of all Letters of Credit with respect to which presentment for honor shall not have occurred
at the time of an acceleration pursuant to this paragraph, the Borrower shall at such time deposit
in a cash collateral account opened by the Administrative Agent an amount equal to the aggregate
then undrawn and unexpired amount of such Letters of Credit in accordance with the provisions of
subsection 4.8. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused
portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay other then due and owing Obligations. After all such Letters of
Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have been
satisfied and all other Obligations shall have been paid in full (or in the event

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that the acceleration that required the funding of such cash collateral account is rescinded by the
Lenders), the balance, if any, in such cash collateral account shall be returned to the Borrower
(or such other Person as may be lawfully entitled thereto). The Borrower hereby expressly waives
presentment, demand of payment, protest and all notices whatsoever (other than any notices
specifically required hereby).




SECTION 10. THE ADMINISTRATIVE AGENT




          10.1 Appointment




          Each Lender hereby irrevocably designates and appoints the Administrative Agent as the
Administrative Agent of such Lender under this Agreement and the other Loan Documents, and each
Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement and the other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement,
the Administrative Agent shall not have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other
Loan Document or otherwise exist against the Administrative Agent.




          10.2 Delegation of Duties




          The Administrative Agent may execute any of its duties under this Agreement and the other Loan
Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.




        
10.3 Exculpatory Provisions




          Neither the Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any other Loan Document
(except for its or such Person’s own gross negligence or willful misconduct) or (ii) responsible in
any manner to any of the Lenders for any recitals, statements, representations or warranties made
by the Borrower or any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for in, or received by
the Administrative Agent under or in connection with, this Agreement or any other Loan Document or
for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of the Borrower to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of

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any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or
to inspect the properties, books or records of the Borrower.




          10.4 Reliance by Administrative Agent




          The Administrative Agent shall be entitled to rely, and shall be fully protected in relying,
upon any Note, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation 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 (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent. The Administrative
Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to
take any action under this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Majority Lenders (or, to the extent required by this Agreement, all of
the Lenders) as it deems appropriate or it shall first be indemnified to its 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 (other than any such liability or expense resulting from the
gross negligence or willful misconduct of the Administrative Agent). The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Majority Lenders (or, to the
extent required by this Agreement, all of the Lenders), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the
Loans.




          10.5 Notice of Default




          The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default hereunder unless the Administrative Agent has received notice from
a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default
and stating that such notice is a “notice of default”. In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Majority Lenders (or, to the extent required by this Agreement,
all of the Lenders); provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders.




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          10.6 Non-Reliance on Administrative Agent and Other Lenders




          Each Lender expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Administrative Agent hereafter taken,
including any review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary to inform itself as
to the business, operations, property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information concerning the
business, operations, property, condition (financial or otherwise), prospects or creditworthiness
of the Borrower which may come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.




          10.7 Indemnification




          The Lenders agree to indemnify the Administrative Agent in its capacity as such (to the extent
not reimbursed by the Borrower in accordance with the terms hereof and without limiting the
obligation of the Borrower to do so), ratably according to their respective Revolving Credit
Commitment Percentages in effect on the date on which indemnification is sought (or, if
indemnification is sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with such percentages immediately prior
to such date), from and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to or arising out of,
the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or thereby or any action
taken or omitted by the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements which are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the Administrative Agent’s gross negligence or willful
misconduct. The agreements in this subsection shall survive the payment of the Loans and all other
amounts payable hereunder. Notwithstanding anything

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contained herein to the contrary, the Issuing Lender and Swingline Lender shall have all of the
benefits and immunities (a) provided to the Administrative Agent in this Section 10 with respect to
any acts taken or omissions suffered by the Issuing Lender or Swingline Lender, as the case may be,
as fully as if the term “Administrative Agent” as used in this Section 10 included the Issuing
Lender and Swingline Lender with respect to such acts or omissions, and (b) as additionally
provided herein with respect to the Issuing Lender and Swingline Lender, as the case may be.




