exv10w2






Exhibit 10.2




EXECUTION VERSION




 

 






CREDIT AGREEMENT




Dated as of March 31, 2006



As Amended and Restated on April 5, 2007



As Further Amended and Restated on July 7, 2011



Among



NUANCE COMMUNICATIONS, INC.

as Borrower,



THE LENDERS PARTY HERETO,



UBS AG, STAMFORD BRANCH,

as Administrative Agent,



CITICORP NORTH AMERICA, INC.,

as Syndication Agent,



and



CREDIT SUISSE SECURITIES (USA) LLC,

as Documentation Agent



 




CITIGROUP GLOBAL MARKETS INC. and UBS SECURITIES LLC,

as Joint Lead Arrangers,



CREDIT SUISSE SECURITIES (USA) LLC and BANC OF AMERICA SECURITIES LLC,

as Co-Arrangers,



and



CITIGROUP GLOBAL MARKETS INC., UBS SECURITIES LLC and

CREDIT SUISSE SECURITIES (USA) LLC,

as Joint Bookrunners



 




Cahill Gordon & Reindel LLP

80 Pine Street

New York, New York 10005



 

 






 









 








TABLE OF CONTENTS




	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I

	 	 	 
	 	 	 
	DEFINITIONS

	 	 	 
	 	 	 
	SECTION 1.01.	 	Defined Terms
	 	 	1
	SECTION 1.02.	 	Terms Generally
	 	 	41
	SECTION 1.03.	 	Effectuation of Transfers
	 	 	41
	 	 	 
	 	 	 
	ARTICLE II

	 	 	 
	 	 	 
	THE CREDITS

	 	 	 
	 	 	 
	SECTION 2.01.	 	Commitments
	 	 	41
	SECTION 2.02.	 	Loans and Borrowings
	 	 	43
	SECTION 2.03.	 	Requests for Borrowings
	 	 	44
	SECTION 2.04.	 	Swingline Loans
	 	 	45
	SECTION 2.05.	 	Letters of Credit
	 	 	46
	SECTION 2.06.	 	Funding of Borrowings
	 	 	51
	SECTION 2.07.	 	Interest Elections
	 	 	52
	SECTION 2.08.	 	Termination and Reduction of Commitments
	 	 	53
	SECTION 2.09.	 	Repayment of Loans; Evidence of Debt
	 	 	54
	SECTION 2.10.	 	Repayment of Term Loans and Revolving Facility Loans
	 	 	55
	SECTION 2.11.	 	Prepayment of Loans
	 	 	56
	SECTION 2.12.	 	Fees
	 	 	56
	SECTION 2.13.	 	Interest
	 	 	57
	SECTION 2.14.	 	Alternate Rate of Interest
	 	 	58
	SECTION 2.15.	 	Increased Costs
	 	 	58
	SECTION 2.16.	 	Break Funding Payments
	 	 	59
	SECTION 2.17.	 	Taxes
	 	 	60
	SECTION 2.18.	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	62
	SECTION 2.19.	 	Mitigation Obligations; Replacement of Lenders
	 	 	63
	SECTION 2.20.	 	Illegality
	 	 	64
	SECTION 2.21.	 	Incremental Extensions of Credit
	 	 	64
	SECTION 2.22.	 	Extended Loans and Commitments
	 	 	65
	SECTION 2.23.	 	Refinancing Term Loans
	 	 	67
	SECTION 2.24.	 	Defaulting Lenders
	 	 	68
	 	 	 
	 	 	 
	ARTICLE III

	 	 	 
	 	 	 
	REPRESENTATIONS AND WARRANTIES

	 	 	 
	 	 	 
	SECTION 3.01.	 	Organization; Powers
	 	 	71
	SECTION 3.02.	 	Authorization
	 	 	71
	SECTION 3.03.	 	Enforceability
	 	 	72
	SECTION 3.04.	 	Governmental Approvals
	 	 	72
	SECTION 3.05.	 	Financial Statements
	 	 	72
	SECTION 3.06.	 	No Material Adverse Change or Material Adverse Effect
	 	 	73






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	 	 	 	 	Page
	 	 	 
	 	 	 
	SECTION 3.07.	 	Title to Properties; Possession Under Leases
	 	 	73
	SECTION 3.08.	 	Subsidiaries
	 	 	73
	SECTION 3.09.	 	Litigation; Compliance with Laws
	 	 	73
	SECTION 3.10.	 	Federal Reserve Regulations
	 	 	74
	SECTION 3.11.	 	Investment Company Act
	 	 	74
	SECTION 3.12.	 	Use of Proceeds
	 	 	74
	SECTION 3.13.	 	Tax Returns
	 	 	74
	SECTION 3.14.	 	No Material Misstatements
	 	 	75
	SECTION 3.15.	 	Employee Benefit Plans
	 	 	75
	SECTION 3.16.	 	Environmental Matters
	 	 	76
	SECTION 3.17.	 	Security Documents
	 	 	76
	SECTION 3.18.	 	Location of Real Property and Leased Premises
	 	 	77
	SECTION 3.19.	 	Solvency
	 	 	77
	SECTION 3.20.	 	Labor Matters
	 	 	78
	SECTION 3.21.	 	Insurance
	 	 	78
	SECTION 3.22.	 	Anti-Terrorism Law
	 	 	78
	SECTION 3.23.	 	[Reserved]
	 	 	79
	SECTION 3.24.	 	Intellectual Property
	 	 	79
	SECTION 3.25.	 	Agreements
	 	 	79
	 	 	 
	 	 	 
	ARTICLE IV

	 	 	 
	 	 	 
	CONDITIONS OF LENDING

	 	 	 
	 	 	 
	SECTION 4.01.	 	All Credit Events
	 	 	80
	SECTION 4.02.	 	2011 Amendment Effective Date Credit Event
	 	 	81
	 	 	 
	 	 	 
	ARTICLE V

	 	 	 
	 	 	 
	AFFIRMATIVE COVENANTS

	 	 	 
	 	 	 
	SECTION 5.01.	 	Existence; Businesses and Properties
	 	 	81
	SECTION 5.02.	 	Insurance
	 	 	81
	SECTION 5.03.	 	Taxes
	 	 	82
	SECTION 5.04.	 	Financial Statements, Reports, etc.
	 	 	82
	SECTION 5.05.	 	Litigation and Other Notices
	 	 	84
	SECTION 5.06.	 	Compliance with Laws
	 	 	84
	SECTION 5.07.	 	Maintaining Records; Access to Properties and Inspections
	 	 	84
	SECTION 5.08.	 	Use of Proceeds
	 	 	84
	SECTION 5.09.	 	Compliance with Environmental Laws
	 	 	84
	SECTION 5.10.	 	Further Assurances; Mortgages
	 	 	85
	SECTION 5.11.	 	Fiscal Year; Accounting
	 	 	86
	SECTION 5.12.	 	Maintenance of Ratings
	 	 	86
	 	 	 
	 	 	 
	ARTICLE VI

	 	 	 
	 	 	 
	NEGATIVE COVENANTS

	 	 	 
	 	 	 
	SECTION 6.01.	 	Indebtedness
	 	 	87
	SECTION 6.02.	 	Liens
	 	 	90






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	 	 	 	 	Page
	 	 	 
	 	 	 
	SECTION 6.03.	 	Sale and Lease-Back Transactions
	 	 	92
	SECTION 6.04.	 	Investments, Loans and Advances
	 	 	92
	SECTION 6.05.	 	Mergers, Consolidations, Sales of Assets and Acquisitions
	 	 	94
	SECTION 6.06.	 	Dividends and Distributions
	 	 	96
	SECTION 6.07.	 	Transactions with Affiliates
	 	 	97
	SECTION 6.08.	 	Business of the Borrower and the Subsidiaries
	 	 	98
	SECTION 6.09.	 	Limitation on Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-Laws and Certain Other
Agreements; etc.
	 	 	98
	SECTION 6.10.	 	Swap Agreements
	 	 	100
	SECTION 6.11.	 	No Other “Designated Senior Indebtedness.”
	 	 	100
	 	 	 
	 	 	 
	ARTICLE VII

	 	 	 
	 	 	 
	EVENTS OF DEFAULT

	 	 	 
	 	 	 
	SECTION 7.01.	 	Events of Default
	 	 	100
	SECTION 7.02.	 	Exclusion of Immaterial Subsidiaries
	 	 	103
	 	 	 
	 	 	 
	ARTICLE VIII

	 	 	 
	 	 	 
	THE AGENTS

	 	 	 
	 	 	 
	SECTION 8.01.	 	Appointment
	 	 	103
	SECTION 8.02.	 	Delegation of Duties
	 	 	103
	SECTION 8.03.	 	Exculpatory Provisions
	 	 	103
	SECTION 8.04.	 	Reliance by Administrative Agent
	 	 	104
	SECTION 8.05.	 	Notice of Default
	 	 	104
	SECTION 8.06.	 	Non-Reliance on Agents and Other Lenders
	 	 	104
	SECTION 8.07.	 	Indemnification
	 	 	105
	SECTION 8.08.	 	Agent in Its Individual Capacity
	 	 	105
	SECTION 8.09.	 	Successor Administrative Agent
	 	 	105
	SECTION 8.10.	 	Syndication Agent and Documentation Agent
	 	 	106
	SECTION 8.11.	 	Quebec Security
	 	 	106
	 	 	 
	 	 	 
	ARTICLE IX

	 	 	 
	 	 	 
	MISCELLANEOUS

	 	 	 
	 	 	 
	SECTION 9.01.	 	Notices
	 	 	106
	SECTION 9.02.	 	Survival of Agreement
	 	 	107
	SECTION 9.03.	 	Binding Effect
	 	 	107
	SECTION 9.04.	 	Successors and Assigns
	 	 	107
	SECTION 9.05.	 	Expenses; Indemnity
	 	 	111
	SECTION 9.06.	 	Right of Set-off
	 	 	112
	SECTION 9.07.	 	Applicable Law
	 	 	112
	SECTION 9.08.	 	Waivers; Amendment
	 	 	113
	SECTION 9.09.	 	Interest Rate Limitation
	 	 	114
	SECTION 9.10.	 	Entire Agreement
	 	 	115
	SECTION 9.11.	 	WAIVER OF JURY TRIAL
	 	 	115
	SECTION 9.12.	 	Severability
	 	 	115






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	 	 	 	 	Page
	 	 	 
	 	 	 
	SECTION 9.13.	 	Counterparts
	 	 	115
	SECTION 9.14.	 	Headings
	 	 	115
	SECTION 9.15.	 	Jurisdiction; Consent to Service of Process
	 	 	115
	SECTION 9.16.	 	Confidentiality
	 	 	116
	SECTION 9.17.	 	Direct Website Communications
	 	 	116
	SECTION 9.18.	 	Release of Liens and Guarantees
	 	 	117
	SECTION 9.19.	 	USA Patriot Act
	 	 	118
	SECTION 9.20.	 	Dollar Equivalent Calculations
	 	 	118
	SECTION 9.21.	 	Judgment Currency
	 	 	118
	 	 	 
	 	 	 
	Exhibits and
Schedules1	 	 	 
	 	 	 
	 	 	 
	Exhibit A	 	Form of Assignment and Acceptance
	 	 	 
	Exhibit B	 	Form of Administrative Questionnaire
	 	 	 
	Exhibit C-1	 	Form of Borrowing Request
	 	 	 
	Exhibit C-2	 	Form of Swingline Borrowing Request
	 	 	 
	Exhibit D	 	Form of Collateral Agreement
	 	 	 
	Exhibit E	 	Form of Solvency Certificate
	 	 	 
	Exhibit F-1	 	Form of Term Loan Note
	 	 	 
	Exhibit F-2	 	Form of Revolving Loan Note
	 	 	 
	Exhibit G	 	Form of Affiliated Lender Assignment and Acceptance
	 	 	 
	 	 	 
	 	 	 
	Schedule 1.01(a)	 	Pro Forma EBITDA
	 	 	 
	Schedule 2.01	 	Commitments
	 	 	 
	Schedule 3.01	 	Organization and Good Standing
	 	 	 
	Schedule 3.04	 	Governmental Approvals
	 	 	 
	Schedule 3.07(b)	 	Possession under Leases
	 	 	 
	Schedule 3.08(a)	 	Subsidiaries
	 	 	 
	Schedule 3.09	 	Litigation
	 	 	 
	Schedule 3.13	 	Taxes
	 	 	 
	Schedule 3.16	 	Environmental Matters
	 	 	 
	Schedule 3.20	 	Labor Matters
	 	 	 
	Schedule 3.21	 	Insurance
	 	 	 
	Schedule 3.24(b)	 	Intellectual Property
	 	 	 
	Schedule 3.24(c)	 	Intellectual Property
	 	 	 
	Schedule 3.25	 	Agreements
	 	 	 
	Schedule 4.02(b)	 	Local Counsel
	 	 	 
	Schedule 6.01	 	Indebtedness
	 	 	 
	Schedule 6.02(a)	 	Liens
	 	 	 
	Schedule 6.04	 	Investments
	 	 	 
	Schedule 6.07	 	Transactions with Affiliates
	 	 	 








 




			
	1	 	Same as in effect under the Existing
Credit Agreement except for Exhibit G, which is attached hereto.






-iv-











 






          CREDIT AGREEMENT dated as of March 31, 2006, as amended and restated as of April 5, 2007
and as further amended and restated on July 7, 2011 (as amended, supplemented or otherwise modified
from time to time, this “Agreement”), among NUANCE COMMUNICATIONS, INC., a Delaware
corporation (“Borrower”), the LENDERS party hereto from time to time, UBS AG, STAMFORD
BRANCH, as administrative agent (in such capacity, the “Administrative Agent”), CITICORP
NORTH AMERICA, INC., as syndication agent (in such capacity, the “Syndication Agent”),
CREDIT SUISSE SECURITIES (USA) LLC, as documentation agent (in such capacity, the
“Documentation Agent”), CITIGROUP GLOBAL MARKETS INC. and UBS SECURITIES LLC, as joint lead
arrangers (collectively and in such capacities, the “Joint Lead Arrangers”), CREDIT SUISSE
SECURITIES (USA) LLC and BANC OF AMERICA SECURITIES LLC, as co-arrangers, and CITIGROUP GLOBAL
MARKETS INC., UBS SECURITIES LLC and CREDIT SUISSE SECURITIES (USA) LLC, as joint bookrunners.




          The Borrower, the lending institutions from time to time party thereto as Lenders (the
“Original Lenders”), UBS AG, Stamford Branch, as administrative agent, Citicorp North
America, Inc., as Documentation Agent, Credit Suisse Securities (USA) LLC, as joint lead arranger,
joint bookrunner and syndication agent, UBS Securities LLC as joint lead arranger and joint
bookrunner, Citigroup Global Markets Inc., as joint bookrunner and co-arranger, and Banc of America
Securities LLC, as co-arranger for the Original Lenders, are parties to that certain Credit
Agreement, dated as of March 31, 2006 as amended and restated as of April 5, 2007 (as further
amended, supplemented or otherwise modified from time to time prior to the date hereof, the
“Existing Credit Agreement”), pursuant to which the Original Lenders made certain loans and
other extensions of credit to the Borrower.




          The Required Lenders (as defined in the Existing Credit Agreement) have agreed to amend and
restate the Existing Credit Agreement on and subject to the terms and conditions set forth herein
and in the Amendment Agreement dated as of the date hereof (the “2011 Amendment Agreement”)
among the Borrower, the Subsidiary Loan Parties, the Agents, the Required Lenders and the Lenders
party thereto.




          The parties hereto intend that (a) the Obligations under the Existing Credit Agreement that
remain unpaid and outstanding as of the 2011 Amendment Effective Date shall continue to exist under
this Agreement on the terms set forth herein, (b) the loans under the Existing Credit Agreement
outstanding as of the date hereof shall be Loans under and as defined in this Agreement on the
terms set forth herein, (c) any letters of credit outstanding under the Existing Credit Agreement
as of the date hereof shall be Letters of Credit under and as defined in this Agreement and (d) the
Collateral and the Loan Documents shall continue to secure, guarantee, support and otherwise
benefit the Obligations as well as the other Obligations of the Borrower and the other Loan Parties
under this Agreement and the other Loan Documents.




          Accordingly, the parties hereto agree as follows:




ARTICLE I




DEFINITIONS



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




          “2007 Amendment Effective Date” shall mean April 5, 2007.




 









 








          “2011 Amendment Agreement” shall have the meaning assigned to such term in the
recitals hereto.




          “2011 Amendment Effective Date” shall have the meaning assigned thereto in the 2011
Amendment Agreement.




          “2027 Debentures” shall mean those 2.75% Convertible Subordinated Debentures due 2027
issued by the Borrower pursuant to that certain Indenture, dated as of August 13, 2007, by and
between the Borrower and U.S. Bank National Association, as trustee.




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




          “ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.




          “ABR Loan” shall mean any ABR Term Loan, ABR Revolving Loan or Swingline Loan.




          “ABR Revolving Borrowing” shall mean a Borrowing comprised of ABR Revolving Loans.




          “ABR Revolving Loan” shall mean any Revolving Facility Loan bearing interest at a rate
determined by reference to the ABR in accordance with the provisions of Article II.




          “ABR Term Loan” shall mean any Term Loan bearing interest at a rate determined by
reference to the ABR in accordance with the provisions of Article II.




          “Adjusted LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of
1%) equal to (a) the LIBO Rate in effect for such Interest Period divided by (b) one minus
the Statutory Reserves applicable to such Eurocurrency Borrowing, if any.




          “Administrative Agent” shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.




          “Administrative Agent Fees” shall have the meaning assigned to such term in Section
2.12(c).




          “Administrative Questionnaire” shall mean an Administrative Questionnaire in the form
of Exhibit B.




          “Affiliate” shall mean, when used with respect to a specified person, another person
that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is
under common Control with the person specified; provided, however, no Agent or
Lender shall be deemed to be an Affiliate of any Loan Party by virtue of its execution of this
Agreement.




          “Agent Parties” shall have the meaning assigned to such term in Section 9.17(c).




          “Agents” shall mean the Administrative Agent and the Syndication Agent and the
Documentation Agent.




-2-









 








          “Agreement” shall have the meaning assigned to such term in the introductory paragraph
of this Agreement.




          “Alternate Base Rate” shall mean, for any day, a rate per annum (rounded upward, if
necessary, to the nearest 1/100th of 1%) equal to the greater of (a) the Base Rate in effect on
such day and (b) the Federal Funds Effective Rate in effect on such day plus 0.50%. If the
Administrative Agent shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including
the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance
with the terms of the definition thereof, the Alternate Base Rate shall be determined without
regard to clause (b) of the preceding sentence until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change in the Base Rate
or the Federal Funds Effective Rate shall be effective on the effective date of such change in the
Base Rate or the Federal Funds Effective Rate, respectively.




          “Alternate Currency” shall mean each of euros, pounds, yen and Canadian dollars.




          “Alternate Currency Equivalent” shall mean, as to any amount denominated in dollars as
of any date of determination, the amount of the applicable Alternate Currency that could be
purchased with such amount of dollars based upon the Spot Selling Rate.




          “Alternate Currency L/C Disbursement” shall mean a payment or distribution made by an
Issuing Bank pursuant to an Alternate Currency Letter of Credit.




          “Alternate Currency L/C Exposure” shall mean at any time the sum of (a) the aggregate
undrawn amount of all Alternate Currency Letters of Credit outstanding at such time and (b) the
aggregate principal amount of all Alternate Currency L/C Disbursements that have not yet been
reimbursed at such time.




          “Alternate Currency L/C Sublimit” shall mean the maximum principal amount of Alternate
Currency Letters of Credit that may be outstanding at any one time in Alternate Currencies, not to
exceed the Dollar Equivalent of $40.0 million.




          “Alternate Currency Letter of Credit” shall mean any Letter of Credit to the extent
denominated in an Alternate Currency.




          “Anti-Terrorism Law” shall have the meaning assigned to such term in Section 3.22(a).




          “Applicable Margin” shall mean the Applicable Margin for the Loans determined pursuant
to the Pricing Grid.




          “Approved Currency” shall mean Dollars and each Alternate Currency.




          “Approved Fund” shall have the meaning assigned to such term in Section 9.04(b).




          “Assignee” shall have them meaning assigned to such term in Section 9.04(b).




          “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a
Lender and an assignee, and accepted by the Administrative Agent and the Borrower (if required by
such assignment and acceptance), in the form of Exhibit A or such other form as shall be
approved by the Administrative Agent.




-3-









 








          “Auto-Renewal Letter of Credit” shall have the meaning assigned to such term in
Section 2.05(c).




          “Availability Period” shall mean the period from and including the Original Effective
Date to but excluding (i) in the case of Tranche 1 Revolving Facility Commitments, the earlier of
the Tranche 1 Revolving Facility Maturity Date and, in the case of each of the Revolving Facility
Loans, Revolving Facility Borrowings, Swingline Loans, Swingline Borrowings and Letters of Credit,
in each case made under the Tranche 1 Revolving Facility Commitments, the date of termination of
the Tranche 1 Revolving Facility Commitments and (ii) in the case of Tranche 2 Revolving Facility
Commitments, the earlier of the Tranche 2 Revolving Facility Maturity Date and, in the case of each
of the Revolving Facility Loans, Revolving Facility Borrowings, Swingline Loans, Swingline
Borrowings and Letters of Credit, in each case made under the Tranche 2 Revolving Facility
Commitments, the date of termination of the Tranche 2 Revolving Facility Commitments.




          “Available Investment Basket Amount” shall mean, on any date of determination, an
amount equal to (a) the Cumulative Retained Excess Cash Flow Amount on such date, plus (b)
the aggregate amount of proceeds received after the Original Effective Date and prior to such date
that would have constituted Net Proceeds pursuant to clause (a) of the definition thereof except
for the operation of clause (x) or (y) of the second proviso thereof, plus (c) the
cumulative amount of cash proceeds from the sale of Equity Interests of the Borrower after the
Original Effective Date, to the extent not used for expenditures pursuant to clause (k) of the
definition of “Capital Expenditures,” minus (d) any amounts thereof used to make
Investments pursuant to Section 6.04(b)(y) after the Original Effective Date and on or prior to
such date, minus (e) any amounts thereof used to make Investments pursuant to Section
6.04(j)(ii) after the Original Effective Date and on or prior to such date, minus (f) the
cumulative amount of dividends paid and distributions made pursuant to Section 6.06(e)(ii),
minus (g) the cumulative amount of repurchases, redemptions, acquisitions, cancellations
and terminations pursuant to Section 6.09(b).




          “Available Unused Commitment” shall mean, with respect to a Revolving Facility Lender
at any time, an amount equal to the amount by which (a) such Revolving Facility Lender’s Revolving
Facility Commitment with respect to the applicable Class of Revolving Facility Commitments at such
time exceeds (b) the Revolving Facility Credit Exposure of such Revolving Facility Lender with
respect to the applicable Class of Revolving Credit Facility Commitment at such time.




          “Base Rate” shall mean, for any day, a rate per annum that is equal to the corporate
base rate of interest established by the Administrative Agent from time to time; each change in the
Base Rate shall be effective on the date such change is effective. The corporate base rate is not
necessarily the lowest rate charged by the Administrative Agent to its customers.




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




          “Borrower” shall have the meaning assigned to such term in the introductory paragraph
of this Agreement.




          “Borrowing” shall mean a group of Loans of a single Type under a single Facility and
made on a single date and, in the case of Eurocurrency Loans, as to which a single Interest Period
is in effect.




          “Borrowing Minimum” shall mean $500,000.




          “Borrowing Multiple” shall mean $100,000.




-4-









 








          “Borrowing Request” shall mean a request by the Borrower in accordance with the terms
of Section 2.03 and substantially in the form of Exhibit C-1.




          “Budget” shall have the meaning assigned to such term in Section 5.04(e).




          “Business Day” shall mean any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that when used in connection with a Eurocurrency Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in deposits in the applicable
currency in the London interbank market.




          “Canadian dollars” or “Can$” shall mean the lawful money of Canada.




          “Capital Expenditures” shall mean, for any person in respect of any period, the
aggregate of all expenditures incurred by such person during such period that, in accordance with
GAAP, are or should be included in “additions to property, plant or equipment” or similar items
reflected in the statement of cash flows of such person, provided, however, that
Capital Expenditures for the Borrower and its Subsidiaries shall not include:





     (a) expenditures to the extent they are made with funds that would have constituted Net
Proceeds under clause (a) of the definition of the term “Net Proceeds” (but that will not
constitute Net Proceeds as a result of the first proviso to such clause (a)),




     (b) expenditures of proceeds of insurance settlements, condemnation awards and other
settlements in respect of lost, destroyed, damaged or condemned assets, equipment or other
property to the extent such expenditures are made to replace or repair such lost, destroyed,
damaged or condemned assets, equipment or other property or otherwise to acquire, maintain,
develop, construct, improve, upgrade or repair assets or properties useful in the business
of the Borrower and its Subsidiaries,




     (c) interest capitalized during such period,




     (d) expenditures that constitute lease expenses,




     (e) expenditures that are accounted for as capital expenditures of such person and that
actually are paid for by a third party (excluding the Borrower or any Subsidiary) and for
which neither the Borrower nor any Subsidiary has provided or is required to provide or
incur, directly or indirectly, any consideration or obligation to such third party or any
other person (whether before, during or after such period),




     (f) the book value of any asset owned by such person prior to or during such period to
the extent that such book value is included as a capital expenditure during such period as a
result of such person reusing or beginning to reuse such asset during such period without a
corresponding expenditure actually having been made in such period; provided that
(i) any expenditure necessary in order to permit such asset to be reused shall be included
as a Capital Expenditure during the period that such expenditure actually is made and (ii)
such book value shall have been included in Capital Expenditures when such asset was
originally acquired,




     (g) the purchase price of equipment purchased during such period to the extent the
consideration therefor consists of any combination of (i) used or surplus equipment traded
in at



-5-









 







the time of such purchase and (ii) the proceeds of a concurrent sale of used or
surplus equipment, in each case, in the ordinary course of business,




     (h) expenditures that constitute Permitted Business Acquisitions,




     (i) [Reserved],




     (j) expenditures to the extent they are financed with the proceeds of a disposition of
used, obsolete, worn out or surplus equipment or property in the ordinary course of business
or a disposition that would result in a prepayment of the Loans, pursuant to Section
2.11(b), of Net Proceeds of the type described in clause (a) of such definition, but for the
proviso at the end of such definition, or




     (k) any expenditure made with the proceeds of an issuance of Equity Interests of
Borrower after the Original Effective Date.



          “Capital Lease Obligations” of any person shall mean 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 purposes
hereof, the amount of such obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.




          “Cash Collateralize” shall mean to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, Issuing Bank and/or Swingline
Lender (as applicable) and the Revolving Facility Lenders, as collateral for L/C Obligations,
obligations in respect of Swingline Loans, or obligations of Revolving Facility Lenders to fund
participations in respect of either L/C Obligations or Swingline Loans (as the context may
require), cash or deposit account balances in an aggregate amount equal to 103% of such L/C
Obligations or Swingline Loans (other than with respect to Section 2.05(c)(i)(2), in which case
such cash or deposit account balance shall be in an aggregate amount equal to 105% of the
applicable Outstanding Letter of Credit Amount) or, if an Issuing Bank or Swingline Lender
benefiting from such collateral shall agree in its sole discretion, other credit support, in each
case pursuant to documentation in form and substance reasonably satisfactory to (a) the
Administrative Agent and (b) the applicable Issuing Bank(s) and/or the Swingline Lender (as
applicable). “Cash Collateral” shall have a meaning correlative to the foregoing and shall
include the proceeds of such cash collateral and other credit support.




          “Cash Interest Expense” shall mean, with respect to the Borrower and its Subsidiaries
on a consolidated basis for any period, Interest Expense for such period, less the sum of (a)
pay-in-kind Interest Expense or other non-cash Interest Expense, (b) to the extent included in
Interest Expense, the amortization of any financing fees paid by, or on behalf of, the Borrower or
any Subsidiary, including such fees paid in connection with the Transactions, (c) the amortization
of debt discounts, if any, or fees in respect of Swap Agreements and (d) cash interest income of
the Borrower and its Subsidiaries for such period; provided that Cash Interest Expense
shall exclude any one-time financing fees, including those paid in connection with the Transactions
or any amendment of this Agreement and non-recurring cash interest expense consisting of liquidated
damages for failure to timely comply with registration rights obligations.




          “Cash Management Obligations” shall mean obligations owed by any Loan Party to any
Lender or Affiliate of any Lender in respect of any overdraft and related liabilities arising from
treasury and cash management services or any automated clearing house transfer of funds.




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          A “Change in Control” shall mean:





     (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by
any person or group (within the meaning of the Exchange Act and the rules of the SEC
thereunder as in effect on the Original Effective Date) of Equity Interests representing more
than a majority of the aggregate ordinary voting power represented by the issued and
outstanding Equity Interests in the Borrower, or




     (b) occupation of a majority of the seats (other than vacant seats) on the board of
directors of Borrower by persons who were not nominated or appointed by the board of
directors of Borrower or by the Sponsor, directly or indirectly.



          “Change in Law” shall mean (a) the adoption of any law, rule or regulation after the
Original Effective Date, (b) any change in law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the Original Effective Date or (c)
compliance by any Lender or Issuing Bank (or, for purposes of Section 2.15(b), by any Lending
Office of such Lender or by such Lender’s or Issuing Bank’s holding company, if any) with any
written request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the Original Effective Date.




          “Charges” shall have the meaning assigned to such term in Section 9.09.




          “Class” shall mean, (i) with respect to any Loan, whether such Loan is a Tranche 1
Revolving Facility Loan, a Tranche 2 Revolving Facility Loan, a Term B Loan, a Term C Loan, an
Incremental Loan belonging to a separate Class in accordance with Section 2.21, a Refinancing Term
Loan designated as part of a particular Class pursuant to Section 2.23(b) or an Extended Maturity
Loan designated as part of a particular Class pursuant to 2.22(a) and (ii) with respect to any
Commitment, whether such Commitment is a Tranche 1 Revolving Facility Commitment, a Tranche 2
Revolving Facility Commitment, a Refinancing Term Commitment or an Extended Maturity Commitment.




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




          “Collateral” shall mean all the “Collateral” as defined in any Security Document and
any other property subject or purported to be subject from time to time to a Lien under any
Security Document and shall also include the Mortgaged Properties; provided,
however, that, notwithstanding the foregoing, Collateral shall not include (i) any
outstanding stock of a Controlled Foreign Subsidiary entitled to vote in excess of 65% of the
total combined voting power of all classes of stock of such Controlled Foreign Subsidiary entitled
to vote (within the meaning of Treasury Regulation § 1.956-2(c)(2) or any successor provision
thereto), (ii) any asset of a Controlled Foreign Subsidiary (within the meaning of Treasury
Regulation § 1.956-2(c)(2) or any successor provision thereto) or any subsidiary of a Controlled
Foreign Subsidiary or (iii) United States Patent Nos. 6,480,304, 6,496,206, 6,009,442 and
6,262,732. For the avoidance of doubt, any stock of another corporation owned by a Controlled
Foreign Subsidiary is an asset of a Controlled Foreign Subsidiary.




          “Collateral Agreement” shall mean the Guarantee and Collateral Agreement, as amended,
supplemented or otherwise modified from time to time, in the form of Exhibit D, among the
Borrower, each Subsidiary Loan Party and the Administrative Agent.




-7-









 








          “Collateral and Guarantee Requirement” shall mean the requirement that:





     (a) on the Original Effective Date, the Administrative Agent shall have received (I)
from the Borrower and each Subsidiary Loan Party, a counterpart of the Collateral Agreement
duly executed and delivered on behalf of such person and (II) an Acknowledgment and Consent
in the form attached to the Collateral Agreement, executed and delivered by each issuer of
Pledged
Collateral (as defined in the Collateral Agreement), if any, that is not a Loan Party
and that is an Affiliate of a Loan Party;




     (b) on the Original Effective Date or as otherwise provided in the Collateral
Agreement, the Administrative Agent shall have received (I) a pledge of all the issued and
outstanding Equity Interests of (A) each Domestic Subsidiary owned on the Original Effective
Date directly by or on behalf of Borrower or any Subsidiary Loan Party; (II) a pledge of 65%
of the outstanding voting Equity Interests and 100% of the non-voting Equity Interests of
each “first tier” Foreign Subsidiary directly owned by Borrower or a Subsidiary Loan Party,
such pledge to be made pursuant to a Foreign Pledge Agreement for each Foreign Subsidiary
that is not an Insignificant Foreign Subsidiary; and (III) all certificates or other
instruments (if any) representing such Equity Interests, together with stock powers or other
instruments of transfer with respect thereto endorsed in blank;




     (c) on the Original Effective Date and at all times thereafter, all Indebtedness of
Borrower and each Subsidiary that is not a Controlled Foreign Subsidiary (other than (i) to
the extent that a pledge of such promissory note or instrument would violate applicable law
or (ii) instruments evidencing Indebtedness having an aggregate principal amount of less
than $2.5 million) that is owing to any Loan Party shall be evidenced by a promissory note
or an instrument and shall have been pledged pursuant to the Collateral Agreement, and the
Administrative Agent shall have received all such promissory notes or instruments, together
with note powers or other instruments of transfer with respect thereto endorsed in blank;




     (d) in the case of any person that becomes a Subsidiary Loan Party after the Original
Effective Date, the Administrative Agent shall have received a supplement to the Collateral
Agreement, in the form specified therein, duly executed and delivered on behalf of such
Subsidiary Loan Party within the period of time specified in Section 5.10(d);




     (e) in the case of any person that becomes a “first tier” Foreign Subsidiary directly
owned by the Borrower or a Subsidiary Loan Party after the Original Effective Date, the
Administrative Agent shall have received, as promptly as practicable within the period of
time specified in Section 5.10(e) following a request by the Administrative Agent, a pledge
of 65% of the outstanding voting Equity Interests and 100% of the non-voting Equity
Interests of such Foreign Subsidiary and, if such Foreign Subsidiary is not an Insignificant
Foreign Subsidiary, a Foreign Pledge Agreement, duly executed and delivered on behalf of
such Foreign Subsidiary and the direct parent company of such Foreign Subsidiary;




     (f) after the Original Effective Date, all the outstanding Equity Interests of (A) any
person that becomes a Subsidiary Loan Party after the Original Effective Date and (B)
subject to Section 5.10(g), all the Equity Interests that are acquired by a Loan Party after
the Original Effective Date, shall have been pledged pursuant to the Collateral Agreement
(provided that in no event shall more than 65% of the issued and outstanding voting
Equity Interests of any “first tier” Foreign Subsidiary directly owned by such Loan Party be
pledged to secure Obligations of the Borrower, and in no event shall any of the issued and
outstanding Equity Interests of any Foreign Subsidiary that is not a “first tier” Foreign
Subsidiary be pledged to secure Obligations of the



-8-









 







Borrower), and the Administrative Agent
shall have received all certificates or other instruments (if any) representing such Equity
Interests, together with stock powers or other instruments of transfer with respect thereto
endorsed in blank;




     (g) except as disclosed on Schedule 3.04 or as otherwise contemplated by any
Security Document, all documents and instruments, including Uniform Commercial Code
financing
statements, required by law or reasonably requested by the Administrative Agent to be
executed, filed, registered or recorded to create the Liens intended to be created by the
Security Documents (in each case, including any supplements thereto) and perfect such Liens
to the extent required by, and with the priority required by, the Security Documents, shall
have been executed, filed, registered or recorded or delivered to the Administrative Agent
for filing, registration or the recording concurrently with, or promptly following, the
execution and delivery of each such Security Document or a supplement thereto within the
period of time specified therein;




     (h) in connection with each Mortgage required pursuant to Section 5.10(c), the
Administrative Agent shall receive (i) a policy or policies or marked-up unconditional
binder of title insurance or foreign equivalent thereof, as applicable, paid for by the
Borrower, issued by a nationally recognized title insurance company insuring the Lien of
each Mortgage to be entered into as a valid first Lien on the Mortgaged Property described
therein, free of any other Liens except as permitted by Section 6.02, together with such
endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably
request, (ii) a survey of any Mortgaged Property (and all improvements thereon), or foreign
equivalent thereof, as applicable, which is (1) dated (or redated) not earlier than six
months prior to the date of delivery thereof unless there shall have occurred within six
months prior to such date of delivery any exterior construction on the site of such
Mortgaged Property, in which event such survey shall be dated (or redated) after the
completion of such construction or if such construction shall not have been completed as of
such date of delivery, not earlier than 20 days prior to such date of delivery, (2)
certified by the surveyor (in a manner reasonably acceptable to the Administrative Agent) to
the Administrative Agent and the title insurance company insuring the Mortgage, (3)
complying in all respects with the minimum detail requirements of the American Land Title
Association as such requirements are in effect on the date of preparation of such survey and
(4) sufficient for such title insurance company to remove all standard survey exceptions
from the title insurance policy relating to such Mortgaged Property or otherwise reasonably
acceptable to the Administrative Agent or an affidavit of no change to an existing survey;
provided that such title insurance company issues the title insurance policy with
full survey coverage, including all survey-related endorsements; and




     (i) except as disclosed on Schedule 3.04 or as otherwise contemplated by any
Security Document, each Loan Party shall have obtained all consents and approvals required
to be obtained by it in connection with (i) the execution and delivery of all Security
Documents (or supplements thereto) to which it is a party and the granting by it of the
Liens thereunder and (ii) the performance of its obligations thereunder.



          “Commitment Fee” shall have the meaning assigned to such term in Section 2.12(a).




          “Commitment Fee Rate” shall mean a rate determined pursuant to the Pricing Grid.




          “Commitments” shall mean (a) with respect to any Lender, such Lender’s commitment to
make Term Loans under Section 2.01(a) or Section 2.02, Revolving Facility Commitment, a Refinancing
Term Loan Commitments, and any Extended Maturity Commitments and (b) with respect to any Swingline
Lender, its Swingline Commitment.




-9-









 








          “Communications” shall have the meaning assigned to such term in Section 9.17(a).




          “Conduit Lender” shall mean any special purpose corporation organized and administered
by any Lender for the purpose of making Loans otherwise required to be made by such Lender and
designated by such Lender in a written instrument; provided that the designation by any
Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations to
fund a Loan under this
Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the
designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to
deliver all consents and waivers required or requested under this Agreement with respect to its
Conduit Lender, and provided, further, that no Conduit Lender shall (a) be entitled
to receive any greater amount pursuant to Section 2.15, 2.16, 2.17 or 9.05 than the designating
Lender would have been entitled to receive in respect of the extensions of credit made by such
Conduit Lender or (b) be deemed to have any Commitment.




          “Consolidated Debt” at any date shall mean the sum of (without duplication) all
Indebtedness within the meaning of clause (a), (b), (d), (e) (to the extent, in the case of clause
(e), any payments are actually made in respect of such Guarantees) or (f) of the definition of
“Indebtedness” (other than letters of credit to the extent undrawn).




          “Consolidated Leverage Ratio” shall mean, on any date, the ratio of (a) Consolidated
Debt as of such date to (b) EBITDA for the period of four consecutive fiscal quarters of the
Borrower most recently ended as of such date, all determined on a consolidated basis in accordance
with GAAP; provided that EBITDA shall be determined for the relevant Test Period on a Pro
Forma Basis; provided, further, that if the last paragraph of the definition of
EBITDA is applicable for any period for which EBITDA is to be used to calculate Consolidated
Leverage Ratio, EBITDA shall only be determined on a Pro Forma Basis for any events specified in
the definition of Pro Forma Basis if such events occur following the Original Effective Date.




          “Consolidated Net Income” shall mean, with respect to any person for any period, the
aggregate of the Net Income of such person and its subsidiaries for such period, on a consolidated
basis; provided, however, that, without duplication,





     (i) any net after-tax (A) extraordinary, (B) nonrecurring or (C) unusual gains or
losses or income or expenses (less all fees and expenses relating thereto) including,
without limitation, any severance expenses, litigation expenses, and fees, expenses or
charges related to any offering of Equity Interests of Borrower, any Investment, acquisition
permitted hereunder or Indebtedness permitted to be incurred hereunder (in each case,
whether or not successful), including any such fees, expenses, charges or change in control
payments related to the Transactions, in each case, shall be excluded, provided,
however, that the Borrower shall deliver to the Administrative Agent a certificate
of a Financial Officer of the Borrower setting forth such extraordinary or nonrecurring
gains or losses or income or expenses and calculations supporting them in reasonable detail,




     (ii) any net after-tax income or loss from discontinued operations and any net
after-tax gain or loss on disposal of discontinued operations shall be excluded,




     (iii) any net after-tax gain or loss (less all fees and expenses or charges relating
thereto) attributable to business dispositions or asset dispositions other than in the
ordinary course of business (as determined in good faith by the board of directors of the
Borrower) shall be excluded,



-10-









 






     (iv) any net after-tax income or loss (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of indebtedness shall be excluded,




     (v) Consolidated Net Income for such period shall not include the cumulative effect of
a change in accounting principles during such period,




     (vi) any increase in amortization or depreciation or any one-time non-cash charges
resulting from purchase accounting in connection with the Transactions or any acquisition
permitted hereunder that is consummated after the Original Effective Date shall be excluded,




     (vii) any non-cash impairment charges resulting from the application of Statement of
Financial Accounting Standards No. 142 and 144, and the amortization of intangibles arising
pursuant to No. 141, shall be excluded,




     (viii) any currency translation gains and losses related to currency remeasurements of
Indebtedness (including the net loss or gain resulting from Swap Agreements for currency
exchange risk) shall be excluded,




     (ix) any adjustments resulting from the application of Statement of Financial
Accounting Standards No. 133 shall be excluded,




     (x) any non-cash compensation expenses realized from grants of stock appreciation or
similar rights, stock options or other rights to officers, directors and employees of such
person or any of its subsidiaries shall be excluded, and




     (xi) accruals and reserves that are established within twelve months after the Original
Effective Date and that are so required to be established in accordance with GAAP shall be
excluded.



