exv10w10



 





Exhibit 10.10




[Execution Version]




 





CREDIT AGREEMENT




Dated as of August 28, 2006




among




SOLECTRON CORPORATION




and




CERTAIN SUBSIDIARIES




as Borrowers,




BANK OF AMERICA, N.A.

as Administrative Agent and Collateral Agent,




The L/C Issuers Party Hereto




and




The Other Lenders Party Hereto,




JPMORGAN CHASE BANK, N.A., CITICORP USA, INC., and

THE BANK OF NOVA SCOTIA

as Co-Syndication Agents,




ABN AMRO BANK N.V.

as Document Agent,




and




BANC OF AMERICA SECURITIES LLC




and




J.P. MORGAN SECURITIES INC.




as




Joint Lead Arrangers and Joint Book Managers




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	ARTICLE I	 	DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 	 	 	 	 
	 	 	 	 
	 	1.01	 	 	Defined Terms
	 	 	1	 
	 	1.02	 	 	Other Interpretive Provisions
	 	 	28	 
	 	1.03	 	 	Accounting Terms
	 	 	29	 
	 	1.04	 	 	Rounding
	 	 	30	 
	 	1.05	 	 	Exchange Rates; Currency Equivalents
	 	 	30	 
	 	1.06	 	 	Additional Alternative Currencies
	 	 	30	 
	 	1.07	 	 	Change of Currency
	 	 	31	 
	 	1.08	 	 	Times of Day
	 	 	32	 
	 	1.09	 	 	Letter of Credit Amounts
	 	 	32	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE II	 	THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	32	 
	 	 	 	 	 
	 	 	 	 
	 	2.01	 	 	Committed Loans
	 	 	32	 
	 	2.02	 	 	Borrowings, Conversions and Continuations of Committed Loans
	 	 	32	 
	 	2.03	 	 	Letters of Credit
	 	 	34	 
	 	2.04	 	 	Swap Commitments
	 	 	45	 
	 	2.05	 	 	Prepayments
	 	 	45	 
	 	2.06	 	 	Termination or Reduction of Commitments
	 	 	46	 
	 	2.07	 	 	Repayment of Loans
	 	 	47	 
	 	2.08	 	 	Interest
	 	 	47	 
	 	2.09	 	 	Fees
	 	 	47	 
	 	2.10	 	 	Computation of Interest and Fees
	 	 	48	 
	 	2.11	 	 	Evidence of Debt
	 	 	49	 
	 	2.12	 	 	Payments Generally; Administrative Agent’s Clawback
	 	 	50	 
	 	2.13	 	 	Sharing of Payments by Lenders
	 	 	52	 
	 	2.14	 	 	Designated Borrowers
	 	 	53	 
	 	2.15	 	 	Increase in Commitments
	 	 	54	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE III	 	TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	55	 
	 	 	 	 	 
	 	 	 	 
	 	3.01	 	 	Taxes
	 	 	55	 
	 	3.02	 	 	Illegality
	 	 	57	 
	 	3.03	 	 	Inability to Determine Rates
	 	 	58	 
	 	3.04	 	 	Increased Costs; Reserves on Eurocurrency Rate Loans
	 	 	58	 
	 	3.05	 	 	Compensation for Losses
	 	 	60	 
	 	3.06	 	 	Mitigation Obligations; Replacement of Lenders
	 	 	61	 
	 	3.07	 	 	Survival
	 	 	61	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE IV	 	CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	61	 
	 	 	 	 	 
	 	 	 	 
	 	4.01	 	 	Conditions of Initial Credit Extension
	 	 	61	 
	 	4.02	 	 	Conditions to all Credit Extensions
	 	 	63	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE V	 	REPRESENTATIONS AND WARRANTIES
	 	 	64	 
	 	 	 	 	 
	 	 	 	 
	 	5.01	 	 	Existence, Qualification and Power; Compliance with Laws
	 	 	64	 






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TABLE OF CONTENTS
(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 	5.02	 	 	Authorization; No Contravention
	 	 	65	 
	 	5.03	 	 	Governmental Authorization; Other Consents
	 	 	65	 
	 	5.04	 	 	Binding Effect
	 	 	65	 
	 	5.05	 	 	Financial Statements; No Material Adverse Effect
	 	 	65	 
	 	5.06	 	 	Litigation
	 	 	66	 
	 	5.07	 	 	No Default
	 	 	66	 
	 	5.08	 	 	Ownership of Property; Liens
	 	 	66	 
	 	5.09	 	 	Environmental Compliance
	 	 	66	 
	 	5.10	 	 	Insurance
	 	 	66	 
	 	5.11	 	 	Taxes
	 	 	67	 
	 	5.12	 	 	ERISA Compliance
	 	 	67	 
	 	5.13	 	 	Subsidiaries
	 	 	67	 
	 	5.14	 	 	Margin Regulations; Investment Company Act
	 	 	68	 
	 	5.15	 	 	Disclosure
	 	 	68	 
	 	5.16	 	 	Taxpayer Identification Number
	 	 	68	 
	 	5.17	 	 	Intellectual Property; Licenses, Etc
	 	 	68	 
	 	5.18	 	 	Senior Indebtedness
	 	 	69	 
	 	5.19	 	 	Security Interest
	 	 	69	 
	 	5.20	 	 	No Restricted Junior Payments
	 	 	69	 
	 	5.21	 	 	Solvency
	 	 	69	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE VI	 	AFFIRMATIVE COVENANTS
	 	 	69	 
	 	 	 	 	 
	 	 	 	 
	 	6.01	 	 	Financial Statements
	 	 	69	 
	 	6.02	 	 	Certificates; Other Information
	 	 	70	 
	 	6.03	 	 	Notices
	 	 	72	 
	 	6.04	 	 	Payment of Obligations
	 	 	73	 
	 	6.05	 	 	Preservation of Existence, Etc
	 	 	73	 
	 	6.06	 	 	Maintenance of Properties
	 	 	73	 
	 	6.07	 	 	Maintenance of Insurance
	 	 	73	 
	 	6.08	 	 	Compliance with Laws
	 	 	73	 
	 	6.09	 	 	Books and Records
	 	 	73	 
	 	6.10	 	 	Inspection Rights
	 	 	73	 
	 	6.11	 	 	Compliance with ERISA
	 	 	74	 
	 	6.12	 	 	Use of Proceeds
	 	 	74	 
	 	6.13	 	 	Senior Indebtedness
	 	 	74	 
	 	6.14	 	 	Covenant to Guarantee Obligations and Give Security
	 	 	74	 
	 	6.15	 	 	Post-Closing Items
	 	 	77	 
	 	6.16	 	 	Reestablishment of Liens under the Security Agreement
	 	 	77	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE VII	 	NEGATIVE COVENANTS
	 	 	77	 
	 	 	 	 	 