          10.8 Administrative Agent in Its Individual Capacity




          The Person serving as the Administrative Agent and its Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower as though the Person
serving as the Administrative Agent were not the Administrative Agent hereunder and under the other
Loan Documents. With respect to the Loans made by it and with respect to any Letter of Credit
issued or participated in by it, the Person serving as the Administrative Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise
the same as though it were not the Administrative Agent, and the terms “Lender” and “Lenders” shall
include the Person serving as the Administrative Agent in its individual capacity.




          10.9 Successor Administrative Agent




          The Administrative Agent may resign as Administrative Agent upon 10 days’ notice to the
Lenders and the Borrower provided that any such resignation by JPMCB shall also constitute its
resignation as Issuing Lender and Swingline Lender. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents, then the Majority Lenders
shall appoint from among the Lenders a successor Administrative Agent for the Lenders, which
successor Administrative Agent (provided that it shall have been approved by the Borrower), shall
succeed to the rights, powers and duties of the Administrative Agent hereunder. Effective upon
such appointment and approval, the term “Administrative Agent” shall mean such successor
Administrative Agent, and the former Administrative Agent’s rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any holders of the
Loans. After any retiring Administrative Agent’s resignation as Administrative Agent, the
provisions of this Section 10 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement and the other Loan Documents.




          10.10 The Sole Lead Arranger, the Sole Bookrunner and the Syndication Agent




          None of the Sole Lead Arranger, the Sole Bookrunner or the Syndication Agent shall have any
right, power, obligation, liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such. Without limiting the foregoing, none of the Sole Lead Arranger,
the Sole Bookrunner or the Syndication Agent shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not

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relied, and will not rely, on the Sole Lead Arranger, the Sole Bookrunner or the Syndication Agent
in deciding to enter into this Agreement or in taking or not taking any action hereunder.




SECTION 11. MISCELLANEOUS




          11.1 Amendments and Waivers




          (a) Except as provided in subsection 11.1(b), neither this Agreement nor any other Loan
Document, nor any terms hereof or thereof, may be amended, supplemented or modified except in
accordance with the provisions of this subsection. The Majority Lenders may, or, with the written
consent of the Majority Lenders, the Administrative Agent may, from time to time, (a) enter into
with the Borrower written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or
changing in any manner the rights of the Lenders or of the Borrower hereunder or thereunder or (b)
waive, on such terms and conditions as the Majority Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this Agreement or the other
Loan Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification shall (i)
reduce the amount or extend the scheduled date of maturity of any Loan, or reduce the stated rate
or amount of any interest or fee payable hereunder or extend the scheduled date of any payment
thereof or increase the amount or extend the expiration date of any Lender’s Multicurrency
Commitment, Revolving Credit Commitment, Swingline Commitment or L/C Commitment, in each case
without the consent of each Lender affected thereby, (ii) amend, modify or waive any provision of
this subsection, reduce the percentage specified in the definitions of Majority Leaders, or amend
or modify any other provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination granting consent hereunder,
or consent to the assignment or transfer by the Borrower or any Guarantor (if any) of any of its
rights and obligations under this Agreement and the other Loan Documents, in each case without the
written consent of all the Lenders, (iii) release all or substantially all of the Guarantors (if
any) (except where such release is expressly permitted elsewhere in this Agreement without such
consent) without the written consent of all the Lenders, or (iv) (A) amend, modify or waive any
provision of Section 10 without the written consent of the then Administrative Agent, (B) affect
the rights or duties of the Issuing Lender under this Agreement or any other Loan Document without
the written consent of the then Issuing Lender or (C) affect the rights or duties of Swingline
Lender under this Agreement or any other Loan Document without the written consent of then
Swingline Lender; and further provided, however, that no such waiver and no such
amendment, supplement or modification shall amend, modify or waive any provision of any Guarantee
executed and delivered pursuant to subsection 7.12 without the written consent of the Guarantors.
Any such waiver and any such amendment, supplement or modification shall apply equally to each of
the Lenders and shall be binding upon the Borrower, the Guarantors (if any), the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any waiver, the Borrower,
the Guarantors (if any), the Lenders and the Administrative Agent shall be restored to their former
positions and rights hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; no such

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waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereon.