          “Consolidated Senior Secured Debt” at any date shall mean any Consolidated Debt
secured by a Lien.




          “Consolidated Senior Secured Leverage Ratio” shall mean, on any date, the ratio of (a)
Consolidated Senior Secured Debt as of such date to (b) EBITDA for the period of four consecutive
fiscal quarters of the Borrower most recently ended as of such date, all determined on a
consolidated basis in accordance with GAAP; provided that EBITDA shall be determined for
the relevant Test Period on a Pro Forma Basis.




          “Consolidated Total Assets” shall mean, as of any date, the total assets of the
Borrower and its consolidated Subsidiaries, determined in accordance with GAAP, as set forth on the
consolidated balance sheet of the Borrower as of such date.




          “Control” shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a person, whether through the ownership of
voting securities, by contract or otherwise, and “Controlling” and “Controlled”
shall have meanings correlative thereto.




          “Controlled Foreign Subsidiary” shall mean a Foreign Subsidiary that is a “controlled
foreign corporation” as defined in Section 957(a) of the Code.




          “Convertible Securities” shall mean debt securities, the terms of which provide for
conversion into Equity Interests, cash or a combination thereof.




-11-









 








          “Credit Event” shall have the meaning assigned to such term in Article IV.




          “Cumulative Retained Excess Cash Flow Amount” shall mean, at any date, an amount, not
less than zero in the aggregate, determined on a cumulative basis equal to the amount of Excess
Cash Flow for all Excess Cash Flow Periods ending after the Original Effective Date that is not
(and, in the
case of any Excess Cash Flow Period for which the required date of prepayment has not yet
occurred pursuant to Section 2.11(c), will not on such date of required prepayment be) required to
be applied in accordance with Section 2.11(c).




          “Current Assets” shall mean, with respect to the Borrower and its Subsidiaries on a
consolidated basis at any date of determination, the sum of all assets (other than cash and
Permitted Investments or other cash equivalents) that would, in accordance with GAAP, be classified
on a consolidated balance sheet of the Borrower and its Subsidiaries as current assets at such date
of determination, other than amounts related to current or deferred Taxes based on income or
profits.




          “Current Liabilities” shall mean, with respect to the Borrower and its Subsidiaries on
a consolidated basis at any date of determination, all liabilities that would, in accordance with
GAAP, be classified on a consolidated balance sheet of the Borrower and its Subsidiaries as current
liabilities at such date of determination, other than (a) the current portion of any Indebtedness,
(b) accruals of Interest Expense (excluding Interest Expense that is due and unpaid), (c) accruals
for current or deferred Taxes based on income or profits, (d) accruals, if any, of transaction
costs resulting from the Transactions, (e) accruals of any costs or expenses related to (i)
severance or termination of employees prior to the Original Effective Date or (ii) bonuses, pension
and other post-retirement benefit obligations, and (f) accruals for add-backs to EBITDA included in
clauses (a)(iv) through (a)(vi) of the definition of such term.




          “Debt Service” shall mean, with respect to the Borrower and its Subsidiaries on a
consolidated basis for any period, Cash Interest Expense for such period plus scheduled principal
amortization of Consolidated Debt for such period.




          “Default” shall mean any event or condition that upon notice, lapse of time or both
would constitute an Event of Default.




          “Defaulting Lender” shall mean at any time, subject to Section 2.23(f), (i) any Lender
that has failed for three or more Business Days to comply with its obligations under this Agreement
to make a Loan, make a payment to the Issuing Bank in respect of an L/C Disbursement, make a
payment to the Swingline Lender in respect of a Swingline Loan or make any other payment due
hereunder (each, a “funding obligation”), (ii) any Lender that has notified the
Administrative Agent, the Borrower, the Issuing Bank or the Swingline Lender in writing, or has
stated publicly, that it does not intend to comply with its funding obligations hereunder, (iii)
any Lender that has defaulted on its funding obligations under any other loan agreement or credit
agreement or other similar agreement, (iv) Lender that has, for three or more Business Days after
written request of the Administrative Agent or the Borrower, failed to confirm in writing to the
Administrative Agent and the Borrower that it will comply with its prospective funding obligations
hereunder (provided that such Lender will cease to be a Defaulting Lender pursuant to this
clause (iv) upon the Administrative Agent’s and the Borrower’s receipt of such written
confirmation), or (v) any Lender with respect to which a Lender Insolvency Event has occurred and
is continuing with respect to such Lender or its Parent Company (provided, in each case, that
neither the reallocation of funding obligations provided for in Section 2.24(b) as a result of a
Lender’s being a Defaulting Lender nor the performance by Non-Defaulting Lenders of such
reallocated funding obligations will by themselves cause the relevant Defaulting Lender to become a
Non-Defaulting Lender). Any determination by the Administrative Agent that a Lender is a
Defaulting Lender under any of clauses (i) through (iv) above will be conclusive and binding absent
manifest error, and such Lender will be deemed


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to be a Defaulting Lender (subject to Section
2.24(f)) upon notification of such determination by the Administrative Agent to the Borrower, the
Issuing Bank, the Swingline Lender and the Lenders.




          “Documentation Agent” shall have the meaning assigned to such term in the introductory
paragraph of this Agreement.




          “Dollar Equivalent” shall mean, as to any amount denominated in an Alternate Currency
as of any date of determination, the amount of dollars that would be required to purchase the
amount of such Alternate Currency based upon the spot selling rate at which the Administrative
Agent offers to sell such Alternate Currency for dollars in the London foreign exchange market at
approximately 11:00 a.m. London time on such date for delivery two (2) Business Days later.




          “Dollars” or “$” shall mean lawful money of the United States of America.




          “Domestic Subsidiary” shall mean any Subsidiary that is not a Foreign Subsidiary.




          “EBITDA” shall mean, with respect to Borrower and its Subsidiaries on a consolidated
basis for any period, the Consolidated Net Income of Borrower and its Subsidiaries for such period
plus (a) the sum of (in each case without duplication and to the extent the respective
amounts described in subclauses (i) through (viii) of this clause (a) reduced such Consolidated Net
Income for the respective period for which EBITDA is being determined):





     (i) provision for Taxes based on income, profits or capital of the Borrower and its
Subsidiaries for such period, including, without limitation, state, franchise and similar
taxes and foreign withholding taxes paid or accrued during such period,




     (ii) Interest Expense of the Borrower and its Subsidiaries for such period (net of
interest income of the Borrower and its Subsidiaries for such period),




     (iii) depreciation and amortization expenses of the Borrower and its Subsidiaries for
such period,




     (iv) restructuring charges; provided, that with respect to each restructuring
charge, the Borrower shall have delivered to the Administrative Agent an officers’
certificate specifying and quantifying such charge and stating that such charge is a
restructuring charge,




     (v) any other non-cash charges; provided that, for purposes of this subclause
(v) of this clause (a), any non-cash charges or losses shall be treated as cash charges or
losses in any subsequent period during which cash disbursements attributable thereto are
made, and




     (vi) any expenses incurred by the Borrower in such period attributable to the
Borrower’s compliance with requirements under the Sarbanes-Oxley Act of 2002, not to exceed
$3 million per annum,


minus (b) the sum of (without duplication and to the extent the amounts described in this
clause (b) increased such Consolidated Net Income for the respective period for which EBITDA is
being determined) non-cash gains increasing Consolidated Net Income of the Borrower and its
Subsidiaries for such period (but excluding any such gains (i) in respect of which cash was
received in a prior period or will be received in a future period or (ii) which represent the
reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period).




-13-









 








          “Effective Yield” shall have the meaning assigned to such term in Section 2.21.




          “Environment” shall mean ambient and indoor air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or subsurface strata,
natural resources such as flora and fauna or as otherwise defined in any Environmental Law.




          “Environmental Laws” shall mean all applicable laws (including common law), rules,
regulations, codes, ordinances, orders, decrees or judgments, promulgated or entered into by any
Governmental Authority, relating to preservation or protection of the environment, preservation or
reclamation of natural resources, the generation, management, Release or threatened Release of, or
exposure to, any Hazardous Material or to occupational health and safety matters (to the extent
relating to exposure to Hazardous Materials).




          “Equity Interests” of any person shall mean any and all shares, interests, rights to
purchase, warrants, options, participation or other equivalents of or interests in (however
designated) equity of such person, including any preferred stock, any limited or general
partnership interest and any limited liability company membership interest.




          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same
may be amended from time to time.




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




          “ERISA Event” shall mean (a) any Reportable Event; (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, the failure to make by its due date a required installment under Section 412(m) of the
Code with respect to any Plan or the failure to make any required contribution to a Multiemployer
Plan; (d) the incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of any liability
under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the
Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan under
Section 4042 of ERISA; (f) the incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of
any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; or (g) the receipt by the Borrower, a Subsidiary or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower, a Subsidiary or any ERISA Affiliate of any
notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer
Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of
ERISA.




          “euro” or “€” shall mean the single currency of the Participating Member
States.




          “Eurocurrency Borrowing” shall mean a Borrowing comprised of Eurocurrency Loans.




          “Eurocurrency Loan” shall mean any Eurocurrency Term Loan or Eurocurrency Revolving
Loan.




-14-









 








          “Eurocurrency Revolving Borrowing” shall mean a Borrowing comprised of Eurocurrency
Revolving Loans.




          “Eurocurrency Revolving Loan” shall mean any Revolving Facility Loan bearing interest
at a rate determined by reference to the Adjusted LIBO Rate in accordance with the provisions of
Article II.




          “Eurocurrency Term Loan” shall mean any Term Loan bearing interest at a rate
determined by reference to the Adjusted LIBO Rate in accordance with the provisions of Article II.




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




          “Excess Cash Flow” shall mean, with respect to the Borrower and its Subsidiaries on a
consolidated basis for any Excess Cash Flow Period, EBITDA of the Borrower and its Subsidiaries on
a consolidated basis for such Excess Cash Flow Period, minus, without duplication,




          (a) Debt Service for such Excess Cash Flow Period,





     (b) (i) Capital Expenditures by the Borrower and its Subsidiaries on a consolidated
basis during such Excess Cash Flow Period that are paid in cash to the extent permitted
hereunder and (ii) the aggregate consideration paid in cash during the Excess Cash Flow
period in respect of Permitted Business Acquisitions and other Investments permitted
hereunder to the extent not financed with the proceeds of Indebtedness other than Loans
(less any amounts received in respect thereof as a return of capital),




     (c) Capital Expenditures that the Borrower or any Subsidiary shall, during such Excess
Cash Flow Period, become obligated to make but that are not made during such Excess Cash
Flow Period; provided that the Borrower shall deliver a certificate to the
Administrative Agent not later than 90 days after the end of such Excess Cash Flow Period,
signed by a Responsible Officer of the Borrower and certifying that such Capital
Expenditures and the delivery of the related equipment will be made in the following Excess
Cash Flow Period,




     (d) Taxes paid in cash by the Borrower and its Subsidiaries on a consolidated basis
during such Excess Cash Flow Period or that will be paid within six months after the close
of such Excess Cash Flow Period (provided that any amount so deducted that will be
paid after the close of such Excess Cash Flow Period shall not be deducted again in a
subsequent Excess Cash Flow Period) and for which reserves have been established, including
income tax expense and withholding tax expense incurred in connection with cross-border
transactions involving the Foreign Subsidiaries,




     (e) an amount equal to any increase in Working Capital for such Excess Cash Flow
Period,




     (f) cash expenditures made in respect of Swap Agreements during such Excess Cash Flow
Period, to the extent not deducted in the computation of EBITDA or Interest Expense during
such Excess Cash Flow Period,




     (g) Investments and acquisitions permitted hereunder made pursuant to Sections 6.04 and
6.05 during such Excess Cash Flow Period,



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     (h) dividends or distributions or repurchases of Equity Interests made pursuant to
Section 6.06 during such Excess Cash Flow Period,




     (i) amounts paid in cash during such Excess Cash Flow Period on account of (x) items
that were accounted for as noncash reductions of Net Income in determining Consolidated Net
Income or as noncash reductions of Consolidated Net Income in determining EBITDA of the
Borrower and its Subsidiaries in a prior Excess Cash Flow Period and (y) reserves or
accruals established in purchase accounting,




     (j) to the extent not deducted in the computation of Net Proceeds in respect of any
asset disposition or condemnation giving rise thereto, the amount of any mandatory
prepayment of Indebtedness (other than Indebtedness created hereunder or under any other
Loan Document), together with any interest, premium or penalties required to be paid (and
actually paid) in connection therewith, and




     (k) the amount related to items that were added to or not deducted from Net Income in
calculating Consolidated Net Income or were added to or not deducted from Consolidated Net
Income in calculating EBITDA to the extent such items represented a cash payment (which had
not reduced Excess Cash Flow upon the accrual thereof in a prior Excess Cash Flow Period),
or an accrual for a cash payment, by the Borrower and its Subsidiaries or did not represent
cash received by the Borrower and its Subsidiaries, in each case on a consolidated basis
during such Excess Cash Flow Period,


plus, without duplication,





     (1) an amount equal to any decrease in Working Capital for such Excess Cash Flow
Period,




     (2) all proceeds received during such Excess Cash Flow Period of Capital Lease
Obligations, purchase money Indebtedness, Sale and Lease-Back Transactions and any other
Indebtedness, in each case to the extent used to finance any Capital Expenditure (other than
Indebtedness under this Agreement to the extent there is no corresponding deduction to
Excess Cash Flow above in respect of the use of such Borrowings),




     (3) all amounts referred to in clause (b) above to the extent funded with the proceeds
of the issuance of Equity Interests of, or capital contributions to, the Borrower after the
Original Effective Date (to the extent not previously used to prepay Indebtedness (other
than Revolving Facility Loans or Swingline Loans), make any investment or capital
expenditure or otherwise for any purpose resulting in a deduction to Excess Cash Flow in any
prior Excess Cash Flow Period) or any amount that would have constituted Net Proceeds under
clause (a) of the definition of the term “Net Proceeds” if not so spent, in each case to the
extent there is a corresponding deduction from Excess Cash Flow above,




     (4) to the extent any permitted Capital Expenditures referred to in clause (c) above
and the delivery of the related equipment do not occur in the following Excess Cash Flow
Period of the Borrower specified in the certificate of the Borrower provided pursuant to
clause (c) above, the amount of such Capital Expenditures that were not so made in such
following Excess Cash Flow Period,



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     (5) cash payments received in respect of Swap Agreements during such Excess Cash Flow
Period to the extent (i) not included in the computation of EBITDA or (ii) such payments do
not reduce Cash Interest Expense,




     (6) any extraordinary or nonrecurring gain realized in cash during such Excess Cash
Flow Period (except to the extent such gain consists of Net Proceeds subject to Section
2.11(b)),




     (7) to the extent deducted in the computation of EBITDA, cash interest income, and




     (8) the amount related to items that were deducted from or not added to Net Income in
connection with calculating Consolidated Net Income or were deducted from or not added to
Consolidated Net Income in calculating EBITDA to the extent either (x) such items
represented cash received by the Borrower or any Subsidiary or (y) such items do not
represent cash paid by the Borrower or any Subsidiary, in each case on a consolidated basis
during such Excess Cash Flow Period.



          “Excess Cash Flow Period” shall mean each fiscal year of the Borrower commencing with
the 2007 fiscal year.




          “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.




          “Excluded Indebtedness” shall mean all Indebtedness permitted to be incurred under
Section 6.01.




          “Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) taxes imposed on (or measured by) its net income, however denominated,
(or franchise taxes or minimum Taxes imposed in lieu of net income taxes) by a jurisdiction as a
result of the Administrative Agent, such Lender, such Issuing Bank or such other recipient being
organized or having its principal office in or, in the case of any Lender, having its applicable
Lending Office in such jurisdiction or otherwise imposed as a result of a connection between the
Administrative Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made
by or on account of any obligation of the Borrower hereunder, as applicable, 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 from such Administrative Agent, Lender,
Issuing Bank or other such recipient of payment having executed, delivered or performed its
obligations or received a payment under, or enforced, or otherwise with respect to, this
Agreement), (b) any branch profits tax or any similar tax that is imposed by any jurisdiction
described in clause (a) above and (c) in the case of a Lender (other than a Lender who became a
Lender pursuant to a request by a Borrower pursuant to Section 2.19(b)), any United States federal
withholding tax that (x) is in effect and would apply to amounts payable hereunder to such Lender
at the time such Lender becomes a party to such Loan to the Borrower (or designates a new Lending
Office) except to the extent that such Lender (or its assignor, if any) was entitled, immediately
prior to the time of designation of a new Lending Office (or assignment), to receive additional
amounts from a Loan Party with respect to any withholding tax pursuant to Section 2.17(a) or
Section 2.17(c) or (y) is attributable to such Lender’s failure to comply with Section 2.17(e) or
(f) with respect to such Loan.




          “Executive Order” shall have the meaning assigned to such term in Section 3.22(a).




          “Existing Class” shall have the meaning assigned in Section 2.22(a) herein.




          “Existing Credit Agreement” shall have the meaning assigned in the recitals hereto.




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          “Existing Facility” shall have the meaning assigned to such term in Section 2.22(a).




          “Existing Letter of Credit” shall mean each letter of credit or bank guaranty
previously issued for the account of the Borrower or any of its subsidiaries by a Person that was
on the Original Effective Date an Issuing Bank (or an Affiliate of such Person) to the extent such
letter of credit or bank guaranty (a) was outstanding on the Original Effective Date and (b) is
listed on Schedule 2.05(a).




          “Extended Maturity Commitments” shall have the meaning assigned to such term in
Section 2.22(a).




          “Extended Maturity Loans” shall have the meaning assigned to such term in Section
2.22(a).




          “Extended Portion” shall mean, with respect to any Loan or Commitment, the principal
amount of such Loan or Commitment minus the Non-Extended Portion of such Loan or Commitment. For
the avoidance of doubt, the Extended Portion of the Revolving Facility Commitments as of the 2011
Amendment Effective Date shall include the “New Tranche 2 Revolving Facility Commitments” provided
pursuant to, and as defined in, the 2011 Amendment Agreement.




          “Extending Lender” shall have the meaning assigned to such term in Section 2.22(b).




          “Extension Amendment” shall have the meaning assigned to such term in Section 2.22(c).




          “Extension Election” shall have the meaning assigned to such term in Section 2.22(b).




          “Extension Maximum Amount” shall have the meaning assigned to such term in Section
2.22(b).




          “Extension Request” shall have the meaning assigned to such term in Section 2.22(a).




          “Facility” shall mean the applicable facility and commitments utilized in making Loans
and credit extensions hereunder, it being understood that as of the 2011 Amendment Effective Date
there are two Facilities, i.e., the Term Loan Facility and the Revolving Facility.




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




          “Fee Letter” shall mean that certain Engagement and Fee Letter dated as of June 16,
2011 by and between the Borrower and the Lead Arranger (as defined in the 2011 Amendment
Agreement).




          “Fees” shall mean the Commitment Fees, the L/C Participation Fees, the Issuing Bank
Fees and the Administrative Agent Fees.




          “Financial Officer” of any person shall mean the Chief Financial Officer, principal
accounting officer, Treasurer, Assistant Treasurer or Controller of such person.




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          “First Lien Pari Passu Note” shall have the meaning assigned to such term in Section
6.01(s).




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




          “Foreign Plan” shall mean any employee benefit plan, program, policy, arrangement or
agreement maintained or contributed to by, or entered into with, the Borrower or any Subsidiary
with respect to employees employed outside the United States, which provides, or results in,
retirement income, a deferral of income in contemplation of retirement, and which is not subject to
ERISA or the Code.




          “Foreign Pledge Agreement” shall mean a pledge agreement with respect to the Pledged
Collateral that constitutes Equity Interests of a “first tier” Foreign Subsidiary, in form and
substance reasonably satisfactory to the Administrative Agent and accompanied by an opinion of
counsel in such relevant jurisdiction as to the perfection of the Administrative Agent’s security
interest in such Equity Interests; provided that in no event shall more than 65% of the
issued and outstanding voting Equity Interests of such Foreign Subsidiary be pledged to secure
Obligations of the Borrower.




          “Foreign Subsidiary” shall mean any Subsidiary that is incorporated or organized under
the laws of any jurisdiction other than the United States of America, any State thereof or the
District of Columbia.




          “GAAP” shall mean generally accepted accounting principles in effect from time to time
in the United States, applied on a consistent basis, subject to the provisions of Section 1.02.




          “Governmental Authority” shall mean any federal, state, local or foreign court or
governmental agency, authority, instrumentality or regulatory or legislative body.




          “Guarantee” of or by any person (the “guarantor”) shall mean (a) any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to
take-or-pay or otherwise) or to purchase (or to advance or supply funds for the purchase of) any
security for the payment of such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the owner of such Indebtedness or
other obligation of the payment thereof, (iii) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, (iv) entered into for the purpose of assuring
in any other manner the holders of such Indebtedness or other obligation of the payment thereof or
to protect such holders against loss in respect thereof (in whole or in part) or (v) as an account
party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness
or other obligation, or (b) any Lien on any assets of the guarantor securing any Indebtedness (or
any existing right, contingent or otherwise, of the holder of Indebtedness to be secured by such a
Lien) of any other person, whether or not such Indebtedness or other obligation is assumed by the
guarantor; provided, however, that the term “Guarantee” shall not include
endorsements for collection or deposit, in either case in the ordinary course of business, or
customary and reasonable indemnity obligations in effect on the Original Effective Date or entered
into in connection with any acquisition or disposition of assets permitted under this Agreement.




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          “guarantor” shall have the meaning assigned to such term in the definition of the term
“Guarantee.”




          “Hazardous Materials” shall mean all pollutants, contaminants, wastes, chemicals,
materials, substances and constituents of any nature which are subject to regulation or which would
reasonably be likely to give rise to liability under applicable Environmental Law, including,
without limitation, explosive or radioactive substances or petroleum or petroleum distillates,
asbestos or asbestos-containing materials, polychlorinated biphenyls or radon gas.




          “Incremental Extensions of Credit” shall have the meaning assigned to such term in
Section 2.21.




          “Incremental Facility Amendment” shall have the meaning assigned to such term in
Section 2.21.




          “Incremental Facility Closing Date” shall have the meaning assigned to such term in
Section 2.21.




          “Incremental Revolving Commitments” shall have the meaning assigned to such term in
Section 2.21.




          “Incremental Term Loans” shall have the meaning assigned to such term in Section 2.21.




          “Incurrence Test” shall mean a Consolidated Leverage Ratio of no greater than 4.50 to
1.00 on a Pro Forma Basis as of the date of such incurrence.




          “Indebtedness” of any person shall mean, without duplication, (a) all obligations of
such person for borrowed money, (b) all obligations of such person evidenced by bonds, debentures,
notes or similar instruments to the extent the same would appear as a liability on a balance sheet
prepared in accordance with GAAP, (c) all obligations of such person under conditional sale or
other title retention agreements relating to property or assets purchased by such person, (d) all
obligations of such person issued or assumed as the deferred purchase price of property or services
(other than current trade liabilities and current intercompany liabilities (but not any
refinancings, extensions, renewals or replacements thereof) incurred in the ordinary course of
business and maturing within 365 days after the incurrence thereof), to the extent that the same
would be required to be shown as a long term liability on a balance sheet prepared in accordance
with GAAP, (e) all Guarantees by such person of Indebtedness of others, (f) all Capital Lease
Obligations of such person, (g) all payments that such person would have to make in the event of an
early termination, on the date Indebtedness of such person is being determined, in respect of
outstanding Swap Agreements, (h) the principal component of all obligations, contingent or
otherwise, of such person as an account party in respect of letters of credit and (i) the principal
component of all obligations of such person in respect of bankers’ acceptances. The Indebtedness
of any person shall include the Indebtedness of any partnership in which such person is a general
partner, other than to the extent that the instrument or agreement evidencing such Indebtedness
expressly limits the liability of such person in respect thereof.




          “Indemnified Taxes” shall mean all Taxes other than Excluded Taxes and Other Taxes.




          “Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).




          “Information” shall have the meaning assigned to such term in Section 3.14(a).





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          “Insignificant Domestic Subsidiary” shall mean a Domestic Subsidiary with (1)
net sales that are less than 3.0% of the consolidated net sales of the Borrower and the
Subsidiaries for the most recent fiscal quarter for which a consolidated income statement of the
Borrower was required to be furnished to the Administrative Agent pursuant to Section 5.04 and (2)
assets that are less than 3.0% of Consolidated Total Assets as of the end of the most recent fiscal
quarter for which a consolidated balance sheet of the Borrower was required to be furnished to the
Administrative Agent pursuant to Section 5.04; provided, however, that if all
Domestic Subsidiaries that are individually “Insignificant Domestic Subsidiaries” have (i)
aggregate net sales representing greater than 10.0% of the consolidated net sales of the Borrower
and the Subsidiaries for the most recent fiscal quarter for which a consolidated income statement
of the Borrower was required to be furnished to the Administrative Agent pursuant to Section 5.04
or (ii) aggregate assets representing greater than 10.0% of Consolidated Total Assets as of the end
of the most recent fiscal quarter for which a consolidated balance sheet of the Borrower was
required to be furnished to the Administrative Agent pursuant to Section 5.04, then, in either
case, the Borrower shall designate those Insignificant Domestic Subsidiaries as Subsidiary Loan
Parties that are necessary to make it so the conditions specified in clauses (i) and (ii) are no
longer satisfied.




          “Insignificant Foreign Subsidiary” shall mean a Foreign Subsidiary with (1) net sales
that are less than 3.0% of the consolidated net sales of the Borrower and the Subsidiaries for the
most recent fiscal quarter for which a consolidated income statement of the Borrower is available
and (2) assets that are less than 3.0% of Consolidated Total Assets as of the end of the most
recent fiscal quarter for which a consolidated balance sheet of the Borrower and the Subsidiaries
is available.




          “Intellectual Property” shall have the meaning assigned to such term in Section
3.24(a).




          “Interest Election Request” shall mean a request by the Borrower to convert or
continue a Term Borrowing or Revolving Borrowing in accordance with Section 2.07.




          “Interest Expense” shall mean, with respect to any person for any period, the sum of
(a) gross interest expense of such person for such period on a consolidated basis, including (i)
the amortization of debt discounts, (ii) the amortization of all fees (including fees with respect
to Swap Agreements) payable in connection with the incurrence of Indebtedness to the extent
included in interest expense and (iii) the portion of any payments or accruals with respect to
Capital Lease Obligations allocable to interest expense and (b) capitalized interest of such
person. For purposes of the foregoing, gross interest expense shall be determined after giving
effect to any net payments made or received and costs incurred by the Borrower and its Subsidiaries
with respect to Swap Agreements.




          “Interest Payment Date” shall mean, (a) with respect to any Eurocurrency Loan, the
last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurocurrency Borrowing with an Interest Period of more than three months’ duration,
each day that would have been an Interest Payment Date had successive Interest Periods of three
months’ duration been applicable to such Borrowing and, in addition, the date of any refinancing or
conversion of such Borrowing with or to a Borrowing of a different Type, (b) with respect to any
ABR Loan, the last Business Day of each calendar quarter and (c) with respect to any Swingline
Loan, the day that such Swingline Loan is required to be repaid pursuant to Section 2.09(a).




          “Interest Period” shall mean, as to any Eurocurrency Borrowing, the period commencing
on the date of such Borrowing or on the last day of the immediately preceding Interest Period
applicable to such Borrowing, as applicable, and ending on the numerically corresponding day (or,
if there is no numerically corresponding day, on the last day) in the calendar month that is 1, 2,
3 or 6 months thereafter (or 9 or 12 months, if at the time of the relevant Borrowing, available to
all relevant Lenders), as the Borrower may elect, or the date any Eurocurrency Borrowing is
converted to an ABR Borrowing in accor-






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dance with Section 2.07 or repaid or prepaid in accordance with Section 2.09, 2.10 or 2.11;
provided, unless the Administrative Agent shall otherwise agree, that with respect to
periods commencing prior to the 31st day after the Original Effective Date, the Borrower shall only
be permitted to request Interest Periods of one month; provided, however, that if
any Interest Period would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the next preceding
Business Day. Interest shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.




          “Investment” shall have the meaning assigned to such term in Section 6.04.




          “Issuing Bank” shall mean UBS AG, Stamford Branch, solely for the purposes of the
€194,847.92 Letter of Credit to be issued for the benefit of the Borrower by its Milan branch, Bank
of America, N.A., and each other Issuing Bank designated pursuant to Section 2.05(k), in each case
in its capacity as an issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.05(i) and, solely with respect to an Existing Letter of Credit (and any
amendment, renewal or extension thereof in accordance with this Agreement), the Lender that issued
such Existing Letter of Credit. An Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing
Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.




          “Issuing Bank Fees” shall have the meaning assigned to such term in Section 2.12(b).




          “Joint Lead Arrangers” shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.




          “Judgment Currency” shall have the meaning assigned to such term in Section 9.21(a).




          “Judgment Currency Conversion Date” shall have the meaning assigned to such term in
Section 9.21(a).




          “L/C Commitment” shall mean the commitment of each Issuing Bank to issue Letters of
Credit pursuant to Section 2.05. The aggregate amount of the L/C Commitment shall initially be
$50.0 million, but shall in no event exceed the Revolving Commitment.




          “L/C Disbursement” shall mean a payment or disbursement made by an Issuing Bank
pursuant to a Letter of Credit.




          “L/C Obligations” shall mean, as of any date, the sum of, without duplication, of the
aggregate amount available to be drawn under all outstanding Letters of Credit plus the
aggregate amount of all payments or disbursements made under all Letters of Credit.




          “L/C Participation Fee” shall have the meaning assigned such term in Section 2.12(b).




          “Lender” shall mean each financial institution listed on Schedule 2.01, as
well as any person that becomes a “Lender” hereunder pursuant to Section 9.04.




          “Lender Insolvency Event” shall mean that (i) a Lender or its Parent Company is
insolvent, or is generally unable to pay its debts as they become due, or admits in writing its
inability to pay its debts as they become due, or makes a general assignment for the benefit of its
creditors, or (ii) such Lender or its Parent Company is the subject of a bankruptcy, insolvency,
reorganization, liquidation






-22-









 







or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the
like has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company
has taken any action in furtherance of or indicating its consent to or acquiescence in any such
proceeding or appointment; provided that the ownership or acquisition of any equity
interest in a Lender or any direct or indirect parent company thereof by a Governmental Authority
shall not in and of itself constitute a Lender Insolvency Event so long as such ownership interest
does not result in or provide such lender with immunity from the jurisdiction of courts within the
United States or from the enforcement of judgments or writs of attachment on its assets or permit
such lender (or such Government Authority) to reject, repudiate disavow or disaffirm any contracts
or agreements made with such Lender.




          “Lending Office” shall mean, as to any Lender, the applicable branch, office or
Affiliate of such Lender designated by such Lender to make Loans.




          “Letter of Credit” shall mean any letter of credit (including each Existing Letter of
Credit and Alternate Currency Letters of Credit) issued pursuant to Section 2.05.




          “LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing for any Interest
Period, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m.,
London time, on the Quotation Day for such Interest Period by reference to the British Bankers’
Association Interest Settlement Rates for deposits in the currency of such Borrowing (as reflected
on the applicable Telerate screen page), for a period equal to such Interest Period;
provided that, to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition, the “LIBO Rate” shall be the average (rounded upward, if
necessary, to the next 1/100 of 1%) of the respective interest rates per annum at which deposits in
the currency of such Borrowing are offered for such Interest Period to major banks in the London
interbank market by the principal London office of the bank serving as the Administrative Agent at
approximately 11:00 a.m., London time, on the Quotation Day for such Interest Period.




          “Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien,
hypothecation, pledge, encumbrance, charge or security interest in or on such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities (other than securities
representing an interest in a joint venture that is not a Subsidiary), any purchase option, call or
similar right of a third party with respect to such securities to the extent that any such right is
intended to have an effect equivalent to that of a security interest in such securities.




          “Loan Documents” shall mean this Agreement, the Amendment Agreement, the Letters of
Credit, the Security Documents and any Note issued under Section 2.09(e), any Incremental Facility
Amendment, and solely for the purposes of Section 7.01(c) hereof, the Fee Letter.




          “Loan Parties” shall mean the Borrower and the Subsidiary Loan Parties.




          “Loans” shall mean the Term Loans, the Revolving Facility Loans, the Swingline Loans
any loans in respect of Incremental Extensions of Credit, the Refinancing Term Loans and any
Extended Maturity Loans.




          “Local Time” shall mean New York City time.




          “Margin Stock” shall have the meaning assigned to such term in Regulation U.







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          “Material Adverse Effect” shall mean a material adverse effect on the business,
property, operations or condition of the Borrower and its Subsidiaries, taken as a whole.




          “Material Indebtedness” shall mean Indebtedness (other than Loans and Letters of
Credit) of any one or more of the Borrower or any Subsidiary in an aggregate principal amount
exceeding $50 million.




          “Maximum Rate” shall have the meaning assigned to such term in Section 9.09.




          “Maximum Term Amount” with respect to a particular Class of Term Loans shall mean at
any time (i) the initial aggregate principal amount of all Term Loans of such Class then or
theretofore made hereunder (adjusted for any Term Loans of such Class that may have been converted
to another Class in accordance with the terms hereof), including the aggregate initial principal
amount of any Incremental Term Loans then or theretofore made, and deemed to be of such Class,
pursuant to Section 2.21.




          “Moody’s” shall mean Moody’s Investors Service, Inc.




          “Mortgaged Properties” shall mean each real property encumbered by a Mortgage pursuant
to Section 5.10.




          “Mortgages” shall mean the mortgages, deeds of trust or deeds to secure debt delivered
pursuant to Section 5.10, as amended, supplemented or otherwise modified from time to time, with
respect to Mortgaged Properties.




          “Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3)
of ERISA to which the Borrower or any Subsidiary or any ERISA Affiliate (other than one considered
an ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414) is making or
accruing an obligation to make contributions, or has within any of the preceding six plan years
made or accrued an obligation to make contributions.




          “Net Income” shall mean, with respect to any person, the net income (loss) of such
person, determined in accordance with GAAP and before any reduction in respect of preferred stock
dividends.




          “Net Proceeds” shall mean:





     (a) 100% of the cash proceeds actually received by the Borrower or any Subsidiary of
the Borrower (including any cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment receivable or
otherwise and including casualty insurance settlements and condemnation awards, but only as
and when received) from any loss, damage, destruction or condemnation of, or any sale,
transfer or other disposition (including any sale and leaseback of assets and any mortgage
or lease of real property) to any person of, any asset or assets of the Borrower or any
Subsidiary of the Borrower (other than those pursuant to Section 6.05(a), (b), (c), (e),
(f), (h), (i) or (k)), net of (i) attorneys’ fees, accountants’ fees, investment banking
fees, survey costs, title insurance premiums, and related search and recording charges,
transfer taxes, deed or mortgage recording taxes, required debt payments and required
payments of other obligations relating to the applicable asset (other than pursuant hereto
or pursuant to Permitted Junior Debt or any Permitted Refinancing Indebtedness in respect
thereto), other customary expenses and brokerage, consultant and other customary fees
actually incurred in connection therewith and (ii) Taxes paid or payable as a result
thereof; provided that if no Event of Default exists and the Borrower shall deliver
a certificate of a Responsible



-24-









 







Officer of the Borrower to the Administrative Agent promptly following receipt of
any such proceeds setting forth the Borrower’s intention to use any portion of such proceeds
to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the
business of the Borrower and its Subsidiaries or to make investments in Permitted Business
Acquisitions, in each case within 12 months of such receipt, such portion of such proceeds
shall not constitute Net Proceeds except to the extent not so used or not contractually
committed to be so used within such 12-month period (it being understood that if any portion
of such proceeds are not so used within such 12-month period because such amount is
contractually committed to be used and subsequent to such date such contract is terminated
or expires without such portion being so used or, in any event, if such proceeds are not
used within 180 days of such commitment (in the case of proceeds from any consensual sale,
transfer or disposition) or one year of such commitment (in any other case), such remaining
portion shall constitute Net Proceeds as of the date of such termination or expiration
without giving effect to this proviso), and provided, further, that (x) no
proceeds realized in a single transaction or series of related transactions shall constitute
Net Proceeds unless such proceeds shall exceed $5 million and (y) no proceeds shall
constitute Net Proceeds in any fiscal year until the aggregate amount of all such proceeds
in such fiscal year shall exceed $15 million, and




     (b) 100% of the cash proceeds from the incurrence, issuance or sale by the Borrower or
any Subsidiary of any Indebtedness (other than Excluded Indebtedness), net of all taxes and
fees (including investment banking fees), commissions, costs and other expenses, in each
case incurred in connection with such incurrence, issuance or sale.


For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and
expenses payable to the Borrower or any Affiliate of the Borrower shall be disregarded, except for
financial advisory fees customary in type and amount paid to a Permitted Investor.




          “Net Share Settlement” shall mean any settlement received by any holder of Convertible
Securities upon any surrender of its Convertible Securities for conversion consisting of Equity
Interests, cash or a combination of cash and Equity Interests.




          “New Tranche 2 Revolving Facility Commitments” shall have the meaning assigned to such
term in Section 2.22(d).




          “Non-Consenting Lender” shall have the meaning assigned to such term in Section
2.19(c).




          “Non-Defaulting Lender” shall mean, at any time, a Lender that is not a Defaulting
Lender or a Potential Defaulting Lender.




          “Non-Extended Portion” shall mean, with respect to any Term Loan or Revolving Facility
Commitment, (i) in the case of Term Loans, (a) if such Term Loan has been submitted for conversion
to a Term C Loan on the 2011 Amendment Effective Date pursuant to the Amendment Agreement, the
portion of such Term Loan notified by the Administrative Agent to the Lender holding such Term Loan
that will not be converted to a Term C Loan on the 2011 Amendment Effective Date and (b) if such
Term Loan has not been submitted for conversion to a Term C Loan pursuant to the 2011 Amendment
Agreement, the entire principal amount of such Term Loan and (ii) in the case of Revolving Facility
Commitments, (a) if such Revolving Facility Commitment has been submitted for conversion to a
Tranche 2 Revolving Facility Commitment on the 2011 Amendment Effective Date pursuant to the 2011
Amendment Agreement, $0 and (b) if such Revolving Facility Commitment has not been submitted for
conversion to a






-25-









 







Tranche 2 Revolving Facility Commitment pursuant to the 2011 Amendment Agreement, the entire
principal amount of such Revolving Facility Commitment.




          “Note” shall have the meaning assigned to such term in Section 2.09(e).




          “Obligation Currency” shall have the meaning assigned to such term in Section 9.21(a).




          “Obligations” shall have the meaning assigned to such term in the Collateral
Agreement.




          “OFAC” shall have the meaning assigned to such term in Section 3.22(b).




          “Original Effective Date” shall mean March 31, 2006.




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




          “Outstanding Letter of Credit Amount” shall mean with respect to any Letter of Credit,
at any time, the sum of (a) the maximum amount from time to time available to be drawn, determined
without regard to whether any conditions to drawing could then be met, and (b) the aggregate amount
of all unpaid drawings, in each case with respect to such Letter of Credit.




          “Parent Company” means, with respect to a Lender, the holding company (as defined in
Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning, beneficially
or of record, directly or indirectly, a majority of the shares of such Lender.




          “Participant” shall have the meaning assigned to such term in Section 9.04(c).




          “Participating Member States” shall mean the member states of the European Communities
that adopt or have adopted the euro as their lawful currency in accordance with the legislation of
the European Union relating to European Monetary Union.




          “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA.




          “Perfection Certificate” shall mean a certificate in the form of Exhibit II to
the Collateral Agreement or any other form approved by the Administrative Agent.