	 	 	 	 
	 	7.01	 	 	Liens
	 	 	77	 
	 	7.02	 	 	Investments
	 	 	80	 
	 	7.03	 	 	Indebtedness
	 	 	81	 






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TABLE OF CONTENTS
(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 	7.04	 	 	Fundamental Changes
	 	 	83	 
	 	7.05	 	 	Dispositions
	 	 	83	 
	 	7.06	 	 	Restricted Junior Payments
	 	 	84	 
	 	7.07	 	 	ERISA
	 	 	86	 
	 	7.08	 	 	Change in Nature of Business; Fiscal Year End
	 	 	86	 
	 	7.09	 	 	Transactions with Affiliates
	 	 	86	 
	 	7.10	 	 	Capital Expenditures
	 	 	86	 
	 	7.11	 	 	Burdensome Agreements
	 	 	86	 
	 	7.12	 	 	Use of Proceeds
	 	 	88	 
	 	7.13	 	 	Financial Covenants
	 	 	88	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE VIII	 	EVENTS OF DEFAULT AND REMEDIES
	 	 	89	 
	 	 	 	 	 
	 	 	 	 
	 	8.01	 	 	Events of Default
	 	 	89	 
	 	8.02	 	 	Remedies Upon Event of Default
	 	 	91	 
	 	8.03	 	 	Application of Funds
	 	 	92	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE IX	 	THE AGENTS
	 	 	93	 
	 	 	 	 	 
	 	 	 	 
	 	9.01	 	 	Appointment and Authority
	 	 	93	 
	 	9.02	 	 	Rights as a Lender
	 	 	93	 
	 	9.03	 	 	Exculpatory Provisions
	 	 	93	 
	 	9.04	 	 	Reliance by Agents
	 	 	94	 
	 	9.05	 	 	Delegation of Duties
	 	 	95	 
	 	9.06	 	 	Resignation of Administrative Agent and Collateral Agent
	 	 	95	 
	 	9.07	 	 	Non-Reliance on Agents and Other Lenders
	 	 	96	 
	 	9.08	 	 	No Other Duties, Etc
	 	 	97	 
	 	9.09	 	 	Administrative Agent May File Proofs of Claim
	 	 	97	 
	 	9.10	 	 	Collateral and Guaranty Matters
	 	 	98	 
	 	 	 	 	 
	 	 	 	 
	ARTICLE X	 	MISCELLANEOUS
	 	 	99	 
	 	 	 	 	 
	 	 	 	 
	 	10.01	 	 	Amendments, Etc
	 	 	99	 
	 	10.02	 	 	Notices; Effectiveness; Electronic Communication
	 	 	100	 
	 	10.03	 	 	No Waiver; Cumulative Remedies
	 	 	102	 
	 	10.04	 	 	Expenses; Indemnity; Damage Waiver
	 	 	102	 
	 	10.05	 	 	Payments Set Aside
	 	 	104	 
	 	10.06	 	 	Successors and Assigns
	 	 	105	 
	 	10.07	 	 	Treatment of Certain Information; Confidentiality
	 	 	108	 
	 	10.08	 	 	Right of Setoff
	 	 	109	 
	 	10.09	 	 	Interest Rate Limitation
	 	 	109	 
	 	10.10	 	 	Counterparts; Integration; Effectiveness
	 	 	110	 
	 	10.11	 	 	Survival of Representations and Warranties
	 	 	110	 
	 	10.12	 	 	Severability
	 	 	110	 
	 	10.13	 	 	Replacement of Lenders
	 	 	110	 
	 	10.14	 	 	Governing Law; Jurisdiction; Etc
	 	 	111	 






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TABLE OF CONTENTS
(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 	10.15	 	 	Waiver of Jury Trial
	 	 	112	 
	 	10.16	 	 	California Judicial Reference
	 	 	112	 
	 	10.17	 	 	No Advisory or Fiduciary Responsibility
	 	 	113	 
	 	10.18	 	 	USA PATRIOT Act Notice
	 	 	113	 
	 	10.19	 	 	Time of the Essence
	 	 	113	 
	 	10.20	 	 	Judgment Currency
	 	 	114	 
	 	10.21	 	 	Amendment and Restatement
	 	 	114	 






-iv-









 





TABLE OF CONTENTS
(continued)



SCHEDULES




	 	 	 	 	 	 	 
	 

	 	 	1.01-1	 	 	Mandatory Cost Formulae
	 

	 	 	2.01	 	 	Commitments and Applicable Percentages
	 

	 	 	10.02	 	 	Administrative Agent’s Office; Certain Addresses for Notices






EXHIBITS




	 	 	 	 	 
	 

	 	 	 	Form of
	 
	 	 	 	 
	 

	 	A
	 	Committed Loan Notice
	 

	 	B
	 	Note
	 

	 	C
	 	Compliance Certificate
	 

	 	D
	 	Assignment and Assumption
	 

	 	E
	 	Company Guaranty
	 

	 	F
	 	Subsidiary Guaranty
	 

	 	G
	 	Designated Borrower Request and Assumption Agreement
	 

	 	H
	 	Designated Borrower Notice
	 

	 	I
	 	Joinder Agreement
	 

	 	J
	 	Interco Subordination Agreement
	 

	 	K
	 	Intercompany Note
	 

	 	L
	 	Intercreditor Agreement
	 

	 	M

N
	 	Security Agreement

Pledge Agreement
	 

	 	O
	 	Opinion Matters






S-v









 





CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of August 28, 2006, among
SOLECTRON CORPORATION, a Delaware corporation (the “Company”), certain Subsidiaries of the
Company party hereto pursuant to Section 2.14 (each a “Designated Borrower” and,
together with the Company, the “Borrowers” and each a “Borrower”), each issuer of
letters of credit from time to time party hereto (collectively, the “L/C Issuers” and
individually, an “L/C Issuer”), the lending institutions from time to time party hereto
(collectively, the “Lenders” and individually, a “Lender”), and BANK OF AMERICA,
N.A., as Administrative Agent and Collateral Agent.