          (b) In addition to amendments effected pursuant to the foregoing paragraph (a), additional
freely-convertible eurocurrencies may be added as Available Foreign Currencies, upon execution and
delivery by the Borrower, the Administrative Agent and all of the Lenders of an amendment providing
for such addition. The Administrative Agent shall give prompt written notice to each Lender of any
such amendment.




          11.2 Notices




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





     (i) if to the Borrower or any of the Guarantors (if any), to Henry Schein,
Inc., 135 Duryea Road, Melville, New York, 11747, Attention of Chief Financial
Officer (Telecopy No. (631) 843-5541), with a copy to Proskauer Rose LLP, 1585
Broadway, New York, New York, 10036-8299, Attention of Jack P. Jackson, Esq.
(Telecopy No. (212) 969-2900);




     (ii) if to the Administrative Agent, to it at JPMorgan Chase Bank, 395 North
Service Road, Suite 302, Melville, NY 11747, Attention of John Budzynski, (Telecopy
No. (631) 755-5184);




     (iii) if to the Issuing Lender, to it at JPMorgan Chase Bank, 10420 Highland
Manor Drive-BL 2, Floor 4, Tampa, FL 33610, Attention of Joseph Borello (Telecopy
No. (813) 432-5161);




     (iv) if to the Swingline Lender, to it at JPMorgan Chase Bank, 1111 Fannin,
10th Floor, Houston, Texas 77002, Attention of Candace Grayson (Telecopy
No. (713) 750-7904; and




     (v) if to any other Lender, to it at its address (or telecopy number) set forth
in its Administrative Questionnaire and notified to the Borrower in accordance with
the provisions hereof.



          (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent and the
Lenders; provided that the foregoing shall not apply to notices pursuant to subsection 2.4 or
Section 4 unless otherwise agreed by the Administrative Agent and the applicable Lender. The
Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular notices or communications.




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




          11.3 No Waiver; Cumulative Remedies




          No failure to exercise and no delay in exercising, on the part of the Administrative Agent or
any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.




          11.4 Survival of Representations and Warranties




          All representations and warranties made hereunder, in the other Loan Documents and in any
document, certificate or statement delivered pursuant hereto or in connection herewith shall
survive the execution and delivery of this Agreement and the making of the Loans hereunder.




          11.5 Payment of Expenses and Taxes




          The Borrower agrees (a) to pay or reimburse the Administrative Agent for all its reasonable
out-of-pocket costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of Simpson Thacher & Bartlett LLP,
counsel to the Administrative Agent, (b) to pay or reimburse each Lender and the Administrative
Agent for all its costs and expenses incurred in connection with the enforcement of any rights
under this Agreement or any of the other Loan Documents, including, without limitation, the
Attorney Costs of each Lender and of the Administrative Agent, (c) to pay, and indemnify and hold
harmless each Lender and the Administrative Agent and each of their affiliates and their respective
officer, directors, employees, Administrative Agents and advisors (each, an “indemnified
party”) from, any and all recording and filing fees and any and all liabilities with respect
to, or resulting from any delay in paying, stamp, excise and other taxes, if any, which may be
payable or determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the
other Loan Documents and any such other documents, provided that the Borrower shall have no
obligation hereunder to any indemnified party with respect to any of the foregoing fees or
liabilities which arise from the gross negligence or willful misconduct of such indemnified party
determined in a court of competent jurisdiction in a final non-appealable judgment, and (d) to pay,
and indemnify and

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hold harmless each indemnified party from and against, any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents including, without limitation, any of
the foregoing relating to the violation of, noncompliance with, or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its Subsidiaries or any of
the properties (all the foregoing in this clause (d), collectively, the “indemnified liabilities”),
provided that the Borrower shall have no obligation hereunder to any indemnified party with
respect to indemnified liabilities arising from the gross negligence or willful misconduct of such
indemnified party determined in a court of competent jurisdiction in a final non-appealable
judgment. The agreements in this subsection shall survive the termination of this Agreement and
each other Loan Document and repayment of the Loans and all other amounts payable hereunder.