          “Permitted Asset Swap” shall mean any transfer of Equity Interests or properties or
other assets by the Borrower or any of the Subsidiaries in which at least 75% of the consideration
received by the transferor consists of properties or other assets (other than cash or Permitted
Investments) useful in the business of the Borrower or such Subsidiary; provided that the
aggregate fair market value of the Equity Interests or property or other assets being transferred
by the Borrower or such Subsidiary is not greater than the aggregate fair market value of the
properties or other assets received by the Borrower or such Subsidiary in such transfer.




          “Permitted Bond Hedge” shall mean any Swap Agreement that is settled (after payment of
any premium or any prepayment thereunder) through the delivery of cash and/or of Equity Interests
of the Borrower and is entered into in connection with any Convertible Securities, the purpose of
which is to






-26-









 







provide for an effectively higher conversion premium (including, but not limited to, any bond
hedge transaction, warrant transaction or capped call transaction).




          “Permitted Business Acquisition” shall mean any acquisition of all or substantially
all the assets of, or all the Equity Interests (other than directors’ qualifying shares) in, a
person or division or line of business of a person (or any subsequent investment made in a person,
division or line of business previously acquired in a Permitted Business Acquisition) if (a) to the
extent that such acquisition was preceded by, or effected pursuant to, a hostile offer by the
acquirer or an Affiliate of the acquirer, no Loan proceeds are used to consummate such acquisition
and (b) immediately after giving effect thereto: (i) no Event of Default shall have occurred and
be continuing or would result therefrom; (ii) all transactions related thereto shall be consummated
in accordance with applicable laws; (iii) (A) the Borrower and its Subsidiaries shall be in
compliance, on a Pro Forma Basis after giving effect to such acquisition or formation, with the
Incurrence Test recomputed as at the last day of the most recently ended fiscal quarter of the
Borrower and its Subsidiaries, and the Borrower shall have delivered to the Administrative Agent a
certificate of a Responsible Officer of the Borrower certifying that such transaction complies with
this definition, together with all relevant financial information for such Subsidiary or assets,
and (B) any acquired or newly formed Subsidiary shall not be liable for any Indebtedness (except
for Indebtedness permitted by Section 6.01); and (iv) the person or business to be acquired shall
be, or shall be engaged in, a business of the type that the Borrower and the Subsidiaries are
permitted to be engaged in under Section 6.08 and the property acquired in connection with any such
transaction shall be made subject to the Lien of the Security Documents to the extent required by
Section 5.10, subject to Liens permitted by Section 6.02.




          “Permitted Investments” shall mean:





     (a) direct obligations of the United States of America or any member of the European
Union or any agency thereof or obligations guaranteed by the United States of America or any
member of the European Union or any agency thereof, in each case with maturities not
exceeding one year from the date of acquisition thereof;




     (b) time deposit accounts, certificates of deposit and money market deposits maturing
within 180 days of the date of acquisition thereof issued by a bank or trust company that is
organized under the laws of the United States of America, any state thereof or any foreign
country recognized by the United States of America having capital, surplus and undivided
profits in excess of $250 million and whose long-term debt, or whose parent holding
company’s long-term debt, is rated A (or such similar equivalent rating or higher by at
least one nationally recognized statistical rating organization (as defined in Rule 436
under the Securities Act);




     (c) repurchase obligations with a term of not more than 180 days for underlying
securities of the types described in clause (a) above entered into with a bank meeting the
qualifications described in clause (b) above;




     (d) commercial paper, maturing not more than one year after the date of acquisition,
issued by a corporation (other than an Affiliate of the Borrower) organized and in existence
under the laws of the United States of America or any foreign country recognized by the
United States of America with a rating at the time as of which any investment therein is
made of P-1 (or higher) according to Moody’s, or A-1 (or higher) according to S&P;




     (e) securities with maturities of one year or less from the date of acquisition issued
or fully guaranteed by any State, commonwealth or territory of the United States of America,
or by any political subdivision or taxing authority thereof, and rated at least A by S&P or
A by Moody’s;



-27-









 






     (f) shares of mutual funds whose investment guidelines restrict 95% of such funds’
investments to those satisfying the provisions of clauses (a) through (e) above;




     (g) money market funds that (i) comply with the criteria set forth in Rule 2a-7 under
the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii)
have portfolio assets of at least $5,000.0 million;




     (h) time deposit accounts, certificates of deposit and money market deposits in an
aggregate face amount not in excess of 1/2 of 1% of the total assets of the Borrower and its
Subsidiaries, on a consolidated basis, as of the end of the Borrower’s most recently
completed fiscal year; and




     (i) Investments that are consistent with the investment policy of the Borrower, as it
may be amended from time to time, that has been adopted by the board of directors of the
Borrower and approved by the Administrative Agent.



          “Permitted Junior Debt” shall mean (a) unsecured subordinated Indebtedness issued or
incurred by the Borrower and (b) unsecured senior Indebtedness issued by the Borrower, (i) the
terms of which, in the case of each of clauses (a) and (b), (1) do not provide for any scheduled
repayment, mandatory redemption or sinking fund obligation prior to the date that is six months
after the Term Loan C Facility Maturity Date (or such later date that is the latest final maturity
date of any Incremental Extension of Credit) and (2) in the case of unsecured subordinated
Indebtedness, provide for subordination of payments in respect of such Indebtedness to the
Obligations and guarantees thereof under the Loan Documents customary for high yield or Convertible
Securities and (ii) in respect of which no Subsidiary that is not an obligor under the Loan
Documents is an obligor; provided that (x) immediately prior to and after giving effect to
any incurrence of Permitted Junior Debt, no Default has occurred or is continuing or shall result
therefrom and the Borrower shall be in compliance with the Incurrence Test on a Pro Forma Basis
after giving effect to such incurrence and (y) in the case of any Convertible Securities issued or
incurred by the Borrower that provide for Net Share Settlement, such Convertible Securities shall
qualify as Permitted Junior Debt if they otherwise (without regard for the Net Share Settlement)
meet the requirements set forth in clause (a) or (b) above. Notwithstanding the foregoing, the
Borrower’s 2027 Debentures shall constitute “Permitted Junior Debt.”




          “Permitted Refinancing Indebtedness” shall mean any Indebtedness issued in exchange
for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund
(collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings
thereof constituting Permitted Refinancing Indebtedness); provided that (a) the principal
amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not
exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced
(plus unpaid accrued interest and premium thereon and underwriting discounts, fees, commissions and
expenses), (b) the average life to maturity of such Permitted Refinancing Indebtedness is greater
than or equal to that of the Indebtedness being Refinanced or the Term C Loans, (c) if the
Indebtedness being Refinanced is subordinated in right of payment to the Obligations under this
Agreement, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to
such Obligations on terms at least as favorable to the Lenders as those contained in the
documentation governing the Indebtedness being Refinanced, (d) no Permitted Refinancing
Indebtedness shall have different obligors, or greater guarantees or security, than the
Indebtedness being Refinanced and (e) if the Indebtedness being Refinanced is secured by any
collateral (whether equally and ratably with, or junior to, the Secured Parties or otherwise), such
Permitted Refinancing Indebtedness may be secured by such collateral on terms no less favorable to
the Secured Parties than those contained in the documentation governing the Indebtedness being
Refinanced; and provided, further, that with re-






-28-









 







spect to a Refinancing of Permitted Junior Debt, such Permitted Refinancing Indebtedness shall
meet the requirements of clauses (i) and (ii) of the definition of “Permitted Junior Debt.”




          “Permitted Swap Agreement” shall mean (i) any Swap Agreement related to incentive
stock, stock options, phantom stock or similar agreements entered into with current or former
directors, officers, employees or consultants of the Borrower or the Subsidiaries, (ii) any stock
option or warrant agreement for the purchase of Equity Interests of the Borrower, (iii) any Swap
Agreement for the purchase of Equity Interests or Indebtedness (including securities convertible
into Equity Interests) of the Borrower pursuant to delayed delivery contracts, (iv) any Permitted
Bond Hedge, (v) any Swap Agreement to repurchase or redeem shares permitted pursuant to Section
6.06(e) and (vi) any of the foregoing to the extent it constitutes a derivative embedded in a
convertible security issued by the Borrower, which in the case of each of the foregoing (except to
the extent that a Permitted Bond Hedge may so qualify) has not be been entered into for speculative
purposes.




          “person” shall mean any natural person, corporation, business trust, joint venture,
association, company, partnership, limited liability company or government, individual or family
trusts, or any agency or political subdivision thereof.




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




          “Platform” shall have the meaning assigned to such term in Section 9.17(b).




          “Pledged Collateral” shall have the meaning assigned to such term in the Collateral
Agreement provided, however, that, notwithstanding anything to the contrary,
Pledged Collateral shall not include (i) any outstanding stock of a Controlled Foreign Subsidiary
entitled to vote in excess of 65% of the total combined voting power of all classes of stock of
such Controlled Foreign Subsidiary entitled to vote (within the meaning of Treasury Regulation §
1.956-2(c)(2) or any successor provision thereto) or (ii) any asset of a Controlled Foreign
Subsidiary (within the meaning of Treasury Regulation § 1.956-2(c)(2) or any successor provision
thereto or a subsidiary of a Controlled Foreign Subsidiary. For the avoidance of doubt, any stock
of another corporation owned by a Controlled Foreign Subsidiary is an asset of a Controlled Foreign
Subsidiary.




          “Potential Defaulting Lender” shall mean, at any time, (i) any Lender with respect to
which an event of the kind referred to in the definition of “Lender Insolvency Event” has occurred
and is continuing in respect of any financial institution affiliate of such Lender, (ii) any Lender
that has notified, or whose Parent Company or a financial institution affiliate thereof has
notified, the Administrative Agent, the Borrower, the Issuing Bank or the Swingline Lender in
writing, or has stated publicly, that it does not intend to comply with its funding obligations
under any other loan agreement or credit agreement or other similar agreement or (iii) any Lender
that has, or whose Parent Company has, a non-investment grade rating from Moody’s or S&P or another
nationally recognized rating agency. Any determination that a Lender is a Potential Defaulting
Lender under any of clauses (i) through (iii) above will be made by the Administrative Agent or, in
the case of clause (ii), the Issuing Bank or the Swingline Lender, as the case may be, in its sole
discretion acting in good faith. The Administrative Agent will promptly send to all parties hereto
a copy of any notice to the Borrower provided for in this definition.




          “pounds,” “GBP” or “£” shall mean lawful money of the United Kingdom.







-29-









 






          “Pricing Grid” shall mean:





     (a) in the case of Tranche 1 Revolving Facility Commitments and Tranche 1 Revolving
Facility Loans:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable Margin	 	 
	 	 	Applicable Margin	 	for Eurocurrency	 	Commitment
	 	 	for ABR Loans	 	Loans	 	Fee Rate
	Consolidated
Leverage Ratio
greater than or
equal to 3.75 to
1.0.
	 	 	1.25	%	 	 	2.25	%	 	 	0.50	%
	Consolidated
Leverage Ratio less
than 3.75 to 1.0,
but greater than or
equal to 3.0 to
1.0.
	 	 	1.00	%	 	 	2.00	%	 	 	0.50	%
	Consolidated
Leverage Ratio less
than 3.0 to 1.0,
but (i) greater
than or equal to
2.50 to 1.0 or (ii)
less than 2.50 to
1.0 and corporate
family rating from
Moody’s is less
than Ba3 (stable).
	 	 	0.75	%	 	 	1.75	%	 	 	0.375	%
	Consolidated
Leverage Ratio less
than 2.50 to 1.0
and corporate
family rating from
Moody’s is Ba3
(stable) or better.
	 	 	0.50	%	 	 	1.50	%	 	 	0.375	%








     (b) in the case of Term B Loans:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable Margin
	 	 	Applicable Margin for	 	for Eurocurrency
	 	 	ABR Loans	 	Loans
	Consolidated Leverage
Ratio greater than or
equal to 3.75 to 1.0.
	 	 	1.50	%	 	 	2.50	%
	Consolidated Leverage
Ratio less than 3.75 to
1.0, but greater than or
equal to 3.0 to 1.0.
	 	 	1.25	%	 	 	2.25	%
	Consolidated Leverage
Ratio less than 3.0 to
1.0, but (i) greater
than or equal to 2.50 to
1.0 or (ii) less than
2.50 to 1.0 and
corporate family rating
from Moody’s is less
than Ba3 (stable).
	 	 	1.00	%	 	 	2.00	%
	Consolidated Leverage
Ratio less than 2.50 to
1.0 and corporate family
rating from Moody’s is
Ba3 (stable) or better.
	 	 	0.75	%	 	 	1.75	%












-30-









 





     (c)
in the case of Tranche 2 Revolving Facility Commitments and Tranche 2 Revolving
Facility Loans:





	 	 	 	 	 	 	 	 	 
	Borrower Corporate	 	 	 	 	 	 
	Credit Rating from	 	 	 	 	 	Applicable Margin
	Moody’s / Corporate Family Rating	 	Applicable Margin	 	for Eurocurrency
	from S&P	 	for ABR Loans	 	Loans
	Scenario 1: Ba1 (stable) or
better and BB+ (stable) or better
	 	 	1.25	%	 	 	2.25	%
	Scenario 2: Ba2 (stable) or
better and BB (stable) or better,
but Scenario 1 does not apply
	 	 	1.50	%	 	 	2.50	%
	Scenario 3: Ba3 (stable) or
better and BB- (stable) or
better, but neither Scenario 1 or
Scenario 2 applies
	 	 	1.75	%	 	 	2.75	%
	Scenario 4: None of Scenarios 1,
2 or 3 applies
	 	 	2.25	%	 	 	3.25	%







	 	 	 	 	 
	Borrower Corporate	 	 
	Credit Rating from	 	Commitment
	Moody’s / Corporate Family Rating from S&P	 	Fee Rate
	Scenario 1: Ba2 (stable) or better or BB (stable) or better.
	 	 	0.375	%
	Scenario 2: Scenarios 1 does not apply
	 	 	0.50	%








     (d) in the case of Term C Loans, 2.00% in the case of ABR Loans and 3.00% in the case
of Eurocurrency Loans.



          For the purposes of the Pricing Grid, changes in the Applicable Margin or the Commitment Fee
Rate resulting from changes in the Consolidated Leverage Ratio shall become effective on the date
following the Original Effective Date that is three Business Days after the date on which financial
statements are delivered to the Lenders pursuant to Section 5.04 and shall remain in effect until
the next change to be effected pursuant to this paragraph. If any financial statements referred to
above are not delivered within the time periods specified in Section 5.04, then, until the date
that is three Business Days after the date on which such financial statements are delivered, the
highest rate set forth in each column of the Pricing Grid shall apply. In addition, at all times
while an Event of Default shall have occurred and be continuing, the highest rate set forth in each
column of the Pricing Grid shall apply.



-31-








 







          “primary obligor” shall have the meaning given such term in the definition of the term
“Guarantee.”




          “Pro Forma Basis” shall mean, as to any person, for any events that occur subsequent
to the commencement of a period for which the financial effect of such events is being calculated,
and giving effect to the events for which such calculation is being made, such calculation as will
give pro forma effect to such events as if such events occurred on the first day of the most recent
four consecutive fiscal quarter period (the “Reference Period”) ended on or before the
occurrence of such event for which financial statements have been delivered for the quarter or
fiscal year ending on the last day of such period pursuant to Section 5.04, or if such events occur
before the first day of the first four consecutive fiscal quarter period for which financial
statements are required to be delivered pursuant to Section 5.04, financial statements for the
Borrower and its subsidiaries generated by the Borrower that generally comply with Section 5.04:
(i) in making any determination of EBITDA, pro forma effect shall be given to any asset
disposition, any acquisition permitted hereunder, any discontinued operation or any operational
change (or any similar transaction or transactions that require a waiver or consent of the Required
Lenders pursuant to Section 6.04 or 6.05), in each case that occurred during the Reference Period
(or, in the case of determinations made pursuant to the definition of the term “Permitted Business
Acquisition,” occurring during the Reference Period or thereafter and through and including the
date upon which the Permitted Business Acquisition is consummated), (ii) in making any
determination on a Pro Forma Basis, (x) all Indebtedness (including Indebtedness incurred or
assumed and for which the financial effect is being calculated, whether incurred under this
Agreement or otherwise, but excluding normal fluctuations in revolving Indebtedness incurred for
working capital purposes and not used to finance any acquisition permitted hereunder) incurred or
permanently repaid during the Reference Period (or, in the case of determinations made pursuant to
the definition of the term “Permitted Business Acquisition,” occurring during the Reference Period
or thereafter and through and including the date upon which the Permitted Business Acquisition is
consummated) shall be deemed to have been incurred or repaid at the beginning of such period and
(y) Interest Expense of such person attributable to interest on any Indebtedness, for which pro
forma effect is being given as provided in preceding clause (x), bearing floating interest rates
shall be computed on a pro forma basis as if the rates that would have been in effect during the
period for which pro forma effect is being given had been actually in effect during such periods
and (iii) the Subsidiary Redesignation, if any, then being designated as well as any other
Subsidiary Redesignation after the first day of the relevant Reference Period and on or prior to
the date of the respective Subsidiary Redesignation then being designated.




          Pro forma calculations made pursuant to the definition of the term “Pro Forma Basis” shall be
determined in good faith by a Responsible Officer of the Borrower and, for any fiscal period ending
on or prior to the first anniversary of an acquisition permitted hereunder, asset disposition,
discontinued operation or operational change (or any similar transaction or transactions that
require a waiver or consent of the Required Lenders pursuant to Section 6.04 or 6.05), may include
adjustments to reflect operating expense reductions and other operating improvements or synergies
reasonably expected to result from such acquisition permitted hereunder, asset disposition or other
similar transaction, as follows: (x) for purposes of determining the Applicable Margin, such
adjustments shall reflect demonstrable operating expense reductions and other demonstrable
operating improvements or synergies that would be includable in pro forma financial statements
prepared in accordance with Regulation S-X under the Securities Act; and (y) for purposes of
determining compliance with the Incurrence Test and achievement of other financial measures
provided for herein, such adjustments may reflect additional operating expense reductions and other
additional operating improvements or synergies that would not be includable in pro forma financial
statements prepared in accordance with Regulation S-X but for which substantially all of the steps
necessary for the realization thereof have been taken or are reasonably anticipated by the Borrower
to be taken in the next 12-month period following the consummation thereof, are estimated on a good
faith ba-






-32-









 








sis by the Borrower; provided, however, that the aggregate amount of any such
adjustments with respect to operational changes shall not exceed $20 million in any fiscal year.
The Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer of the
Borrower setting forth such demonstrable or additional operating expense reductions and other
operating improvements and synergies and information and calculations supporting them in reasonable
detail.




          “Projections” shall mean the projections and any forward-looking statements (including
statements with respect to booked business) of such entities furnished to the Lenders or the
Administrative Agent by or on behalf of the Borrower or any Subsidiary prior to the 2007 Amendment
Effective Date.




          “Purchasing Borrower Party” shall mean the Borrower or any Subsidiary of the Borrower
that becomes Transferee pursuant to Section 9.04(g).




          “Qualified Capital Stock” shall mean any Equity Interest of any person that does not
by its terms (or by the terms of any security into which it is convertible or for which it is
exchangeable or exercisable) or upon the happening of any event (a) provide for scheduled payments
of dividends in cash, (b) become mandatorily redeemable (other than pursuant to customary
provisions relating to redemption upon a change of control or sale of assets) pursuant to a sinking
fund obligation or otherwise prior to the date that is 91 days after the Term Loan C Maturity Date
(or such later date that is the latest final maturity date of any Incremental Extension of Credit),
(c) become convertible or exchangeable at the option of the holder thereof for Indebtedness or
Equity Interests that are not Qualified Capital Stock or (d) contain any maintenance covenants,
other covenants adverse to the Lenders or remedies (other than voting rights and increases in
dividends).




          “Quotation Day” shall mean, with respect to any Eurocurrency Borrowing and any
Interest Period, the day on which it is market practice in the relevant interbank market for prime
banks to give quotations for deposits in the currency of such Borrowing for delivery on the first
day of such Interest Period. If such quotations would normally be given by prime banks on more
than one day, the Quotation Day will be the last of such days.




          “Reference Period” shall have the meaning assigned to such term in the definition of
the term “Pro Forma Basis.”




          “Refinance” shall have the meaning assigned to such term in the definition of the term
“Permitted Refinancing Indebtedness,” and “Refinanced” shall have a meaning correlative
thereto.




          “Refinancing Effective Date” shall have the meaning assigned to such term in Section
2.23(a).




          “Refinancing Term Lender” shall have the meaning assigned to such term in Section
2.23(b).




          “Refinancing Term Loan Amendment” shall have the meaning assigned to such term in
Section 2.23(c).




          “Refinancing Term Loan Commitments” shall have the meaning assigned to such term in
Section 2.23(a).




          “Refinancing Term Loans” shall have the meaning assigned to such term in Section
2.23(a).







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          “Register” shall have the meaning assigned to such term in Section 9.04(b).




          “Regulation U” shall mean Regulation U of the Board as from time to time in effect and
all official rulings and interpretations thereunder or thereof.




          “Regulation X” shall mean Regulation X of the Board as from time to time in effect and
all official rulings and interpretations thereunder or thereof.




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




          “Release” shall mean any spilling, leaking, seepage, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, emanating or
migrating in, into, onto or through the environment.




          “Relevant Currency Equivalent” shall mean the Dollar Equivalent or each Alternate
Currency Equivalent, as applicable.




          “Reportable Event” shall mean any reportable event as defined in Section 4043(c) of
ERISA or the regulations issued thereunder, other than those events as to which the 30-day notice
period referred to in Section 4043(c) of ERISA has been waived, with respect to a Plan (other than
a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 414 of the Code).




          “Required Lenders” shall mean, at any time, Lenders having (a) Loans (other than
Swingline Loans) outstanding, (b) Revolving L/C Exposures, (c) Swingline Exposures and (d)
Available Unused Commitments, that taken together, represent more than 50% of the sum of (w) all
Loans (other than Swingline Loans) outstanding, (x) Revolving L/C Exposures, (y) Swingline
Exposures and (z) the total Available Unused Commitments at such time. The Loans, Revolving L/C
Exposures, Swingline Exposures and Available Unused Commitment of any Defaulting Lender shall be
disregarded in determining Required Lenders at any time.




          “Required Percentage” shall mean, with respect to any Excess Cash Flow Period, 50%;
provided that (a) if the Consolidated Leverage Ratio at the end of such Excess Cash Flow
Period is greater than 3.0:1.00 but less than or equal to 3.25:1.00, such percentage shall be 25%,
and (b) if the Consolidated Leverage Ratio at the end of such Excess Cash Flow Period is less than
or equal to 3.00:1.00, such percentage shall be 0%.




          “Required Tranche 2 Revolving Lenders” shall have the meaning assigned to such term in
Section 2.08(d).




          “Responsible Officer” of any person shall mean any executive officer or Financial
Officer of such person and any other officer or similar official thereof responsible for the
administration of the obligations of such person in respect of this Agreement.




          “Revolving Facility” shall mean the Tranche 1 Revolving Facility and the Tranche 2
Revolving Facility.




          “Revolving Facility Borrowing” shall mean a Borrowing comprised of Revolving Facility
Loans.







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          “Revolving Facility Commitment” shall mean, (x) prior to the Tranche 1 Revolving
Facility Maturity Date, the aggregate amount of Tranche 1 Revolving Facility Commitments and
Tranche 2 Revolving Facility Commitments and (y) on or after the Tranche 1 Revolving Facility
Maturity Date, the Tranche 2 Revolving Facility Commitments; provided, that Revolving
Facility Commitment, when used with respect to a Class of Revolving Facility Loans shall refer to
the aggregate amount of Tranche 1 Revolving Facility Commitments, Tranche 2 Revolving Facility
Commitments, or Extended Maturity Commitments of the relevant Class, as applicable.




          “Revolving Facility Credit Exposure” shall mean, (x) prior to the Tranche 1 Revolving
Facility Maturity Date, the aggregate amount of Tranche 1 Revolving Facility Credit Exposure and
Tranche 2 Revolving Facility Credit Exposure and (y) on or after the Tranche 1 Revolving Facility
Maturity Date, the Tranche 2 Revolving Facility Credit Exposure.




          “Revolving Facility Lender” shall mean each Tranche 1 Revolving Lender and each
Tranche 2 Revolving Lender.




          “Revolving Facility Loan” shall mean a Tranche 1 Revolving Facility Loan or a Tranche
2 Revolving Facility Loan.




          “Revolving Facility Percentage” shall mean a Tranche 1 Revolving Facility Percentage
or Tranche 2 Revolving Facility Percentage, as applicable.




          “Revolving L/C Exposure” shall mean at any time the sum of (a) the aggregate undrawn
amount of all Letters of Credit outstanding at such time (in the case of Alternate Currency Letters
of Credit, the Dollar Equivalent of such amount) and (b) the aggregate principal amount of all L/C
Disbursements that have not yet been reimbursed at such time (in the case of Alternate Currency L/C
Disbursements, the Dollar Equivalent of such amount). The Revolving L/C Exposure of any Revolving
Facility Lender at any time shall mean its Revolving Facility Percentage of the aggregate Revolving
L/C Exposure at such time.




          “S&P” shall mean Standard & Poor’s Ratings Group, Inc.




          “Sale and Lease-Back Transaction” shall have the meaning assigned to such term in
Section 6.03.




          “SEC” shall mean the Securities and Exchange Commission or any successor thereto.




          “Second Lien Secured Notes” shall have the meaning assigned to such term in Section
6.01(s).




          “Secured Parties” shall mean the “Secured Parties” as defined in the Collateral
Agreement.




          “Securities Act” shall mean the Securities Act of 1933, as amended.




          “Security Documents” shall mean the Mortgages, the Collateral Agreement, the Foreign
Pledge Agreements and each of the security agreements, mortgages and other instruments and
documents executed and delivered pursuant to any of the foregoing or pursuant to Section 5.10.




          “Social Security Act” shall mean the Social Security Act of 1965 as set forth in Title
42 of the United States Code, as amended, and any successor statute thereto, as interpreted by the
rules and






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regulations issued thereunder, in each case as in effect from time to time. References to
sections of the Social Security Act shall be construed to refer to any successor sections.




          “Sponsor” shall mean Warburg Pincus LLC.




          “Spot Selling Rate” shall mean the spot selling rate at which the Administrative Agent
offers to sell such Alternate Currency for dollars in the London foreign exchange market at
approximately 11:00 a.m. London time on such date for delivery two (2) Business Days later.




          “Statutory Reserves” shall mean, with respect to any currency, any reserve, liquid
asset or similar requirements established by any Governmental Authority of the United States of
America or of the jurisdiction of such currency or any jurisdiction in which Loans in such currency
are made to which banks in such jurisdiction are subject for any category of deposits or
liabilities customarily used to fund loans in such currency or by reference to which interest rates
applicable to Loans in such currency are determined.




          “subsidiary” shall mean, with respect to any person (herein referred to as the
“parent”), any corporation, partnership, association or other business entity (a) of which
securities or other ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or more than 50% of the general partnership interests are, at the time
any determination is being made, directly or indirectly, owned, Controlled or held, or (b) that is,
at the time any determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.




          “Subsidiary” shall mean, unless the context otherwise requires, a subsidiary of the
Borrower. Notwithstanding the foregoing (and except for purposes of Sections 3.09, 3.13, 3.15,
3.16, 5.03, 5.09 and 7.01(k), and the definition of “Unrestricted Subsidiary” contained herein), an
Unrestricted Subsidiary shall be deemed not to be a subsidiary of the Borrower or any of the
Borrower’s subsidiaries for purposes of this Agreement.




          “Subsidiary Loan Party” shall mean (A) each Wholly Owned Subsidiary of the Borrower
that is not a Foreign Subsidiary and (B) each Domestic Subsidiary of the Borrower other than any
Domestic Subsidiary that is a subsidiary of a Controlled Foreign Subsidiary; provided that
no Insignificant Domestic Subsidiary formed or acquired after the 2007 Amendment Effective Date
shall be a Subsidiary Loan Party.




          “Subsidiary Redesignation” shall have the meaning provided in the definition of
“Unrestricted Subsidiary” contained in this Section 1.01.




          “Swap Agreement” shall mean 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.




          “Swingline Borrowing” shall mean a Borrowing comprised of Swingline Loans.




          “Swingline Borrowing Request” shall mean a request by the Borrower substantially in
the form of Exhibit C-2.





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          “Swingline Commitment” shall mean, with respect to each Swingline Lender, the
commitment of such Swingline Lender to make Swingline Loans pursuant to Section 2.04. The
aggregate amount of the Swingline Commitments on the Original Effective Date is $7.5 million.




          “Swingline Exposure” shall mean at any time the aggregate principal amount of all
outstanding Swingline Borrowings at such time. The Swingline Exposure of any Revolving Facility
Lender at any time shall mean its Revolving Facility Percentage of the aggregate Swingline Exposure
at such time.




          “Swingline Lender” shall mean UBS Loan Finance LLC, in its capacity as a lender of
Swingline Loans, and its successor(s) in such capacity.




          “Swingline Loans” shall mean the swingline loans made to the Borrower pursuant to
Section 2.04.




          “Syndication Agent” shall have the meaning assigned to such term in the introductory
paragraph of this Agreement.




          “Taxes” shall mean any and all present or future taxes, levies, imposts, duties
(including stamp duties), deductions, charges (including ad valorem charges) or
withholdings imposed by any Governmental Authority and any and all interest and penalties related
thereto.




          “Term B Lender” shall mean a Lender with outstanding Term B Loans.




          “Term B Loan” shall mean each Term Loan (as defined in the Existing Credit Agreement)
outstanding under the Existing Credit Agreement immediately prior to the effectiveness of this
Agreement that is not converted to a Term C Loan pursuant to Section 2.01(b) on the 2011 Amendment
Effective Date.




          “Term B Loan Facility” means the Term B Loans remaining outstanding pursuant to
Section 2.01(a) on the 2011 Amendment Effective Date.




          “Term B Loan Maturity Date” shall mean March 31, 2013.




          “Term Borrowing” shall mean a borrowing of Term B Loans, Term C Loans or any Extended
Maturity Loans that are Term Loans.




          “Term C Lender” shall mean a Lender with outstanding Term C Loans.




          “Term C Loan” shall mean each Term Loan (as defined in the Existing Credit Agreement)
outstanding under the Existing Credit Agreement immediately prior to the effectiveness of this
Agreement that is converted to a Term C Loan pursuant to Section 2.01(b) on the 2011 Amendment
Effective Date and each Incremental Term Loan that is deemed to be a Term C Loan pursuant to
Section 2.21.




          “Term C Loan Facility” shall mean the Term C Loans created pursuant to Section 2.01(b)
on the 2011 Amendment Effective Date.




          “Term C Loan Maturity Date” shall mean March 31, 2016.







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          “Term Facility Maturity Date” shall mean the Term B Loan Maturity Date, the Term C
Loan Maturity Date or the maturity date of any Refinancing Term Loan or Extended Maturity Loan that
is a Term Loan, in each case as applicable.




          “Term Loan Facility” shall mean and include (i) the Term B Loan Facility, (ii) the
Term C Loan Facility, (iii) the commitments under Section 2.21 to make Incremental Term Loans, and
the Incremental Term Loans made pursuant thereto and (iv) the commitments under Section 2.22 to
make Extended Maturity Loans that are Term Loans, and the Extended Maturity Loans that are Term
Loans made pursuant thereto.




          “Term Loan Installment Date” shall have the meaning assigned to such term in Section
2.10(a).




          “Term Loan” shall mean each Term B Loan, Term C Loan, Incremental Term Loan,
Refinancing Term Loan and Extended Maturity Loan.




          “Test Period” shall mean, on any date of determination, the period of four consecutive
fiscal quarters of the Borrower then most recently ended (taken as one accounting period).




          “Tranche 1 Revolving Facility” shall mean the Tranche 1 Revolving Facility Commitments
and the extensions of credit made thereunder by the Tranche 1 Revolving Lenders.




          “Tranche 1 Revolving Facility Commitment” shall mean, with respect to each Tranche 1
Revolving Facility Lender, the commitment of such Tranche 1 Revolving Facility Lender to make
Tranche 1 Revolving Facility Loans pursuant to Section 2.01, expressed as an amount representing
the maximum aggregate permitted amount of such Revolving Facility Lender’s Tranche 1 Revolving
Facility Credit Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender under Section 9.04. The aggregate amount of the Tranche 1 Revolving Facility
Commitments on the 2011 Amendment Effective Date is $35,000,000 and for each Revolving Facility
Lender is set forth opposite such Lender’s name on Schedule 2.01 attached to the 2011
Amendment Agreement.




          “Tranche 1 Revolving Facility Credit Exposure” shall mean, at any time, the sum of (a)
the aggregate principal amount of the Tranche 1 Revolving Facility Loans denominated in Dollars
outstanding at such time, (b) the Swingline Exposure at such time and (c) the Revolving L/C
Exposure at such time. The Tranche 1 Revolving Facility Credit Exposure of any Tranche 1 Revolving
Facility Lender at any time shall be the sum of (a) the aggregate principal amount of such Tranche
1 Revolving Facility Lender’s Tranche 1 Revolving Facility Loans outstanding at such time and (b)
such Tranche 1 Revolving Facility Lender’s Tranche 1 Revolving Facility Percentage of Swingline
Exposure and Revolving L/C Exposure at such time.




          “Tranche 1 Revolving Facility Loan” shall mean a Loan made by a Tranche 1 Revolving
Lender pursuant to Section 2.01(c). Each Tranche 1 Revolving Facility Loan shall be a Eurocurrency
Loan or an ABR Loan.




          “Tranche 1 Revolving Facility Maturity Date” shall mean March 31, 2012.




          “Tranche 1 Revolving Facility Percentage” shall mean, with respect to any Tranche 1
Revolving Lender, the percentage of the total Tranche 1 Revolving Facility Commitments represented
by such Lender’s Tranche 1 Revolving Facility Commitment. If the Tranche 1 Revolving Facility
Commitments have terminated or expired, the Tranche 1 Revolving Facility Percentages shall be
determined






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based upon the Tranche 1 Revolving Facility Commitments most recently in effect, giving effect
to any assignments pursuant to Section 9.04.




          “Tranche 1 Revolving Lender” shall mean a Lender with a Tranche 1 Revolving Facility
Commitment.




          “Tranche 2 Revolving Facility” shall mean the Tranche 2 Revolving Facility Commitments
and the extensions of credit made thereunder by the Tranche 2 Revolving Lenders.




          “Tranche 2 Revolving Facility Commitment” shall mean, with respect to each Tranche 2
Revolving Facility Lender, the commitment of such Tranche 2 Revolving Facility Lender to make
Tranche 2 Revolving Facility Loans pursuant to Section 2.01, expressed as an amount representing
the maximum aggregate permitted amount of such Revolving Facility Lender’s Tranche 2 Revolving
Facility Credit Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender under Section 9.04. The aggregate amount of the Tranche 2 Revolving Facility
Commitments on the 2011 Amendment Effective Date is $40,000,000; and for each Revolving Facility
Lender is set forth opposite such Lender’s name on Schedule 2.01 attached to the 2011
Amendment Effective Agreement.




          “Tranche 2 Revolving Facility Credit Exposure” shall mean, at any time, the sum of (a)
the aggregate principal amount of the Tranche 2 Revolving Facility Loans outstanding at such time,
(b) the Swingline Exposure at such time and (c) the Revolving L/C Exposure at such time. The
Tranche 2 Revolving Facility Credit Exposure of any Tranche 2 Revolving Facility Lender at any time
shall be the sum of (a) the aggregate principal amount of such Tranche 2 Revolving Facility
Lender’s Tranche 2 Revolving Facility Loans outstanding at such time and (b) such Tranche 2
Revolving Facility Lender’s Tranche 2 Revolving Facility Percentage of the Swingline Exposure and
Revolving L/C Exposure at such time.




          “Tranche 2 Revolving Facility Loan” shall mean a Loan made by a Tranche 2 Revolving
Lender pursuant to Section 2.01(c). Each Tranche 2 Revolving Facility Loan shall be a Eurocurrency
Loan or an ABR Loan.




          “Tranche 2 Revolving Facility Maturity Date” shall mean March 31, 2015.




          “Tranche 2 Revolving Facility Percentage” shall mean, with respect to any Tranche 2
Revolving Lender, the percentage of the total Tranche 2 Revolving Facility Commitments represented
by such Lender’s Tranche 2 Revolving Facility Commitment. If the Tranche 2 Revolving Facility
Commitments have terminated or expired, the Tranche 2 Revolving Facility Percentages shall be
determined based upon the Tranche 2 Revolving Facility Commitments most recently in effect, giving
effect to any assignments pursuant to Section 9.04.




          “Tranche 2 Revolving Lender” shall mean a Lender with a Tranche 2 Revolving Facility
Commitment.




          “Tranche 2 Revolving Lender Termination Event” shall have the meaning assigned to such
term in Section 2.08(d).




          “Transaction Costs” shall mean fees and expenses payable or otherwise borne by the
Borrower and its Subsidiaries in connection with the Transactions occurring on or about the 2011
Amendment Effective Date.







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          “Transactions” shall mean, collectively, the transactions to occur pursuant to the
Loan Documents, including (a) the execution and delivery of the Loan Documents and the 2011
Amendment Agreement; and (b) the payment of the Transaction Costs.




          “Transferee” shall mean a Participant or Assignee in accordance with Section 9.04.




          “Type,” when used in respect of any Loan or Borrowing, shall refer to the Rate by
reference to which interest on such Loan or on the Loans comprising such Borrowing is determined.
For purposes hereof, the term “Rate” shall include the Adjusted LIBO Rate and the ABR.




          “United States Code” shall mean Title 11 of the United States Code, as amended, or any
similar federal or state law for the relief of debtors.




          “Unrestricted Subsidiary” shall mean any Subsidiary that is acquired or created after
the Original Effective Date and designated by the Borrower as an Unrestricted Subsidiary hereunder
by written notice to the Administrative Agent; provided that the Borrower shall only be
permitted to so designate a new Unrestricted Subsidiary after the Original Effective Date and so
long as (a) no Default or Event of Default exists or would result therefrom and (b) such
Unrestricted Subsidiary shall be capitalized (to the extent capitalized by the Borrower or any
Subsidiary) through Investments as permitted by, and in compliance with, Section 6.04(j), with any
assets owned by such Unrestricted Subsidiary at the time of the initial designation thereof to be
treated as Investments pursuant to Section 6.04(j); provided that at the time of the
initial Investment by the Borrower or any Subsidiary in such Subsidiary, the Borrower shall
designate such entity as an Unrestricted Subsidiary in a written notice to the Administrative
Agent. The Borrower may designate any Unrestricted Subsidiary to be a Subsidiary for purposes of
this Agreement (each, a “Subsidiary Redesignation”); provided that (i) such
Unrestricted Subsidiary, both before and after giving effect to such designation, shall be a Wholly
Owned Subsidiary of the Borrower, (ii) no Default or Event of Default then exists or would occur as
a consequence of any such Subsidiary Redesignation (including, but not limited to, under Sections
6.01 and 6.02), (iii) immediately after giving effect to such Subsidiary Redesignation, the
Borrower shall be in compliance with the Incurrence Test on a Pro Forma Basis, (iv) all
representations and warranties contained herein and in the other Loan Documents shall be true and
correct in all material respects with the same effect as though such representations and warranties
had been made on and as of the date of such Subsidiary Redesignation (both before and after giving
effect thereto), unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material respects as of such
earlier date, and (v) the Borrower shall have delivered to the Administrative Agent an officer’s
certificate executed by a Responsible Officer of the Borrower, certifying to the best of such
officer’s knowledge, compliance with the requirements of the preceding clauses (i) through (v),
inclusive, and containing the calculations required by the preceding clauses (iii) and (iv).




          “Wholly Owned Subsidiary” of any person shall mean a subsidiary of such person, all of
the Equity Interests of which (other than directors’ qualifying shares or nominee or other similar
shares required pursuant to applicable law) are owned by such person or another Wholly Owned
Subsidiary of such person.




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




          “Working Capital” shall mean, with respect to the Borrower and its Subsidiaries on a
consolidated basis at any date of determination, Current Assets at such date of determination
minus Current Liabilities at such date of determination; provided that, for
purposes of calculating Excess Cash






-40-









 






Flow, increases or decreases in Working Capital shall be calculated without regard to any
changes in Current Assets or Current Liabilities as a result of (a) any reclassification in
accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent, (b)
the effects of purchase accounting or (c) the effect of fluctuations in the amount of accrued or
contingent obligations under Swap Agreements.




          “yen” shall mean the lawful money of Japan.




          SECTION
1.02. Terms Generally.