     The Company has requested that the L/C Issuers and the Lenders provide a revolving
multicurrency credit facility to the Company and its Designated Borrowers, and the L/C Issuers and
the Lenders are willing to do so on the terms and conditions set forth herein.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, (including in the recitals hereof), the
following terms shall have the meanings set forth below:



     “ACES” means any component debt instrument originally issued as part of the Borrower’s
Adjustable Conversion Rate Equity Securities issued under the Subordinated Indenture.



     “Acquisition” shall mean any transaction or series of related transactions for the
purpose of or resulting, directly or indirectly, in (a) the acquisition of in excess of 50% of the
Capital Stock of any Person, or otherwise causing any Person to become a Subsidiary, or (b) a
merger or consolidation or any other combination with another Person (other than a Person that is a
Subsidiary) in which the Company or a Subsidiary is the surviving entity.



     “Additional Secured Obligations” means any direct or indirect liability, contingent or
otherwise, of the Company or any of its Subsidiaries in respect of any foreign exchange and cash
management services (including treasury, depository, overdraft, credit or debit card, electronic
funds transfer and other cash management arrangements) provided by any Lender, including
obligations for the payment of fees, interest, charges, expenses, attorneys’ fees and disbursements
in connection therewith.



     “Additional Secured Obligation Documents” means any documents, instruments or
agreements evidencing any Additional Secured Obligations.



     “Additional Secured Obligation Provider” means any Lender making credit extensions to
the Company or any Subsidiaries pursuant to any Additional Secured Obligation Documents.



1









 





     “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means, with respect to any currency, the
Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02
with respect to such currency, or such other address or account with respect to such currency as
the Administrative Agent may from time to time notify to the Company, the L/C Issuers and the
Lenders.



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



     “Affiliate” means, with respect to any 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.



     “Agent” means each of the Administrative Agent and the Collateral Agent.



     “Agent/BAS Fee Letter” means the letter agreement, dated July 17, 2006, among the
Company, the Administrative Agent and the BAS.



     “Aggregate Commitments” means the Commitments of all the Lenders.



     “Agreement” means this Credit Agreement.



     “Alternative Currency” means (i) in the case of Loans, each of Euro, Sterling and Yen,
(ii) in the case of Letters of Credit, each of Euro, Sterling, Yen and Canadian Dollars, and (iii)
each other currency (other than Dollars) that is approved in accordance with Section 1.05.



     “Alternative Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as
determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such
time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for
the purchase of such Alternative Currency with Dollars.



     “Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time. If the commitment of each Lender to make Loans and the obligation of each
L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 or
if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be
determined based on the Applicable Percentage of such Lender most recently in effect, giving effect
to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth
opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.



     “Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Debt Rating as set forth below:



2









 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Applicable Rate
	Debt Ratings and	 	 	 	 	 	Eurodollar Rate Loans	 	Utilization Fee
	Pricing Levels	 	Unused Fee	 	and Letter of Credit Fee	 	(if Utilization exceeds 25%)
	Level 1:
	 	 	 	 	 	 	 	 	 	 	 	 
	Greater than BB by S&P

Greater than Ba2 by Moody’s
	 	 	0.200	%	 	 	1.00	%	 	 	0.00	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Level 2:
	 	 	 	 	 	 	 	 	 	 	 	 
	BB by S&P

Ba2 by Moody’s
	 	 	0.250	%	 	 	1.25	%	 	 	0.15	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Level 3:
	 	 	 	 	 	 	 	 	 	 	 	 
	BB- by S&P

Ba3 by Moody’s
	 	 	0.300	%	 	 	1.50	%	 	 	0.25	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Level 4:
	 	 	 	 	 	 	 	 	 	 	 	 
	B+ by S&P

B1 by Moody’s
	 	 	0.350	%	 	 	1.75	%	 	 	0.25	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Level 5:
	 	 	 	 	 	 	 	 	 	 	 	 
	Less than B+ by S&P

Less than B1 by Moody’s
	 	 	0.450	%	 	 	2.00	%	 	 	0.25	%








     “Debt Rating” means, as of any date of determination, the rating as
determined by either S&P or Moody’s (collectively, the “Debt Ratings”) of the
Company’s non-credit-enhanced, senior unsecured long-term debt; provided that (a) if
the respective Debt Ratings issued by the foregoing rating agencies differ by one level,
then the Pricing Level for the higher of such Debt Ratings shall apply (with the Debt Rating
for Pricing Level 1 being the highest and the Debt Rating for Pricing Level 5 being the
lowest); (b) if there is a split in Debt Ratings of more than one level, then the Pricing
Level that is one level lower than the Pricing Level of the higher Debt Rating shall apply;
and (c) if the Company does not have any Debt Rating, Pricing Level 5 shall apply.


Initially, the Applicable Rate shall be determined based upon Pricing Level 4. Thereafter, each
change in the Applicable Rate resulting from a publicly announced change in the Debt Rating shall
be effective, in the case of an upgrade, during the period commencing on the date of delivery by
the Company to the Administrative Agent of notice thereof pursuant to Section 6.03(f) and
ending on the date immediately preceding the effective date of the next such change and, in the
case of a downgrade, during the period commencing on the date of the public announcement thereof
and ending on the date immediately preceding the effective date of the next such change.




     “Applicable Time” means, with respect to any borrowings and payments in any
Alternative Currency, the local time in the place of settlement for such Alternative Currency as
may be reasonably determined by the Administrative Agent or the applicable L/C Issuer, as the case
may be, to be necessary for timely settlement on the relevant date in accordance with normal
banking procedures in the place of payment.



     “Applicant Borrower” has the meaning specified in Section 2.14.



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



3









 





     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.06(b), and accepted by the Administrative Agent, in substantially the form of
Exhibit D or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended August 26, 2005, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Company and its Subsidiaries.



     “Availability” means the Aggregate Commitments minus Total Outstandings.



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to
Section 8.02.



     “Bank of America” means Bank of America, N.A. and its successors.



     “BAS” means Banc of America Securities LLC, in its capacity as joint lead arranger and
joint book manager.



     “Base Rate”  means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such
day as publicly announced from time to time by Bank of America as its “prime rate.” The “prime
rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs
and desired return, general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced rate. Any change in
such rate announced by Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.



     “Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base
Rate Loans shall be denominated in Dollars.



4









 





     “Borrower” and “Borrowers” each has the meaning specified in the introductory
paragraph hereto.



     “Borrower Materials” has the meaning specified in Section 6.02.