          11.6 Successors and Assigns; Participations and Assignments




          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Lender that issues any Letter of Credit), except that (i) neither the
Borrower nor any of the Guarantors (if any) may assign or otherwise transfer any of their
respective rights or obligations hereunder without the prior written consent of each Lender (and
any attempted assignment or transfer by any such Person without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this subsection. Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their respective successors
and assigns permitted hereby (including any Affiliate of the Issuing Lender that issues any Letter
of Credit), Participants (to the extent provided in paragraph (c) of this subsection) and, to the
extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the
Issuing Lender, the Swingline Lender and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.




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





	 	(A)	 	the Borrower, provided
that no consent of the Borrower shall be required for an
assignment to a Lender, an Affiliate of a Lender, an “Approved
Fund” (as defined below) or, if a Default or an Event of Default
has occurred and is continuing, any other Assignee; and
	 
	 	(B)	 	the Administrative Agent,
provided that no consent of the Administrative Agent
shall be required for an assignment to




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an Assignee that is a Lender immediately prior to giving
effect to such assignment.




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




	 	(A)	 	except in the case of an
assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning
Lender’s Revolving Credit Commitment, the amount of the
Revolving Credit Commitment of the assigning Lender subject to
each such assignment (determined as of the date the Assignment
and Acceptance, substantially in the form of Exhibit I
(hereinafter, an “Assignment and Acceptance”), with respect to
such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, provided that no
such consent of the Borrower shall be required if a Default or
an Event of Default has occurred and is continuing;
	 
	 	(B)	 	each partial assignment shall be
made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement:
	 
	 	(C)	 	the parties to each assignment
shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and
recordation fee of $3,500;
	 
	 	(D)	 	the Assignee, if it shall not be
a Lender, shall deliver to the Administrative Agent a duly
completed administrative questionnaire (containing all pertinent
information relating to such assignee; hereinafter an
“Administrative Questionnaire”); and
	 
	 	(E)	 	in the case of an assignment to a
“CLO” (as defined below), the assigning Lender shall retain the
sole right to approve any amendment, modification or waiver of
any provision of this Agreement, provided that the
Assignment and Acceptance between such Lender and such CLO may
provide that such Lender will not, without the consent of such
CLO, agree to any amendment, modification or waiver described in
the first proviso to subsection 11.1(a) that affects such CLO.




71









 











          For the purposes of this subsection 11.6(b), the terms “Approved Fund” and “CLO” have the
following meanings:




          “Approved Fund” means (a) a CLO and (b) with respect to any Lender that is an
institutional fund which invests primarily in bank loans and similar extensions of credit, any
other institutional fund that invests primarily in bank loans and similar extensions of credit and
is managed by the same investment advisor as such Lender or by an Affiliate of such investment
advisor.




          “CLO” means any entity (whether a corporation, partnership, trust or otherwise) that
is engaged in making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business and is administered or managed by a
Lender or an Affiliate of such Lender.





     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)
of this subsection, from and after the effective date specified in each Assignment
and Acceptance the assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto but
shall continue to be entitled to the benefits of subsections 3.8, 3.9, 3.10, 3.11
and 11.5). Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this subsection 11.6 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (c) of this subsection.




     (iv) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Revolving Credit Commitment of, and principal
amount of the Loans owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”). The entries in the Register shall be conclusive in
the absence of manifest error, and the Borrower, the Administrative Agent, the
Issuing Lender, the Swingline Lender 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, the Issuing Lender, the
Swingline Lender and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.




     (v) Upon its receipt of a duly completed Assignment and Acceptance executed by
an assigning Lender and an Assignee, the Assignee’s completed



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Administrative Questionnaire (unless the Assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of this
subsection and any written consent to such assignment required by paragraph (b) of
this subsection, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.



          (c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent, the
Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment and the Loans owing to
it); provided that (A) such Lender’s obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Borrower, the Administrative Agent, the Issuing Lender,
the Swingline Lender and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement
or instrument pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to subsection 11.1(a) that affects such
Participant. Subject to paragraph (c)(ii) of this subsection, the Borrower agrees that each
Participant shall be entitled to the benefits of subsections 3.8, 3.9, 3.10 and 3.11 to the same
extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this subsection. To the extent permitted by law, each Participant also shall be entitled to the
benefits of subsection 11.7 as though it were a Lender, provided such Participant agrees to be
subject to subsection 11.7 as though it were a Lender.