          (a) The definitions set forth or referred to in Section 1.01 shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” All
references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall
otherwise require. Except as otherwise expressly provided herein, any reference in this Agreement
to any Loan Document shall mean such document as amended, restated, supplemented or otherwise
modified from time to time. Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in effect from time
to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any change occurring after
the Original Effective Date in GAAP or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request
an amendment to any provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such provision amended in
accordance herewith.




          (b) All Loans, Letters of Credit and accrued and unpaid amounts (including interest and fees)
owing by the Borrower to any Person under the Existing Credit Agreement that have not been paid to
such Person on or prior to the 2011 Amendment Effective Date shall continue as Loans, Letters of
Credit and accrued and unpaid amounts hereunder on the 2011 Amendment Effective Date and shall be
payable on the dates such amounts would have been payable pursuant to the Existing Credit Agreement
(except to the extent the principal of any loans has been converted or exchanged in accordance with
the terms of this Agreement on the 2011 Amendment Effective Date), and from and after the 2011
Amendment Effective Date, interest, fees and other amounts shall accrue as provided under this
Agreement.




          SECTION 1.03. Effectuation of Transfers. Each of the representations and warranties of the Borrower contained in this Agreement (and all
corresponding definitions) are made after giving effect to the Transactions, unless the context
otherwise requires.




ARTICLE II




THE CREDITS



          SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein:





     (a) the Non-Extended Portion of each Term Loan outstanding under the Existing Credit
Agreement immediately prior to the 2011 Amendment Effective Date shall remain outstanding
under this Agreement from and after the 2011 Amendment Effective Date as a Term B Loan
hereunder and such Term B Loans shall, for the avoidance of doubt, have an aggregate
principal amount of $151,986,329.75 as of the 2011 Amendment Effective Date. The Non-



-41-









 






Extended Portion of each Term Loan that was a Eurocurrency Term Loan under the Existing
Credit Agreement immediately prior to the 2011 Amendment Effective Date shall initially be a
Eurocurrency Term Loan under this Agreement with an initial Interest Period equal to the
then remaining Interest Period for such Eurocurrency Term Loan under the Existing Credit
Agreement. The Non-Extended Portion of each Term Loan that was an ABR Term Loan under the
Existing Credit Agreement immediately prior to the 2011 Amendment Effective Date shall
initially be an ABR Term Loan under this Agreement. The Term B Loans may from time to time
be Eurocurrency Term Loans or ABR Term Loans, as determined by the Borrower and notified to
the Administrative Agent in accordance with Sections 2.02 and 2.07;




     (b) the Extended Portion of each Term Loan outstanding under the Existing Credit
Agreement immediately prior to the 2011 Amendment Effective Date shall be converted into a
Term C Loan under this Agreement from and after the 2011 Amendment Effective Date and such
Term C Loans shall, for the avoidance of doubt, have an aggregate principal amount of
$488,226,170.25 as of the 2011 Amendment Effective Date. Term C Loans that were
Eurocurrency Term Loans under the Existing Credit Agreement immediately prior to the 2011
Amendment Effective Date shall initially be Eurocurrency Term Loans under this Agreement
with an initial Interest Period equal to the then remaining Interest Period for such
Eurocurrency Term Loan under the Existing Credit Agreement. Term C Loans that were ABR Term
Loans under the Existing Credit Agreement immediately prior to the 2011 Amendment Effective
Date shall initially be ABR Term Loans under this Agreement. The Term C Loans may from time
to time be Eurocurrency Term Loans or ABR Term Loans, as determined by the Borrower and
notified to the Administrative Agent in accordance with Sections 2.02 and 2.07;




     (c) the Non-Extended Portion of each Revolving Facility Commitment outstanding under
(and as defined in) the Existing Credit Agreement immediately prior to the 2011 Amendment
Effective Date shall continue to be outstanding under this Agreement from and after the 2011
Amendment Effective Date as Tranche 1 Revolving Facility Commitments. Subject to the terms
and conditions hereof, the Extended Portion of each Revolving Facility Commitment
outstanding under (and as defined in) the Existing Credit Agreement immediately prior to the
2011 Amendment Effective Date shall continue to be outstanding under this Agreement from and
after the 2011 Amendment Effective Date, and any New Tranche 2 Revolving Facility Commitment
incurred pursuant to Section 2.22(d) shall be outstanding under this Agreement from and
after the date of such incurrence, in each case, as Tranche 2 Revolving Facility
Commitments. Any Revolving Facility Loans outstanding on the 2011 Amendment Effective Date
shall initially be Revolving Facility Loans under this Agreement; provided that on
and after the 2011 Amendment Effective Date, (x) each Tranche 1 Revolving Lender will be
deemed to be holding such Revolving Facility Loans as Tranche 1 Revolving Facility Loans and
(y) each Tranche 2 Revolving Lender will be deemed to be holding such Revolving Facility
Loans as Tranche 2 Revolving Facility Loans. Any Revolving Facility Loans made on or after
the 2011 Amendment Effective Date shall be allocated to the two Classes of Revolving
Facility Loans ratably in accordance with the aggregate Commitments under each Class, and
among the Revolving Lenders in each Class ratably in accordance with their respective
Revolving Facility Percentages and shall be reallocated on the Tranche 1 Revolving Facility
Maturity date in the manner set forth below; provided, however, that there
shall be no such reallocation of Revolving Facility Loans in the event the maturity of the
Loans has been accelerated prior to the Tranche 1 Revolving Facility Maturity Date.
Revolving Facility Loans that were Eurocurrency Revolving Loans under the Existing Credit
Agreement immediately prior to the 2011 Amendment Effective Date shall initially be
Eurocurrency Revolving Loans under this Agreement with an initial Interest Period equal to
the then remaining Interest Period for such Eurocurrency Revolving Loans under the Existing
Credit Agreement. Revolving



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Facility Loans that were ABR Revolving Loans under the Existing Credit Agreement
immediately prior to the 2011 Amendment Effective Date shall initially be ABR Revolving
Loans under this Agreement. The Revolving Facility Loans may from time to time be
Eurocurrency Revolving Loans or ABR Revolving Loans, as determined by the Borrower and
notified to the Administrative Agent in accordance with Sections 2.02 and 2.07. Subject to
Section 2.01(d) below, on the Tranche 1 Revolving Facility Maturity Date, each Tranche 2
Revolving Lender shall purchase at par from each Tranche 1 Revolving Lender such portions of
the Revolving Facility Loans outstanding on the 2011 Amendment Effective Date as may be
specified by the Administrative Agent so that, immediately following such purchases, all
Eurocurrency Revolving Loans and all ABR Revolving Loans shall be held by the Tranche 2
Revolving Lenders on a pro rata basis in accordance with their respective
Tranche 2 Revolving Facility Percentages on the Tranche 1 Revolving Facility Maturity Date;
and




     (d) each Revolving Facility Lender agrees to make Revolving Facility Loans to the
Borrower from time to time during the Availability Period in an aggregate principal amount
that will not result in (i) such Revolving Facility Lender’s Revolving Facility Credit
Exposure of any class exceeding such Revolving Facility Lender’s Revolving Facility
Commitment of such Class or (ii) the total Revolving Facility Credit Exposure of any Class
exceeding the total Revolving Facility Commitments of such Class. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Revolving Facility Loans.



          SECTION 2.02. Loans and Borrowings.




          (a) Each Loan shall be made as part of a Borrowing consisting of Loans of the same Class and
of the same Type made by the Lenders ratably in accordance with their respective Commitments under
the applicable Class (or, in the case of Swingline Loans, in accordance with their respective
Swingline Commitments); provided, however, that on and after the 2011 Amendment
Effective Date and prior to the Tranche 1 Revolving Facility Maturity Date, Revolving Facility
Loans shall be made as set forth in Section 2.01(c) and on and following the Tranche 1 Revolving
Facility Maturity Date Revolving Facility Loans shall be made by Tranche 2 Revolving Lenders
ratably in accordance with their respective Tranche 2 Revolving Facility Percentages on the date
such Revolving Facility Loans are made. The failure of any Lender to make any Loan required to be
made by it shall not relieve any other Lender of its obligations hereunder; provided that
the Commitments of the Lenders are several and no Lender shall be responsible for any other
Lender’s failure to make Loans as required.




          (b) Subject to Section 2.14, each Borrowing (other than a Swingline Borrowing) shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower may request in accordance
herewith. Each Swingline Borrowing shall be an ABR Borrowing. Each Lender at its option may make
any ABR Loan or Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement and
such Lender shall not be entitled to any amounts payable under Section 2.15 or 2.17 solely in
respect of increased costs resulting from such exercise and existing at the time of such exercise.




          (c) At the commencement of each Interest Period for any Eurocurrency Revolving Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple
and not less than the Borrowing Minimum. At the time that each ABR Revolving Borrowing is made,
such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing
Multiple and not less than the Borrowing Minimum; provided that an ABR Revolving Borrowing
may be in






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an aggregate amount that is equal to the entire unused balance of the Revolving Facility
Commitments or that is required to finance the reimbursement of an L/C Disbursement as contemplated
by Section 2.05(e). Each Swingline Borrowing shall be in an amount that is an integral multiple of
the Borrowing Multiple and not less than the Borrowing Minimum. Borrowings of more than one Type
and under more than one Facility may be outstanding at the same time; provided that there
shall not at any time be more than a total of (i) 5 Eurocurrency Borrowings outstanding under the
Term Loan Facility and (ii) 10 Eurocurrency Borrowings outstanding under the Revolving Facility.




          (d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after (i) with respect to Borrowings of Tranche 1 Revolving Facility
Loans, the Tranche 1 Revolving Facility Maturity Date, (ii) with respect to Borrowings of Tranche 2
Revolving Facility Loans, the Tranche 2 Revolving Facility Maturity Date, (iii) with respect to
Borrowings of Term B Loans, the Term B Loan Maturity Date and (iv) with respect to Borrowings of
Term C Loans, the Term C Loan Maturity Date.




          SECTION 2.03. Requests for Borrowings. To request a Revolving Borrowing and/or a Term Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a Eurocurrency Borrowing, not
later than 11:00 a.m., Local Time, three Business Days before the date of the proposed Borrowing or
(b) in the case of an ABR Borrowing, not later than 12:00 noon, Local Time, one Business Day before
the date of the proposed Borrowing; provided that any such notice of an ABR Revolving
Borrowing to finance the reimbursement of an L/C Disbursement as contemplated by Section 2.05(e)
may be given not later than 10:00 a.m., Local Time, on the date of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form approved
by the Administrative Agent and signed by the Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:





     (i) the aggregate amount of the requested Borrowing;




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




     (iii) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;




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




     (v) the location and number of the Borrower’s account to which funds are to be
disbursed.


If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any
requested Eurocurrency Borrowing, then the Borrower shall be deemed to have selected an Interest
Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance
with this Section 2.03, the Administrative Agent shall advise each Lender of the details thereof
and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.







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          SECTION 2.04. Swingline Loans.




          (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrower from time to time during the Availability Period in an aggregate
principal amount at any time outstanding that will not result in (i) the aggregate principal amount
of outstanding Swingline Loans exceeding the Swingline Commitment or (ii) the total Revolving
Facility Credit Exposure exceeding the total Revolving Facility Commitments; provided that
the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding
Swingline Borrowing. Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Swingline Loans.




          (b) To request a Swingline Borrowing, the Borrower shall notify the Administrative Agent and
the Swingline Lender of such request by telephone (confirmed promptly by a Swingline Borrowing
Request by telecopy), not later than 11:00 a.m., Local Time, on the day of a proposed Swingline
Borrowing. Each such notice and Swingline Borrowing Request shall be irrevocable and shall specify
(i) the requested date (which shall be a Business Day), (ii) the amount of the requested Swingline
Borrowing and (iii) the location and number of the Borrower’s account to which funds comprising the
requested Swingline Borrowing are to be disbursed. The Swingline Lender shall consult with the
Administrative Agent as to whether the making of the Swingline Loan is in accordance with the terms
of this Agreement prior to the Swingline Lender funding such Swingline Loan. The Swingline Lender
shall make each Swingline Loan in accordance with Section 2.02(a) on the proposed date thereof by
wire transfer of immediately available funds by 3:00 p.m., Local Time, to the account of the
Borrower (or, in the case of a Swingline Borrowing made to finance the reimbursement of an L/C
Disbursement as provided in Section 2.05(e), by remittance to the applicable Issuing Bank).




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






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




          (d) Upon the 2011 Amendment Effective Date, the aggregate amount of participations in
Swingline Loans held by Revolving Lenders shall be deemed to be reallocated to the Tranche 1
Revolving Lenders and Tranche 2 Revolving Lenders so that participation of the Tranche 1 Revolving
Lenders and Tranche 2 Revolving Lenders, respectively, in outstanding Swingline Loans shall be in
proportion to their respective Tranche 1 Revolving Facility Commitments and Tranche 2 Revolving
Facility Commitments.




          (e) Upon the Tranche 1 Revolving Facility Maturity Date, the aggregate amount of
participations in Swingline Loans held by Tranche 1 Revolving Lenders shall be deemed to be
reallocated to the Tranche 2 Revolving Lenders so that participation of the Tranche 2 Revolving
Lenders in outstanding Swingline Loans shall be in proportion to such Tranche 2 Revolving Lenders’
Tranche 2 Revolving Facility Commitments; provided, however, that (x) to the extent
that the amount of such reallocation would cause the aggregate Tranche 2 Revolving Facility Credit
Exposure to exceed the aggregate amount of Tranche 2 Revolving Facility Commitments, immediately
prior to such reallocation the amount of Swing Line Loans equal to such excess shall be repaid or
Cash Collateralized and (y) there shall be no such reallocation of participations in Swingline
Loans to Tranche 2 Revolving Lenders if a Default or Event of Default has occurred and is
continuing or if the Loans have been accelerated prior to the Tranche 1 Revolving Facility Maturity
Date.




          SECTION 2.05. Letters of Credit.




          (a) General. Each Existing Letter of Credit shall continue to remain outstanding as a
Letter of Credit as specified hereunder on and after such date on the same terms as applicable to
it immediately prior to such date. In addition, subject to the terms and conditions set forth
herein, the Borrower may request the issuance of Letters of Credit in Dollars, or if an Issuing
Bank notifies the Borrower and the Administrative Agent that it is capable of doing so, in an
Alternate Currency, for its own account or the account of a Subsidiary in a form reasonably
acceptable to the applicable Issuing Bank, at any time and from time to time during the
Availability Period and prior to the date that is five Business Days prior to the Tranche 2
Revolving Facility Maturity Date; provided that the Borrower shall be a co-applicant, and
be jointly and severally liable, with respect to each Letter of Credit issued for the account of a
Subsidiary. In the event of any inconsistency between the terms and conditions of this Agreement
and the terms and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, an Issuing Bank relating to any
Letter of Credit, the terms and conditions of this Agreement shall control.




          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal (other than an automatic renewal in
accordance with paragraph (c) of this Section) or extension of an outstanding Letter of Credit),
the Borrower shall hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to the applicable
Issuing Bank and the Administrative Agent (three Business Days in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be amended, renewed or extended, and specifying the Approved
Currency, the date of issuance, amendment, renewal or extension (which shall be a Business Day),
the date on which such Letter of Credit is to expire






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(which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit,
whether the Letter of Credit is to be issued for its own account or for the account of a Subsidiary
(provided that the Borrower shall be a co-applicant, and therefore jointly and severally
liable, with respect to each Letter of Credit issued for the account of a Subsidiary), the name and
address of the beneficiary thereof and such other information as shall be necessary to issue,
amend, renew or extend such Letter of Credit. If requested by the applicable Issuing Bank, the
Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form in
connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of
Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension (i) the Revolving L/C Exposure shall not exceed the total
L/C Commitment, (ii) the total Revolving Facility Credit Exposure shall not exceed the total
Revolving Facility Commitments and (iii) the Alternate Currency L/C Exposure shall not exceed the
Alternate Currency L/C Sublimit.




          (c) Expiration Date.




          (i) Each Letter of Credit shall expire at or prior to the close of business on the earlier of
(1) the date one year after the date of the issuance of such Letter of Credit (or, in the case of
any renewal or extension thereof, one year after such renewal or extension) and (2) (x) the date
that is five Business Days prior to the Tranche 2 Revolving Facility Maturity Date or (y) such
later date as agreed to by the Issuing Bank and the Administrative Agent so long as the Borrower
shall immediately Cash Collateralize such Letter of Credit; provided that any Letter of
Credit with a one-year tenor may provide for the automatic renewal thereof for additional one-year
periods (which, in no event, shall extend beyond the date referred to in clause (2) of this
paragraph (c)(i) unless otherwise agreed by the Issuing Bank and the Administrative Agent);




          (ii) If Borrower so requests in any Letter of Credit Request, the Issuing Bank may, in its
sole and absolute discretion, agree to issue a Letter of Credit that has automatic renewal
provisions (each, an “Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal
Letter of Credit must permit the Issuing Bank to prevent any such renewal at least once in each
twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior
notice to the Borrower and to the beneficiary thereof not later than a date in each such
twelve-month period to be agreed upon at the time such Letter of Credit is issued and to be set
forth therein. Unless otherwise directed by the Issuing Bank, Borrower shall not be required to
make a specific request to the Issuing Bank for any such renewal. Once an Auto-Renewal Letter of
Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may not
require) the Issuing Bank to permit the renewal of such Letter of Credit at any time to an expiry
date not later than the earlier of (i) one year from the date of such renewal and (ii) the date
that the Letter of Credit expires; provided that the Issuing Bank shall not permit any such renewal
if (x) the Issuing Bank has determined that it would have no obligation at such time to issue such
Letter of Credit in its renewed form under the terms hereof, or (y) it has received notice on or
before the day that is two Business Days before the date which has been agreed upon pursuant to the
proviso of the first sentence of this paragraph, (1) from the Administrative Agent that any
Revolving Lender directly affected thereby has elected not to permit such renewal or (2) from the
Administrative Agent, any Lender or Borrower that one or more of the applicable conditions
specified in Section 4.01 are not then satisfied; provided, further, that the Issuing Bank or
Administrative Agent may require any such letter of credit to permit cancellation of such automatic
renewal provision upon at least 90 days’ prior written notice.




          (d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
applicable Issuing Bank or the Revolving Facility Lenders, such Issuing Bank hereby grants to each
Revolving Facili-






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ty Lender, and each Revolving Facility Lender hereby acquires from such Issuing Bank, a
participation in such Letter of Credit equal to such Revolving Facility Lender’s Revolving Facility
Percentage of the aggregate Dollar Equivalent amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving Facility Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of
the applicable Issuing Bank, such Revolving Facility Lender’s Revolving Facility Percentage of each
L/C Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as
provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded
to the Borrower for any reason. Each Revolving Facility Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.




          (e) Reimbursement. If the applicable Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, the Borrower shall reimburse such L/C Disbursement by paying to the
Administrative Agent an amount equal to such L/C Disbursement in the Approved Currency in which the
L/C Disbursement giving rise to such payment is denominated not later than 2:00 p.m., Local Time,
on (i) the Business Day that the Borrower receives notice under paragraph (g) of this Section of
such L/C Disbursement, if such notice is received on such day prior to 12:00 noon, Local Time, or
(ii) if clause (i) does not apply, the Business Day immediately following the date the Borrower
receives such notice; provided that the Borrower may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.03 or 2.04 that such payment be
financed with an ABR Revolving Borrowing, in an equivalent amount and, to the extent so financed,
the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting
ABR Revolving Borrowing. If the Borrower fails to reimburse any L/C Disbursement when due, then
the Administrative Agent shall promptly notify the applicable Issuing Bank and each other Revolving
Facility Lender of the applicable L/C Disbursement, the payment then due from the Borrower in
respect thereof and, in the case of a Revolving Facility Lender, such Lender’s Revolving Facility
Percentage thereof. Promptly following receipt of such notice, each Revolving Facility Lender
shall pay to the Administrative Agent its Revolving Facility Percentage of the Dollar Equivalent of
the payment then due from the Borrower in the same manner as provided in Section 2.06 with respect
to Loans made by such Lender (and Section 2.06 shall apply,
mutatis mutandis, to the payment
obligations of the Revolving Facility Lenders), and the Administrative Agent shall promptly pay to
the applicable Issuing Bank the amounts so received by it from the Revolving Facility Lenders.
Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to
this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing
Bank or, to the extent that Revolving Facility Lenders have made payments pursuant to this
paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their
interests may appear; provided that, in the case of Alternate Currency Letters of Credit,
payment to such Lenders shall be in the Dollar Equivalent of the amount of the payment. Any
payment made by a Revolving Facility Lender pursuant to this paragraph to reimburse an Issuing Bank
for any L/C Disbursement (other than the funding of an ABR Revolving Loan or a Swingline Borrowing
as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its
obligation to reimburse such L/C Disbursement.




          (f) Obligations Absolute. The obligation of the Borrower to reimburse L/C
Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under
any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability
of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in
any respect or any statement therein being untrue






-48-









 







or inaccurate in any respect, (iii) payment by the applicable Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply with the terms of
such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to
any of the foregoing, that might, but for the provisions of this Section, constitute a legal or
equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder.
Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of their Related
Parties, shall have any liability or responsibility by reason of or in connection with the issuance
or transfer of any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any consequence arising from
causes beyond the control of such Issuing Bank, or any of the circumstances referred to in clause
(i), (ii) or (iii) of the first sentence; provided that the foregoing shall not be
construed to excuse the applicable Issuing Bank from liability to the Borrower to the extent of any
direct damages (as opposed to consequential or punitive damages, claims in respect of which are
hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower
that are determined by a court of competent jurisdiction to have been caused by (i) such Issuing
Bank’s failure to exercise care when determining whether drafts and other documents presented under
a Letter of Credit comply with the terms thereof or (ii) such Issuing Bank’s failure to exercise
care when refusing to issue a Letter of Credit in accordance with the terms of this Agreement. The
parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on
the part of the applicable Issuing Bank, such Issuing Bank shall be deemed to have exercised care
in each such determination and each refusal to issue a Letter of Credit. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation, regardless of any
notice or information to the contrary, or refuse to accept and make payment upon such documents if
such documents are not in strict compliance with the terms of such Letter of Credit.




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




          (h) Interim Interest. If an Issuing Bank shall make any L/C Disbursement, then,
unless the Borrower shall reimburse such L/C Disbursement in full on the date such L/C Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such L/C Disbursement is made to but excluding the date that the Borrower reimburses such L/C
Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that,
if such L/C Disbursement is not reimbursed by the Borrower when due pursuant to paragraph (e) of
this Section, then Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall
be for the account of the applicable Issuing Bank, except that interest accrued on and after the
date of payment by any Revolving Facility Lender pursuant to paragraph (e) of this Section to
reimburse such Issuing Bank shall be for the account of such Revolving Facility Lender to the
extent of such payment.




          (i) Replacement of an Issuing Bank. An Issuing Bank may be replaced at any time by
written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the






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successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such
replacement of an Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12. From and after the effective date of any such replacement, (i) the successor Issuing
Bank shall have all the rights and obligations of the replaced Issuing Bank under this Agreement
with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term
“Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to
such successor and all previous Issuing Banks, as the context shall require. After the replacement
of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of such Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such replacement but shall not be required to
issue additional Letters of Credit.




          (j) Cash Collateralization. If any Event of Default shall occur and be continuing,
(i) in the case of an Event of Default described in Section 7.01(h) or (i), on the Business Day or
(ii) in the case of any other Event of Default (subject to Section 7.01), on the third Business
Day, in each case, following the date on which the Borrower receives notice from the Administrative
Agent (or, if the maturity of the Loans has been accelerated, Revolving Facility Lenders with
Revolving L/C Exposure representing greater than 50% of the total Revolving L/C Exposure) demanding
the deposit of Cash Collateral pursuant to this paragraph, the Borrower shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the Revolving L/C Exposure as of such date plus any accrued and
unpaid interest thereon; provided that upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Section 7.01, 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. Each such deposit pursuant to this
paragraph shall be held by the Administrative Agent as collateral for the payment and performance
of the obligations of the Borrower under this Agreement. 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 (i) for so long as an Event of Default shall be continuing,
the Administrative Agent and (ii) at any other time, the Borrower, in each case, in Permitted
Investments and at the risk and expense of the Borrower, 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 each Issuing Bank for L/C
Disbursements for which such Issuing Bank has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for
the Revolving L/C Exposure at such time or, if the maturity of the Loans has been accelerated (but
subject to the consent of Revolving Facility Lenders with Revolving L/C Exposure representing
greater than 50% of the total Revolving L/C Exposure), be applied to satisfy other obligations of
the Borrower under this Agreement. If the Borrower is required to provide an amount of Cash
Collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the
extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.




          (k) Additional Issuing Banks. From time to time, the Borrower may by notice to the
Administrative Agent designate up to three Lenders (in addition to UBS AG, Stamford Branch) each of
which agrees (in its sole discretion) to act in such capacity and is reasonably satisfactory to the
Administrative Agent as an Issuing Bank. Each such additional Issuing Bank shall execute a
counterpart of this Agreement upon the approval of the Administrative Agent (which approval shall
not be unreasonably withheld) and shall thereafter be an Issuing Bank hereunder for all purposes.







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          (l) Reporting. Unless otherwise requested by the Administrative Agent, each Issuing
Bank shall (i) provide to the Administrative Agent copies of any notice received from the Borrower
pursuant to Section 2.05(b) no later than the next Business Day after receipt thereof and (ii)
report in writing to the Administrative Agent (A) on or prior to each Business Day on which such
Issuing Bank expects to issue, amend, renew or extend any Letter of Credit, the date of such
issuance, amendment, renewal or extension, and the aggregate face amount of the Letters of Credit
to be issued, amended, renewed or extended by it and outstanding after giving effect to such
issuance, amendment, renewal or extension occurred (and whether the amount thereof changed), and
the Issuing Bank shall be permitted to issue, amend, renew or extend such Letter of Credit if the
Administrative Agent shall not have advised the Issuing Bank that such issuance, amendment renewal
or extension would not be in conformity with the requirements of this Agreement, (B) on each
Business Day on which such Issuing Bank makes any L/C Disbursement, the date of such L/C
Disbursement and the amount of such L/C Disbursement and (C) on any other Business Day, such other
information as the Administrative Agent shall reasonably request, including but not limited to
prompt verification of such information as may be requested by the Administrative Agent.




          (m) Upon the 2011 Amendment Effective Date, the aggregate amount of participations in Letters
of Credit held by Revolving Lenders shall be deemed to be reallocated to the Tranche 1 Revolving
Lenders and Tranche 2 Revolving Lenders so that participation of the Tranche 1 Revolving Lenders
and Tranche 2 Revolving Lenders, respectively, in outstanding Letters of Credit shall be in
proportion to their respective Tranche 1 Revolving Facility Commitments and Tranche 2 Revolving
Facility Commitments.




          (n) Upon the Tranche 1 Revolving Facility Maturity Date, the aggregate amount of
participations in Letters of Credit held by Tranche 1 Revolving Lenders shall be deemed to be
reallocated to the Tranche 2 Revolving Lenders so that participation of the Tranche 2 Revolving
Lenders in outstanding Letters of Credit shall be in proportion to such Tranche 2 Revolving
Lenders’ Tranche 2 Revolving Facility Commitments; provided, however, that (x) to
the extent that the amount of such reallocation would cause the aggregate Tranche 2 Revolving
Facility Credit Exposure to exceed the aggregate amount of Tranche 2 Revolving Facility
Commitments, immediately prior to such reallocation an amount of Letters of Credit equal to such
excess shall be cancelled, terminated or Cash Collateralized and (y) there shall be no such
reallocation of participations in Letters of Credit to Tranche 2 Revolving Lenders if a Default or
Event of Default has occurred and is continuing or if the Loans have been accelerated prior to the
Tranche 1 Revolving Facility Maturity Date.




          SECTION 2.06. Funding of Borrowings.




          (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds by 12:00 noon, Local Time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice to the Lenders;
provided that Swingline Loans shall be made as provided in Section 2.04. The
Administrative Agent will make such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account of the Borrower maintained with the
Administrative Agent in New York City; provided that ABR Revolving Loans and Swingline
Borrowings made to finance the reimbursement of a L/C Disbursement and reimbursements as provided
in Section 2.05(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank.




          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender






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has made such share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.
In such event, if a Lender has not in fact made its share of the applicable Borrowing available to
the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand (without duplication) such corresponding amount with
interest thereon, for each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of
such Lender, the Federal Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation or (ii) in the case of the
Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.




          SECTION 2.07. Interest Elections.




          (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurocurrency Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a Eurocurrency Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate Borrowing. This Section
shall not apply to Swingline Borrowings, which may not be converted or continued.




          (b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly (but in any event on the same Business Day) by
hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.




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





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




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




     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing; and




     (iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by clause (a) of the definition of the term “Interest Period.”



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If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.




          (d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender to which such Interest Election Request relates of the details thereof and of
such Lender’s portion of each resulting Borrowing.




          (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurocurrency Borrowing prior to the end of the Interest Period applicable thereto, then, unless
such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event
of Default has occurred and is continuing and the Administrative Agent, at the written request
(including a request through electronic means) of the Required Lenders, so notifies the Borrower,
then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurocurrency Borrowing and (ii) unless repaid, each Eurocurrency Borrowing shall
be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.




          SECTION 2.08. Termination and Reduction of Commitments.




          (a) Unless previously terminated (x) the Tranche 1 Revolving Facility Commitments shall
terminate on the Tranche 1 Revolving Facility Maturity Date and (y) the Tranche 2 Revolving
Facility Commitments shall terminate on the Tranche 2 Revolving Facility Maturity Date.




          (b) The Borrower may at any time terminate, or from time to time reduce, the Revolving
Facility Commitments; provided that any such reduction of Revolving Facility Commitments
shall be allocated at the Borrower’s option (x) to the Revolving Lenders ratably between the
Classes of Revolving Facility Commitments, (y) to the Tranche 1 Revolving Lenders or (z) any
combination of the foregoing described in clauses (x) and (y), in each case ratably within each
applicable Class; provided further that (i) each such reduction shall be in an
amount that is an integral multiple of $1.0 million and not less than $5.0 million (or, if less,
the remaining amount of the Revolving Facility Commitments or Tranche 1 Revolving Facility
Commitments, as applicable) and (ii) the Borrower shall not terminate or reduce the Revolving
Facility Commitments if, after giving effect to any concurrent prepayment of the Revolving Facility
Loans in accordance with Section 2.11, the Revolving Facility Credit Exposure would exceed the
total Revolving Facility Commitments.




          (c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Revolving Facility Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall
advise the applicable Lenders of the contents thereof. Each notice delivered by the Borrower
pursuant to this Section shall be irrevocable; provided that a notice of termination of the
Revolving Facility Commitments delivered by the Borrower may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if
such condition is not satisfied. Any termination or reduction of the Commitments shall be
permanent. Each reduction of the Commitments under either Facility shall be made ratably among the
Lenders in accordance with their respective Commitments under such Facility.




          (d) At any time there is any outstanding Tranche 2 Revolving Facility Credit Exposure (not
including any Letters of Credit which have been Cash Collateralized by the Borrower) and the
Consolidated Senior Secured Leverage Ratio on the last day of any fiscal quarter for the four
quarter pe-






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riod ended as of such date exceeds 3.50 to 1.00, Tranche 2 Revolving Lenders having greater
than 50% of the Tranche 2 Revolving Facility Credit Exposure (the “Required Tranche 2 Revolving
Lenders”) shall have the right to terminate all or portion of the Tranche 2 Revolving Facility
Commitments upon 1 Business Days’ notice to the Borrower (a “Tranche 2 Revolving Lender
Termination Event”). In connection with a Tranche 2 Revolving Lender Termination Event, the
Borrower shall repay all outstanding Tranche 2 Revolving Facility Loans and shall terminate or Cash
Collateralize all outstanding Letters of Credit.




          (e) The Borrower shall permanently reduce the amount of Tranche 1 Revolving Commitments by the
amount of any New Tranche 2 Revolving Facility Commitments as set forth in Section 2.22(d).




          SECTION 2.09. Repayment of Loans; Evidence of Debt.




          (a) The Borrower hereby unconditionally promises to pay (i) (x) on the Tranche 1 Revolving
Facility Maturity Date to the Administrative Agent for the account of each Tranche 1 Revolving
Facility Lender the then unpaid principal amount of each Tranche 1 Revolving Facility Loan made to
the Borrower (to the extent not purchased pursuant to Section 2.01(c)) and (y) on the Tranche 2
Revolving Facility Maturity Date to the Administrative Agent for the account of each Tranche 2
Revolving Facility Lender the then unpaid principal amount of each Tranche 2 Revolving Facility
Loan made to the Borrower and (ii) (x) on the Term B Loan Maturity Date, to the Administrative
Agent for the account of each Term B Lender the then unpaid principal amount of each Term B Loan of
such Lender as provided in Section 2.10 and (y) on the Term C Loan Maturity Date, to the
Administrative Agent for the account of each Term C Lender the then unpaid principal amount of each
Term C Loan of such Lender as provided in Section 2.10. The Borrower hereby unconditionally
promises to each Swingline Lender the then unpaid principal amount of each Swingline Loan made to
the Borrower on the earlier of the Tranche 2 Revolving Facility Maturity Date and the first date
after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least
five Business Days after such Swingline Loan is made; provided that on each date that a
Revolving Facility Borrowing is made by the Borrower, the Borrower shall repay all of its
Swingline Loans then outstanding.




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




          (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period (if any) applicable
thereto, (ii) the amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iii) any amount received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.




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




          (e) Any Lender may request that Loans made by it be evidenced by a promissory note (a
“Note”). In such event, the Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) and in a form approved by the Administrative Agent. Thereafter,
the Loans evidenced by






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such promissory note and interest thereon shall at all times (including after assignment
pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to
the order of the payee named therein (or, if such promissory note is a registered note, to such
payee and its registered assigns).




          SECTION 2.10. Repayment of Term Loans and Revolving Facility Loans.




          (a) Subject to adjustment pursuant to paragraph (c) of this Section and paragraph (a) of
Section 2.11, the Borrower shall repay Term Loans owed by it on (x) March 31, June 30, September 30
and December 31 of each year (each such date being referred to as a “Term Loan Installment
Date”) and prior to the Term B Loan Maturity Date or the Term C Loan Maturity Date, as
applicable, in an aggregate amount for each Class of Term Loans equal to 1/4 of 1% of the then
Maximum Term Amount with respect to such Class, (y) the Term B Loan Maturity Date in an amount
equal to the remaining principal amount of the Term B Loans owed by it and (z) the Term C Loan
Maturity Date in an amount equal to the remaining principal amount of the Term C Loans owed by it.




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




          (c) Prepayment of the Borrowings from:





     (i) all Net Proceeds and Excess Cash Flow pursuant to Section 2.11(b) or 2.11(c) shall
be applied to ratably to each Class of Term Borrowings, with the application thereof in
direct chronological order to the unpaid amounts due on the next succeeding Term Loan
Installment Dates for Term Loans of such Class; and




     (ii) any optional prepayments of the Term Loans pursuant to Section 2.11(a) shall be
applied as set forth therein.



          (d) Prior to any repayment of any Borrowing under any Class hereunder, the Borrower shall
select the Borrowing or Borrowings under the applicable Class to be repaid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such selection not later than 2:00
p.m., Local Time, (i) in the case of an ABR Borrowing, one Business Day before the scheduled date
of such repayment and (ii) in the case of a Eurocurrency Borrowing, three Business Days before the
scheduled date of such repayment. Each repayment of a Borrowing (x) in the case of a Revolving
Facility, shall be applied to the Revolving Facility Loans included in the repaid Borrowing such
that each Revolving Facility Lender receives its ratable share of such repayment (based upon the
Revolving Facility Credit Exposures of the Revolving Facility Lenders at the time of such
repayment) and (y) in all other cases, shall be applied ratably to the Loans included in the repaid
Borrowing; provided that for prepayments made pursuant to Section 2.11(b) or 2.11(c), each
Term Loan Lender may elect, by written notice to the Administrative Agent at least one Business Day
prior to the prepayment date, to decline its pro rata share of such Term Loan repayment, in which
case the amount so declined shall be offered ratably to each non-rejecting Term Loan Lender of such
Class, who shall have the right to reject such additional amount, and any amounts so rejected shall
be retained by the Borrower. Notwithstanding anything to the contrary in the immediately preceding
sentence, prior to any repayment of a Swingline Borrowing hereunder, the Borrower shall select the
Borrowing or Borrowings to be repaid and shall notify the Administrative Agent by telephone
(confirmed by telecopy) of such selection not later than 1:00 p.m., Local Time, on the scheduled
date of such repayment. Repayments of Borrowings shall be accompanied by accrued interest on the
amount repaid.







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          SECTION 2.11. Prepayment of Loans.




          (a) The Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, without premium or penalty (but subject to Section 2.16), in an
aggregate principal amount that is an integral multiple of the Borrowing Multiple and not less than
the Borrowing Minimum or, if less, the aggregate amount then outstanding under the Term Loan
Facility (in the case of a prepayment of a Term Borrowing) or the Revolving Facility (in the case
of a prepayment of a Revolving Borrowing), subject to prior notice in accordance with Section
2.10(d); provided, that such optional prepayments of the Term Loans shall be applied, at
the Borrower’s option, either (a) to the Term B Loans (or, if no Term B Loans are then outstanding,
to the Class of Term Loans then having the earliest date of final maturity) before application to
any Class of Term Loans with a later final maturity date, (b) on a pro rata basis among all Classes
of Term Loans or (c) any combination of options (a) and (b) above and, in each case, shall be
applied within such Class, at the option of the Borrower, to reduce the remaining scheduled
amortization payments in respect of such Class of Term Loans (x) on a pro rata basis (based on the
amount of such amortization payments) or (y) in direct order of amortization payments of such Class
of Term Loans.




          (b) The Borrower shall apply all Net Proceeds promptly upon receipt thereof to prepay Term
Borrowings in accordance with paragraphs (c) and (d) of Section 2.10.




          (c) Not later than 90 days after the end of each Excess Cash Flow Period, the Borrower shall
calculate Excess Cash Flow for such Excess Cash Flow Period and shall apply an amount equal to (x)
the Required Percentage of such Excess Cash Flow minus (y) the amount of any voluntary
prepayments of Term Loans during such Excess Cash Flow Period and the amount of any permanent
voluntary reductions during such Excess Cash Flow Period of Revolving Facility Commitments to the
extent that an equal amount of Revolving Facility Loans was simultaneously repaid, other than, in
each case, to the extent financed, or intended to be financed, using the proceeds of the incurrence
of Indebtedness and so long as the amount of such prepayment is not already reflected in Debt
Service for such Excess Cash Flow Period to prepay Term Borrowings in accordance with paragraphs
(c) and (d) of Section 2.10. Not later than the date on which the Borrower is required to deliver
financial statements with respect to the end of each Excess Cash Flow Period under Section 5.04(a),
the Borrower shall deliver to the Administrative Agent a certificate signed by a Financial Officer
of the Borrower setting forth the amount, if any, of Excess Cash Flow for such fiscal year and the
calculation thereof in reasonable detail.




          SECTION 2.12. Fees.




          (a) The Borrower agrees to pay to each Lender (other than any Defaulting Lender), through the
Administrative Agent, 10 Business Days after the last Business Day of March, June, September and
December in each year, and three Business Days after the date on which the Revolving Facility
Commitments of all the Lenders shall be terminated as provided herein, a commitment fee (a
“Commitment Fee”) on the daily amount of the Available Unused Commitment of such Lender
during the preceding quarter (or other period commencing with the Original Effective Date or ending
with the date on which the last of the Commitments of such Lender shall be terminated) at the
Commitment Fee Rate. All Commitment Fees shall be computed on the basis of the actual number of
days elapsed in a year of 360 days. For the purpose of calculating any Lender’s Commitment Fee,
the outstanding Swingline Loans during the period for which such Lender’s Commitment Fee is
calculated shall reduce the amount of the Available Unused Commitment on a dollar for dollar basis.
The Commitment Fee due to each Lender shall commence to accrue on the Original Effective Date and
shall cease to accrue on the date on which the last of the Commitments of such Lender shall be
terminated as provided herein.