     “Borrowing” means a Committed Borrowing.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is
located and:



     (a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect
of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to
this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings
in deposits in Dollars are conducted by and between banks in the London interbank eurodollar
market;



     (b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of
any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET Day;



     (c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, means any such day on which dealings in
deposits in the relevant currency are conducted by and between banks in the London or other
applicable offshore interbank market for such currency; and



     (d) if such day relates to any fundings, disbursements, settlements and payments in a currency
other than Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a currency other
than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be
carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan (other than
any interest rate settings), means any such day on which banks are open for foreign exchange
business in the principal financial center of the country of such currency.



     “Capital Stock” means all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, all equivalent ownership interests in a
Person (other than a corporation), including partnership interests and membership interests, and
all warrants, rights or options to purchase or other arrangements or rights to acquire any of the
foregoing, provided that in no event shall the term “Capital Stock” include Convertible
Notes.



     “Cash Collateralize” has the meaning specified in Section 2.03(g).



     “Cash Interest Coverage Ratio” means, as of any date of determination, the ratio of
Consolidated EBITDA for the fiscal quarter ending on such date to Consolidated Cash Interest
Charges during such fiscal quarter.



5









 





     “Cash Restructuring Charges” means, in respect of any period, any cash restructuring
charges taken by the Company and its Subsidiaries on a consolidated basis during such period in
accordance with GAAP.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “Change of Control” means, with respect to any Person, an event or series of events by
which:



     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, or any person or entity acting in its capacity as trustee, agent or other fiduciary
or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, except that such a person or group shall be deemed
to have “beneficial ownership” of all securities that such person or group has the unconditional
right to acquire (such right, an “option right”), whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of 35% or more of the equity securities of
such Person entitled to vote for members of the board of directors or equivalent governing body of
such Person on a partially-diluted basis (i.e., taking into account all such securities that such
person or group has the right to acquire pursuant to any option right); or



     (b) during any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of such Person cease to be composed of individuals (i)
who were members of that board or equivalent governing body on the first day of such period, (ii)
whose election or nomination to that board or equivalent governing body was approved by individuals
referred to in clause (i) above constituting at the time of such election or nomination at
least a majority of that board or equivalent governing body or (iii) whose election or nomination
to that board or other equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or nomination
at least a majority of that board or equivalent governing body.



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.



     “Code” means the Internal Revenue Code of 1986.



     “Collateral Agent” means Bank of America, in its capacity as collateral agent under
the Intercreditor Agreement, the Pledge Agreement, the Security Agreement and the Interco
Subordination Agreement.



     “Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to
the Borrowers pursuant to Section 2.01, and (b) purchase participations in L/C Obligations,
in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set
forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption
pursuant to



6









 







which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from
time to time in accordance with this Agreement.



     “Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of
the same Type, in the same currency and, in the case of Eurocurrency Rate Loans, having the same
Interest Period made by each of the Lenders pursuant to Section 2.01.



     “Committed Loan” has the meaning specified in Section 2.01.



     “Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion
of Committed Loans from one Type to the other, or (c) a continuation of Eurocurrency Rate Loans,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of
Exhibit A.



     “Common Stock Buy-Back” has the meaning specified in Section 7.06(f).



     “Company” has the meaning specified in the introductory paragraph hereto.



     “Company Guaranty” means the Company Guaranty made by the Company in favor of the
Administrative Agent, the L/C Issuers and the Lenders, substantially in the form of Exhibit
E.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
C.



     “Consolidated Cash Interest Charges” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum of cash payments for (a) all interest, premium
payments, fees, charges and related expenses of the Company and its Subsidiaries in connection with
borrowed money or in connection with the deferred purchase price of assets, in each case to the
extent treated as interest in accordance with GAAP, (b) the portion of rent expense of the Company
and its Subsidiaries with respect to such period under capital leases that is treated as interest
in accordance with GAAP and (c) the portion of rent expense comprising interest with respect to the
Synthetic Lease Obligations of the Company and its Subsidiaries plus any net payment made,
or minus any net payment received, by the Company or any consolidated Subsidiary under any
Swap Contract consisting of an interest rate swap relating to Indebtedness of the Company or any
such Subsidiary. This definition shall not include non-cash interest charges (including accretion
on the Company’s LYONs).



     “Consolidated EBITDA” means, for any period, for the Company and its Subsidiaries on a
consolidated basis, an amount equal to (a) Consolidated Net Income, plus (b) (i)
Consolidated Interest Charges, (ii) the amount of taxes, based on or measured by income, used or
included in the determination of such Consolidated Net Income, and (iii) the amount of depreciation
and amortization expense deducted in determining such Consolidated Net Income, minus (or
plus) (c) gains (or losses) on the retirement of Indebtedness to the extent increasing (or
decreasing) Consolidated Net Income, plus (d) the Non-Cash Restructuring Charges deducted
in calculating Consolidated Net Income for such period, plus (e) the Goodwill Impairment
Charges deducted in calculating Consolidated Net Income for such period, plus (f) the Cash
Restructuring Charges deducted in calculating Consolidated Net Income for such period,
provided that the cumulative aggregate amount of Cash Restructuring Charges taken during
all fiscal quarters occurring after



7









 







the fiscal quarter ending on May 26, 2006 shall not exceed $125,000,000 in the aggregate
during the term hereof.



     “Consolidated Indebtedness” means, as of any date of determination, the total of all
Indebtedness of the Company and its Subsidiaries outstanding on such date, after eliminating all
offsetting debits and credits between the Company and its Subsidiaries and all other items required
to be eliminated (other than Synthetic Lease Obligations) in the course of the preparation of
consolidated financial statements of the Company and its Subsidiaries in accordance with GAAP.



     “Consolidated Interest Charges” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, fees, charges
and related expenses of the Company and its Subsidiaries in connection with borrowed money
(including capitalized interest) or in connection with the deferred purchase price of assets, in
each case to the extent treated as interest in accordance with GAAP, (b) the portion of rent
expense of the Company and its Subsidiaries with respect to such period under capital leases that
is treated as interest in accordance with GAAP and (c) the portion of rent expense comprising
interest with respect to the Synthetic Lease Obligations of the Company and its Subsidiaries.



     “Consolidated Net Income” means, for any period, for the Company and its Subsidiaries
on a consolidated basis, the net income of the Company and its Subsidiaries from continuing
operations (before extraordinary items, and excluding gains or losses from Dispositions of assets)
for that period.