               (ii) A Participant shall not be entitled to receive any greater payment under subsection 3.9,
3.10 or 3.11 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. A Participant that would be a Non-U.S. Lender (as
defined in subsection 3.10(b)) if it were a Lender shall not be entitled to the benefits of
subsection 3.10 unless the Borrower is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Borrower, to comply with subsection 3.10(b) as
though it were a Lender.



          (d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this subsection shall not apply to
any such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.




73









 








          (e) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a
“Transferee”) and any prospective Transferee, subject to the provisions of subsection
11.14, any and all financial information in such Lender’s possession concerning the Borrower and
its Subsidiaries and Affiliates which has been delivered to such Lender by or on behalf of the
Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of
the Borrower in connection with such Lender’s credit evaluation of such Borrower and its
Subsidiaries and Affiliates prior to becoming a party to this Agreement.




          (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of
this subsection concerning assignments of Loans and Notes relate only to absolute assignments and
that such provisions do not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.




          11.7 Adjustments; Set-off




          (a) If any Lender (a “benefited Lender”) shall at any time receive any payment of all
or part of its Loans or the Reimbursement Obligations owing to it then due and owing, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in subsections 9(f) and (g),
or otherwise), in a greater proportion than any such payment to or collateral received by any other
Lender (other than to the extent expressly provided herein), if any, in respect of such other
Lender’s Loans or the Reimbursement Obligations owing to it then due and owing, or interest
thereon, such benefited Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender’s Loans or the Reimbursement Obligations owing
to it, or shall provide such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such benefited Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the other Lenders;
provided, however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without interest.




          (b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to the Borrower or the Guarantors (if any), any such notice
being expressly waived by the Borrower and the Guarantors (if any) to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower hereunder (whether at the
stated maturity, by acceleration or otherwise) to set off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such
Lender or any branch or agency thereof to or for the credit or the account of the Borrower or any
of the Guarantors (if any). Each Lender agrees promptly to notify the Borrower or any such
Guarantor (if any) and the Administrative Agent after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the validity of such
set-off and application.




74









 








          11.8 Counterparts




          This Agreement may be executed by one or more of the parties to this Agreement on any number
of separate counterparts (including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the Administrative Agent.




          11.9 Severability




          Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.




          11.10 Integration




          This Agreement and the other Loan Documents represent the entire agreement of the Borrower,
the Administrative Agent and the Lenders with respect to the subject matter hereof or thereof, and
there are no promises, undertakings, representations or warranties by the Administrative Agent or
any Lender relative to subject matter hereof or thereof not expressly set forth or referred to
herein or in the other Loan Documents.




          11.11 GOVERNING LAW




          THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




          11.12 Submission To Jurisdiction; Waivers




          The Borrower hereby irrevocably and unconditionally:




          (a) submits for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America for the Southern District of New
York, and appellate courts from any thereof;




          (b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;




75









 





          (c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 11.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;




          (d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and




          (e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this subsection any special, exemplary,
punitive or consequential damages.




          11.13 Acknowledgements




          The Borrower hereby acknowledges that:




          (a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;




          (b) neither the Administrative Agent nor any Lender has any fiduciary relationship with or
duty to the Borrower or any of the Guarantors (if any) arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between Administrative Agent and
Lenders, on the one hand, and the Borrower and the Guarantors (if any), on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and




          (c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Lenders or among the Borrower, the
Guarantors (if any), and the Lenders.




          11.14 Confidentiality




          Each Lender agrees to keep confidential any written or oral information (a) provided to it by
or on behalf of the Borrower or any of its Subsidiaries pursuant to or in connection with this
Agreement or any other Loan Document or (b) obtained by such Lender based on a review of the books
and records of the Borrower or any of its Subsidiaries; provided that nothing herein shall
prevent any Lender from disclosing any such information (i) to the Administrative Agent, the
Issuing Lender or any other Lender, (ii) to any Transferee which receives such information having
been made aware of the confidential nature thereof and having agreed to abide by the provisions of
this subsection 11.14, (iii) to its employees, directors, agents, attorneys, accountants and other
professional advisors, and to employees and officers of its Affiliates who agree to be bound by the
provisions of this subsection 11.14 and who have a need for such information in connection with
this Agreement or other transactions or proposed transactions with the Borrower, (iv) upon the
request or demand of any Governmental Authority having jurisdiction over such Lender, (v) in
response to any order of any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (vi) subject to an agreement to comply with the provisions of
this subsection, to any actual or