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          (b) The Borrower from time to time agrees to pay (i) to each Revolving Facility Lender
(other than any Defaulting Lender), through the Administrative Agent, 10 Business Days after the
last day of March, June, September and December of each year and three Business Days after the date
on which the Revolving Facility Commitments of all the Lenders shall be terminated as provided
herein, a fee (an “L/C Participation Fee”) on such Lender’s Revolving Facility Percentage
of the daily aggregate Revolving L/C Exposure (excluding the portion thereof attributable to
unreimbursed L/C Disbursements), during the preceding quarter (or shorter period commencing with
the Original Effective Date or ending with the Revolving Facility Maturity Date or the date on
which the Revolving Facility Commitments shall be terminated) at the rate per annum equal to the
Applicable Margin for Eurocurrency Revolving Borrowings effective for each day in such period, and
(ii) to each Issuing Bank, for its own account, (x) 10 Business Days after the last day of March,
June, September and December of each year and three Business Days after the date on which the
Revolving Facility Commitments of all the Lenders shall be terminated as provided herein, a
fronting fee in respect of each Letter of Credit issued by such Issuing Bank for the period from
and including the date of issuance of such Letter of Credit to and including the termination of
such Letter of Credit, computed at a rate equal to 1/4 of 1% per annum of the daily average stated
amount of such Letter of Credit or $1,000 per annum, whichever is higher, plus (y) in
connection with the issuance, amendment or transfer of any such Letter of Credit or any L/C
Disbursement thereunder, such Issuing Bank’s customary documentary and processing charges
(collectively, “Issuing Bank Fees”). All L/C Participation Fees and Issuing Bank Fees that
are payable on a per annum basis shall be computed on the basis of the actual number of days
elapsed in a year of 360 days.




          (c) The Borrower agrees to pay to the Administrative Agent, for the account of the
Administrative Agent, the agency fees set forth in the Fee Letter (as defined in the Existing
Credit Agreement), as amended, restated, supplemented or otherwise modified from time to time, at
the times specified therein (the “Administrative Agent Fees”).




          (d) All Fees shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders, except that
Issuing Bank Fees shall be paid directly to the applicable Issuing Banks. Once paid, none of the
Fees shall be refundable under any circumstances.




          SECTION 2.13. Interest.




          (a) The Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear
interest at the ABR plus the Applicable Margin.




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




          (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any Fees or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section; provided that this paragraph (c) shall not apply to any
Event of Default that has been waived by the Lenders pursuant to Section 9.08.




          (d) Accrued interest on each Loan shall be payable in arrears (i) on each Interest Payment
Date for such Loan, (ii) in the case of Revolving Facility Loans, upon termination of applicable
Class of the Revolving Facility Commitments and (iii) in the case of the Term Loans, on the
applicable





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Term Facility Maturity Date; provided that (i) interest accrued pursuant to paragraph
(c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the Availability
Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of
such repayment or prepayment and (iii) in the event of any conversion of any Eurocurrency Loan
prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.




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




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





     (a) the Administrative Agent determines (which determination shall be conclusive
absent manifest error) that adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or




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


then the Administrative Agent shall give written notice thereof to the Borrower and the Lenders as
promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and
the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing
as, a Eurocurrency Borrowing denominated in such currency shall be ineffective and such Borrowing
shall be converted to or continued as on the last day of the Interest Period applicable thereto an
ABR Borrowing, and (ii) if any Borrowing Request requests a Eurocurrency Borrowing, such Borrowing
shall be made as an ABR Borrowing.




          SECTION 2.15. Increased Costs.




          (a) If any Change in Law shall:





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




     (ii) impose on any Lender or Issuing Bank or the London interbank market any other
condition (other than Indemnified Taxes or Other Taxes that are covered by Section 2.17 and
Excluded Taxes) affecting this Agreement or Eurocurrency Loans made by such Lender or any
Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to


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reduce the amount of any sum received or receivable by such Lender or
Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will pay to
such Lender or Issuing Bank, as applicable, such additional amount or amounts as will compensate
such Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction
suffered.




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




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




          (d) Promptly after any Lender or any Issuing Bank has determined that it will make a request
for increased compensation pursuant to this Section 2.15, such Lender or Issuing Bank shall notify
the Borrower thereof. Failure or delay on the part of any Lender or Issuing Bank to demand
compensation pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing
Bank’s right to demand such compensation; provided that the Borrower shall not be required
to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender or Issuing Bank, as
applicable, notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor;
provided, further, that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.




          SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any principal of any Eurocurrency Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an Event of Default),
(b) the conversion of any Eurocurrency Loan other than on the last day of the Interest Period
applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurocurrency Loan on
the date specified in any notice delivered pursuant hereto or (d) the assignment of any
Eurocurrency Loan other than on the last day of the Interest Period applicable thereto as a result
of a request by the Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such event. In the case of a
Eurocurrency Loan, such loss, cost or expense to any Lender shall be deemed to be the amount
determined by such Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate
that would have been applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue a Eurocurrency Loan, for the period that would have been the Interest Period
for such Loan), over (ii) the amount of interest which would accrue on such principal amount for
such period at the interest rate which
such Lender would bid were it to




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bid, at the commencement of such period, for deposits in
dollars of a comparable amount and period from other banks in the Eurodollar market. A certificate
of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant
to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.
The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days
after receipt thereof.




          SECTION 2.17. Taxes.




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




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




          (c) Each Loan Party shall indemnify the Administrative Agent, each Lender and each Issuing
Bank, within 20 days after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes payable by the Administrative Agent, such Lender or such Issuing Bank, as applicable,
on or with respect to any payment by or on account of any obligation of such Loan Party hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) and any reasonable expenses arising therefrom or with respect thereto,
except for any expenses that arise from the gross negligence or willful misconduct on the part of
the Administrative Agent, such Lender or such Issuing Bank, as applicable. A certificate as to the
amount of such payment or liability, prepared in good faith and delivered to such Loan Party by a
Lender or an Issuing Bank, or by the Administrative Agent on its own behalf, on behalf of another
Agent or on behalf of a Lender or an Issuing Bank, shall be conclusive absent manifest error.




          (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Loan
Party to a Governmental Authority, such Loan Party shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.




          (e) Any Lender that is entitled to an exemption from or reduction of withholding Tax under the
law of the jurisdiction in which the Borrower is located, or any treaty 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), to the extent such Lender is legally entitled to do so, at the
time or times prescribed by applicable law and as reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed documentation prescribed by applicable
law as will permit such payments to be made without such withholding tax or at a reduced rate;
provided that no Lender shall have any obligation under this paragraph (e) with respect to
any withholding Tax imposed by any jurisdiction other than the United States if in the reasonable
judgment of such Lender such compliance would subject such Lender to any unreimbursed cost or
expense or would otherwise be disadvantageous to such Lender in any material respect.






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          (f) Each Foreign Lender shall deliver to the Borrower and the Administrative Agent on the date
on or before which such Foreign Lender becomes a Lender under this Agreement (and promptly from
time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent),
two copies of whichever of the following is applicable: (i) duly completed copies of Internal
Revenue Service Form W-8BEN (or any subsequent versions thereof or successors thereto), claiming
eligibility for benefits of an income tax treaty to which the United States of America is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI (or any subsequent versions
thereof or successors thereto), (iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under Section 871(h) or 881(c) of the Code, (x) a certificate to
the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A)
of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of Section
871(h)(3)(B) or 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in
Section 881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form
W-8BEN (or any subsequent versions thereof or successors thereto), (iv) duly completed copies of
Internal Revenue Service Form W-8IMY together with the additional documentation that must be
transmitted with Form W-8IMY, including the appropriate forms described in (i), (ii) and (iii), or
(v) any other form prescribed by applicable law as a basis for claiming exemption from or a
reduction in United States federal withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the Borrower to determine the
withholding or deduction required to be made. In addition, each Lender that is not a Foreign
Lender other than a Lender that may reasonably be treated as an exempt recipient based on the
indicators described in Treasury Regulation 1.6049-4(c)(1)(ii), shall deliver to the Borrower and
the Administrative Agent two duly completed copies of Internal Revenue Service Form W-9 (or any
subsequent versions thereof or successors thereto) on or before the date such Lender becomes a
Lender under this Agreement. In addition, in each of the foregoing circumstances, each Lender
shall deliver such forms promptly upon the obsolescence, expiration, or invalidity of any form
previously delivered by such Lender. Each Lender shall promptly notify the Borrower and the
Administrative Agent at any time it determines that it is no longer in a position to provide any
previously delivered form or certificate to the Borrower (or any other form of certification
adopted by the United States of America or other taxing authorities for such purpose).
Notwithstanding any other provision of this paragraph, a Lender shall not be required to deliver
any form pursuant to this paragraph that such Lender is not legally able to deliver.




          (g) If the Administrative Agent, Issuing Bank or a Lender determines, in its sole discretion,
that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been
indemnified by a Loan Party or with respect to which such Loan Party has paid additional amounts
pursuant to this Section 2.17, it shall pay over such refund to such Loan Party (but only to the
extent of indemnity payments made, or additional amounts paid, by such Loan Party under this
Section 2.17 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of the Administrative Agent, Issuing Bank or such Lender (including
any Taxes imposed with respect to such refund) as is determined by the Administrative Agent,
Issuing Bank or Lender in good faith and in its sole discretion, and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such refund);
provided that such Loan Party, upon the written request of the Administrative Agent,
Issuing Bank or such Lender, agrees to repay as soon as reasonably practicable the amount paid over
to such Loan Party (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent, Issuing Bank or such Lender in the event the
Administrative Agent, Issuing Bank or such Lender is required to repay such refund to such
Governmental Authority. This Section 2.17(g) shall not be construed to require the Administrative
Agent, Issuing Bank or any Lender to make available its Tax returns (or any other information
relating to its Taxes which it deems confidential) to the Loan Parties or any other person.
Notwithstanding anything to the contrary, in no event will any Lender be required to pay any amount
to any Loan Party pursuant to this Section 2.17(g) the payment of which would place such Lender
in
a less favorable net after-tax
position than such Lender




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would have been in if the additional amounts giving rise to such
refund of any Indemnified Taxes or Other Taxes had never been paid.




          SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.




          (a) Unless otherwise specified, the Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest, fees or reimbursement of L/C Disbursements, or of
amounts payable under Section 2.15, 2.16, or 2.17, or otherwise) prior to 2:00 p.m., Local Time, on
the date when due, in immediately available funds, without condition or deduction for any defense,
recoupment, set-off or counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments shall be made to the
Administrative Agent to the applicable account designated to the Borrower by the Administrative
Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender
as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and
9.05 shall be made directly to the persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that
is not a Business Day, the date for payment shall be extended to the next succeeding Business Day,
and, in the case of any payment accruing interest, interest thereon shall be payable for the period
of such extension. All payments hereunder shall be made in Dollars. Any payment required to be
made by the Administrative Agent hereunder shall be deemed to have been made by the time required
if the Administrative Agent shall, at or before such time, have taken the necessary steps to make
such payment in accordance with the regulations or operating procedures of the clearing or
settlement system used by the Administrative Agent to make such payment.




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




          (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving
Facility Loans or participations in L/C Disbursements or Swingline Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving
Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving
Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective Term
Loans, Revolving Facility Loans and participations in L/C Disbursements and Swingline Loans;
provided that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the provisions of this
paragraph (c) shall not be construed to apply to any payment made by the Borrower pursuant to and
in accordance with the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Loans or
participations in L/C Dis-




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bursements to any assignee or participant, other than to the Borrower or
any
Subsidiary or any Affiliate of the Borrower (as to which the provisions of this paragraph (c)
shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.




          (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders or the
applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as
applicable, the amount due. In such event, if the Borrower has not in fact made such payment, then
each of the Lenders or the applicable Issuing Bank, as applicable, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is distributed to it to
but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.




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




          SECTION 2.19. Mitigation Obligations; Replacement of Lenders.




          (a) If any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate
a different Lending Office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or Affiliates, if, in the reasonable
judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.15 or 2.17, as applicable, in the future and (ii) would not subject
such Lender to any material unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender in any material respect. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.




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




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tent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and
(iii) in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will
result in a reduction in such compensation or payments. Nothing in this Section 2.19 shall be
deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting
Lender.




          (c) If any Lender (such Lender, a “Non-Consenting Lender”) has failed to consent to a
proposed amendment, waiver, discharge or termination which pursuant to the terms of Section 9.08
requires the consent of all of the Lenders affected and with respect to which the Required Lenders
shall have granted their consent, then the Borrower shall have the right (unless such
Non-Consenting Lender grants such consent) to replace such Non-Consenting Lender by requiring such
Non-Consenting Lender to promptly assign its Loans and its Commitments hereunder to one or more
assignees reasonably acceptable to the Administrative Agent that shall consent to such proposed
amendment, waiver, discharge or termination, provided that: (a) all Obligations of the
Borrower owing to such Non-Consenting Lender being replaced shall be paid in full to such
Non-Consenting Lender concurrently with such assignment, (b) the replacement Lender shall purchase
the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof
plus accrued and unpaid interest thereon and (c) the replacement Lender shall pay the
processing and recordation fee referred to in Section 9.04(b)(ii)(B). In connection with any such
assignment the Borrower, Administrative Agent, such Non-Consenting Lender and the replacement
Lender shall otherwise comply with Section 9.04.




          SECTION 2.20. Illegality. If any Lender reasonably determines that any change in law has made it unlawful, or that
any Governmental Authority has asserted after the Original Effective Date that it is unlawful, for
any Lender or its applicable Lending Office to make or maintain any Eurocurrency Loans, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent, any obligations of
such Lender to make or continue Eurocurrency Loans or to convert ABR Borrowings to Eurocurrency
Borrowings shall be suspended until such Lender notifies the Administrative Agent and the Borrower
that the circumstances giving rise to such determination no longer exist. Upon receipt of such
notice, the Borrower shall upon demand from such Lender (with a copy to the Administrative Agent),
either convert all Eurocurrency Borrowings of such Lender to ABR Borrowings, either on the last day
of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency
Borrowings to such day, or immediately, if such Lender may not lawfully continue to maintain such
Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted.




          SECTION 2.21. Incremental Extensions of Credit. Subject to the terms and conditions set forth herein, the Borrower may at any time and from
time to time, request to add additional term loans (the “Incremental Term Loans”) or
additional revolving credit commitments (the “Incremental Revolving Commitments,” and
together with the Incremental Term Loans, the “Incremental Extensions of Credit”) in a
minimum principal amount of $15.0 million for all Incremental Term Loans or all Incremental
Revolving Loans consummated on the same date; provided that (x) immediately prior to and
after giving effect to any Incremental Facility Amendment, no Default has occurred or is continuing
or shall result therefrom and the Borrower shall, after giving effect to the incurrence of the
Incremental Extensions of Credit, be in compliance with (A) the Incurrence Test on a Pro Forma
Basis (including the pro forma effect of any Permitted Business Acquisition being funded with the
proceeds of Incremental Extensions of Credit) and (B) a Consolidated Senior Secured Leverage Ratio
of 3.50 to 1.00 on a Pro Forma Basis (including the pro forma effect of any Permitted Business
Acquisition being funded with the proceeds of Incremental Extensions of Credit) as of the most
recent Test Period and as of the date of incurrence of the Incremental Extensions of Credit
(assuming such Incremental Revolving Commitments are fully drawn), and (y) the Incremental
Extensions of Credit shall rank pari passu in right of payment and right of security




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in respect of
the Collateral with the then existing Facilities. In addition, (a) the Incremental Extensions of
Credit shall be in an aggregate principal amount not exceeding $300 million (no more than $100
million of which may be Incremental Revolving Commitments) from and after the 2011 Amendment
Effective
Date, (b) the Incremental Term Loans shall not have a final maturity date earlier than the
Term C Loan Maturity Date, (c) the Incremental Revolving Commitments shall not have a final
maturity date earlier than the Tranche 2 Revolving Facility Maturity Date, (d) the Incremental Term
Loans shall not have a weighted average life that is shorter than that of the then-remaining
weighted average life of the Term C Loans, (e) the Incremental Revolving Commitments shall not have
a weighted average life that is shorter than that of the then-remaining weighted average life of
the Tranche 2 Revolving Facility Commitments, (f) to the extent that the terms of any Incremental
Term Loans (other than as specifically contemplated by immediately preceding clauses (b) and (d))
differ from the Term C Loans, such terms shall be reasonably acceptable to the Administrative
Agent, (g) to the extent that the terms of any Incremental Revolving Commitments (other than as
specifically contemplated by immediately preceding clauses (c) and (e)) differ from the Tranche 2
Revolving Facility Commitments, such terms shall be reasonably acceptable to the Administrative
Agent and each Issuing Lender, (h) if the then yield (which shall be deemed to include all upfront
or similar fees or original issue discount payable to all Lenders providing such Incremental Term
Loan in the initial primary syndication thereof) (the “Effective Yield”) with respect to
any such Incremental Term Loans exceeds the then applicable Effective Yield on the Term C Loans
(which shall be deemed to include upfront or similar fees or original issue discount payable to all
Term C Lenders in the initial primary syndication thereof) by more than 50 basis points, the
Applicable Margin for the Term C Loans shall be automatically increased by the amount necessary so
that the Effective Yield of such Incremental Term Loans is no more than 50 basis points higher than
the Effective Yield for the Term C Loans and (i) all fees and expenses owing in respect of such
Incremental Extensions of Credit to the Administrative Agent and the Lenders (including reasonable
fees and expenses of counsel) shall have been paid. Any additional bank, financial institution,
existing Lender or other Person that elects to extend commitments to provide Incremental Extensions
of Credit shall be reasonably satisfactory to the Borrower and, in the case of Incremental
Revolving Commitments, the Administrative Agent (any such bank, financial institution, existing
Lender or other Person being called an “Additional Lender”) and shall become a Lender under
this Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) to this
Agreement, giving effect to the modifications permitted by this Section 2.21, and, as appropriate,
the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide a
commitment in respect of the Incremental Extensions of Credit, if any, each Additional Lender, if
any, and the Administrative Agent. Commitments in respect of Incremental Extensions of Credit
shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the
consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents
as may be reasonably necessary or appropriate, in the opinion of the Administrative Agent, to
effect the provisions of this Section. The effectiveness of any Incremental Facility Amendment
shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility
Closing Date”) of each of the conditions set forth in Section 4.01 (it being understood that
all references to “the date of such Borrowing” in Section 4.01 shall be deemed to refer to the
Incremental Facility Closing Date). Except as set forth above, the proceeds of the Incremental
Extensions of Credit shall be used for general corporate purposes including Permitted Business
Acquisitions.




          SECTION 2.22. Extended Loans and Commitments.




          (a) The Borrower may at any time and from time to time request that all or any portion of the
Loans and Commitments of any Class (an “Existing Class”) be converted to extend the final
maturity date of such Loans and Commitments (any such Loans which have been so converted,
“Extended Maturity Loans” and any such Commitments which have been so converted,
“Extended Maturity Commitments”) and to provide for other terms consistent with this
Section 2.22; provided that there may




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be no more than 5 different final maturity dates in
the aggregate for all Classes of Loans and Commitments under this Agreement without the consent of
the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or
delayed). In order to establish any Extended Maturity Loans, the Borrower shall provide a notice
to the Administrative Agent (who shall provide a copy of such
notice to each of the Lenders under the applicable Term Loan Facility of Revolving Facility
(an “Existing Facility”) (such request an “Extension Request”) setting forth the
proposed terms of the Extended Maturity Loans and/or Extended Maturity Commitments, as applicable,
to be established which shall be substantially identical to the Loans under the Existing Facility
from which such Extended Maturity Loans and/or Extended Maturity Commitments, as applicable, are to
be converted, except that:





     (i) all or any of the scheduled amortization payments of principal of the Extended
Maturity Loans and/or Extended Maturity Commitments (including the maturity date) may be
delayed to later dates than the scheduled amortization payments of principal of the Loans
and/or Commitments (including the maturity date) of such Existing Class to the extent
provided in the applicable Extension Amendment;




     (ii) the interest margins (including applicable margin) and fees (including prepayment
premiums or fees) with respect to the Extended Maturity Loans and/or Extended Maturity
Commitments may be different than the interest margins and fees for the Loans and/or
Commitments of such Existing Class, in each case, to the extent provided in the applicable
Extension Amendment; and




     (iii) the Extension Amendment may provide for amendments to the covenants that apply
solely to such Extended Maturity Loans and/or Extended Maturity Commitments;
provided that such amended covenants may be no more restrictive than the covenants
applicable to the then outstanding Term Loans under this Agreement after giving effect to
the Extension Amendment.



          Any Extended Maturity Loans and/or Extended Maturity Commitments converted pursuant to any
Extension Request shall be designated a Class of Extended Maturity Loans and/or Extended Maturity
Commitments for all purposes of this Agreement; provided that any Extended Maturity Loans
and/or Extended Maturity Commitments converted from an Existing Class may, to the extent provided
in the applicable Extension Amendment, be designated as an increase in any previously established
Class with respect to such Existing Class.




          (b) The Borrower shall provide the applicable Extension Request at least five (5) Business
Days prior to the date on which Lenders under the Existing Class are requested to respond. No
Lender shall have any obligation to agree to have any of its Loans and/or Commitments of any
Existing Facility converted into Extended Maturity Loans and/or Extended Maturity Commitments
pursuant to any Extension Request. Any Lender (an “Extending Lender”) wishing to have all
or any portion of its Loans and/or Commitments under such Existing Class subject to such Extension
Request converted into Extended Maturity Loans and/or Extended Maturity Commitments, as applicable,
shall notify the Administrative Agent (an “Extension Election”) on or prior to the date
specified in such Extension Request of the amount of its Loans and/or Commitments under the
Existing Facility which it has elected to request be converted into Extended Maturity Loans and/or
Extended Maturity Commitments (subject to any minimum denomination requirements reasonably imposed
by the Administrative Agent); provided that for any Extension Request, the Borrower may
establish a maximum amount for such Extended Maturity Loans and/or Extended Maturity Commitments
(an “Extension Maximum Amount”). In the event that the aggregate amount of Loans and/or
Commitments under the Existing Class subject to Extension Elections exceeds the Extension Maximum
Amount, then each Lender’s amount of consented Loans and/or Commitments subject to an Extension
Election shall be reduced on a pro rata basis such that the total amount




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of
Extended Maturity Loans and/or Extended Maturity Commitments shall be the Extension Maximum Amount.




          (c) Extended Maturity Loans and/or Extended Maturity Commitments shall be established pursuant
to an amendment (an “Extension Amendment”) to this Agreement among the
Borrower, the Administrative Agent and each Extending Lender thereunder, which shall be
consistent with the provisions set forth in paragraphs (a) and (b) above (but which shall not
require the consent of any other Lender other than the Extending Lenders (including any changes
contemplated by Section 9.08(d))), and which shall, in the case of Extended Maturity Commitments
for Revolving Loans, make appropriate modifications to this Agreement (including without limitation
to the definitions of “Revolving Availability Period,” “Revolving Facility Commitment,” “Revolving
Facility Credit Exposure” and “Revolving Facility Percentage,” and to Sections 2.04 and 2.05) to
provide for issuance of Letters of Credit and the extension of Swingline Loans based on such
Extended Maturity Commitments. Only Extending Lenders will have their Loans and/or Commitments
converted into Extended Maturity Loans and/or Extended Maturity Commitments and only Extending
Lenders will be entitled to any increase in pricing or fees in connection with the Extension
Amendment. Each Extension Amendment shall be binding on the Lenders, the Loan Parties and the
other parties hereto. In connection with any Extension Amendment, the Loan Parties and the
Administrative Agent shall enter into such amendments to the Collateral Documents as may be
reasonably requested by the Administrative Agent (which shall not require any consent from any
Lender) in order to ensure that the Extended Maturity Loans and/or Extended Maturity Commitments
are provided with the benefit of the applicable Collateral Documents on a pari
passu basis with the other Obligations and shall deliver such other documents, certificates
and opinions of counsel in connection therewith as may be reasonably requested by the
Administrative Agent.




          (d) Notwithstanding anything to the contrary set forth herein, on or prior to the date that is
180 days after the 2011 Amendment Effective Date the Borrower may accept new Tranche 2 Revolving
Facility Commitments (the “New Tranche 2 Revolving Commitments”) up to an amount such that
the aggregate amount of Tranche 2 Revolving Facility Commitments does not exceed $75.0 million and
the Borrower shall simultaneously permanently reduce Tranche 1 Revolving Facility Commitments by
the amount of such New Tranche 2 Revolving Facility Commitments, with such reduction being applied
ratably to the Tranche 1 Revolving Facility Commitments of all Tranche 1 Revolving Lenders;
provided that any lender that provides a New Tranche 2 Revolving Commitments shall be
subject to prior consent by the Administrative Agent (such consent not to be unreasonably
withheld).




          (e) For the avoidance of doubt, this Section 2.22 was added on the 2011 Amendment Effective
Date and, in accordance with Section 9.08, supercedes any provision in Section 2.18 to the
contrary.




          SECTION 2.23. Refinancing Term Loans.




          (a) The Borrower may by written notice to the Administrative Agent elect to request the
establishment of one or more additional tranches of term loan commitments under this Agreement (the
“Refinancing Term Loan Commitments” and any loans made thereunder, the “Refinancing
Term Loans”), to repay any Term Loan. Each such notice shall specify the date (each, a
“Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Term
Loans shall be made, which shall be a date not less than five Business Days after the date on which
such notice is delivered to the Administrative Agent; provided that:





     (i) before and after giving effect to the borrowing of such Refinancing Term Loans on
the Refinancing Effective Date, no Event of Default or Default shall have occurred and be
continuing;



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     (ii) no Lender under this Agreement shall be obligated to provide any portion of such
Refinancing Term Loan Commitments;




     (iii) all fees and expenses owing to the Agents and the Lenders with respect to such
Refinancing Term Loan Commitments shall have been paid;




     (iv) (x) the average life to maturity of all Refinancing Term Loans under such
Refinancing Term Loan Commitments shall not be shorter than the then-remaining average life
to maturity of all Classes of Term Loans being refinanced and (y) the applicable maturity
date of all such Refinancing Term Loans under such Refinancing Term Loan Commitments shall
be no shorter than the latest applicable maturity date of all of the Term Loans being
refinanced; and




     (v) the applicable Refinancing Term Loan Amendment may provide for amendments to
the covenants that apply solely to such Refinancing Term Loans under such Refinancing Term
Loan Commitments; provided that such amended covenants may be no more restrictive than the
covenants applicable to the then outstanding Term Loans under this Agreement after giving
effect to the Refinancing Term Loan Amendment.



          (b) The Borrower may approach any Lender or any other Person that would be a permitted
assignee pursuant to Section 9.04 to provide all or a portion of the Refinancing Term Loans (a
“Refinancing Term Lender”); provided that any Lender offered or approached to provide all
or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide
a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall
be designated a Class of Refinancing Term Loans for all purposes of this Agreement; provided that
any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan
Amendment, be designated as an increase in any previously established Class of Refinancing Term
Loans made to the same Borrower.




          (c) The Refinancing Term Loans shall be established pursuant to an amendment to this
Agreement among the Borrower, the Administrative Agent and the Refinancing Term Lenders providing
such Refinancing Term Loans (a “Refinancing Term Loan Amendment”) which shall be consistent
with the provisions set forth in paragraph (a) above (but which shall not require the consent of
any other Lender (including any changes contemplated by Section 9.08(d))). Each Refinancing Term
Loan Amendment shall be binding on the Lenders, the Loan Parties and the other parties hereto.
In connection with any Refinancing Term Loan Amendment, the Loan Parties and the Administrative
Agent shall enter into such amendments to the Collateral Documents as may be reasonably requested
by the Administrative Agent (which shall not require any consent from any Lender) in order to
ensure that the Refinancing Term Loans under the Refinancing Term Loan Commitments are provided
with the benefit of the applicable Collateral Documents on a pari passu basis with the other
Obligations and shall deliver such other documents, certificates and opinions of counsel in
connection therewith as may be reasonably requested by the Administrative Agent.




          (d) For the avoidance of doubt, this Section 2.23 was added on the 2011 Amendment Effective
Date and, in accordance with Section 9.08, supercedes any provision in Section 2.18 to the
contrary.




          SECTION 2.24. Defaulting Lenders




          (a) Cash Collateral Call. If any Lender becomes, and during the period it remains, a
Defaulting Lender or a Potential Defaulting Lender, if any Letter of Credit or Swingline Loan is at
the time outstanding, the Issuing Bank and the Swingline Lender, as the case may be, may (except,
in the case




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of a Defaulting Lender, to the extent the Commitments have been fully reallocated
pursuant to Section 2.24(b), by notice to the Borrower and such Defaulting Lender or Potential
Defaulting Lender through the Administrative Agent, require the Borrower to Cash Collateralize the
obligations of the Borrower to the
Issuing Bank and the Swingline Lender in respect of such Letter of Credit or Swingline Loan in
amount at least equal to 103% of the aggregate amount of the unreallocated obligations (contingent
or otherwise) of such Defaulting Lender or such Potential Defaulting Lender to be applied pro rata
in respect thereof, or to make other arrangements satisfactory to the Administrative Agent, and to
the Issuing Bank and the Swingline Lender, as the case may be, in their sole discretion to protect
them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender.




          (b) Reallocation of Defaulting Lender Commitment, Etc. If a Lender (in the case of
clause (i) below, other than any Tranche 1 Revolving Lender that did not execute the 2011 Amendment
Agreement on or prior to the 2011 Amendment Effective Date) becomes, and during the period it
remains, a Defaulting Lender, the following provisions shall apply with respect to any outstanding
L/C Exposure and any outstanding Swingline Exposure of such Defaulting Lender:





     (i) the Revolving L/C Exposure and the Swingline Exposure of such Defaulting Lender
will, subject to the limitation in the first proviso below, automatically be reallocated
(effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting
Lenders pro rata in accordance with their respective Commitments; provided that (a) the sum
of each Non-Defaulting Lender’s total Revolving Facility Credit Exposure, total Swingline
Exposure and total Revolving L/C Exposure may not in any event exceed the Commitment of such
Non-Defaulting Lender as in effect at the time of such reallocation and (b) neither such
reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a
waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the
Swingline Lender or any other Lender may have against such Defaulting Lender or cause such
Defaulting Lender to be a Non-Defaulting Lender;




     (ii) to the extent that any portion (the “unreallocated portion”) of the
Defaulting Lender’s Revolving L/C Exposure and Swingline Exposure cannot be so reallocated,
whether by reason of the first proviso in clause (i) above or otherwise, the Borrower will,
not later than one Business Day after demand by the Administrative Agent (at the direction
of the Issuing Bank and/or the Swingline Lender, as the case may be), (a) Cash Collateralize
the obligations of the Borrower to the Issuing Bank and the Swingline Lender in respect of
such Revolving L/C Exposure or Swingline Exposure, as the case may be, in an amount at least
equal to the aggregate amount of the unreallocated portion of such Revolving L/C Exposure or
Swingline Exposure, or (b) in the case of such Swingline Exposure, prepay (subject to clause
(iii) below) and/or Cash Collateralize in full the unreallocated portion thereof, or (c)
make other arrangements satisfactory to the Administrative Agent, and to the Issuing Bank
and the Swingline Lender, as the case may be, in their sole discretion to protect them
against the risk of non-payment by such Defaulting Lender; and




     (iii) any amount paid by the Borrower or otherwise received by the Administrative Agent
for the account of a Defaulting Lender under this Agreement (whether on account of
principal, interest, fees, indemnity payments or other amounts) will not be paid or
distributed to such Defaulting Lender, but will instead be retained by the Administrative
Agent in a segregated account until (subject to Section 2.24(f)) the termination of the
Commitments and payment in full of all obligations of the Borrower hereunder and will be
applied by the Administrative Agent, to the fullest extent permitted by law, to the making
of payments from time to time in the following order of priority: first to the payment of
any amounts owing by such Defaulting Lender to the Ad-



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ministrative Agent under this
Agreement, second to the payment of any amounts owing by such Defaulting Lender to the
Issuing Bank or the Swingline Lender (pro rata as to the respective amounts owing to each of
them) under this Agreement, third to the payment of post-default interest and then current
interest due and payable to the Lenders hereunder other than Defaulting
Lenders, ratably among them in accordance with the amounts of such interest then due
and payable to them, fourth to the payment of fees then due and payable to the
Non-Defaulting Lenders hereunder, ratably among them in accordance with the amounts of such
fees then due and payable to them, fifth to pay principal and unreimbursed L/C Disbursements
then due and payable to the Non-Defaulting Lenders hereunder ratably in accordance with the
amounts thereof then due and payable to them, sixth to the ratable payment of other amounts
then due and payable to the Non-Defaulting Lenders, and seventh after the termination of the
Commitments and payment in full of all obligations of the Borrower hereunder, to pay amounts
owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction
may otherwise direct.



          (c) Right to Give Drawdown Notices. In furtherance of the foregoing, if any Lender
becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender,
each of the Issuing Bank and the Swingline Lender is hereby authorized by the Borrower (which
authorization is irrevocable and coupled with an interest) to give, in its discretion, through the
Administrative Agent, a Borrowing Request for a Revolving Facility Loan pursuant to Section 2.03 in
such amounts and in such times as may be required to (i) reimburse an outstanding L/C Disbursement,
(ii) repay an outstanding Swingline Loan, and/or (iii) Cash Collateralize the obligations of the
Borrower in respect of outstanding Letters of Credit or Swingline Loans in an amount at least equal
to the aggregate amount of the obligations (contingent or otherwise) of such Defaulting Lender or
Potential Defaulting Lender in respect of such Letter of Credit or Swingline Loan.




          (d) Fees. Anything herein to the contrary notwithstanding, during such period as a Lender
(other than any Tranche 1 Revolving Lender that did not execute the 2011 Amendment Agreement on or
prior to the 2011 Amendment Effective Date) is a Defaulting Lender, such Defaulting Lender will not
be entitled to any fees accruing during such period pursuant to Section 2.12(a) and Section 2.12(b)
(without prejudice to the rights of the Non-Defaulting Lenders in respect of such fees), provided
that (a) to the extent that all or a portion of the Revolving L/C Exposure or the Swingline
Exposure of such Defaulting Lender is reallocated to the Non-Defaulting Lenders pursuant to Section
2.23 (b), such fees that would have accrued for the benefit of such Defaulting Lender will instead
accrue for the benefit of and be payable to such Non-Defaulting Lenders, pro rata in accordance
with their respective Commitments, and (b) to the extent that all or any portion of such Revolving
L/C Exposure or Swingline Exposure cannot be so reallocated, such fees will instead accrue for the
benefit of and be payable to the Issuing Bank and the Swingline Lender, as applicable (and the pro
rata payment provisions of Section 2.18 will automatically be deemed adjusted to reflect the
provisions of this Section).




          (e) Termination of Defaulting Lender Commitment. The Borrower may terminate the
unused amount of the Commitment of a Defaulting Lender upon not less than one Business Day’s prior
notice to the Administrative Agent (which will promptly notify the Lenders thereof), and in such
event the provisions of Section 2.24(b)(iii) will apply to all amounts thereafter paid by the
Borrower for the account of such Defaulting Lender under this Agreement (whether on account of
principal, interest, fees, indemnity or other amounts), provided that such termination will
not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent, the
Issuing Bank, the Swingline Lender or any Lender may have against such Defaulting Lender.




          (f) Cure. If the Borrower, the Administrative Agent, the Issuing Bank and the Swingline
Lender agree in writing in their discretion that a Lender is no longer a Defaulting Lender or a




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Potential Defaulting Lender, as the case may be, the Administrative Agent will so notify the
parties hereto, whereupon as of the effective date specified in such notice and subject to any
conditions set forth therein (which may include arrangements with respect to any amounts then held
in the segregated account referred to in Section 2.24(b)), such Lender will, to the extent
applicable, purchase at par such portion of
outstanding Loans of the other Lenders and/or make such other adjustments as the
Administrative Agent may determine to be necessary to cause the Revolving Facility Credit Exposure,
Revolving L/C Exposure and Swingline Exposure of the Lenders to be on a pro rata basis in
accordance with their respective Commitments, whereupon such Lender will cease to be a Defaulting
Lender or Potential Defaulting Lender and will be a Non-Defaulting Lender (and such Exposure of
each Lender will automatically be adjusted on a prospective basis to reflect the foregoing);
provided that no adjustments will be made retroactively with respect to fees accrued or payments
made by or on behalf of the Borrower while such Lender was a Defaulting Lender; and provided,
further, that except to the extent otherwise expressly agreed by the affected parties, no
change hereunder from Defaulting Lender or Potential Defaulting Lender to Non-Defaulting Lender
will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s
having been a Defaulting Lender or Potential Defaulting Lender.




ARTICLE III




REPRESENTATIONS AND WARRANTIES



          The Borrower represents and warrants to each of the Lenders that:



          SECTION 3.01. Organization; Powers. Except as set forth on Schedule 3.01, the Borrower and each of the Subsidiaries (a)
is a limited partnership, limited liability company or corporation duly organized, validly existing
and in good standing (or, if applicable in a foreign jurisdiction, enjoys the equivalent status
under the laws of any jurisdiction of organization outside the United States) under the laws of the
jurisdiction of its organization, (b) has all requisite power and authority to own its property and
assets and to carry on its business as now conducted, (c) is qualified to do business in each
jurisdiction where such qualification is required, except where the failure so to qualify could not
reasonably be expected to have, individually or in the aggregate, a material adverse effect on the
business, property, operations or condition of the Borrower and the Subsidiaries, taken as a whole,
or the validity or enforceability of any of the Loan Documents or the rights and remedies of the
Administrative Agent and the Lenders thereunder and (d) has the power and authority to execute,
deliver and perform its obligations under each of the Loan Documents and each other agreement or
instrument contemplated thereby to which it is or will be a party and, in the case of the Borrower,
to borrow and otherwise obtain credit hereunder.




          SECTION 3.02. Authorization. The execution, delivery and performance by the Borrower and each Subsidiary Loan Party of
each of the Loan Documents to which it is a party, and the borrowings hereunder and the
transactions forming a part of the Transactions (a) have been duly authorized by all corporate,
stockholder, limited partnership or limited liability company action required to be obtained by the
Borrower and such Subsidiary Loan Parties and (b) will not (i) violate (A) any provision of law,
statute, rule or regulation, or of the certificate or articles of incorporation or other
constitutive documents or by-laws of the Borrower or such Subsidiary Loan Party, (B) any applicable
order of any court or any rule, regulation or order of any Governmental Authority or (C) any
provision of any indenture, certificate of designation for preferred stock, agreement or other
instrument to which the Borrower or such Subsidiary Loan Party is a party or by which any of them
or any of their property is or may be bound, (ii) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a default under, give rise to a right of
or result in any cancellation or acceleration of any right or obligation (including any payment) or
to a loss of a material benefit under any such indenture, certificate of designa-




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tion for preferred
stock, agreement or other instrument, where any such conflict, violation, breach or default
referred to in clause (i) or (ii) of this Section 3.02, could reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the business, property, operations
or condition of the Borrower and the Subsidiaries, taken as a whole, or the validity or
enforceability of any of the Loan Documents or the rights and remedies of the Administrative Agent
and
the Lenders thereunder, or (iii) result in the creation or imposition of any Lien upon or with
respect to any property or assets now owned or hereafter acquired by the Borrower or such
Subsidiary Loan Party, other than the Liens created by the Loan Documents and Liens permitted by
Section 6.02.




          SECTION 3.03. Enforceability. This Agreement has been duly executed and delivered by the Borrower and constitutes, and
each other Loan Document when executed and delivered by each Loan Party that is party thereto will
constitute, a legal, valid and binding obligation of such Loan Party enforceable against each such
Loan Party in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency,
moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights
generally, (ii) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair
dealing.




          SECTION 3.04. Governmental Approvals. No action, consent or approval of, registration or filing with or any other action by any
Governmental Authority is or will be required in connection with the Transactions, except for (a)
the filing of Uniform Commercial Code financing statements, (b) filings with the United States
Copyright Office and United States Patent and Trademark Office, (c) recordation of the Mortgages,
(d) such as have been made or obtained and are in full force and effect, (e) such actions, consents
and approvals the failure to be obtained or made which could not reasonably be expected to have,
individually or in the aggregate a material adverse effect on the business, property, operations or
condition of the Borrower and the Subsidiaries, taken as a whole, or the validity or enforceability
of any of the Loan Documents or the rights and remedies of the Administrative Agent and the Lenders
thereunder, and (f) filings or other actions listed on Schedule 3.04.




          SECTION 3.05. Financial Statements.




          (a) The audited consolidated balance sheet of the Borrower as at September 30, 2010, and
the audited consolidated statements of income and cash flows for such fiscal year, copies of which
have heretofore been furnished to each Lender, present fairly the consolidated financial position
of the Borrower, as of such date and the consolidated results of operations and cash flows of the
Borrower for the year then ended.




          (b) [Reserved]




          (c) The unaudited interim consolidated balance sheets and related statements of income and
cash flows of the Borrower and its subsidiaries for each fiscal quarter of the Borrower ended at
least 45 days prior to the 2011 Amendment Effective Date and subsequent to September 30, 2010 (and,
in each case, for the comparable quarter in the previous fiscal year), present fairly the
consolidated financial condition of the Borrower (subject to normal year-end audit adjustments) as
of the date of such financial statements. All such financial statements have been prepared in
accordance with GAAP applied consistently throughout the periods involved (subject to (i) normal
year-end adjustments and (ii) the absence of notes). Except as, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect, none of the Borrower or any
Subsidiary has any material Guarantees, contingent liabilities and liabilities for taxes, or any
long-term leases or unusual forward or long-term commitments, including any interest rate or
foreign currency swap or exchange transaction or other obligation in respect of derivatives, that
are not reflected in the most recent financial statements delivered pursuant to Section 5.04.
During the period from September 30, 2010 to and including the 2011 Amendment Effective Date,




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there
has been no disposition by the Borrower or any of its subsidiaries of any material part of its
business or property.