     “Consolidated Total Assets” means, as of the last day of any fiscal quarter, the total
assets of the Company and its Subsidiaries which would be shown as assets on a consolidated balance
sheet of the Company and its Subsidiaries prepared in accordance with GAAP, after eliminating all
amounts properly attributable to minority interests, if any, in the stock and surplus of
Subsidiaries. For purposes of Sections 7.02(n), 7.03(e), 7.03(i),
7.03(k), 7.05(j), and 7.11(f), Consolidated Total Assets shall be
calculated on a pro forma basis giving effect to any Permitted Acquisition from the date of the
financial statements referenced in any such section.



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



     “Control” means 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 ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.



     “Convertible Note Cash Conversion Settlement” means any settlement in cash received by
any holder of Convertible Notes upon any surrender of its Convertible Notes for conversion.



     “Convertible Notes” means notes or other Indebtedness that are convertible into
Capital Stock of the Company or any of its Subsidiaries at the option of the holders thereof
(including any such convertible notes or other Indebtedness providing for cash settlement in lieu
of delivery



8









 







of shares of Capital Stock upon any surrender of such notes or other Indebtedness for
conversion).



     “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



     “Debt Rating” has the meaning specified in the definition of “Applicable Rate.”



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



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



     “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate, plus (ii) 2% per annum;
provided, however, that with respect to a Eurocurrency Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable Rate and any
Mandatory Cost) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect
to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Committed Loans or participations in L/C Obligations required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder unless such failure has been
cured, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the date when due,
unless the subject of a good faith dispute unless such failure has been cured, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.



     “Designated Borrower” has the meaning specified in the introductory paragraph hereto.



     “Designated Borrower Notice” has the meaning specified in Section 2.14.



     “Designated Borrower Request and Assumption Agreement” has the meaning specified in
Section 2.14.



     “Disclosure Letter” means the Disclosure Letter, dated as of the date hereof, executed
by the Company and addressed to the Administrative Agent and the Lenders, as may be amended and
updated from time to time pursuant to the terms thereof.



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



9









 





     “Distribution” has the meaning specified in Section 7.06(f).



     “Dollar” and “$” mean lawful money of the United States.



     “Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency,
the equivalent amount thereof in Dollars as determined by the Administrative Agent or the
applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined
in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative
Currency.



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 10.06(b)(iii)); and provided further,
however, that an Eligible Assignee shall include only a Lender, an Affiliate of a Lender, an
Approved Fund or another Person, which, through its Lending Offices, is capable of lending the
applicable Alternative Currencies to the relevant Borrowers without the imposition of any
additional Indemnified Taxes.



     “EMU” means the economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam
Treaty of 1998.



     “EMU Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Company within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in



10









 







reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan
amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate.



     “Euro” and “EUR” mean the lawful currency of the Participating Member States
introduced in accordance with the EMU Legislation.



     “Eurocurrency Rate” means, for any Interest Period with respect to a Eurocurrency Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing quotations of BBA LIBOR
as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for deposits in the
relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for any reason, then the
“Eurocurrency Rate” for such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in the relevant currency for delivery on the
first day of such Interest Period in Same Day Funds in the approximate amount of the Eurocurrency
Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America’s London Branch (or other Bank of America
branch or Affiliate) to major banks in the London or other offshore interbank market for such
currency at their request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.



     “Eurocurrency Rate Loan” means a Committed Loan that bears interest at a rate based on
the Eurocurrency Rate. Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative
Currency. All Committed Loans denominated in an Alternative Currency must be Eurocurrency Rate
Loans.



     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded U.S. Subsidiary” means a U.S. Subsidiary that is a dormant, inactive or
name-holding Subsidiary and that does not own or hold any collateral of the type described in the
Security Agreement with a book value equal to or exceeding $10,000. Notwithstanding the foregoing,
the term “Excluded U.S. Subsidiary” shall include any Special Purpose Subsidiary.



     “Excluded Taxes” means, with respect to either Agent, any Lender, any L/C Issuer or
any other recipient of any payment to be made by or on account of any obligation of any Borrower
hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable Lending Office is located,
(b) any branch profits taxes imposed by the United States or any similar tax imposed by any other
jurisdiction in which such Borrower is located and (c) except as provided in the



11









 







following sentence, in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Company under Section 10.13), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability
(other than as a result of a Change in Law) to comply with Section 3.01(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new Lending Office (or assignment), to receive additional amounts from the applicable Borrower
with respect to such withholding tax pursuant to Section 3.01(a). Notwithstanding anything
to the contrary contained in this definition, “Excluded Taxes” shall not include any withholding
tax imposed at any time on payments made by or on behalf of a Foreign Obligor to any Lender
hereunder or under any other Loan Document, provided that such Lender shall have complied
with the last paragraph of Section 3.01(e).



     “Existing Credit Agreement” means that certain Credit Agreement dated as of August 20,
2004, among the Company, Bank of America, as agent, and a syndicate of lenders, as amended.



     “Existing Letters of Credit” means the letters of credit listed on Schedule 1.01-2 to
the Disclosure Letter.



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



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by the Administrative
Agent.



     “Fee Letters” means the Agent/BAS Fee Letter, the JPMS Fee Letter and the Issuer Fee
Letters.



     “First Tier non-U.S. Subsidiary” means, at any date of determination, each non-U.S.
Material Subsidiary in which the Company or any of its U.S. Subsidiaries owns directly more than
50%, in the aggregate, of the Capital Stock of such Subsidiary.



     “Foreign Lender” means, with respect to any Borrower, any Lender that is organized
under the laws of a jurisdiction other than that in which such Borrower is resident for tax
purposes. For purposes of this definition, the United States, each State thereof and the District
of Columbia shall be deemed to constitute a single jurisdiction.



     “Foreign Obligor” means a Loan Party that is a non-U.S. Subsidiary.



12









 





     “Foreign Plan” shall mean any employee benefit plan maintained by the Company or any
of its Subsidiaries which is mandated or governed by any Laws of any Governmental Authority other
than the United States.