76









 








prospective counter-party (or its advisors) to any Swap Agreement, (vii) which has been publicly
disclosed other than in breach of this Agreement, (viii) in connection with the exercise of any
remedy hereunder or any litigation to which such Lender is a party, or (ix) which is received by
such Lender from a Person who, to such Lender’s knowledge or reasonable belief, is not under a duty
of confidentiality to the Borrower or the applicable Subsidiary, as the case may be.




          11.15 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.




          11.16 Judgment




          The Borrower, the Administrative Agent and each Lender hereby agree that if, in the event that
a judgment is given, in relation to any sum due the Administrative Agent or any Lender hereunder,
in an Available Foreign Currency (the “Judgment Currency”), the Borrower agrees to
indemnify the Administrative Agent or such Lender, as the case may be, to the extent that the
Dollar Equivalent amount which could have been purchased on the Business Day following receipt of
such sum is less than the sum which could have been so purchased by the Administrative Agent had
such purchase been made on the day on which such judgment was given or, if such day is not a
Business Day, on the Business Day immediately preceding the giving of such judgment, and if the
amount so purchased exceeds the amount which could have been so purchased had such purchase been
made on the day on which such judgment was given or, if such day is not a Business Day, on the
Business Day immediately preceding such judgment, the Administrative Agent or the applicable Lender
agrees to remit such excess to the Borrower. The agreements in this subsection shall survive the
termination of this Agreement and each other Loan Document and the payment of the Loans and all
other Obligations.




          11.17 WAIVERS OF JURY TRIAL




          THE BORROWER, THE ADMINISTRATIVE AGENT, THE ISSUING LENDER, THE SWINGLINE LENDER AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.





77









 








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




	 	 	 	 	 
	 	 	BORROWER:
	 
	 	 	 	 
	 	 	HENRY SCHEIN, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,
	 	 	as Administrative Agent and as a
	 

	 	 	 	Lender
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	CITIBANK, N.A.,
	 	 	as Syndication Agent and as a
	 

	 	 	 	Lender
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






 









 






	 	 	 	 	 
	 	 	HSBC BANK USA, N.A.
	 	 	as Co-Agent and as a Lender
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






Signature Page to the Henry Schein, Inc. Credit Agreement









 






	 	 	 	 	 
	 	 	LEHMAN COMMERCIAL PAPER INC.,
	 

	 	 	 	as Co-Agent and as a Lender
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






Signature Page to the Henry Schein, Inc. Credit Agreement









 






	 	 	 	 	 
	 	 	MELLON BANK, N.A.,
	 

	 	 	 	as Co-Agent and as a Lender
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:





Signature Page to the Henry Schein, Inc. Credit Agreement

 









 






	 	 	 	 	 
	 	 	WELLS FARGO BANK,
	 

	 	NATION
	 	AL ASSOCIATION,
	 

	 	 	 	as Co-Agent and as a Lender
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:





Signature Page to the Henry Schein, Inc. Credit Agreement

 









 






	 	 	 	 	 
	 	 	ABN AMRO BANK N.V.,
	 

	 	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:





Signature Page to the Henry Schein, Inc. Credit Agreement

 









 






	 	 	 	 	 
	 	 	THE BANK OF NEW YORK,
	 

	 	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:




Signature Page to the Henry Schein, Inc. Credit Agreement


 









 






	 	 	 	 	 
	 	 	BAYERISCHE HYPO-UND
	 	 	VEREINSBANK AG, NEW YORK BRANCH
	 

	 	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:




Signature Page to the Henry Schein, Inc. Credit Agreement


 









 






	 	 	 	 	 
	 	 	NORTH FORK BANK,
	 

	 	 	 	as a Lender
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:





Signature Page to the Henry Schein, Inc. Credit Agreement