          SECTION 3.06. No Material Adverse Change or Material Adverse Effect. Since September 30, 2010, there has been no event, circumstance or condition that has or
would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.




          SECTION 3.07. Title to Properties; Possession Under Leases.




          (a) The Borrower and each Subsidiary has good and insurable fee simple title to, or valid
leasehold interests in, or easements or other limited property interests in, all its real
properties (including all Mortgaged Properties) and has good and marketable title to its personal
property and assets, in each case, except for defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such properties and assets for
their intended purposes and except where the failure to have such title could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect. All such properties
and assets are free and clear of Liens, other than Liens expressly permitted by Section 6.02.




          (b) The Borrower and each Subsidiary has complied with all obligations under all leases to
which it is a party, except where the failure to comply would not have Material Adverse Effect, and
all such leases are in full force and effect, except leases in respect of which the failure to be
in full force and effect could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. The Borrower and each Subsidiary enjoys peaceful and
undisturbed possession under all such leases, other than leases in respect of which the failure to
enjoy peaceful and undisturbed possession could not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.




          (c) As of the Original Effective Date, none of the Borrower or any Subsidiary has received any
notice of any pending or contemplated condemnation proceeding affecting any of the Mortgaged
Properties or any sale or disposition thereof in lieu of condemnation that remains unresolved.




          (d) None of the Borrower or any Subsidiary is obligated on the Original Effective Date under
any right of first refusal, option or other contractual right to sell, assign or otherwise dispose
of any Mortgaged Property or any interest therein, except as permitted under Section 6.02 or 6.05.




          SECTION 3.08. Subsidiaries.




          (a) Schedule 3.08(a) sets forth as of the 2007 Amendment Effective Date the name
and jurisdiction of incorporation, formation or organization of each subsidiary of the Borrower
and, as to each such subsidiary, the percentage of each class of Equity Interests owned by the
Borrower or by any such subsidiary.




          (b) As of the 2007 Amendment Effective Date, there are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than stock options granted to
employees or directors and directors’ qualifying shares) of any nature relating to any Equity
Interests of any Subsidiary.




          SECTION 3.09. Litigation; Compliance with Laws.




          (a) Except as set forth on Schedule 3.09, there are no actions, suits,
investigations or proceedings at law or in equity or by or on behalf of any Governmental Authority
or in arbitration now pending, or, to the knowledge of the Borrower, threatened in writing against
or affecting the Borrower or




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any Subsidiary or any business, property or rights of any such person
(i) that involve any Loan Document or the Transactions or (ii) would reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.




          (b) None of the Borrower or any Subsidiary or any of their respective properties or assets is
in violation of (nor will the continued operation of their material properties and assets as
currently conducted violate) any law, rule or regulation (including any zoning, building,
ordinance, code
or approval or any building permit, but excluding any Environmental Laws, which are subject to
Section 3.16) or any restriction of record or agreement affecting any Mortgaged Property, or is in
default with respect to any judgment, writ, injunction or decree of any Governmental Authority,
where such violation or default could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.




          SECTION 3.10. Federal Reserve Regulations.




          (a) None of the Borrower and/or any Subsidiary is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of purchasing or carrying
Margin Stock.




          (b) No part of the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend
credit to others for the purpose of purchasing or carrying Margin Stock or to refund indebtedness
originally incurred for such purpose, or (ii) for any purpose that entails a violation of, or that
is inconsistent with, the provisions of the Regulations of the Board, including Regulation U or
Regulation X.




          SECTION 3.11. Investment Company Act. None of the Borrower or any Subsidiary is an “investment company” as defined in, or subject
to regulation under, the Investment Company Act of 1940, as amended.




          SECTION 3.12. Use of Proceeds. The Borrower will use the proceeds of the Revolving Facility Loans and Swingline Loans, and
may request the issuance of Letters of Credit, solely for general corporate purposes.




          SECTION 3.13. Tax Returns.




          (a) The Borrower and each Subsidiary has filed or caused to be filed all federal, state,
local and non-U.S. Tax returns required to have been filed by it on or before the date hereof that
are material to such companies, taken as a whole, and each such Tax return is true and correct in
all material respects;




          (b) The Borrower and each Subsidiary has timely paid or caused to be timely paid all Taxes and
assessments due and payable by it whether or not shown on the returns referred to in clause (a) and
has made adequate provision (in accordance with GAAP) for the payment of all Taxes not yet due and
payable with respect to all periods or portions thereof ending on or before the 2011 Amendment
Effective Date (except Taxes or assessments that are being contested in good faith by appropriate
proceedings in accordance with Section 5.03 and for which the Borrower or such Subsidiary (as the
case may be) has set aside on its books adequate reserves in accordance with GAAP), which Taxes, if
not paid, could reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect; and




          (c) Other than as could not be reasonably expected to have, individually or in the aggregate,
a Material Adverse Effect as of the 2011 Amendment Effective Date, with respect to the Borrower and
each Subsidiary, there are no claims being asserted in writing with respect to any Taxes.




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          (d) None of the Borrower or its Subsidiaries has been a party to any understanding or
arrangement constituting a “tax shelter” within the meaning of Section 6662(d)(2)(C)(ii) of the
Code or within the meaning of Section 6111(c) or Section 6111(d) of the Code as in effect
immediately prior to the enactment of the American Jobs Creation Act of 2004 with respect to a
taxable year for which the
statute of limitations is not closed, or has “participated” in a “reportable transaction”
within the meaning of Treasury Regulation Section 1.6011-4 that has not been properly disclosed
pursuant to such regulation, except as could not reasonably be expected to, individually or in the
aggregate, have in a Material Adverse Effect.




          SECTION 3.14. No Material Misstatements.




          (a) All written information (other than the Projections, estimates and information of a
general economic nature) (the “Information”) concerning the Borrower, the Subsidiaries, the
Transactions and any other transactions contemplated hereby prepared by or on behalf of the
foregoing or their representatives and made available to any Lenders or the Administrative Agent in
connection with the Transactions or the other transactions contemplated hereby, when taken as a
whole, was true and correct in all material respects as of the date such Information was furnished
to the Lenders and as of the Amendment Effective Date and did not contain any untrue statement of a
material fact as of any such date or omit to state a material fact necessary in order to make the
statements contained therein not materially misleading in light of the circumstances under which
such statements were made.




          (b) The Projections and estimates and information of a general economic nature prepared by or
on behalf of the Borrower or any of their representatives and that have been made available to any
Lenders or the Administrative Agent in connection with the Transactions or the other transactions
contemplated hereby prepared by or on behalf of the foregoing or their representative (i) have been
prepared in good faith based upon assumptions believed by the Borrower to be reasonable as of the
date thereof (it being understood that actual results may vary materially from the Projections), as
of the date such Projections and estimates were furnished to the Lenders and as of the 2011
Amendment Effective Date, and (ii) as of the 2011 Amendment Effective Date, have not been modified
in any material respect by the Borrower.




          SECTION 3.15. Employee Benefit Plans.




          (a) Except as could not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect: (i) the Borrower and each Subsidiary is in compliance with the
applicable provisions of ERISA and the provisions of the Code relating to Plans and the regulations
and published interpretations thereunder; (ii) no Reportable Event has occurred during the past
five years as to which the Borrower or any Subsidiary or any ERISA Affiliate was required to file a
report with the PBGC, other than reports that have been filed; (iii) no ERISA Event has occurred or
is reasonably expected to occur; and (iv) none of the Borrower, any Subsidiary or any ERISA
Affiliate has received any written notification that any Multiemployer Plan is in reorganization or
has been terminated within the meaning of Title IV of ERISA, or has knowledge that any
Multiemployer Plan is reasonably expected to be in reorganization or to be terminated.




          (b) Except where noncompliance would not reasonably be expected to result in a Material
Adverse Effect, each Foreign Plan has been maintained in substantial compliance with its terms and
with the requirements of any and all applicable laws, statutes, rules, regulations and orders and
has been maintained, where required, in good standing with applicable regulatory authorities, and
neither the Borrower nor any Subsidiary have incurred any material obligation in connection with
the termination of or withdrawal from any Foreign Plan. Except as would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect, the present value of the
accrued benefit liabilities (whether




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or not vested) under each Foreign Plan which is required to be
funded, determined as of the end of the most recently ended fiscal year of the Borrower or
Subsidiary (based on the actuarial assumptions used for purposes of the applicable jurisdiction’s
financial reporting requirements), did not exceed the current
value of the assets of such Foreign Plan, and for each Foreign Plan which is not required to
be funded, the obligations of such Foreign Plan are properly accrued.




          SECTION 3.16. Environmental Matters. Except as to matters that could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect: (i) no written notice, request for information, claim,
demand, order or complaint has been received by the Borrower or any Subsidiary, and there are no
judicial, administrative or other actions, suits or proceedings pending or, to the Borrower’s
knowledge, threatened which allege a violation of or liability under any Environmental Laws, in
each case relating to the Borrower or any Subsidiary, (ii) the Borrower and each Subsidiary has all
authorizations and permits necessary for its operations to comply with all applicable Environmental
Laws and is, and during the term of all applicable statutes of limitation, has been, in compliance
with the terms of such permits and with all other applicable Environmental Laws, (iii) no Hazardous
Material is located at, in, or under any property currently or, the Borrower’s knowledge, formerly
owned, operated or leased by the Borrower or any Subsidiary that could reasonably be expected to
give rise to any liability or obligation of the Borrower or any Subsidiary under any Environmental
Laws, and no Hazardous Material has been generated, owned or controlled or has been transported to
or released at any location by the Borrower or any Subsidiary in a manner that would reasonably be
expected to give rise to any liability or obligation of the Borrower or any Subsidiary under any
Environmental Laws, and (iv) there are no acquisition agreements in which the Borrower or any
Subsidiary has expressly assumed or undertaken responsibility for any known or reasonably likely
liability or obligation of any other Person arising under or relating to Environmental Laws which,
in any such case, has not been made available to the Administrative Agent prior to the Original
Effective Date.




          SECTION 3.17. Security Documents.




          (a) The Collateral Agreement is effective to create in favor of the Administrative Agent (for
the benefit of the Secured Parties) a legal, valid and enforceable Lien on the Collateral described
therein and proceeds thereof. In the case of the Pledged Collateral described in the Collateral
Agreement, when certificates or promissory notes, as applicable, representing such Pledged
Collateral are delivered to the Administrative Agent, and in the case of the other Collateral
described in the Collateral Agreement (other than the Intellectual Property (as defined in the
Collateral Agreement)), when financing statements and other filings attached as Schedule 6
to the Perfection Certificate are filed in the offices specified on Schedule 7 of the
Perfection Certificate, the Administrative Agent (for the benefit of the Secured Parties) shall
have a fully perfected Lien on, and security interest in, all right, title and interest of the Loan
Parties in such Collateral and, subject to Section 9-315 of the New York Uniform Commercial Code,
the proceeds thereof, as security for the Obligations to the extent perfection can be obtained by
filing Uniform Commercial Code financing statements, or possession, in each case prior and superior
in right to any other person (except, in the case of Collateral other than Pledged Collateral,
Liens expressly permitted by Section 6.02).




          (b) When the Collateral Agreement or an intellectual property security agreement executed in
accordance therewith is properly filed in the United States Patent and Trademark Office or the
United States Copyright Office, as applicable, and, with respect to Collateral in which a security
interest cannot be perfected by such filings, upon the proper filing of the financing statements
referred to in paragraph (a) above, the Administrative Agent (for the benefit of the Secured
Parties) shall have a fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties thereunder in the Intellectual Property, in each case prior and
superior in right to any other person (it being understood that




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subsequent recordings in the United
States Patent and Trademark Office or the United States Copyright Office, as applicable, may be
necessary to perfect a lien on registered trademarks and patents, trademark and patent applications
and registered copyrights acquired by the grantors after the Original Effective Date).




          (c) Each Foreign Pledge Agreement, if any, shall be effective to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable Lien
on the Collateral described therein and proceeds thereof. In the case of the Pledged Collateral
described in a Foreign Pledge Agreement, when certificates representing such Pledged Collateral are
delivered to the Administrative Agent and/or any other requirements described in such Foreign
Pledge Agreement have been complied with, the Administrative Agent (for the benefit of the Secured
Parties) shall have a fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the
Obligations, in each case prior and superior in right to any other person.




          (d) The Mortgages executed and delivered on the Original Effective Date are, and the Mortgages
executed and delivered after the Original Effective Date pursuant to Section 5.10 shall be,
effective to create in favor of the Administrative Agent (for the benefit of the Secured Parties) a
legal, valid and enforceable Lien on all of the Loan Parties’ right, title and interest in and to
the Mortgaged Property thereunder and the proceeds thereof, and when such Mortgages are filed or
recorded in the proper real estate filing or recording offices, the Administrative Agent (for the
benefit of the Secured Parties) shall have a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties in such Mortgaged Property and, to the extent
applicable, subject to Section 9-315 of the Uniform Commercial Code, the proceeds thereof, in each
case prior and superior in right to any other Person, other than with respect to the rights of a
Person pursuant to Liens expressly permitted by Section 6.02.




          SECTION 3.18. Location of Real Property and Leased Premises.




          (a) Schedule 8 to the Perfection Certificate lists completely and correctly, as
of the 2007 Amendment Effective Date, all material real property owned by the Borrower and the
Subsidiary Loan Parties and the addresses thereof. As of the 2007 Amendment Effective Date, the
Borrower and the Subsidiary Loan Parties own in fee all the real property set forth as being owned
by them on such Schedules.




          (b) The Borrower and the Subsidiary Loan Parties have valid leases in all material real
property leased by the Borrower and the Subsidiary Loan Parties.




          SECTION 3.19. Solvency.




          (a) Immediately after giving effect to the Transactions on the 2011 Amendment Effective
Date, (i) the fair value of the assets of the Borrower (individually) and the Borrower and the
Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities,
direct, subordinated, contingent or otherwise, of the Borrower (individually) and the Borrower and
the Subsidiaries on a consolidated basis; (ii) the present fair saleable value of the property of
the Borrower (individually) and the Borrower and the Subsidiaries on a consolidated basis will be
greater than the amount that will be required to pay the probable liability of the Borrower
(individually) and the Borrower and the Subsidiaries on a consolidated basis, respectively, on
their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (iii) the Borrower (individually) and the Borrower
and the Subsidiaries on a consolidated basis will be able to pay their debts and liabilities,
direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and
matured; and (iv) the Borrower (individually) and the Borrower and the Subsidiaries on a
consolidated




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basis will not have unreasonably small capital with which to conduct the businesses in
which they are engaged as such businesses are now conducted and are proposed to be conducted
following the 2011 Amendment Effective Date.




          (b) The Borrower does not intend to, and does not believe that it or any of its subsidiaries
will, incur debts beyond its ability to pay such debts as they mature, taking into account the
timing and amounts of cash to be received by it or any such subsidiary and the timing and amounts
of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such
subsidiary.




          SECTION 3.20. Labor Matters. Except as, individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect: (a) there are no strikes or other labor disputes pending or threatened
against the Borrower or any Subsidiary; (b) the hours worked and payments made to employees of the
Borrower and each Subsidiary have not been in violation of the Fair Labor Standards Act or any
other applicable law dealing with such matters; and (c) all payments due from the Borrower and each
Subsidiary or for which any claim may be made against the Borrower or any Subsidiary, on account of
wages and employee health and welfare insurance and other benefits have been paid or accrued as a
liability on the books of the Borrower or such Subsidiary to the extent required by GAAP. Except
as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect or the consummation of the Transactions will not give rise to a right of termination or
right of renegotiation on the part of any union under any material collective bargaining agreement
to which the Borrower or any Subsidiary (or any predecessor of the Borrower or any Subsidiary) is a
party or by which the Borrower or any Subsidiary (or any predecessor of the Borrower or any
Subsidiary) is bound.




          SECTION 3.21. Insurance. Schedule 3.21 sets forth a true, complete and correct description of all material
insurance maintained by or on behalf of the Borrower or any Subsidiary as of the 2007 Amendment
Effective Date. As of such date, such insurance is in full force and effect. The Borrower
believes that the insurance maintained by or on behalf of the Borrower and the Subsidiaries is
adequate.




          SECTION 3.22. Anti-Terrorism Law.




          (a) No Loan Party and, to the knowledge of the Loan Parties, none of its Affiliates is in
violation of any Requirement of Law relating to terrorism or money laundering (“Anti-Terrorism
Laws”), including Executive Order No. 13224 on Terrorist Financing, effective September 24,
2001 (the “Executive Order”), and the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.




          (b) To the knowledge of the Loan Parties, no Loan Party and no Affiliate or broker or other
agent of any Loan Party acting or benefiting in any capacity in connection with the Loans is any of
the following:





     (i) a person that is listed in the annex to, or is otherwise subject to the provisions
of, the Executive Order;




     (ii) a person owned or controlled by, or acting for or on behalf of, any person that is
listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;




     (iii) a person with which any Lender is prohibited from dealing or otherwise engaging
in any transaction by any Anti-Terrorism Law;




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          (iv) a person that commits, threatens or conspires to commit or supports
“terrorism” as defined in the Executive Order; or




          (v) a person that is named as a “specially designated national and blocked person” on
the most current list published by the U.S. Treasury Department Office of Foreign Assets
Control (“OFAC”) at its official website or any replacement website or other
replacement official publication of such list.




          (c) To the knowledge of the Loan Parties, no Loan Party, no Subsidiary of the Borrower and no
broker or other agent of any Loan Party acting in any capacity in connection with the Loans (i)
conducts any business or engages in making or receiving any contribution of funds, goods or
services to or for the benefit of any person described in paragraph (b) above, (ii) deals in, or
otherwise engages in any transaction relating to, any property or interests in property blocked
pursuant to the Executive Order, or (iii) engages in or conspires to engage in any transaction that
evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in any Anti-Terrorism Law.




          SECTION 3.23. [Reserved].




          SECTION 3.24. Intellectual Property.




          (a) Each Loan Party owns, or is licensed to use, all patents, patent applications, trademarks,
trade names, service marks, copyrights, technology, trade secrets, proprietary information, domain
names, know-how and processes necessary for the conduct of its business as currently conducted (the
“Intellectual Property”), except for those the failure to own or license which,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect and except that the Loan Parties may dispose of United States Patents Nos. 6,480,304,
6,496,206, 6,009,442 and 6,262,732. Except as set forth in Schedule 3.24(a), to each Loan
Party’s knowledge as of the 2007 Amendment Effective Date, no claim has been asserted and is
pending by any person challenging the use of any such Intellectual Property by such Loan Party or
the validity or effectiveness of any such Intellectual Property owned by such Loan Party, nor does
any Loan Party know of any valid basis for such claim. To each Loan Party’s knowledge, the use of
such Intellectual Property by such Loan Party does not infringe the intellectual property rights of
any Person, except for such claims and infringements that, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Effect.




          (b) Set forth on Schedule 3.24(b) as of the 2007 Amendment Effective Date are all
issued patents, trademark registrations, copyright registrations, and all applications for any of
the foregoing in the United States owned by the Loan Parties. Except pursuant to licenses and
other user agreements entered into by each Loan Party in the ordinary course of business, on and as
of the 2007 Amendment Effective Date (i) to the knowledge of each Loan Party, each Loan Party owns
and possesses the right to use, and has done nothing to authorize or enable any other person to
use, any copyright, patent or trademark (as such terms are defined in the Collateral Agreement)
listed on Schedule 3.24(b) and (ii) to the knowledge of the Loan Party, all registrations
listed on Schedule 3.24(b) are valid and in full force and effect.




          (c) To each Loan Party’s knowledge, on and as of the 2007 Amendment Effective Date, there is
no material infringement by others of any right of such Loan Party with respect to any
copyright, patent or trademark owned by any of the Loan Parties and listed on Schedule
3.24(b), pledged by it under the name of such Loan Party except as may be set forth on
Schedule 3.25(c).




          SECTION 3.25. Agreements. No Loan Party is a party to any agreement or instrument or subject to any corporate or
other constitutional restriction that has resulted or could reasonably be ex-





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pected to result in a
Material Adverse Effect. No Loan Party is in default in any manner under any provision of any
indenture or other agreement or instrument evidencing Indebtedness, or any other agreement or
instrument to which it is a party or by which it or any of its property is or may be bound, where
such default could reasonably be expected to result in a Material Adverse Effect, and no condition
exists which, with the giving of notice or the lapse of time or both, would constitute such a
default. Schedule 3.25 accurately and completely lists all material agreements to which
any Loan Party is a party which are in effect on the date hereof in connection with the operation
of the business conducted thereby and Borrower has delivered to the Administrative Agent complete
and correct copies of all such material agreements, including any amendments, supplements or
modifications with respect thereto, and all such agreements are in full force and effect.




ARTICLE IV




CONDITIONS OF LENDING



          The obligations of (a) the Lenders (including the Swingline Lender) to make Loans and (b) any
Issuing Bank to issue Letters of Credit or increase the stated amounts of Letters of Credit
hereunder (each, a “Credit Event”) are subject to the satisfaction of the following
conditions:




          SECTION 4.01. All Credit Events. On the date of each Borrowing and on the date of each issuance, amendment, extension or
renewal of a Letter of Credit:





     (a) The Administrative Agent shall have received, in the case of a Borrowing, a
Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed
given in accordance with the last paragraph of Section 2.03) or, in the case of the issuance
of a Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have
received a notice requesting the issuance of such Letter of Credit as required by Section
2.05(b).




     (b) The representations and warranties set forth in Article III shall be true and
correct in all material respects as of such date (other than an amendment, extension or
renewal of a Letter of Credit without any increase in the stated amount of such Letter of
Credit), as applicable, with the same effect as though made on and as of such date, except
to the extent such representations and warranties expressly relate to an earlier date (in
which case such representations and warranties shall have been true and correct in all
material respects as of such earlier date).




     (c) At the time of and immediately after such Borrowing or issuance, amendment,
extension or renewal of a Letter of Credit (other than an amendment, extension or renewal of
a Letter of Credit without any increase in the stated amount of such Letter of Credit), as
applicable, no Event of Default or Default shall have occurred and be continuing.




     (d) Solely in the case of Tranche 2 Revolving Facility Commitments, the Consolidated
Senior Secured Leverage Ratio shall not exceed 3.50 to 1.00 on a Pro Forma Basis after
giving effect to such Borrowing, issuance, amendment or extension.



          Each Borrowing and each issuance, amendment, extension or renewal of a Letter of Credit shall
be deemed to constitute a representation and warranty by the Borrower on the date of such
Borrowing, issuance, amendment, extension or renewal, as applicable, as to the matters specified in
paragraphs (b), (c) and , if applicable, (d) of this Section 4.01.






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          SECTION 4.02. 2011 Amendment Effective Date Credit Event. On the 2011 Amendment Effective Date:





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




     (b) All conditions precedent in Section 3 of the 2011 Amendment Agreement shall have
been satisfied.



ARTICLE V




AFFIRMATIVE COVENANTS



          The Borrower covenants and agrees with each Lender that so long as this Agreement shall remain
in effect and until the Commitments have been terminated and the principal of and interest on each
Loan, all Fees and all other expenses or amounts payable under any Loan Document shall have been
paid in full and all Letters of Credit have been canceled or have expired and all amounts drawn
thereunder have been reimbursed in full, unless the Required Lenders shall otherwise consent in
writing, the Borrower will cause each of the Subsidiaries to:




          SECTION 5.01. Existence; Businesses and Properties.




          (a) Do or cause to be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except, in the case of a Subsidiary, (i) where the failure to do so
would not reasonably be expected to have a material adverse effect on the business, property,
operations or condition of the Borrower and the Subsidiaries, taken as a whole, or the validity or
enforceability of any of the Loan Documents or the rights and remedies of the Administrative Agent
and the Lenders thereunder, (ii) as otherwise expressly permitted under Section 6.05, or (iii) the
liquidation or dissolution of Subsidiaries if the assets of such Subsidiaries to the extent they
exceed estimated liabilities are acquired by the Borrower or a Wholly Owned Subsidiary of the
Borrower in such liquidation or dissolution; provided that Subsidiary Loan Parties may not
be merged into Subsidiaries that are not Loan Parties and Domestic Subsidiaries may not be merged
into Foreign Subsidiaries.




          (b) Except where the failure to do so would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, to use commercially reasonable efforts to (i)
lawfully obtain, preserve, renew, extend and keep in full force and effect the permits, franchises,
authorizations, patents, trademarks, service marks, trade names, copyrights, licenses and
rights with respect thereto necessary to the normal conduct of its business, and (ii) at all times
maintain and preserve all property necessary to the normal conduct of its business and keep such
property in good repair, working order and condition and from time to time make, or cause to be
made, all needful and proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith, if any, may be properly
conducted at all times (in each case except as expressly permitted by the Loan Documents).




          SECTION 5.02. Insurance.




          (a) Maintain, with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by similarly situated companies
en-




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gaged in the same or similar businesses operating in the same or similar locations and cause the
Administrative Agent to be listed as a co-loss payee on property and casualty policies and as an
additional insured on liability policies.




          (b) If at any time the area in which the Premises (as defined in the Mortgages) are located is
designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency
Management Agency (or any successor agency), obtain flood insurance in such total amount as the
Administrative Agent may from time to time reasonably require, and otherwise comply with the
National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as it
may be amended from time to time.




          (c) All such insurance shall provide that no cancellation, material reduction in amount or
material change in coverage thereof shall be effective until at least 30 days after receipt by the
Administrative Agent of written notice thereof.




          (d) Deliver to the Administrative Agent and the Lenders a report of a reputable insurance
broker with respect to such insurance and such supplemental reports with respect thereto as the
Administrative Agent may from time to time reasonably request.




          (e) No Loan Party that is an owner of Mortgaged Property shall take any action that is
reasonably likely to be the basis for termination, revocation or denial of any insurance coverage
required to be maintained under such Loan Party’s respective Mortgage or that could be the basis
for a defense to any claim under any insurance policy maintained in respect of the premises.




          SECTION 5.03. Taxes. Pay and discharge promptly when due all material Taxes imposed upon it or upon its income
or profits or in respect of its property before the same shall become delinquent or in default, as
well as all lawful claims which, if unpaid, might give rise to a Lien upon such properties or any
part thereof; provided, however, that such payment and discharge shall not be
required with respect to any such Tax or claim so long as such Tax or claim is being contested in
good faith by appropriate proceedings, and the Borrower or the affected Subsidiary, as the case may
be, shall have set aside on its books reserves in accordance with GAAP with respect thereto.




          SECTION 5.04. Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the
Lenders):





     (a) within 90 days after the end of each fiscal year of the Borrower (or such earlier
date on which the Borrower is required to file a Form 10-K under the Exchange Act), a
consolidated balance sheet and related statements of operations, cash flows and owners’
equity showing the financial position of the Borrower and the Subsidiaries as of the close
of such fiscal year and the consolidated results of their operations during such year and
setting forth in comparative form the corresponding figures for the prior fiscal year, which
consolidated balance sheet and related statements of operations, cash flows and owners’
equity shall be audited by independent public accountants of recognized national standing
and accompanied by an opinion of such accountants (which shall not be qualified in any
material respect) to the effect that such consolidated financial statements fairly present,
in all material respects, the financial position and results of operations of the Borrower
and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understand
that the information required by clause (a) may be furnished in the form of a Form 10-K);




     (b) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year, (or such earlier date on which the Borrower is required to file a Form 10-Q
under the Ex-



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change Act), a consolidated balance sheet and related statements of operations
and cash flows showing the financial position of the Borrower and its Subsidiaries as of the
close of such fiscal quarter and the consolidated results of its operations during such
fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in
comparative form the corresponding figures for the corresponding periods of the prior fiscal
year, all of which shall be in reasonable detail and which consolidated balance sheet and
related statements of operations and cash flows shall be certified by a Financial Officer of
the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the
financial position and results of operations of the Borrower and the Subsidiaries on a
consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and
the absence of footnotes) (it being understood that the information required by this clause
(b) may be furnished in the form of a 10-Q);




     (c) concurrently with any delivery of financial statements under paragraph (a) or (b)
above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of
Default or Default has occurred or, if such an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action taken or proposed to be
taken with respect thereto and (ii) commencing with the fiscal quarter ending September 30,
2006, setting forth computations in reasonable detail satisfactory to the Administrative
Agent demonstrating the calculations for the Consolidated Leverage Ratio and the
Consolidated Senior Secured Leverage Ratio;




     (d) promptly after the same become publicly available, copies of all periodic and other
publicly available reports, proxy statements and, to the extent requested by the
Administrative Agent, other materials filed by the Borrower or any Subsidiary with the SEC,
or after an initial public offering, distributed to its stockholders generally, as
applicable;




     (e) within 90 days after the beginning of each fiscal year, a detailed consolidated
quarterly budget for such fiscal year (including a projected consolidated balance sheet of
the Borrower and the Subsidiaries as of the end of the following fiscal year, and the
related consolidated statements of projected cash flow and projected income) and, as soon as
available, significant revisions, if any, of such budget and quarterly projections with respect to
such fiscal year, including a description of underlying assumptions with respect thereto
(collectively, the “Budget”), which Budget shall in each case be accompanied by the
statement of a Financial Officer of the Borrower to the effect that, to the best of his or
her knowledge, the Budget is a reasonable estimate for the period covered thereby;




     (f) upon the reasonable request of the Administrative Agent, an updated Perfection
Certificate (or, to the extent such request relates to specified information contained in
the Perfection Certificate, such information) reflecting all changes since the date of the
information most recently received pursuant to this paragraph (f) or Section 5.10(f);




     (g) promptly, a copy of all reports submitted to the board of directors (or any
committee thereof) of the Borrower or any Subsidiary in connection with any material interim
or special audit made by independent accountants of the books of the Borrower or such
Subsidiary (excluding any reports which have been identified as confidential);




     (h) promptly following a request therefor, all documentation and other information that
the Administrative Agent reasonably requests on its own behalf or on behalf of any Lender in
order to comply with ongoing obligations under applicable “know your customer” and
anti-money laundering rules and regulations, including the Act; and



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     (i) promptly, from time to time, such other information regarding the operations,
business affairs and financial condition of the Borrower or any Subsidiary, or compliance
with the terms of any Loan Document, or such consolidated financial statements, as in each
case the Administrative Agent may reasonably request on its own behalf or on behalf of any
Lender.



          SECTION 5.05. Litigation and Other Notices. Furnish to the Administrative Agent written notice of the following promptly after any
Responsible Officer of the Borrower obtains actual knowledge thereof:





     (a) any Event of Default or Default, specifying the nature and extent thereof and the
corrective action (if any) proposed to be taken with respect thereto;




     (b) the filing or commencement of, or any written threat or notice of intention of any
person to file or commence, any action, suit or proceeding, whether at law or in equity or
by or before any Governmental Authority or in arbitration, against the Borrower or any
Subsidiary as to which an adverse determination is reasonably probable and which, if
adversely determined, could reasonably be expected to have a Material Adverse Effect;




     (c) any other development specific to the Borrower or any Subsidiary that is not a
matter of general public knowledge and that has had, or could reasonably be expected to
have, a Material Adverse Effect; and




     (d) the occurrence of any ERISA Event (or termination of, withdrawal from, or
noncompliance with applicable law or plan terms with respect to, Foreign Plans) that,
together with all other ERISA Events (and any such termination, withdrawal or noncompliance
with respect to Foreign Plans) that have occurred, could reasonably be expected to have a
Material Adverse Effect.



          SECTION 5.06. Compliance with Laws. Comply with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect;
provided that this Section 5.06 shall not apply to Environmental Laws, which are the
subject of Section 5.09, or to laws related to Taxes, which are the subject of Section 5.03.




          SECTION 5.07. Maintaining Records; Access to Properties and Inspections.
Maintain all financial records in accordance with GAAP and permit any persons designated by
the Administrative Agent or, upon the occurrence and during the continuance of an Event of Default,
any Lender to visit and inspect the financial records and the properties of the Borrower or any
Subsidiary at reasonable times, upon reasonable prior notice to the Borrower, and as often as
reasonably requested and to make extracts from and copies of such financial records, and permit any
persons designated by the Administrative Agent or, upon the occurrence and during the continuance
of an Event of Default, any Lender upon reasonable prior notice to the Borrower to discuss the
affairs, finances and condition of the Borrower or any of the Subsidiaries with the officers
thereof and independent accountants therefor (subject to reasonable requirements of
confidentiality, including requirements imposed by law or by contract).




          SECTION 5.08. Use of Proceeds. Use the proceeds of the Revolving Facility Loans and the Swingline Loans and request
issuance of Letters of Credit solely for general corporate purposes.




          SECTION 5.09. Compliance with Environmental Laws. Comply, and make reasonable efforts to cause all lessees and other persons occupying its
properties to comply, with all Environmental Laws applicable to its operations and properties; and
obtain and renew all material authorizations and





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permits required pursuant to Environmental Law for
its operations and properties, in each case in accordance with Environmental Laws, except, in each
case with respect to this Section 5.09, to the extent the failure to do so could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.




          SECTION 5.10. Further Assurances; Mortgages.




          (a) Execute any and all further documents, financing statements, agreements and instruments,
and take all such further actions (including the filing and recording of financing statements,
fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that
may be required under any applicable law, or that the Administrative Agent may reasonably request,
to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of
the Loan Parties and provide to the Administrative Agent, from time to time upon reasonable
request, evidence reasonably satisfactory to the Administrative Agent as to the perfection and
priority of the Liens created or intended to be created by the Security Documents.




          (b) If any asset (including any real property (other than real property covered by paragraph
(c) below) or improvements thereto or any interest therein) has an individual fair market value in
an amount greater than $2.5 million is acquired by the Borrower or any other Loan Party after the
Original Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in
each case other than assets constituting Collateral under a Security Document that automatically
become subject to the Lien of such Security Document upon acquisition thereof by operation of such
Security Document), promptly (and in any event within 60 days (or such later date as the
Administrative Agent (acting reasonably) may consent to)) cause such asset to be subjected to a
Lien securing the Obligations and take, and cause the Subsidiary Loan Parties to take, such actions
as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such
Liens, including actions described in paragraph (a) of this Section, all at the expense of the Loan
Parties, subject to paragraph (g) below.




          (c) Grant and cause each of the Subsidiary Loan Parties to grant to the Administrative Agent
security interests and mortgages in such real property of the Borrower or any such Subsidiary Loan
Parties, to the extent acquired after the Original Effective Date and having a value at the time of
acquisition in excess of $2.5 million pursuant to documentation in such form as is reasonably
satisfactory to the Administrative Agent and constituting valid and enforceable Liens subject to no
other Liens except as are permitted by Section 6.02, at the time of perfection thereof, record or
file, and cause each such Subsidiary to record or file, the Mortgage or instruments related thereto
in such manner and in such places as is required by law to establish, perfect, preserve and protect
the Liens in favor of the Administrative Agent required to be granted pursuant to the Mortgages and
pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and other charges payable in
connection therewith, in each case subject to paragraph (g) below. Unless otherwise waived by the
Administrative Agent, with respect to each such Mortgage for real property having a value at the
time of acquisition in excess of 2.5 million, the Borrower shall deliver to the Administrative
Agent contemporaneously therewith a title insurance policy and a survey or an affidavit of no
change in accordance with clause (h) of the Collateral and Guarantee Requirement, and the legal
opinions of local U.S. counsel in the state where such real property is located, in form and
substance reasonably satisfactory to the Administrative Agent.




          (d) If any additional direct or indirect Subsidiary of the Borrower is formed or acquired
after the Original Effective Date and if such Subsidiary is a Subsidiary Loan Party, within five
Business Days after the date such Subsidiary is formed or acquired, notify the Administrative Agent
thereof and, within 20 Business Days after the date such Subsidiary is formed or acquired or such
longer period as the Administrative Agent shall agree, cause the Collateral and Guarantee
Requirement to be satis-





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fied with respect to such Subsidiary and with respect to any Equity Interest
in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party.




          (e) If (i) any Foreign Subsidiary of the Borrower that is not an Insignificant Foreign
Subsidiary is formed or acquired after the Original Effective Date and if such Subsidiary is a
“first tier” Foreign Subsidiary, within five Business Days after the date such Foreign Subsidiary
is formed or acquired, notify the Administrative Agent thereof and, within 20 Business Days after
the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative
Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to
the Equity Interests in such Foreign Subsidiary owned by or on behalf of any Loan Party and (ii)
any “first tier” Foreign Subsidiary that is an Insignificant Foreign Subsidiary fails to continue
to qualify as an Insignificant Foreign Subsidiary, within five Business Days after the date such
Insignificant Foreign Subsidiary fails to continue to qualify as such, notify the Administrative
Agent thereof and, within 20 Business Days after the date such Insignificant Foreign Subsidiary
fails to continue to qualify as an Insignificant Foreign Subsidiary or such longer period as the
Administrative Agent shall agree, cause a Foreign Pledge Agreement to be entered into with respect
to the Equity Interests in such Foreign Subsidiary owned by or on behalf of any Loan Party.




          (f) (i) Furnish to the Administrative Agent promptly ((and in any event within 30 Business
Days) or such later date as the Administrative Agent may reasonably agree to) written notice of any
change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or
organizational structure or (C) in any Loan Party’s jurisdiction of organization and/or
organizational identification number; provided that the Borrower shall not effect or permit any such
change unless all filings have been made, or will have been made within any statutory period, under
the Uniform Commercial Code or otherwise that are required in order for the Administrative Agent to
continue at all times following such change to have a valid, legal and perfected security interest
in all the Collateral for the benefit of the Secured Parties and (ii) promptly notify the
Administrative Agent if any material portion of the Collateral is damaged or destroyed.




          (g) The Collateral and Guarantee Requirement and the other provisions of this Section 5.10
need not be satisfied with respect to (i) any real property held by the Borrower or any Subsidiary
as a lessee under a lease, (ii) any Equity Interests acquired after the Original Effective Date in
accordance with the Loan Documents if, and to the extent that, and for so long as (A) doing so
would violate applicable law or a contractual obligation binding on such Equity Interests and (B)
such law or obligation existed at the time of the acquisition thereof and was not created or made
binding on such Equity Interests in contemplation of or in connection with the acquisition of such
Subsidiary, and (iii) any assets acquired after the Original Effective Date, to the extent that,
and for so long as, taking such actions would violate a contractual obligation binding on such
assets that existed at the time of the acquisition thereof and was not created or made binding on
such assets in contemplation or in connection with the acquisition of such assets (except in the
case of assets acquired with Indebtedness permitted pursuant to Section 6.01(i) that is secured by
a Lien permitted pursuant to Section 6.02(i)); provided that, upon the reasonable request
of the Administrative Agent, the Borrower shall, and shall cause any applicable Subsidiary to, use
commercially reasonable efforts to have waived or eliminated any contractual obligation of the
types described in clauses (ii) and (iii) above.




          SECTION 5.11. Fiscal Year; Accounting. Cause its fiscal year to end on September 30.




          SECTION 5.12. Maintenance of Ratings. Use commercially reasonable efforts to maintain ratings issued by Moody’s and S&P with
respect to its senior secured debt.