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



     “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



     “Goodwill Impairment Charges” means, in respect of any period, any goodwill impairment
charges taken by the Company and its Subsidiaries on a consolidated basis during such period in
accordance with GAAP.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guarantying or having the economic effect of guarantying any Indebtedness payable or
performable by another Person (the “primary obligor”) in any manner, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness, (ii) to purchase or
lease property, securities or services for the purpose of assuring the obligee in respect of such
Indebtedness of the payment or performance of such Indebtedness, (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 (iv) entered into for the purpose of
assuring in any other manner the obligees in respect of such Indebtedness of the payment or
performance thereof or to protect such obligees against loss in respect thereof (in whole or in
part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is assumed by such
Person; provided, however, that the term “Guarantee” shall not include (i)
endorsements of instruments for deposit or collection in the ordinary course of business or (ii)
ordinary course indemnification obligations not constituting financial undertakings. The amount of
any Guarantee shall be deemed to be, in the case of clause (a) above, an amount equal to
the stated or determinable amount of the related primary obligation, or portion thereof, in respect
of which such Guarantee is made or, if not stated or determinable, the maximum



13









 







reasonably anticipated liability in respect thereof as determined by the guarantying Person in
good faith, and in the case of clause (b) above, an amount equal to the lesser of the
outstanding amount of such secured Indebtedness or the Fair Market Value of the assets subject to
such Lien.



     “Guaranties” means the Company Guaranty and the Subsidiary Guaranty.



     “Indebtedness” means, without duplication, as to any Person at a particular time, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:



     (a) all obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements or other similar instruments;



     (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), banker’s acceptances, bank guaranties, surety bonds and similar
instruments, other than letters of credit issued to guarantee performance under operating leases or
to guarantee payment of worker’s compensation claims in an aggregate amount at any time not to
exceed $50,000,000;



     (c) all obligations (whether or not currently owed) of such Person with respect to Swap
Termination Values;



     (d) all obligations of such Person to pay the deferred purchase price of property or services;



     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have been assumed by such
Person or is limited in recourse;



     (f) all Attributable Indebtedness in respect of capital leases and Synthetic Lease
Obligations; and



     (g) all Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall (i) include the Indebtedness of
any partnership or joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which such Person is a general partner or a joint venturer, unless
such Indebtedness is expressly made non-recourse to such Person and to any holder of an equity
interest in such Person (subject only to customary recourse exceptions acceptable to the Required
Lenders), and (ii) exclude (A) inchoate indemnity obligations relating to such Indebtedness and (B)
trade accounts payable in the ordinary course of business. For the purposes of calculating the
amount of Indebtedness hereunder, accrued interest not due and payable shall be ignored.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 10.04(b).



14









 





     “Insignificant Subsidiary” means at any time during any fiscal year of the Company,
any Subsidiary of the Company with revenues (determined by reference to its latest quarterly
financial statements) for the trailing 12-month period then ended not exceeding $25,000,000.



     “Intercompany Indebtedness” means Indebtedness (whether or not evidenced by a writing)
of the Company or any of its Subsidiaries payable to, as applicable, the Company or any of its
Subsidiaries.



     “Intercompany Note” means each Intercompany Note (if any) executed by (a) any Loan
Party evidencing Intercompany Indebtedness of such Loan Party payable to the Company or any of its
Subsidiaries, or (b) any Subsidiary of the Company evidencing Intercompany Indebtedness of such
Subsidiary payable to any Loan Party, in each case, substantially in the form of Exhibit K.



     “Interco Subordination Agreement” means the Interco Subordination Agreement, dated the
date hereof, among the Loan Parties, each Subsidiary that may from time to time become a payee on
any Intercompany Indebtedness owed by a Loan Party, and the Collateral Agent substantially in the
form of Exhibit J.



     “Intercreditor Agreement” means the Intercreditor Agreement executed by the Collateral
Agent and the Administrative Agent substantially in the form of Exhibit L.



     “Information” has the meaning specified in Section 10.07.



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each
March, June, September and December and the Maturity Date.



     “Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on
the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency
Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the
Company in its Committed Loan Notice or such other period that is twelve months or less requested
by the Company and consented to by all the Lenders; provided that:



     (a) any Interest Period that would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless such Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding Business Day;



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



     (c) no Interest Period shall extend beyond the Maturity Date.



15









 





     “Interest Rate Swap” has the meaning set forth in Section 2.04(a).



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Capital Stock of
another Person, (b) a loan, advance or capital contribution to, guarantee or assumption of
Indebtedness of, or purchase or other acquisition of any other Indebtedness in another Person, or
(c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit; provided that any contribution of any IP
Rights to such other Person in the form of know how or other similar form shall not constitute an
“Investment.” For purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or decreases in the value of
such Investment.



     “IP Rights” has the meaning set forth in Section 5.16.



     “IRS” means the United States Internal Revenue Service.



     “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).



     “Issuer Documents” means with respect to any Letter of Credit, the Letter Credit
Application, and any other document, agreement and instrument entered into by any L/C Issuer and
the Company (or any Subsidiary) or in favor of any L/C Issuer and relating to any Letter of Credit.



     “Issuer Fee Letters” means (i) as to Bank of America, the Agent/BAS Fee Letter, and
(ii) as to any other L/C Issuer, any letter agreement or other document, agreement or instrument
setting forth the agreement between the Company and such L/C Issuer relating to the fronting fee
payable to such L/C Issuer pursuant to Section 2.03(j).



     “Joinder Agreement” means a Joinder Agreement in substantially the form of Exhibit
I, as modified or supplemented as provided in Section 2.04.



     “Joint Lead Arrangers” means each of BAS and JPMS.



     “JPMorgan Chase” means JPMorgan Chase Bank, N.A. and its successors.



     “JPMS” means J.P. Morgan Securities, Inc., in its capacity as joint lead arranger and
joint book manager.



     “JPMS Fee Letter” means the letter agreement, dated July 17, 2006, among the Company,
JPMorgan Chase and JPMS.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof,



16









 







and all applicable administrative orders, directed duties, requests, licenses, authorizations
and permits of, and agreements with, any Governmental Authority, in each case whether or not having
the force of law.



     “L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable Percentage. All L/C Advances
shall be denominated in Dollars.



     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Committed
Borrowing. All L/C Borrowings shall be denominated in Dollars.



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or renewal or extension of the expiry date thereof, or the increase of the amount thereof.



     “L/C Issuer” means each of Bank of America and Union Bank of California, N.A., each in
its capacity as issuer of Letters of Credit hereunder, and any successor or additional issuer of
Letters of Credit hereunder.



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.08. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes a Lender in its capacity as an L/C Issuer; provided that, solely
for purposes of the Guaranties, the Pledge Agreement, the Security Agreement, the Interco
Subordination Agreement and the Intercreditor Agreement, as well as Article IX,
Sections 10.02, 10.03, 10.04(a) and (b), and 10.05,
“Lenders” shall also include any Swap Counterparty hereunder and any Additional Secured Obligation
Provider.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Company and the Administrative Agent.