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ARTICLE VI




NEGATIVE COVENANTS



          The Borrower covenants and agrees with each Lender that, so long as this Agreement shall
remain in effect and until the Commitments have been terminated and the principal of and interest
on each Loan, all Fees and all other expenses or amounts payable under any Loan Document have been
paid in full and all Letters of Credit have been canceled or have expired and all amounts drawn
thereunder have been reimbursed in full, unless the Required Lenders shall otherwise consent in
writing, the Borrower will not, and will not permit any of the Subsidiaries to:




          SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except





     (a) Indebtedness existing on the 2007 Amendment Effective Date and set forth on
Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such
Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a
person not affiliated with the Borrower or any Subsidiary);




     (b) Indebtedness created hereunder and under the other Loan Documents;




     (c) Indebtedness of the Borrower or any Subsidiary pursuant to Swap Agreements
permitted by Section 6.10;




     (d) Indebtedness owed to (including obligations in respect of letters of credit or bank
guarantees or similar instruments for the benefit of) any person providing workers’
compensation, health, disability or other employee benefits or property, casualty or
liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or
indemnification obligations to such person; provided that upon the incurrence of
Indebtedness with respect to reimbursement obligations regarding workers’ compensation
claims, such obligations are reimbursed not later than 30 days following such incurrence;




     (e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the
Borrower or any other Subsidiary; provided that (i) Indebtedness of any Subsidiary
that is not a Subsidiary Loan Party to any Loan Party shall be subject to Section 6.04(b)
and (ii) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any other Loan
Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the
Obligations;




     (f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety
bonds, financial assurances and completion guarantees and similar obligations, in each case
provided in the ordinary course of business, including those incurred to secure health,
safety and environmental obligations in the ordinary course of business;




     (g) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument drawn against insufficient funds in the ordinary course
of business or other cash management services in the ordinary course of business;
provided that (x) such Indebtedness (other than credit or purchase cards) is
extinguished within five Business Days of its incurrence and (y) such Indebtedness in
respect of credit or purchase cards is extinguished within 60 days of its incurrence;



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     (h) (i) Indebtedness of a Subsidiary acquired after the 2007 Amendment Effective Date
or a corporation merged into or consolidated with the Borrower or any Subsidiary after the
2007 Amendment Effective Date and Indebtedness assumed in connection with the acquisition of
assets, which Indebtedness in each case exists at the time of such acquisition, merger or
consolidation and is not created in contemplation of such event and where such acquisition,
merger or consolidation is permitted by this Agreement, and (ii) any Permitted Refinancing
Indebtedness incurred to Refinance such Indebtedness; provided that the aggregate
principal amount of such Indebtedness outstanding at any time under this paragraph (h),
after giving effect to such acquisition, merger or consolidation, such assumption or such
incurrence, as applicable (together with Indebtedness outstanding pursuant to paragraph (i)
of this Section 6.01), would not exceed the greater of $50.0 million and 4.25% of
Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date
of such acquisition, merger or consolidation, such assumption or such incurrence, as
applicable, for which financial statements have been delivered pursuant to Section 5.04,
determined on a Pro Forma Basis;




     (i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness
incurred by the Borrower or any Subsidiary prior to or within 270 days after the
acquisition, lease or improvement of the applicable asset in order to finance such
acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof,
in an aggregate principal amount outstanding at any time under this paragraph (i) after
giving effect to the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of
this Section 6.01) would not exceed the greater of $50.0 million and 4.25% of Consolidated
Total Assets as of the end of the fiscal quarter immediately prior to the date of such
incurrence for which financial statements have been delivered pursuant to Section 5.04,
determined on a Pro Forma Basis;




     (j) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of
any Sale and Lease-Back Transaction that is permitted under Section 6.03;




     (k) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal
amount outstanding at any time under this paragraph (k) after giving effect to the
incurrence thereof, would not exceed the greater of $50.0 million and 4.25% of Consolidated
Total Assets as of the end of the fiscal quarter immediately prior to the date of such
incurrence for which financial statements have been delivered pursuant to Section 5.04, at
any time;




     (l) Guarantees (i) by any Loan Party of the Indebtedness of the Borrower referred to in
paragraph (r) or any Permitted Refinancing Indebtedness in respect thereof, (ii) by the
Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary
Loan Party expressly permitted to be incurred under this Agreement, (iii) by the Borrower or
any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of any
Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted
by Section 6.04(b) and (iv) by any Foreign Subsidiary of Indebtedness of another Foreign
Subsidiary; provided that Guarantees by the Borrower or any Subsidiary Loan Party
under this Section 6.01(l) of any other Indebtedness of a person that is subordinated to
other Indebtedness of such person shall be expressly subordinated to such other Indebtedness
to the same extent;




     (m) Indebtedness arising from agreements of the Borrower or any Subsidiary providing
for indemnification, adjustment of purchase or acquisition price or similar obligations, in
each case, incurred or assumed in connection with the disposition of any business or assets
of the Borrower or a Subsidiary, other than Guarantees of Indebtedness incurred by any
person acquiring all



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or any portion of such business, assets or a Subsidiary for the purpose
of financing such acquisition;




     (n) letters of credit or bank guarantees (other than Letters of Credit issued pursuant
to Section 2.05) having an aggregate face amount not in excess of $25.0 million at any time
outstanding, provided that if the Tranche 2 Revolving Commitments are reduced or
terminated pursuant to Section 2.08, such amount shall be increased by the amount of the
Tranche 2 Revolving Commitment that was reduced or terminated, up to $75.0 million;




     (o) Indebtedness supported by a Letter of Credit, in a principal amount not in excess
of the stated amount of such Letter of Credit; provided that such Indebtedness is
promptly repaid with the proceeds of any drawing on such Letter of Credit;




     (p) Indebtedness consisting of (x) the financing of insurance premiums or (y)
take-or-pay obligations contained in supply arrangements, in each case, in the ordinary
course of business;




     (q) Indebtedness of Foreign Subsidiaries in an aggregate amount not to exceed $25.0
million at any time outstanding;




     (r) unsecured Indebtedness consisting of Permitted Junior Debt and Permitted
Refinancing Indebtedness in respect thereof;




     (s) Indebtedness incurred by any Loan Party in the form of first lien notes secured
on a pari passu basis with the Loans and Commitments (“First Lien Pari Passu
Notes”) or second lien notes secured on a senior secured second lien basis
(“Second Lien Senior Secured Notes”) so long as (x) (A) no Default or Event
of Default shall have occurred and be continuing, (B) the proceeds of such First Lien Pari
Passu Notes or Second Lien Senior Secured Notes shall be used to repay outstanding Term
Loans and shall be applied, at the Borrower’s option, either (1) to the Term B Loans (or, if
no Term B Loans are then outstanding, to the Class of Term Loans then having the earliest
date of final maturity) before application to any Class of Term Loans with a later final
maturity date, (2) on a pro rata basis among all Classes of Term Loans or (3) any
combination of options (1) and (2) above and, in each case, shall be applied within such
Class, at the option of the Borrower, to reduce the remaining scheduled amortization
payments in respect of such Class of Term Loans (i) on a pro rata basis (based on the amount
of such amortization payments) or (ii) in direct order of amortization payments of such
Class of Term Loans and (C) such First Lien Pari Passu Notes or Second Lien Senior
Secured Notes shall otherwise qualify as Permitted Refinancing Indebtedness and (y) the
trustee or other representative for such Pari Passu Notes shall have entered into an
intercreditor agreement with the Administrative Agent on terms reasonably satisfactory to
the Administrative Agent;




     (t) all premium (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest on obligations described in paragraphs (a)
through (s) above and paragraph (u) below; and




     (u) Cash Management Obligations and other Indebtedness in respect of netting services,
overdraft protection and similar arrangements, in each case, in connection with cash
management and deposit accounts.



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          SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien on any property or assets (including
stock or other securities of any person, including the Borrower and each Subsidiary) at the time
owned by it or on any income or revenues or rights in respect of any thereof, except:





     (a) Liens on property or assets of the Borrower or any Subsidiary existing on the 2007
Amendment Effective Date that are set forth on Schedule 6.02(a) or encumber property
or assets that have a fair market value that does not exceed $2.5 million in the aggregate;
provided that such Liens shall secure only those obligations that they secure on the
2007 Amendment Effective Date (and extensions, renewals and refinancings of such obligations
permitted by Section 6.01(a)) and shall not subsequently apply to any other property or
assets of the Borrower or any Subsidiary;




     (b) any Lien created under the Loan Documents or permitted in respect of any Mortgaged
Property by the terms of the applicable Mortgage;




     (c) any Lien on any property or asset of the Borrower or any Subsidiary securing
Indebtedness or Permitted Refinancing Indebtedness permitted by Section 6.01(h);
provided that such Lien (i) does not apply to any other property or assets of the
Borrower or any Subsidiary not securing such Indebtedness at the date of the acquisition of
such property or asset (other than after acquired property subjected to a Lien securing such
Indebtedness or Permitted Refinancing Indebtedness if such Indebtedness or Permitted Refinancing Indebtedness requires a
pledge of after acquired property, it being understood that such requirement shall not be
permitted to apply to any property to which such requirement would not have applied but for
such acquisition), (ii) such Lien is not created in contemplation of or in connection with
such acquisition and (iii) in the case of a Lien securing Permitted Refinancing
Indebtedness, any such Lien is permitted, subject to compliance with clause (e) of the
definition of the term “Permitted Refinancing Indebtedness”;




     (d) Liens for Taxes, assessments or other governmental charges or levies not yet
delinquent or that are being contested in compliance with Section 5.03;




     (e) landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s,
construction or other like Liens arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or that are being contested in good
faith by appropriate proceedings and in respect of which, if applicable, the Borrower and
the Subsidiaries shall have set aside on their books reserves in accordance with GAAP;




     (f) (i) pledges and deposits made in the ordinary course of business in compliance with
the Federal Employers Liability Act or any other workers’ compensation, unemployment
insurance and other social security laws or regulations and deposits securing liability to
insurance carriers under insurance or self-insurance arrangements in respect of such
obligations and (ii) pledges and deposits securing liability for reimbursement or
indemnification obligations of (including obligations in respect of letters of credit or
bank guarantees for the benefit of) insurance carriers providing property, casualty or
liability insurance to the Borrower or any Subsidiary;




     (g) deposits to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, surety
and appeal bonds, performance and return of money bonds, bids, leases, government contracts,
trade contracts, and other obligations of a like nature (including letters of credit in lieu
of any such bonds or to support the issuance thereof) incurred in the ordinary course of
business, including those incurred pursuant to Environmental Law in the ordinary course of
business;



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     (h) zoning restrictions, easements, trackage rights, leases (other than Capital Lease
Obligations), licenses, special assessments, rights-of-way, restrictions on use of real
property and other similar encumbrances incurred in the ordinary course of business that, in
the aggregate, do not interfere in any material respect with the ordinary conduct of the
business of the Borrower or any Subsidiary;




     (i) purchase money security interests in equipment or other property or improvements
thereto hereafter acquired (or, in the case of improvements, constructed) by the Borrower or
any Subsidiary (including the interests of vendors and lessors under conditional sale and
title retention agreements); provided that (i) such security interests secure
Indebtedness permitted by Section 6.01(i) (including any Permitted Refinancing Indebtedness
in respect thereof), (ii) such security interests are incurred, and the Indebtedness secured
thereby is created, within 270 days after such acquisition, (iii) the Indebtedness secured
thereby does not exceed 100% of the cost of such equipment or other property or improvements
at the time of such acquisition or construction, including transaction costs incurred by the
Borrower or any Subsidiary in connection with such acquisition, and (iv) such security
interests do not apply to any other property or assets of the Borrower or any Subsidiary
(other than to accessions to such equipment or other property or improvements but not to
other parts of the property to which any such improvements are made); provided,
further, that individual financings of equipment provided by a single lender may be cross-collateralized to other financings of
equipment provided solely by such lender;




     (j) Liens arising out of capitalized lease transactions permitted under Section 6.03,
so long as such Liens attach only to the property sold and being leased in such transaction
and any accessions thereto or proceeds thereof and related property;




     (k) Liens securing judgments that do not constitute an Event of Default under Section
7.01(j); provided that such Liens, to the extent that they secure aggregate amounts
of more than $50.0 million, shall be discharged within 60 days of the creation thereof;




     (l) Liens disclosed by any title insurance policy delivered on or subsequent to the
2007 Amendment Effective Date and pursuant to Section 5.10, which Liens (x) are extinguished
within 30 days following the delivery of such title insurance policy, (y) do not, in the
good faith judgment of the Borrower, detract materially from the value of the property
covered by such title insurance policy or (z) are reasonably acceptable to the
Administrative Agent;




     (m) any interest or title of a lessor under any leases or subleases entered into by the
Borrower or any Subsidiary in the ordinary course of business;




     (n) Liens that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance or incurrence of
Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any
Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the
ordinary course of business of the Borrower or any Subsidiary or (iii) relating to purchase
orders and other agreements entered into with customers of the Borrower or any Subsidiary in
the ordinary course of business;




     (o) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights;




     (p) Liens securing obligations in respect of letters of credit and bank guarantees
permitted under Section 6.01(f) or (n) and any goods (or the documents of title in respect
of such goods) financed by such letters of credit and the proceeds and products thereof;



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     (q) licenses of intellectual property granted in the ordinary course of business;




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




     (s) Liens solely on any cash earnest money deposits made by the Borrower or any
Subsidiary in connection with any letter of intent or purchase agreement permitted
hereunder;




     (t) Liens with respect to property or assets of any Foreign Subsidiary securing
Indebtedness of a Foreign Subsidiary incurred under Section 6.01(q);




     (u) other Liens with respect to property or assets of the Borrower or any Subsidiary;
provided that such property and assets shall have an aggregate fair market value
(valued at the time of creation of the Liens) of not more than $50.0 million at any time;




     (v) the prior rights of consignees and their lenders under consignment arrangements
entered into in the ordinary course of business;




     (w) agreements to subordinate any interest of the Borrower or any Subsidiary in any
accounts receivable or other proceeds arising from inventory consigned by the Borrower or
any of its Subsidiaries pursuant to an agreement entered into in the ordinary course of
business;




     (x) Liens arising from precautionary UCC financing statements regarding operating
leases;




     (y) Liens on Equity Interests in joint ventures held by the Borrower or a Subsidiary
securing obligations of such joint venture;




     (z) Liens on the Collateral securing First Lien Pari Passu Notes and Second Lien
Secured Notes, and




     (aa) Liens on securities that are the subject of repurchase agreements constituting
Permitted Investments under clause (c) of the definition thereof.



          SECTION 6.03. Sale and Lease-Back Transactions. Enter into any arrangement, directly or indirectly, with any person whereby it shall sell
or transfer any property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property that it intends to
use for substantially the same purpose or purposes as the property being sold or transferred (a
“Sale and Lease-Back Transaction”); provided that a Sale and Lease-Back Transaction
shall be permitted with respect to property to the extent the Net Proceeds of all such Sale and
Leaseback Transactions since the 2011 Amendment Effective Date do not exceed $25.0 million.




          SECTION 6.04. Investments, Loans and Advances. Purchase, hold or acquire any Equity Interests, evidences of Indebtedness or other
securities of, make or permit to exist any loans or advances to or Guarantees of the obligations
of, or make or permit to exist any investment or any other interest in, or the acquisition of all
or any substantial part of the assets of (each, an “Investment”), any other person, except:





     (a) Investments made pursuant to the Transactions;



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     (b) (i) Investments by the Borrower or any Subsidiary in the Equity Interests of the
Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to
the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary Loan
Party of Indebtedness otherwise expressly permitted hereunder of the Borrower or any
Subsidiary; provided that the sum of (A) Investments (valued at the time of the
making thereof and without giving effect to any write-downs or write-offs thereof) after the
2011 Amendment Effective Date by the Loan Parties pursuant to clause (i) in Subsidiaries
that are not Subsidiary Loan Parties, plus (B) net intercompany loans after the 2011
Amendment Effective Date to Subsidiaries that are not Subsidiary Loan Parties pursuant to
clause (ii), plus (C) Guarantees of Indebtedness after the 2011 Amendment Effective
Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall
not exceed an aggregate net amount equal to (x) $50.0 million (plus any return of
capital (to the extent received by the Borrower or a Subsidiary Loan Party in cash) in
respect of investments made pursuant to this paragraph (b)); plus (y) the portion,
if any, of the Available Investment Basket Amount on the date of such election that the Borrower elects to apply
to this Section 6.04(b)(y);




     (c) Permitted Investments, or any Investments that were Permitted Investments when
made;




     (d) Investments arising out of the receipt by the Borrower or any Subsidiary of noncash
consideration for the sale of assets permitted under Section 6.05;




     (e) (i) loans and advances to employees or consultants of the Borrower or any
Subsidiary in the ordinary course of business not to exceed $2.5 million in the aggregate at
any time outstanding (calculated without regard to write-downs or write-offs thereof) and
(ii) advances of payroll payments and expenses to employees in the ordinary course of
business;




     (f) accounts receivable, security deposits and prepayments arising and trade credit
granted in the ordinary course of business and any assets or securities received in
satisfaction or partial satisfaction thereof from financially troubled account debtors to
the extent reasonably necessary in order to prevent or limit loss and any prepayments and
other credits to suppliers made in the ordinary course of business;




     (g) Swap Agreements permitted pursuant to Section 6.10;




     (h) Investments existing on, or contractually committed as of, the 2007 Amendment
Effective Date and set forth on Schedule 6.04;




     (i) Investments resulting from pledges and deposits referred to in Sections 6.02(f) and
(g);




     (j) other Investments by the Borrower or any Subsidiary in an aggregate amount (valued
at the time of the making thereof, and without giving effect to any write-downs or
write-offs thereof) since the 2007 Amendment Effective Date not to exceed (i) the greater of
$50.0 million and 4.25% of Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date of such incurrence for which financial statements have been
delivered pursuant to Section 5.04 (plus any returns of capital actually received by
the respective investor in respect of investments theretofore made by it pursuant to this
paragraph (j)) plus (ii) if as of the last day of the immediately preceding Test
Period the Borrower shall have been in compliance with the Incurrence Test (on a Pro Forma
Basis), the portion, if any, of the Available Investment Basket Amount on the date of such
election that the Borrower elects to apply to this Section 6.04(j)(ii);



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     (k) Investments, including Investments in Subsidiaries, constituting or in
contemplation of Permitted Business Acquisitions;




     (l) intercompany loans between Foreign Subsidiaries and Guarantees permitted by Section
6.01(l);




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




     (n) Investments of a Subsidiary acquired after the 2007 Amendment Effective Date or of
a corporation merged into the Borrower or merged into or consolidated with a Subsidiary in
accordance with Section 6.05 after the 2007 Amendment Effective Date to the extent that
such Investments were not made in contemplation of or in connection with such acquisition,
merger or consolidation and were in existence on the date of such acquisition, merger or
consolidation;




     (o) acquisitions by the Borrower of obligations of one or more officers or other
employees of the Borrower or any Subsidiary in connection with such officer’s or employee’s
acquisition of Equity Interests of the Borrower, so long as no cash or other property is (or
will be or is committed to be) actually advanced by the Borrower or such Subsidiary to any
person in connection with the acquisition of any such obligations;




     (p) Guarantees by the Borrower or any Subsidiary of operating leases (other than
Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in
each case entered into by the Borrower or such Subsidiary in the ordinary course of
business;




     (q) Investments made using Equity Interests of the Borrower; and




     (r) Investments made in any Foreign Subsidiary in the ordinary course of business and
in a manner reasonably consistent with past practice of the Borrower.



          SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into
or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in
a series of transactions) all or any part of its assets (whether now owned or hereafter acquired),
or issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary, or
purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any
substantial part of the assets of any other person, except that this Section 6.05 shall not
prohibit:





     (a) (i) the purchase and sale of inventory in the ordinary course of business by the
Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease)
of any other asset in the ordinary course of business by the Borrower or any Subsidiary,
(iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary
course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted
Investments in the ordinary course of business;




     (b) if at the time thereof and immediately after giving effect thereto no Event of
Default shall have occurred and be continuing, (i) the merger of any Subsidiary into the
Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or
consolidation of any Subsidiary into or with any Subsidiary Loan Party in a transaction in
which the surviving or resulting entity is a Subsidiary Loan Party and, in the case of each
of clauses (i) and (ii), no person other



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than the Borrower or a Subsidiary Loan Party
receives any consideration, (iii) the merger or consolidation of any Subsidiary that is not
a Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan
Party or (iv) the liquidation or dissolution or change in form of entity of any Subsidiary
(other than the Borrower) if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially disadvantageous
to the Lenders;




     (c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary
(upon voluntary liquidation or otherwise); provided that any sales, transfers,
leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan
Party shall be made in compliance with Section 6.07; provided, further, that
the aggregate gross proceeds of sales, transfers, leases
or other dispositions made outside the ordinary of business by Loan Parties to
Subsidiaries that are not Subsidiary Loan Parties in reliance upon this paragraph (c) shall
not exceed, in any fiscal year of the Borrower, $10.0 million;




     (d) Sale and Lease-Back Transactions permitted by Section 6.03;




     (e) Investments permitted by Section 6.04, Liens permitted by Section 6.02 and
Dividends permitted by Section 6.06;




     (f) the sale of defaulted receivables in the ordinary course of business and not as
part of an accounts receivables financing transaction;




     (g) sales, transfers, leases or other dispositions of assets not otherwise permitted by
this Section 6.05; provided that the aggregate gross proceeds (including non-cash
proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in
reliance upon this paragraph (g) shall not exceed, in any fiscal year of the Borrower, the
greater of $50.0 million and 4.25% of Consolidated Total Assets as of the end of the fiscal
quarter immediately prior to the date of such incurrence for which financial statements are
required to be delivered pursuant to Section 5.04; provided, further, that
the Net Proceeds thereof are applied in accordance with Section 2.11(b);




     (h) any merger or consolidation in connection with a Permitted Business Acquisition;
provided that following any such merger or consolidation (i) involving the Borrower,
the Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary, the
surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned
Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall
be a Wholly Owned Subsidiary;




     (i) licensing and cross-licensing arrangements involving any technology or other
intellectual property of the Borrower or any Subsidiary in the ordinary course of business;




     (j) sales, transfers, abandonment, dedication to the public, or other dispositions of
United States Patent Nos. 6,480,304, 6,496,206, 6,009,442 and 6,262,732 or of intellectual
property that is determined by the management of the Borrower to be no longer useful or
necessary to the operation of the business of the Borrower and the Subsidiaries; and




     (k) sales, leases or other dispositions of inventory of the Borrower and the
Subsidiaries determined by the management of the Borrower to be no longer useful or
necessary in the operation of the business of the Borrower and the Subsidiaries.



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          Notwithstanding anything to the contrary contained in this Section 6.05 above, (i) no sale,
transfer or other disposition of assets in excess of $2.5 million shall be permitted by this
Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to
paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or
other disposition of assets shall be permitted by paragraph (a) (other than a Permitted Asset Swap)
or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and
(iii) no sale, transfer or other disposition of assets (other than a Permitted Asset Swap) in
excess of $2.5 million shall be permitted by paragraph (g) of this Section 6.05 unless such
disposition is for at least 75% cash consideration; provided that for purposes of clauses
(ii) and (iii), the amount of any secured Indebtedness or other Indebtedness of a Subsidiary that
is not a Loan Party (as shown on the Borrower’s most recent balance sheet or in the notes thereto)
or any Subsidiary of the Borrower that is assumed by the transferee of any such assets shall be
deemed to be cash.




          SECTION 6.06. Dividends and Distributions. Declare or pay, directly or indirectly, any dividend or make any other distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a combination thereof,
with respect to any of its Equity Interests (other than dividends and distributions on Equity
Interests payable solely by the issuance of additional Qualified Capital Stock of the person paying
such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise
acquire for value (or permit any Subsidiary to purchase or acquire) any of its Equity Interests or
set aside any amount for any such purpose (other than through the issuance of additional Qualified
Capital Stock of the person redeeming, purchasing, retiring or acquiring such shares);
provided, however, that:





     (a) any Subsidiary may declare and pay dividends to, repurchase its Equity Interests
from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the
Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any
Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of
Equity Interests of such Subsidiary on a pro rata basis (or more favorable
basis from the perspective of the Borrower or such Subsidiary) based on their relative
ownership interests);




     (b) the Borrower may purchase or redeem the Equity Interests of the Borrower (including
related stock appreciation rights or similar securities) held by then present or former
directors, consultants, officers or employees of the Borrower or any Subsidiary or by any
Plan upon such person’s death, disability, retirement or termination of employment or under
the terms of any such Plan or any other agreement under which such shares of stock or
related rights were issued, provided that the aggregate amount of such purchases or
redemptions under this paragraph (b) shall not exceed in any fiscal year $2.5 million (plus
the amount of net proceeds (x) received by the Borrower during such calendar year from sales
of Equity Interests of the Borrower to directors, consultants, officers or employees of the
Borrower or any Subsidiary in connection with permitted employee compensation and incentive
arrangements and (y) of any key-man life insurance policies received during such calendar
year), which, if not used in any year, may be carried forward to any subsequent calendar
year;




     (c) the repurchase of company granted stock awards or options necessary to satisfy
obligations attributable to tax withholding, provided that the aggregate amount of such
repurchases under this paragraph (c) shall not exceed in any fiscal year $50.0 million;




     (d) non-cash repurchases of Equity Interests deemed to occur upon exercise of stock
options if such Equity Interests represent a portion of the exercise price of such options;




     (e) the Borrower may pay dividends to and make distributions to, or repurchase or
redeem shares from, its equity holders, or make payments on its Equity Interests or any make
any



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payment pursuant to an accelerated share repurchase program, or similar Swap Agreement,
to effectuate any of the foregoing in an aggregate amount since the 2007 Amendment Effective
Date equal to (i) 4.25% of Consolidated Total Assets as of the end of the fiscal quarter
immediately prior to the date of such payment or repurchase for which financial statements
are required to be delivered pursuant to Section 5.04, plus (ii) if as of the last
day of the immediately preceding Test Period the Borrower shall have been in compliance with
the Incurrence Test (on a Pro Forma Basis), the portion, if any, of the Available Investment
Basket Amount on the date of such election that the Borrower elects to apply to this Section
6.06(e)(ii); and





     (f) the Borrower may make (i) any Net Share Settlement in respect of Convertible
Securities constituting Permitted Junior Debt in an amount not to exceed the outstanding
principal
amount of the Convertible Securities acquired upon the conversion for which such Net
Share Settlement is paid; provided that, after giving effect to such Net Share
Settlement, the aggregate amount of (x) the Borrower’s total unrestricted cash (calculated
in a manner consistent with the consolidated balance sheet of the Borrower required to be
furnished to the Administrative Agent pursuant to Section 5.04) plus (y) the
difference between the Revolving Facility Commitment and the Revolving Facility Credit
Exposure, shall not be less than $100.0 million as of the date of such Net Share Settlement,
(ii) to the extent restricted hereby, any payment in connection with a Permitted Bond Hedge
or (iii) any repurchase or redemption at the option of the holders of the 2027 Debentures
pursuant to the terms of the 2027 Debentures.



          SECTION 6.07. Transactions with Affiliates.




          (a) Sell or transfer any property or assets to, or purchase or acquire any property or assets
from, or otherwise engage in any other transaction with, any of its Affiliates or any direct or
indirect holder of 10% or more of any class of capital stock of the Borrower, unless such
transaction is (i) otherwise permitted (or required) under this Agreement or (ii) upon terms no
less favorable to the Borrower or such Subsidiary, as applicable, than would be obtained in a
comparable arm’s-length transaction with a person that is not an Affiliate; provided that
this clause (ii) shall not apply to the indemnification of directors of the Borrower and each
Subsidiary in accordance with customary practice.




          (b) The foregoing paragraph (a) shall not prohibit, to the extent not otherwise prohibited
under the Loan Documents,





     (i) any issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock options and
stock ownership plans approved by the board of directors of the Borrower,




     (ii) loans or advances to employees or consultants of the Borrower or any Subsidiary in
accordance with Section 6.04(e),




     (iii) transactions among the Borrower and the Subsidiary Loan Parties and transactions
among the Subsidiary Loan Parties otherwise permitted by this Agreement,




     (iv) the payment of fees and indemnities to directors, officers, consultants and
employees of the Borrower or any Subsidiary in the ordinary course of business,




     (v) transactions pursuant (i) to the Loan Documents and (ii) permitted agreements in
existence on the 2007 Amendment Effective Date and set forth on Schedule 6.07 or any
amendment thereto to the extent such amendment is not adverse to the Lenders in any material
respect,



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     (vi) (A) any employment agreements entered into by the Borrower or any Subsidiary in
the ordinary course of business, (B) any subscription agreement or similar agreement
pertaining to the repurchase of Equity Interests pursuant to put/call rights or similar
rights with employees, officers or directors, and (C) any employee compensation, benefit
plan or arrangement, any health, disability or similar insurance plan which covers
employees, and any reasonable employment contract and transactions pursuant thereto,




     (vii) dividends, redemptions and repurchases permitted under Section 6.06,




     (viii) transactions with Wholly Owned Subsidiaries for the purchase or sale of goods,
products, parts and services entered into in the ordinary course of business in a manner
consistent with past practice,




     (ix) any transaction in respect of which the Borrower delivers to the Administrative
Agent a letter addressed to the board of directors of the Borrower from an accounting,
appraisal or investment banking firm, in each case of nationally recognized standing that is
(A) in the good faith determination of the Borrower qualified to render such letter and (B)
reasonably satisfactory to the Administrative Agent, which letter states that such
transaction is on terms that are no less favorable to the Borrower or such Subsidiary, as
applicable, than would be obtained in a comparable arm’s-length transaction with a person
that is not an Affiliate, or




     (x) transactions with joint ventures for the purchase or sale of goods, equipment and
services entered into in the ordinary course of business and in a manner consistent with
past practice.



          SECTION 6.08. Business of the Borrower and the Subsidiaries. Notwithstanding any other provisions hereof, engage at any time in any business or business
activity other than any business or business activity conducted by any of them on the 2011
Amendment Effective Date and any business or business activities incidental or related thereto, or
any business or activity that is reasonably similar thereto or a reasonable extension, development
or expansion thereof or ancillary thereto.




          SECTION 6.09. Limitation on Modifications of Indebtedness; Modifications of Certificate of
Incorporation, By-Laws and Certain Other Agreements; etc.




          (a) Amend or modify in any manner materially adverse to the Lenders, or grant any waiver or
release under or terminate in any manner (if such granting or termination shall be materially
adverse to the Lenders), the articles or certificate of incorporation or by-laws or limited
liability company operating agreement of the Borrower or any Subsidiary.




          (b) (i) Make, or agree or offer to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect of principal of or
interest on any Permitted Junior Debt or any Permitted Refinancing Indebtedness in respect of any
of the foregoing Indebtedness, or any payment or other distribution (whether in cash, securities
(other than through the issuance of additional Qualified Capital Stock of the person making such
payment) or other property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of any Permitted Junior
Debt or any Permitted Refinancing Indebtedness in respect thereof (except for (i) Refinancings
permitted by Section 6.01(r), (ii) (A) any Net Share Settlement in respect of Convertible
Securities constituting Permitted Junior Debt in an amount not to exceed the outstanding principal
amount of the Convertible Securities acquired upon the conversion for which such Net Share
Settlement is paid; provided that, after giving effect to such Net Share Settlement, the
aggregate amount of (x) the Borrower’s total unrestricted cash (calculated in a manner





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consistent
with the consolidated balance sheet of the Borrower required to be furnished to the Administrative
Agent pursuant to Section 5.04) plus (y) the difference between the Revolving Facility
Commitment and the Revolving Facility Credit Exposure, shall not be less than $100.0 million as of
the date of such Net Share Settlement and (B) repurchase or redemption at the option of the
holders of the 2027 Debentures pursuant to the terms of the 2027 Debentures, or (iii) payments of
regularly scheduled interest); provided, however, that the Borrower may at any time and from time
to time repurchase, redeem, acquire, cancel or terminate all or any portion of Permitted Junior
Debt or any Permitted Refinancing Indebtedness in respect thereof with (1) the proceeds from the
issuance, sale or exchange by the Borrower of its Qualified Capital Stock, so long as such
proceeds are not included in any determination of the Available Investment Basket Amount or (2) so
long as (A) before and after giving effect to such repurchase, redemption, acquisition,
cancellation or termination, no Default or Event of Default shall have occurred or be continuing
and (B) the aggregate principal amount of such repurchases, redemptions, acquisitions,
cancellations and terminations shall not exceed the sum of the aggregate Available Investment
Basket Amount not otherwise used; or




          (ii) Amend or modify, or permit the amendment or modification of, any provision of the
Permitted Junior Debt or any Permitted Refinancing Indebtedness in respect thereof, or any
agreement (including any document relating to any Permitted Junior Debt or any Permitted
Refinancing Indebtedness in respect thereof) relating thereto, other than amendments or
modifications that are not in any manner materially adverse to Lenders and that do not affect the
subordination provisions thereof (if any) in a manner adverse to the Lenders.




          (c) Permit any Subsidiary to enter into, or suffer to exist or become effective, any
agreement or instrument that by its terms restricts (i) the payment of dividends or distributions
or the making of cash advances to the Borrower or any Subsidiary that is a direct or indirect
parent of any Subsidiary or (ii) the granting of Liens pursuant to the Security Documents, in each
case other than those arising under any Loan Document, except, in each case, restrictions existing
by reason of:





     (A) restrictions imposed by applicable law;




     (B) contractual encumbrances or restrictions in effect on the 2011 Amendment Effective
Date or any agreements related to any permitted renewal, extension or refinancing of any
Indebtedness existing on the 2011 Amendment Effective Date that does not expand the scope of
any such encumbrance or restriction;




     (C) any restriction on a Subsidiary imposed pursuant to an agreement entered into for
the sale or disposition of all or substantially all the Equity Interests or assets of a
Subsidiary pending the closing of such sale or disposition;




     (D) customary provisions in joint venture agreements and other similar agreements
applicable to joint ventures entered into in the ordinary course of business;




     (E) any restrictions imposed by any agreement relating to secured Indebtedness
permitted by this Agreement to the extent that such restrictions apply only to the property
or assets securing such Indebtedness;




     (F) customary provisions contained in leases or licenses of intellectual property and
other similar agreements entered into in the ordinary course of business;




     (G) customary provisions restricting subletting or assignment of any lease governing a
leasehold interest;




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     (H) customary provisions restricting assignment of any agreement entered into in
the ordinary course of business;




     (I) customary restrictions and conditions contained in any agreement relating to the
sale of any asset permitted under Section 6.05 pending the consummation of such sale;




     (J) customary restrictions and conditions contained in the document relating to any
Lien, so long as (1) such Lien is permitted under Section 6.02 and such restrictions or
conditions relate only to the specific asset subject to such Lien, and (2) such restrictions
and conditions are not created for the purpose of avoiding the restrictions imposed by this
Section 6.09;




     (K) customary net worth provisions contained in real property leases entered into by
Subsidiary, so long as the Borrower has determined in good faith that such net worth
provisions could not reasonably be expected to impair the ability of the Borrower and the
Subsidiaries to meet their ongoing obligations; and




     (L) any agreement in effect at the time such subsidiary becomes a Subsidiary, so long
as such agreement was not entered into in contemplation of such person becoming a
Subsidiary.



          SECTION 6.10. Swap Agreements. Enter into any Swap Agreement, other than (a) Swap Agreements entered into in the ordinary
course of business to hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities (including, without limitation,
raw material, supply costs and currency risks), (b) Swap Agreements entered into in order to
effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating
rate to another floating rate or otherwise) with respect to any interest-bearing liability or
investment of the Borrower or any Subsidiary and (c) any Permitted Swap Agreement.




          SECTION 6.11. No Other “Designated Senior Indebtedness.” The Borrower shall not designate, or permit the designation of, any Indebtedness (other than
under this Agreement or the other Loan Documents) as “Designated Senior Indebtedness” or any other
similar term for the purpose of the definition of the same or the subordination provisions
contained in any documentation governing Permitted Junior Debt or other Indebtedness that is
subordinated or senior subordinated Indebtedness or any Permitted Refinancing Indebtedness thereof.




ARTICLE VII




EVENTS OF DEFAULT



          SECTION 7.01. Events of Default. In case of the happening of any of the following events (each, an “Event of
Default”):





     (a) any representation or warranty made or deemed made by the Borrower or any other
Loan Party in any Loan Document, or any representation, warranty, statement or information
contained in any report, certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to have been false or
misleading in any material respect when so made, deemed made or furnished by the Borrower or
any other Loan Party;




     (b) default shall be made in the payment of any principal of any Loan or the
reimbursement with respect to any L/C Disbursement when and as the same shall become due and



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payable, whether at the due date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise;




     (c) default shall be made in the payment of any interest on any Loan or on any L/C
Disbursement or in the payment of any Fee or any other amount (other than an amount referred
to in (b) above) due under any Loan Document, when and as the same shall become due and
payable, and such default shall continue unremedied for a period of five Business Days;




     (d) default shall be made in the due observance or performance by the Borrower or any
Subsidiary of any covenant, condition or agreement contained in Section 5.01(a), 5.05(a),
5.08 or in Article VI;




     (e) default shall be made in the due observance or performance by the Borrower or any
Subsidiary of any covenant, condition or agreement contained in any Loan Document (other
than those specified in paragraphs (b), (c) and (d) above) and such default shall continue
unremedied for a period of 30 days after notice thereof from the Administrative Agent or the
Required Lenders to the Borrower;




     (f) (i) any event or condition occurs that (A) results in any Material Indebtedness
becoming due prior to its scheduled maturity or (B) enables or permits (with all applicable
grace periods having expired) 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 or (ii) the Borrower or any Subsidiary shall fail to pay the principal of
any Material Indebtedness at the stated final maturity thereof; provided that this
clause (f) 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 if such sale
or transfer is permitted hereunder and under the documents providing for such Indebtedness
and such Indebtedness is promptly repaid in full following the consummation of such sale or
transfer;




     (g) there shall have occurred a Change in Control;




     (h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in respect of the Borrower or
any Subsidiary, or of a substantial part of the property or assets of the Borrower or any
Subsidiary, under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or for a substantial part
of the property or assets of the Borrower or any Subsidiary or (iii) the winding-up or
liquidation of the Borrower or any Subsidiary (except, in the case of any Subsidiary, in a
transaction permitted by Section 6.05); and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of the foregoing
shall be entered;




     (i) The Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or the filing of any petition
described in paragraph (h) above, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Borrower or any Subsidiary or for a substantial part of the
property or assets of the



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




     (j) the failure by the Borrower or any Subsidiary to pay one or more final judgments
aggregating in excess of $50 million (to the extent not covered by insurance), which
judgments are not discharged or effectively waived or stayed for a period of 30 consecutive
days, or any action shall be legally taken by a judgment creditor to levy upon assets or
properties of the Borrower or any Subsidiary to enforce any such judgment;




     (k) (i) a Reportable Event or Reportable Events shall have occurred with respect to any
Plan or a trustee shall be appointed by a United States district court to administer any
Plan, (ii) the PBGC or a plan administrator shall institute proceedings (including giving
notice of intent thereof) to terminate any Plan or Plans, (iii) the Borrower or any
Subsidiary or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer
Plan that it has incurred or will be assessed Withdrawal Liability to such Multiemployer
Plan and such person does not have reasonable grounds for contesting such Withdrawal
Liability or is not contesting such Withdrawal Liability in a timely and appropriate manner,
(iv) the Borrower or any Subsidiary or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is
being terminated, within the meaning of Title IV of ERISA, (v) the Borrower or any
Subsidiary shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA
or Section 4975 of the Code) involving any Plan or (vi) a termination of, withdrawal from,
or noncompliance with applicable law or plan terms with respect, to Foreign Plans shall have
occurred; and in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could reasonably be expected to
have a Material Adverse Effect; or




     (l) (i) any Loan Document shall for any reason be asserted in writing by the Borrower
or any Subsidiary not to be a legal, valid and binding obligation of any party thereto, (ii)
any security interest purported to be created by any Security Document and to extend to
assets that are a substantial portion of the assets of the Borrower and the Subsidiaries on
a consolidated basis shall cease to be, or shall be asserted in writing by the Borrower or
any other Loan Party not to be, a valid and perfected security interest (perfected as or
having the priority required by this Agreement or the relevant Security Document and subject
to such limitations and restrictions as are set forth herein and therein) in such assets,
(iii) the Guarantees pursuant to the Collateral Agreement by any Subsidiary Loan Party of
any of the Obligations shall cease to be in full force and effect (other than in accordance
with the terms thereof), or shall be asserted in writing by the Borrower or any Subsidiary
Loan Party not to be in effect or not to be legal, valid and binding obligations or (iv) the
Obligations of the Borrower or the Guarantees pursuant to the Security Documents by the
Borrower or the Subsidiary Loan Party shall be invalidated or otherwise cease, or shall be
asserted in writing by the Borrower or any Subsidiary Loan Party to be invalid or to cease
to be legal, valid and binding obligations of the parties thereto, enforceable in accordance
with their terms;


then, and in every such event (other than an event with respect to the Borrower described in
paragraph (h) or (i) above), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, upon notice to the
Borrower, take any or all of the
following actions, at the same or different times: (i) terminate forthwith the Commitments, (ii)
declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon
the principal


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of the Loans so declared to be due and payable, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and
under any other Loan Document, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein or in any other Loan Document to the contrary notwithstanding and (iii)
if the Loans have been declared due and payable pursuant to clause (ii) above, demand cash
collateral pursuant to Section 2.05(j); and in any event with respect to the Borrower described in
paragraph (h) or (i) above, the Commitments shall automatically terminate, the principal of the
Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all
other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable and the Administrative Agent shall be deemed to have made a
demand for cash collateral to the full extent permitted under Section 2.05(j), without presentment,
demand, protest or any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding.




          SECTION 7.02. Exclusion of Immaterial Subsidiaries. Solely for the purposes of determining whether an Event of Default has occurred under
clause (h), (i) or (l) of Section 7.01, any reference in any such clause to any Subsidiary shall be
deemed not to include any Subsidiary affected by any event or circumstance referred to in any such
clause that did not, as of the last day of the fiscal quarter of the Borrower most recently ended,
have assets with a value in excess of 5% of the Consolidated Total Assets or 5% of total revenues
of the Borrower and the Subsidiaries as of such date; provided that if it is necessary to
exclude more than one Subsidiary from clause (h), (i) or (l) of Section 7.01 pursuant to this
Section 7.02 in order to avoid an Event of Default thereunder, all excluded Subsidiaries shall be
considered to be a single consolidated Subsidiary for purposes of determining whether the condition
specified above is satisfied.




ARTICLE VIII




THE AGENTS



          SECTION 8.01. Appointment. Each Lender hereby irrevocably designates and appoints the Administrative Agent as the
agent of such Lender under this Agreement and the other Loan Documents, and each such 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.




          SECTION 8.02. 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.




          SECTION 8.03. Exculpatory Provisions. Neither any Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates shall be (i) liable for any action lawfully taken or


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omitted to be taken by it or
such person under or in connection with this Agreement or any other Loan Document (except to the
extent that any of the foregoing are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from 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 any Loan Party 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 Agents 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
any Loan Party a party thereto to perform its obligations hereunder or thereunder. The Agents
shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or
performance of 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 any Loan Party.




          SECTION 8.04. Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any instrument, 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 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 Required Lenders (or, if so specified by this Agreement, all Lenders) as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all
liability and expense that may be incurred by it by reason of taking or continuing to take any such
action. 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
Required Lenders (or, if so specified by this Agreement, all 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.




          SECTION 8.05. 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 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 Required Lenders (or, if so specified by this Agreement, all
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.




          SECTION 8.06. Non-Reliance on Agents and Other Lenders.
Each Lender expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereafter taken, including any
review of the affairs of a Loan Party or any affiliate of a Loan Party, shall be deemed to
constitute any representation or warranty by any Agent to any Lender. Each Lender represents to
the Agents that it has, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it has deemed appropriate,
made its own ap-


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praisal of and
investigation into the business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates 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 any 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 Loan
Parties and their affiliates. 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 any Loan Party or any affiliate of a Loan Party that may come into
the possession of the Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.




          SECTION 8.07. Indemnification. The Lenders agree to indemnify each Agent in its capacity as such (to the extent not
reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), each in
an amount equal to its pro rata share (based on its Commitments hereunder (or if such Commitments
shall have expired or been terminated, in accordance with the respective principal amounts of its
applicable outstanding Loans or participations in L/C Disbursements, as applicable)) thereof, from
and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before
or after the payment of the Loans) be imposed on, incurred by or asserted against such 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 such 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 that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent’s gross negligence or willful misconduct.
The agreements in this Section shall survive the payment of the Loans and all other amounts payable
hereunder.




          SECTION 8.08. Agent in Its Individual Capacity.
Each Agent and its affiliates may make loans to, accept deposits from and generally engage in
any kind of business with any Loan Party as though such Agent were not an Agent. With respect to
its Loans made or renewed by it and with respect to any Letter of Credit issued or participated in
by it, each 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 an Agent, and the terms “Lender” and “Lenders” shall
include each Agent in its individual capacity.




          SECTION 8.09. Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon 30 days’ notice to the
Lenders and the Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent shall (unless an Event of Default
under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing) be subject to
approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon
such successor agent shall succeed to the rights, powers and duties of the Administrative Agent,
and the term “Administrative Agent” shall mean such successor agent effective upon such appointment
and approval, 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. If


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no
successor agent has accepted appointment as Administrative Agent by the date that is 30 days
following a retiring Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective, and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above. After any retiring
Administrative Agent’s resignation as Administrative Agent, the provisions of this Article VIII
shall inure to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.




          SECTION 8.10. Syndication Agent and Documentation Agent.
Neither the Syndication Agent nor the Documentation Agent shall have any duties or
responsibilities hereunder in its capacity as such.




          SECTION 8.11. Quebec Security.
The Administrative Agent hereby agrees to act as the fondé de pouvoir (holder of the power
of attorney) for the Secured Parties to the extent necessary or desirable for the purposes of this
Agreement, the Collateral Agreement and any hypothec or other security that may be granted from
time to time by Speechworks International Inc. or any other Loan Party for the benefit of the
Secured Parties under the laws of the Province of Quebec. By becoming a Secured Party, each Secured
Party accepts and confirms the appointment of the Administrative Agent as fondé de pouvoir (holder
of the power of attorney) of such Secured Party. Notwithstanding the provisions of Section 32 of
the Act respecting the Special Powers of Legal Persons (Quebec), the Administrative Agent may
acquire and be the holder of any debenture, bond or other title of indebtedness that may be issued
from time to time by Speechworks International Inc. or any other Loan Party.




ARTICLE IX




MISCELLANEOUS



          SECTION 9.01. Notices.




          (a) 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 any Loan Party, to Chief Financial Officer, 1 Wayside Road, Burlington, MA
01803, with a copy to Wilson Sonsini Goodrich & Rosati, 650 Page Mill Road, Palo Alto, CA
94304, Attention of Andrew J. Hirsch (Telecopy No. (650)-493-9300);




     (ii) if to the Administrative Agent, to UBS AG, Stamford Branch, 677 Washington
Boulevard, Stamford, Connecticut 06901, Attention of Banking Products Services — Agency Team
(Telecopy No. (203) 719-4176), with a copy to Cahill Gordon & Reindel LLP, 80 Pine
Street, New York, NY 10005, Attention of Brian Kelleher (Telecopy No. (212) 378-2521); and




     (iii) if to an Issuing Bank, to it at the address or telecopy number set forth
separately in writing.



          (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;
provided that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. Each of the Administrative
Agent and the Borrower may, in its discretion, agree to accept notices and other communications to
it hereunder by electronic


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communications pursuant to procedures approved by it; provided,
further, that approval of such procedures may be limited to particular notices or
communications.




          (c) 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 if delivered
by hand or overnight courier service, sent by telecopy or (to the extent permitted by paragraph (b)
above) electronic means or on the date five Business Days after dispatch by certified or registered
mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as
provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party
given in accordance with this Section 9.01.




          (d) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto.




          SECTION 9.02. Survival of Agreement. All covenants, agreements, representations and warranties made by the Loan Parties herein,
in the other Loan Documents and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and each Issuing Bank and shall survive the making by the
Lenders of the Loans, the execution and delivery of the Loan Documents and the issuance of the
Letters of Credit, regardless of any investigation made by such persons or on their behalf, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or L/C Disbursement or any Fee or any other amount payable under this Agreement or any other
Loan Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not been terminated. Without prejudice to the survival of any other agreements
contained herein, indemnification and reimbursement obligations contained herein (including
pursuant to Sections 2.15, 2.17 and 9.05) shall survive the payment in full of the principal and
interest hereunder, the expiration of the Letters of Credit and the termination of the Commitments
or this Agreement.




          SECTION 9.03. Binding Effect. This Agreement shall become effective when it shall have been executed by the Borrower and
the Administrative Agent and when the Administrative Agent shall have received copies hereof which,
when taken together, bear the signatures of each of the other parties hereto, and thereafter shall
be binding upon and inure to the benefit of the Borrower, each Issuing Bank, the Administrative
Agent and each Lender and their respective permitted successors and assigns.




          SECTION 9.04. Successors and Assigns.




          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any
affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights
or obligations hereunder except in accordance with this Section 9.04. Nothing in this Agreement,
express 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
Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of
this Section 9.04), and, to the extent expressly contemplated hereby, the Related Parties of each
of the Agents, the Issuing Bank 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


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this Agreement (including all or a portion of its Commitments and the Loans at
the time owing to it) with the prior written consent (such consent not to be unreasonably withheld
or delayed) 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 an Event of Default under Section 7.01(b), (c), (h), or (i) has occurred and is
continuing, any other person;




     (B) the Administrative Agent; and




     (C) the Issuing Bank; provided that no consent of the Issuing Bank shall be
required for an assignment of all or any portion of a Term Loan.




     Notwithstanding the foregoing or anything to the contrary set forth herein, any
assignment of any Loans to a Purchasing Borrower Party shall also be subject to the
requirements of Section 9.04(g).




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




     (A) except in the case of an assignment to a Lender, an affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s
Commitments or Loans under any Facility, the amount of the Commitments or Loans of the
assigning Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the Administrative Agent)
shall not be less than (x) $1.0 million in the case of Term Loans and (y) $2.5 million in the case
of Revolving Facility Loans or Revolving Facility Commitments, unless each of the Borrower
and the Administrative Agent otherwise consent; provided that such amounts shall be
aggregated in respect of each Lender and its Affiliates or Approved Funds, if any;




     (B) 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; and




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


For the purposes of this Section 9.04, “Approved Fund” means any person (other than a
natural person) that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course and that is administered, advised or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers, advises or manages a Lender.




          (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) below, 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
Sections 2.15, 2.16, 2.17 and 9.05). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section



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9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section 9.04.




          (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 Commitments of, the
stated interest on and principal amount of the Loans and Revolving L/C Exposure owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent, the
Issuing Bank and the Lenders shall 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. The
Register shall be available for inspection by the Borrower, the Issuing Bank and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.




          (v) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an Assignee, the Assignee’s completed Administrative Questionnaire (unless the Assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment, whether or not evidenced by a
promissory note, shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph (b)(v).




          (c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, 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
Commitments 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 Bank 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
pursuant to which a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment,
modification or waiver of any provision of this Agreement and the other Loan Documents;
provided that (x) such agreement may provide that such Lender will not, without the consent
of the Participant, agree to any amendment, modification or waiver that (1) requires the consent of
each Lender directly affected thereby pursuant to Section 9.04(a)(i) or clause (i), (ii), (iii),
(iv), (v) or (vi) of the first proviso to Section 9.08(b) and (2) directly affects such Participant
and (y) no other agreement with respect to such Participant may exist between such Lender and such
Participant. Subject to the foregoing provisions of this paragraph (c)(i) and to paragraph (c)(ii)
of this Section 9.04, the Borrower agrees that each Participant shall be entitled to the benefits
of Sections 2.15, 2.16 and 2.17 (subject to the requirements of those Sections as if it were a
Lender) to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section 9.04. Subject to the foregoing provisions of this
paragraph (c)(i), to the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.06 as though it were a Lender, provided such Participant shall be
subject to Section 2.18(c) as though it were a Lender.




          (ii) A Participant shall not be entitled to receive any greater payment under Section 2.15,
2.16 or 2.17 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent.




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          (d) Any Lender may at any time, without the consent of or notice to the Administrative Agent
or the Borrower, pledge or assign a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section 9.04 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.




          (e) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue
Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph
(d) above.




          (f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it
may have funded hereunder to its designating Lender without the consent of the Borrower or the
Administrative Agent. Each of the Borrower, each Lender and the Administrative Agent hereby
confirms that it will not institute against a Conduit Lender or join any other person in
instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding under any state bankruptcy or similar law, for one year and one day after
the payment in full of the latest maturing commercial paper note issued by such Conduit Lender;
provided, however, that each Lender designating any Conduit Lender hereby agrees to
indemnify, save and hold harmless each other party hereto and each Loan Party for any loss, cost,
damage or expense arising out of its inability to institute such a proceeding against such Conduit
Lender during such period of forbearance.




          (g) Notwithstanding anything else to the contrary contained in this Agreement, (x) any Lender
may, from time to time, assign all or a portion of its Term Loans to any Purchasing Borrower Party
and (y) any Purchasing Borrower Party may, from time to time, purchase or prepay Term Loans, in
each case on a non pro rata basis through Dutch auction procedures to be agreed between the
Borrower and the Administrative Agent; provided that:





     (A) no Default or Event of Default has occurred or is continuing or would result
therefrom;




     (B) the assigning Lender and Purchasing Borrower Party purchasing such Lender’s Term
Loans, as applicable, shall execute and deliver to the Administrative Agent an assignment
agreement substantially in the form of Exhibit G hereto (an “Affiliated Lender
Assignment and Acceptance”) in lieu of an Assignment and Acceptance;




     (C) for the avoidance of doubt, Lenders shall not be permitted to assign Revolving
Facility Commitments (including Extended Maturity Commitments), Revolving Facility Loans
(including Extended Maturity Loans that are Revolving Facility Loans) and Incremental
Revolving Commitments to any Purchasing Borrower Party;




     (D) any Term Loans assigned to any Purchasing Borrower Party shall be automatically and
permanently cancelled upon the effectiveness of such assignment and will thereafter no
longer be outstanding for any purpose hereunder (it being understood that any gains or
losses by any Purchasing Borrower Party upon purchase or acquisition and cancellation of
such Term Loans shall not be taken into account in the calculation of Excess Cash Flow,
Consolidated Net Income and EBITDA);




     (E) no Purchasing Borrower Party may use proceeds from Revolving Facility Loans or
Swing Line Loans to purchase any Term Loans.



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          (h) If the Borrower wishes to replace the Loans or Commitments under any Facility with ones
having different terms, it shall have the option, with the consent of the Administrative Agent and
subject to at least three Business Days’ advance notice to the Lenders under such Facility, instead
of prepaying the Loans or reducing or terminating the Commitments to be replaced, to (i) require
the Lenders under such Facility to assign such Loans or Commitments to the Administrative Agent or
its designees and (ii) amend the terms thereof in accordance with Section 9.08 (with such
replacement, if applicable, being deemed to have been made pursuant to Section 9.08(d)). Pursuant
to any such assignment, all Loans and Commitments to be replaced shall be purchased at par
(allocated among the Lenders under such Facility in the same manner as would be required if such
Loans were being optionally prepaid or such Commitments were being optionally reduced or terminated
by the Borrower), accompanied by payment of any accrued interest and fees thereon and any amounts
owing pursuant to Section 9.05(b). By receiving such purchase price, the Lenders under such
Facility shall automatically be deemed to have assigned the Loans or Commitments under such
Facility pursuant to the terms of the form of Assignment and Acceptance attached hereto as
Exhibit A, and accordingly no other action by such Lenders shall be required in connection
therewith. The provisions of this paragraph (h) are intended to facilitate the maintenance of the
perfection and priority of existing security interests in the Collateral during any such
replacement.




          SECTION 9.05. Expenses; Indemnity.




          (a) The Borrower agrees to pay all reasonable out-of-pocket expenses (including Other Taxes)
incurred by the Administrative Agent in connection with the preparation of this Agreement and the
other Loan Documents and by the Administrative Agent or Joint Lead Arrangers in connection with the
syndication of the Commitments or Loans or the administration of this Agreement (including (i)
expenses incurred in connection with due diligence and initial and ongoing Collateral examination
(after the 2011 Amendment Effective Date, to the extent no Event of Default shall have occurred or
be continuing, expenses referred to in this clause (i) shall be subject to the Borrower’s
reimbursement only with the Borrower’s prior approval (such approval not to be unreasonably
withheld)), (ii) the reasonable fees, charges and disbursements of Cahill Gordon & Reindel
LLP, counsel for the Administrative Agent and the Joint Lead Arrangers and (iii) the
reasonable fees, charges and disbursements of one local counsel per jurisdiction where Collateral
is located or a Subsidiary Loan Party is incorporated) or in connection with the administration of
this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the Transactions hereby contemplated shall be consummated) or incurred by the
Administrative Agent or any Lender in connection with the enforcement or protection of their rights
in connection with this Agreement and the other Loan Documents, the Loans made hereunder or the
Letters of Credit issued hereunder.




          (b) The Borrower agrees to indemnify the Administrative Agent, the Joint Lead Arrangers, each
Issuing Bank, each Lender and each of their respective directors, trustees, officers, employees,
advisors and agents (each such person being called an “Indemnitee”) against, and to hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable counsel fees, charges and disbursements, incurred by or asserted
against any Indemnitee arising out of, in any way connected with, or as a result of (i) the
execution or delivery of this Agreement or any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto and thereto of their
respective obligations thereunder or the consummation of the Transactions and the other
transactions contemplated hereby, (ii) the use of the proceeds of the Loans or the use of any
Letter of Credit or (iii) any claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a final, non-appealable judgment of a court of
competent jurisdiction to have


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resulted solely by reason of the gross negligence or willful
misconduct of such Indemnitee. Subject to and without limiting the generality of the foregoing
sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel or consultant fees, charges and disbursements (limited to not more than one
counsel, plus, if necessary, one local counsel per jurisdiction), incurred by or asserted against
any Indemnitee arising out of, in any way connected with, or as a result of (A) any claim related
in any way to Environmental Laws and the Borrower or any Subsidiary, or (B) any actual or alleged
presence, Release or threatened Release of Hazardous Materials at, under, on or from any Property;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or any of its Related Parties. The Borrower
shall not be liable for any settlement of any proceeding referred to in this Section 9.05 effected
without their written consent, but if settled with such consent or if there shall be a final
judgment for the plaintiff, the Borrower shall indemnify the Indemnitees from and against any loss
or liability by reason of such settlement or judgment, subject to the Borrower’s right in this
Section 9.05 to claim an exemption from such indemnity obligations. The Borrower shall not,
without the prior written consent of any Indemnitee, effect any settlement of any pending or
threatened proceeding in respect of which such Indemnitee is or could have been a party and
indemnity could have been sought hereunder by such Indemnitee unless such settlement (i) includes
an unconditional release of such Indemnitee from all liability or claims that are the subject
matter of such proceeding and
(ii) does not include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any Indemnitee. None of the Indemnitees (or any of their respective
affiliates) shall be responsible or liable to the Sponsor, the Borrower or any of their respective
subsidiaries, Affiliates or stockholders or any other person or entity for any consequential or
punitive damages, which may be alleged as a result of the Facilities or the Transactions. The
provisions of this Section 9.05 shall remain operative and in full force and effect regardless of
the expiration of the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation made by or on behalf
of the Administrative Agent, any Issuing Bank or any Lender. All amounts due under this Section
9.05 shall be payable on written demand therefor accompanied by reasonable documentation with
respect to any reimbursement, indemnification or other amount requested.




          (c) Except as expressly provided in Section 9.05(a) with respect to Other Taxes, which shall
not be duplicative with any amounts paid pursuant to Section 2.17, this Section 9.05 shall not
apply to Taxes.




          SECTION 9.06. Right of Set-off. If an Event of Default shall have occurred and be continuing, each Lender and each Issuing
Bank is hereby authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender or such Issuing
Bank to or for the credit or the account of the Borrower or any Subsidiary against any of and all
the obligations of the Borrower now or hereafter existing under this Agreement or any other Loan
Document held by such Lender or such Issuing Bank, irrespective of whether or not such Lender or
such Issuing Bank shall have made any demand under this Agreement or such other Loan Document and
although the obligations may be unmatured. The rights of each Lender and each Issuing Bank under
this Section 9.06 are in addition to other rights and remedies (including other rights of set-off)
that such Lender or such Issuing Bank may have.




          SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY
SET FORTH IN


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OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK.




          SECTION 9.08. Waivers; Amendment.




          (a) No failure or delay of the Administrative Agent, any Issuing Bank or any Lender in
exercising any right or power hereunder or under any Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agent, each Issuing Bank and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or any other Loan Document or consent to any departure by
the Borrower or any other Loan Party therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. No
notice or demand on the Borrower or any other Loan Party in any case shall entitle such person
to any other or further notice or demand in similar or other circumstances.




          (b) Except as provided in Section 2.21 with respect to an Incremental Facility Amendment,
neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be
waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required Lenders and (y) in the case of
any other Loan Document, pursuant to an agreement or agreements in writing entered into by each
party thereto and the Administrative Agent and consented to by the Required Lenders;
provided, however, that no such agreement shall





     (i) decrease or forgive the principal amount of, or extend the final maturity of, or
decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated
expiration of any Letter of Credit beyond the Tranche 1 Revolving Facility Maturity Date or
Tranche 2 Revolving Facility Maturity Date, as applicable, without the prior written consent
of each Lender directly affected thereby; provided that any amendment to the
financial covenant definitions in this Agreement shall not constitute a reduction in the
rate of interest for purposes of this clause (i),




     (ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or
L/C Participation Fees or other fees of any Lender without the prior written consent of such
Lender (it being understood that waivers or modifications of conditions precedent,
covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate
Commitments shall not constitute an increase of the Commitment of any Lender),




     (iii) extend or waive any Term Loan Installment Date or reduce the amount due on any
Term Loan Installment Date or extend any date on which payment of interest on any Loan or
any L/C Disbursement or any Fees is due, without the prior written consent of each Lender
adversely affected thereby,




     (iv) amend or modify the provisions of Section 2.18(b) or (c) or 2.10(d) of this
Agreement or Section 5.02 of the Collateral Agreement in a manner that would by its terms
alter the pro rata sharing of payments required thereby, without the prior written consent
of each Lender adversely affected thereby,



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     (v) amend or modify the provisions of this Section 9.08 or the definition of the terms
“Required Lenders” or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the prior written consent of each Lender adversely
affected thereby (it being understood that, with the consent of the Required Lenders,
additional extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the Loans and
Commitments are included on the Original Effective Date),




     (vi) release all or substantially all the Collateral or release all or substantially
all of the Subsidiary Loan Parties from their respective Guarantees under the Collateral
Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the
Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a
transaction permitted by this Agreement, without the prior written consent of each Lender,




     (vii) effect any waiver, amendment or modification of any Loan Document that would
alter the relative priorities of the rights of the Secured Parties in the Collateral; or




     (viii) (1) amend, waive or otherwise modify Section 2.08(d) hereof or (2) waive any
Tranche 2 Revolving Lender Termination Event, in each case, without the written consent of
the Required Tranche 2 Revolving Lenders; provided, however, that the
amendments, modifications, waivers and consents described in this clause (viii) shall not
require the consent of any Lenders other than the Required Tranche 2 Revolving Lenders;


provided, further, that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent or an Issuing Bank hereunder without the prior
written consent of the Administrative Agent or such Issuing Bank acting as such at the effective
date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or
modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section
9.08 shall bind any assignee of such Lender.




          (c) Without the consent of the Syndication Agent, the Documentation Agent or any Joint Lead
Arranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their
respective sole discretion, or shall, to the extent required by any Loan Document) enter into any
amendment, modification or waiver of any Loan Document, or enter into any new agreement or
instrument, to effect the granting, perfection, protection, expansion or enhancement of any
security interest in any Collateral or additional property to become Collateral for the benefit of
the Secured Parties, or as required by local law to give effect to, or protect any security
interest for the benefit of the Secured Parties, in any property or so that the security interests
therein comply with applicable law.




          (d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated)
with the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to
add one or more additional credit facilities to this Agreement and to permit the extensions of
credit from time to time outstanding thereunder and the accrued interest and fees in respect
thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the
Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof
and (b) to include appropriately the Lenders holding such credit facilities in any determination of
the Required Lenders.




          SECTION 9.09. Interest Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the applicable interest
rate, together with all fees and charges that are treated as interest under applicable law
(collectively, the “Charges”), as provided for herein or in any other document executed in
connection herewith, or otherwise contracted for, charged, received, taken or reserved by any


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Lender or any Issuing Bank, shall exceed the maximum lawful rate (the “Maximum Rate”) that
may be contracted for, charged, taken, received or reserved by such Lender in accordance with
applicable law, the rate of interest payable hereunder, together with all Charges payable to such
Lender or such Issuing Bank, shall be limited to the Maximum Rate; provided that such
excess amount shall be paid to such Lender or such Issuing Bank on subsequent payment dates to the
extent not exceeding the legal limitation.




          SECTION 9.10. Entire Agreement. This Agreement, the other Loan Documents and the agreements regarding certain Fees referred
to herein constitute the entire contract between the parties relative to the subject matter hereof.
Any previous agreement among or representations from the parties or their Affiliates with respect
to the subject matter hereof is superseded by this Agreement and the other Loan Documents.
Notwithstanding the foregoing, the Fee Letter shall survive the execution and delivery of this
Agreement and remain in full
force and effect. Nothing in this Agreement or in the other Loan Documents, expressed or
implied, is intended to confer upon any party other than the parties hereto and thereto any rights,
remedies, obligations or liabilities under or by reason of this Agreement or the other Loan
Documents.




          SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.




          SECTION 9.12. Severability. In the event any one or more of the provisions contained in this Agreement or in any other
Loan Document should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and therein shall not in
any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.




          SECTION 9.13. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute
an original but all of which, when taken together, shall constitute but one contract, and shall
become effective as provided in Section 9.03. Delivery of an executed counterpart to this
Agreement by facsimile transmission shall be as effective as delivery of a manually signed
original.




          SECTION 9.14. Headings. Article and Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.




          SECTION 9.15. Jurisdiction; Consent to Service of Process.
Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the exclusive jurisdiction of any New York State court or federal court of the United
States of America sitting in New York City, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the


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parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such federal court. Each
of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right
that any Lender or any Issuing Bank may otherwise have to bring any action or proceeding relating
to this Agreement or the other Loan Documents against the Borrower or any Loan Party or their
properties in the courts of any jurisdiction.




          Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
or the other Loan Documents in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.




          SECTION 9.16. Confidentiality. Each of the Lenders, each Issuing Bank and each of the Agents agrees that it shall maintain
in confidence any information relating to the Borrower and the other Loan Parties furnished to it
by or on behalf of the Borrower or the other Loan Parties (other than information that (a) has
become generally available to the public other than as a result of a disclosure by such party, (b)
has been independently developed by such Lender, such Issuing Bank or such Agent without violating
this Section 9.16 or (c) was available to such Lender, such Issuing Bank or such Agent from a third
party having, to such person’s knowledge, no obligations of confidentiality to the Borrower or any
other Loan Party) and shall not reveal the same other than to its directors, trustees, officers,
employees, advisors and Affiliates with a need to know or to any person that approves or
administers the Loans on behalf of such Lender (so long as each such person shall have been
instructed to keep the same confidential in accordance with this Section 9.16), except: (A) to the
extent necessary to comply with law or any legal process or the requirements of any Governmental
Authority, the National Association of Insurance Commissioners or of any securities exchange on
which securities of the disclosing party or any Affiliate of the disclosing party are listed or
traded, (B) as part of the reporting or review procedures to, or examinations by, Governmental
Authorities or self-regulatory authorities, including the National Association of Insurance
Commissioners or the National Association of Securities Dealers, Inc., (C) to its parent companies,
Affiliates or auditors (so long as each such person shall have been instructed to keep the same
confidential in accordance with this Section 9.16), (D) in order to enforce its rights under any
Loan Document in a legal proceeding, (E) to any pledge under Section 9.04(d) or any other
prospective assignee of, or prospective Participant in, any of its rights under this Agreement (so
long as such person shall have been instructed to keep the same confidential in accordance with
this Section 9.16) and (F) to any direct or indirect contractual counterparty in Swap Agreements or
such contractual counterparty’s professional advisor (so long as such contractual counterparty or
professional advisor to such contractual counterparty agrees to be bound by the provisions of this
Section 9.16).




          SECTION 9.17. Direct Website Communications.




          (a) Delivery. (i) Each Loan Party hereby agrees that it will provide to the
Administrative Agent all information, documents and other materials that it is obligated to furnish
to the Administrative Agent pursuant to this Agreement and any other Loan Document, including,
without limitation, all notices, requests, financial statements, financial and other reports,
certificates and other information materials, but excluding any such communication that (A) relates
to a request for a new, or a conversion of an existing, borrowing or other extension of credit
(including any election of an interest rate or interest period relating thereto), (B) relates to
the payment of any principal or other amount due under this Agreement prior to the scheduled date
therefor, (C) provides notice of any Default or Event of Default under


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this Agreement or (D) is
required to be delivered to satisfy any condition precedent to the effectiveness of
this Agreement and/or any borrowing or other extension of credit hereunder (all such
non-excluded communications collectively, the “Communications”), by transmitting the
Communications in an electronic/soft medium in a format acceptable to the Administrative Agent.
Information required to be delivered pursuant to this Agreement (to the extent not made available
as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date
on which the Borrower provides written notice to the Administrative Agent that such information has
been posted on the Borrower’s website on the Internet at www.nuance.com (to the extent such
information has been posted or is available as described in such notice). In addition, each Loan
Party agrees to continue to provide the Communications to the Administrative Agent in the manner
specified in this Agreement or any other Loan Document but only to the extent requested by the
Administrative Agent. Nothing in this Section 9.17 shall prejudice the right of the Agents, the
Joint Lead Arrangers or any Lender or any Loan Party to give any notice or other communication
pursuant to this Agreement or any other Loan Document in any other manner specified in this
Agreement or any other Loan Document.




          (ii) The Administrative Agent agrees that receipt of the Communications by the Administrative
Agent at its e-mail address set forth above shall constitute effective delivery of the
Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender agrees
that notice to it (as provided in the next sentence) specifying that the Communications have been
posted to the Platform (as defined below) shall constitute effective delivery of the Communications
to such Lender for purposes of the Loan Documents. Each Lender agrees (A) to notify the
Administrative Agent in writing (including by electronic communication) from time to time of such
Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and
(B) that the foregoing notice may be sent to such e-mail address.




          (b) Posting. Each Loan Party further agrees that the Administrative Agent may make
the Communications available to the Lenders by posting the Communications on Intralinks or a
substantially similar electronic transmission system (the “Platform”).




          (c) Platform. The Platform is provided “as is” and “as available.” The Agent Parties
(as defined below) do not warrant the accuracy or completeness of the Communications, or the
adequacy of the Platform and expressly disclaim liability for errors or omissions in the
Communications. No warranty of any kind, express, implied or statutory, including, without
limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of
third party rights or freedom from viruses or other code defects, is made by any Agent Party in
connection with the Communications or the Platform. In no event shall the Administrative Agent or
any of its affiliates or any of their respective officers, directors, employees, agents, advisors
or representatives (collectively, “Agent Parties”) have any liability to the Loan Parties,
any Lender or any other person or entity for damages of any kind, including, without limitation,
direct or indirect, special, incidental or consequential damages, losses or expenses (whether in
tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s
transmission of communications through the internet, except to the extent the liability of any
Agent Party is found in a final non-appealable judgment by a court of competent jurisdiction to
have resulted primarily from such Agent Party’s gross negligence or willful misconduct.




          SECTION 9.18. Release of Liens and Guarantees. In the event that any Loan Party conveys, sells, leases, assigns, transfers or otherwise
disposes of all or any portion of any of the Equity Interests of any Subsidiary Loan Party or
assets of any Loan Party to a person that is not (and is not required to become) a Loan Party in a
transaction not prohibited by Section 6.05, the Administrative Agent shall promptly (and the
Lenders hereby authorize the Administrative Agent to) take such action and execute any such
documents as may be reasonably requested by the Borrower and at the Borrower’s ex-


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pense to release any Liens created by any Loan
Document in respect of such Equity Interests or assets, and, in the case of a disposition of the
Equity Interests of any Subsidiary Loan Party in a transaction permitted by Section 6.05 and as a
result of which such Subsidiary Loan Party would cease to be a Subsidiary, terminate such
Subsidiary Loan Party’s obligations under its Guarantee. In addition, the Administrative Agent
agrees to take such actions as are reasonably requested by the Borrower and at the Borrower’s
expense to terminate the Liens and security interests created by the Loan Documents when all the
Obligations are paid in full and all Letters of Credit and Commitments are terminated. Any
representation, warranty or covenant contained in any Loan Document relating to any such Equity
Interests, asset or subsidiary of the Borrower shall no longer be deemed to be made once such
Equity Interests or asset is so conveyed, sold, leased, assigned, transferred or disposed of.




          SECTION 9.19. 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.




          SECTION 9.20. Dollar Equivalent Calculations.
For purposes of this Agreement, the Dollar Equivalent of the stated amount of each Letter
of Credit that is an Alternate Currency Letter of Credit shall be calculated on the date when any
such Letter of Credit is issued, on the first Business Day of each month and at such other times as
designated by the Administrative Agent. Such Dollar Equivalent shall remain in effect until the
same is recalculated by the Administrative Agent as provided above and notice of such recalculation
is received by Borrower, it being understood that until such notice of such recalculation is
received, the Dollar Equivalent shall be that Dollar Equivalent as last reported to Borrower by the
Administrative Agent. The Administrative Agent shall promptly notify Borrower and the Lenders of
each such determination of the Dollar Equivalent.




          SECTION 9.21. Judgment Currency.




          (a) Borrower’s obligation hereunder and under the other Loan Documents to make payments in the
applicable Approved Currency (pursuant to such obligation, the “Obligation Currency”) shall
not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency, except to the extent that such
tender or recovery results in the effective receipt by the Administrative Agent or the respective
Lender of the full amount of the Obligation Currency expressed to be payable to the Administrative
Agent or such Lender under this Agreement or the other Loan Documents. If, for the purpose of
obtaining or enforcing judgment against Borrower in any court or in any jurisdiction, it becomes
necessary to convert into or from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the “Judgment Currency”) an amount due in the
Obligation Currency, the conversion shall be made at the Relevant Currency Equivalent, and in the
case of other currencies, the rate of exchange (as quoted by the Administrative Agent or if the
Administrative Agent does not quote a rate of exchange on such currency, by a known dealer in such
currency designated by the Administrative Agent) determined, in each case, as of the Business Day
immediately preceding the day on which the judgment is given (such Business Day being hereinafter
referred to as the “Judgment Currency Conversion Date”).




          (b) If there is a change in the rate of exchange prevailing between the Judgment Currency
Conversion Date and the date of actual payment of the amount due, Borrower covenants and agrees to
pay, or cause to be paid, such additional amounts, if any (but in any event not a lesser amount) as
may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the
rate of exchange prevailing on the date of payment, will produce the amount of the Obligation
Currency which


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could have been purchased with the amount of Judgment Currency stipulated in the
judgment or judicial award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.




          (c) For purposes of determining the Relevant Currency Equivalent or any other rate of exchange
for this Section 9.21, such amounts shall include any premium and costs payable in connection with
the purchase of the Obligation Currency.




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EXHIBIT G




FORM OF

AFFILIATED LENDER ASSIGNMENT AND ACCEPTANCE




          Reference is made to the Amended and Restated Credit Agreement dated as of [ ], 2011
(as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”),
among Nuance Communications, Inc., a Delaware corporation (“Borrower”), the several Lenders
from time to time parties thereto, UBS AG, Stamford Branch, as administrative agent (in such
capacity, the “Administrative Agent”), Citicorp North America, Inc., as syndication agent,
Credit Suisse Securities (USA) LLC, as documentation agent, Citigroup Global Markets Inc. and UBS
Securities LLC, as joint lead arrangers, Credit Suisse Securities (USA) LLC and Banc of America
Securities LLC, as co-arrangers, and Citigroup Global Markets Inc., UBS Securities LLC and Credit
Suisse Securities (USA) LLC, as joint bookrunners. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein with the same meanings. The “Standard Terms and
Conditions” set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Acceptance as if set forth herein in full.




          ___________________________ (the “Assignor”) and ___________________________ (the
“Assignee”) agree as follows:




          1. The Assignor hereby irrevocably sells and assigns to the Assignee without recourse to the
Assignor, and the Assignee hereby irrevocably purchases and assumes from the Assignor without
recourse to the Assignor, subject to and in accordance with the Standard Terms and Conditions and
the Credit Agreement. As of the Effective Date (as defined below), the interest (the
“Assigned Interest”) in and to the Assignor’s rights and obligations under the
Credit Agreement with respect to those credit facilities contained in the Credit Agreement as are
set forth on Schedule 1 (individually, an “Assigned Facility”; collectively, the
“Assigned Facilities”), in a principal amount and percentage interest for each Assigned
Facility as set forth on Schedule 1.




          2. The Assignor (i) makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in connection with the Credit
Agreement, any other Loan Document or any other instrument or document furnished pursuant thereto,
or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement, any other Loan Document or any other instrument or document furnished pursuant
thereto, other than it has not created any adverse claim upon the interest being assigned by it
hereunder and that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Borrower, any of the Borrower’s Subsidiaries or any other obligor or the performance or
observance by the Borrower, any of the Borrower’s Subsidiaries or any other obligor of any of their
respective obligations under the Credit Agreement or any other Loan Document or any other
instrument or document furnished pursuant hereto or thereto; (iii) attaches the Note(s), if any,
held by it evidencing the Assigned Facilities and requests that the Administrative Agent exchange
such Note(s) for a new Note or Notes payable to the Assignee (if requested by the Assignee) and (if
the Assignor has retained any interest in the Assigned Facility) a new Note or Notes payable to the
Assignor (if requested by the Assignor) in the respective amounts which reflect the assignment
being made hereby (and after giving effect to any other assignments which have become effective on
the Effective Date); and (iv) represents and warrants that it is legally authorized to enter into
this Assignment and Acceptance.




          3. The Assignee (i) represents and warrants that it is legally authorized to enter into this
Assignment and Acceptance; (ii) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements referred to in subsection 5.04 of the Credit
Agreement and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance; (iii) agrees that it
will, independently and without reliance upon the Assignor, the Administrative Agent or any other
Lender and based on such documents and information as it shall deem appro-




G-1









 







priate at the time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement, the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto; (iv) appoints and authorizes the Administrative Agent (and the
applicable Collateral Agent) to take such action as agent on its behalf and to exercise such powers
and discretion under the Credit Agreement, the other Loan Documents or any other instrument or
document finished pursuant hereto or thereto as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are incidental thereto; and (v) agrees that it will be
bound by the provisions of the Credit Agreement and will perform in accordance with its terms all
the obligations which by the terms of the Credit Agreement are required to be performed by it as a
Lender including, if it is organized under the laws of a jurisdiction outside the United States,
its obligations pursuant to subsection 2.17(f) of the Credit Agreement to deliver the forms
prescribed by the Internal Revenue Service of the United States certifying as to the Assignee’s
exemption from United States withholding taxes with respect to all payments to be made to the
Assignee under the Credit Agreement, or such other documents as are necessary to indicate that all
such payments are subject to such tax at a rate reduced by an applicable tax treaty.




          4. The effective date of this Assignment and Acceptance shall be the date as set forth in
Schedule 1 hereof (the “Effective Date”). Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for acceptance by it and recording by
the Administrative Agent pursuant to subsection 9.04(b) of the Credit Agreement, effective as of
the Effective Date (which shall not, unless otherwise agreed to by the Administrative Agent, be
earlier than five Business Days after the date of such acceptance and recording by the
Administrative Agent).




          5. Upon such acceptance and recording, from and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the Assignee shall
make all appropriate adjustments in payments by the Administrative Agent for periods prior to the
Effective Date or with respect to the making of this assignment directly between themselves.




          6. From and after the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (ii) the Assignor shall, to the extent provided in this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement.




          7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK




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





	 	 	 	 	 	 	 	 

	ASSIGNEE	 	ASSIGNOR
	 
	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 
	 

	 	Name:
	 	 	 	Name:
	 

	 	Title:
	 	 	 	Title:






G-2









 






Accepted and Consented to:




	 	 	 	 	 
	NUANCE COMMUNICATIONS, INC.

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



	 	 	 	 	 
	UBS AG, STAMFORD BRANCH, as

Administrative Agent

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



	 	 	 	 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 




G-3









 





SCHEDULE

TO THE

AFFILIATED LENDER ASSIGNMENT AND ACCEPTANCE




Name of Assignor:




Name of Assignee:




Effective Date of Assignment:




	 	 	 	 	 
	 	 	 	 	Commitment or Loan Percentages Assigned
	 	 	 	 	(to at least fifteen decimals)
	Commitments or Loans	 	Principal	 	(shown as a percentage of aggregate
	Assigned	 	Amount Assigned	 	principal amount of all Lenders)
	 
	 	$
	 	%






G-4









 





ANNEX 1 TO AFFILIATED LENDER ASSIGNMENT AND ACCEPTANCE




STANDARD TERMS AND CONDITIONS FOR




AFFILIATED LENDER ASSIGNMENT AND ACCEPTANCE



          1. Representations and Warranties.




          1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Acceptance and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the performance or observance by
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.




          1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) from and after the Effective Date, it shall be bound by the provisions of
the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned
Interest, shall have the obligations of a Lender thereunder, (iii) it is sophisticated with respect
to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either
it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned
Interest, is experienced in acquiring assets of such type, (iv) it has received a copy of the
Credit Agreement, and has received or has been accorded the opportunity to receive copies of the
most recent financial statements delivered pursuant to Section 5.04 thereof, as applicable, and
such other documents and information as it deems appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance and to purchase [the][such] Assigned Interest
and (vi) 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
credit analysis and decision to enter into this Assignment and Acceptance and to purchase
[the][such] Assigned Interest, and (b) agrees that (i) it will, independently and without reliance
upon the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.




          2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to
but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date.




          3. General Provisions. This Assignment and Acceptance shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Acceptance may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Acceptance by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State of New York.





G-5