     “Letter of Credit” means any standby letter of credit issued hereunder and shall
include the Existing Letters of Credit. Letters of Credit may be issued in Dollars or in an
Alternative Currency.



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the applicable L/C Issuer.



17









 





     “Letter of Credit Expiration Date” means the day that is seven days prior to the
Maturity Date for Committed Loans then in effect (or, if such day is not a Business Day, the next
preceding Business Day).



     “Letter of Credit Fee” has the meaning specified in Section 2.03(i).



     “Letter of Credit Sublimit” means an amount equal to $100,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.



     “Leverage Ratio” means, as of any date of determination, the ratio of Consolidated
Indebtedness (other than Indebtedness under the ACES and LYONs) as of such date to Consolidated
EBITDA (measured on the basis of a rolling four-quarter fiscal period) for the period then ended.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), fixed or floating charge, or other security interest or
preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and any financing lease having
substantially the same economic effect as any of the foregoing), including the interest of a
purchaser of accounts receivable.



     “Liquidity” means, as of any date of determination, the sum of (i) cash, (ii) cash
equivalents, and (iii) marketable securities, in each case not subject to a Lien (other than Liens
in favor of the Collateral Agent pursuant to the Loan Documents and any nonconsensual Permitted
Liens), in escrow, constituting a sinking fund or otherwise dedicated to a specific purpose or
subject to any other restrictions on use.



     “Loan” means an extension of credit by a Lender to a Borrower under Article II
in the form of a Committed Loan.



     “Loan Documents” means this Agreement, each Designated Borrower Request and Assumption
Agreement, each Note, each Issuer Document, the Fee Letters, the Guaranties, the Pledge Agreement,
the Security Agreement, the Interco Subordination Agreement, the Intercreditor Agreement and any
Intercompany Note, provided that, solely for purposes of the Guaranties, the Pledge
Agreement, the Security Agreement, the Interco Subordination Agreement and the Intercreditor
Agreement, as well as Sections 2.04, 10.04(b) and 10.10, “Loan Documents”
shall also include any Interest Rate Swap and any Joinder Agreement pursuant to Section
2.04.



     “Loan Document Parties” means, collectively, the Company and each Subsidiary party to
a Loan Document.



     “Loan Parties” means, collectively, the Company, each Subsidiary Guarantor and each
Designated Borrower.



     “LYONs” means the Borrower’s Liquid Yield Option Notes (Zero Coupon-Senior) due 2020
issued under a supplemental indenture dated as of May 8, 2000 and a supplemental



18









 







indenture dated as of November 20, 2000 and the Borrower’s Liquid Yield Option Notes (Zero
Coupon-Senior) due 2019, issued under an indenture dated as of January 27, 1999.



     “Mandatory Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.01-1.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of the Company or the Company and its Subsidiaries
taken as a whole; (b) a material impairment of the ability of any Loan Party to perform its payment
obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon
the legality, validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party.



     “Material Subsidiary” means at any time during any fiscal year of the Company, any
Subsidiary of the Company (other than a Special Purpose Subsidiary) with revenues (determined by
reference to its latest quarterly financial statements) for the trailing 12-month period then ended
in excess of $50,000,000. In determining whether a Subsidiary of the Company is a (a) U.S.
Material Subsidiary, the revenues of its Subsidiaries shall be excluded or (b) First Tier non-U.S.
Subsidiary, such Subsidiary’s revenues shall be deemed to include all the revenues of its
Subsidiaries.



     “Maturity Date” means (a) for Committed Loans, August 28, 2009; and (b) for Additional
Secured Obligations and Interest Rate Swaps, such maturity date as set forth in the applicable
Additional Secured Loan Obligation Document or Joinder Agreement; provided,
however, that if such date is not a Business Day, the Maturity Date shall be the next
preceding Business Day.



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



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding three calendar years, has made or been obligated to make
contributions.



     “Net Disposition Proceeds” means, in respect of any Disposition of any property, net
proceeds of such Disposition, calculated exclusive of reasonable out-of-pocket expenses and taxes
actually paid in connection with such Disposition in the fiscal year during which such Disposition
is consummated and exclusive of the amount of any Indebtedness secured solely or principally by
such property and actually repaid.



     “Net Proceeds” means, with respect to any divestiture of assets or property by any
Person, the aggregate consideration received by such Person from such divestiture minus the
amount of reasonable fees and commissions actually paid by such Person to Persons other than such
Person or any Affiliate of such Person in connection therewith.



     “Non-Cash Restructuring Charges” means, for any period, any non-cash restructuring
charges, other than charges relating to accounts receivable or inventory write-downs, taken by



19









 







the Company and its Subsidiaries during such period on a consolidated basis in accordance with
GAAP.



     “non-U.S. Subsidiary” means any Subsidiary of the Company that is not organized under
the laws of a jurisdiction of the United States or a state thereof, provided that, so long
as it is solely a holding company for one or more non-U.S. Subsidiaries, SEH shall be a non-U.S.
Subsidiary hereunder.



     “Note” means a promissory note made by a Borrower in favor of a Lender evidencing
Loans made by such Lender to such Borrower, substantially in the form of Exhibit B.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding;
provided that, solely for purposes of the Guaranties, the Pledge Agreement, the Security
Agreement, the Interco Subordination Agreement and the Intercreditor Agreement, as well as
Section 6.13, “Obligations” shall also include all obligations under Interest Rate Swaps,
Additional Secured Obligations and any Joinder Agreement pursuant to Section 2.04, and
provided, further, that for purposes of the Security Agreement, “Obligations” shall
exclude (i) any Interest Rate Swap and Joinder Agreement in respect of any Interest Rate Swap to
the extent secured by any cash collateral or standby letter of credit acceptable to the applicable
Swap Counterparty, and (ii) any Additional Secured Obligations to the extent that they arise from
any liabilities in respect of (A) the mark-to-market value of any foreign exchange contracts
exceeding $75,000,000 at any time outstanding, or (B) any treasury management facilities exceeding
three days’ exposure.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



     “Other Taxes” means 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, this Agreement or any other Loan Document.



20









 





     “Outstanding Amount” means (i) with respect to Committed Loans on any date, the Dollar
Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of such Committed Loans occurring on such date; and (ii)
with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate
outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements by the Company of
Unreimbursed Amounts.



     “Overnight Rate” means, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the
Administrative Agent or the applicable L/C Issuer, as the case may be, in accordance with banking
industry rules on interbank compensation, and (b) with respect to any amount denominated in an
Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable
Alternative Currency, in an amount approximately equal to the amount with respect to which such
rate is being determined, would be offered for such day by a branch or Affiliate of Bank of America
in the applicable offshore interbank market for such currency to major banks in such interbank
market.



     “Participant” has the meaning specified in Section 10.06(d).



     “Participating Member State” means each state so described in any EMU Legislation.



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “PCAOB” means the Public Company Accounting Oversight Board.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Company or any ERISA Affiliate or to which the Company or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



     “Permitted Acquisition” means any acquisition by the Company or any of its
Subsidiaries, whether by purchase, merger or otherwise, of all or substantially all of the assets
of, or at least 80% of the voting Capital Stock of, or a business line, unit or division of, any
Person; provided that,



     (a) all transactions in connection therewith shall have been consummated, in all material
respects to the extent then required to be consummated in accordance with all applicable laws and
in conformity with all applicable regulations and requirements of Governmental Authorities;



     (b) in the case of the acquisition of Capital Stock, at least 80% of the voting Capital Stock
(except for any such Capital Stock in the nature of directors’ qualifying shares required pursuant
to applicable law) acquired or otherwise issued by such Person or any newly formed Subsidiary of
the Company in connection with such acquisition shall be owned by the Company



21









 







or any Subsidiary, and the Company shall have taken, or caused to be taken, as of the date
such Person becomes a Subsidiary of the Company, each of the actions set forth in Section
6.14 in the case of a Material Subsidiary;



     (c) the Company and its Subsidiaries shall be in compliance with the financial covenants set
forth in Section 7.13 on a pro forma basis after giving effect to such acquisition as of
the last day of the fiscal quarter most recently ended (as determined in accordance with
Section 7.13), and immediately prior to, and after giving effect thereto, no Default shall
have occurred and be continuing or would result therefrom;



     (d) with respect to any acquisition the Fair Market Value of the consideration for which is in
excess of $50,000,000, the Company shall have delivered to the Administrative Agent at least five
Business Days prior to such proposed acquisition, a Compliance Certificate evidencing compliance
with Section 7.13 as required under clause (c) above, together with all relevant
financial information with respect to such acquired assets, including the aggregate consideration
for such acquisition and any other information required to demonstrate compliance with Section
7.13; and



     (e) any Person or assets or division as acquired in accordance herewith shall be in the same
line of business or lines of business in which the Company and/or its Subsidiaries are engaged as
of the Closing Date, or lines of business reasonably related or incidental thereto or reasonable
extensions thereof;



and provided further, however, that if the Leverage Ratio, as determined on
a pro forma basis as provided in clause (c) above, shall be greater than the then-applicable
maximum Leverage Ratio set forth under Section 7.13 minus 0.5, then the aggregate amount of
Permitted Acquisitions during any twelve-month period shall not exceed $300,000,000.



     “Permitted Lien” has the meaning set forth in Section 7.01.



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



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Company or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, any ERISA Affiliate.



     “Platform” has the meaning specified in Section 6.02.



     “Pledge Agreement” means the Pledge Agreement dated as of the date hereof and made by
the Company and each U.S. Subsidiary party thereto in favor of the Collateral Agent for the benefit
of the Lenders, substantially in the form of Exhibit N.



     “Receivables” means all rights to payment arising out of the sale or lease of goods or
the performance of services in the ordinary and usual course of business, however evidenced.



     “Receivables Financing Program” means, with respect to any Person, an agreement or
other arrangement or program providing for the advance of funds to such Person against the



22









 







pledge, contribution, sale or other transfer or encumbrances of Receivables Program Assets of
such Person or such Person and/or one or more of its Subsidiaries.



     “Receivables Program Assets” means all of the following property and interests in
property, including any undivided interest in any pool of any such property or interests, whether
now existing or existing in the future or hereafter arising or acquired:



     (a) accounts (as defined in the Uniform Commercial Code or any similar or equivalent
legislation as in effect in any applicable jurisdiction);



     (b) accounts receivable, general intangibles, instruments, contract rights, documents and
chattel paper (including, without limitation, all rights to payment created by or arising from
sales of goods, leases of goods or the rendition of services, no matter how evidenced, whether or
not earned by performance);



     (c) all unpaid sellers’ or lessors’ rights (including, without limitation, rescission,
replevin, reclamation and stoppage in transit) relating to any of the foregoing or arising
therefrom;



     (d) all rights to any goods or merchandise represented by any of the foregoing;



     (e) all reserves and credit balances with respect to any such accounts receivable or account
debtors;



     (f) all letters of credit, security or guarantees of any of the foregoing;



     (g) all insurance policies or reports relating to any of the foregoing;



     (h) all collection or deposit accounts relating to any of the foregoing;



     (i) all books and records relating to any of the foregoing;



     (j) all instruments, contract rights, chattel paper, documents and general intangibles
relating to any of the foregoing; and



     (k) all proceeds of any of the foregoing.



     “Register” has the meaning specified in Section 10.06(c).



     “Registered Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Company as prescribed by the Securities Laws.



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



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



23









 





     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Committed Loans, a Committed Loan Notice, and (b) with respect to an L/C Credit
Extension, a Letter of Credit Application.



     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations being deemed “held” by such Lender for purposes of this definition); provided
that the Commitment of, and the portion of the Total Outstandings held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer or assistant treasurer of a Loan Party. Any document delivered hereunder that
is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such
Loan Party.



     “Restricted Junior Payment” means (i) any dividend or other distribution on account of
any shares of any Capital Stock of the Company or any Subsidiary now or hereafter outstanding; (ii)
any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for
value of Capital Stock of the Company or any Subsidiary now or hereafter outstanding; (iii) any
cash payment made to retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of stock of the Company or any Subsidiary now or
hereafter outstanding; and (iv) any payment or prepayment of principal of, premium, if any, or
interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal
defeasance), sinking fund or similar payment with respect to, any Subordinated Indebtedness;
provided that no Restricted Junior Payment shall be deemed to occur upon the “cashless
exercise” of any options or warrants of the Company or any Subsidiary by the holder thereof if such
exercise does not result in the deemed repayment, forgiveness or other cancellation of Indebtedness
owing to the Company or any of its Subsidiaries; provided further, that (for the
avoidance of doubt) no Restricted Junior Payment shall be deemed to occur with respect to (A) the
delivery of Capital Stock upon conversion of or in exchange for any Convertible Note, (B) the ACES
converting from Subordinated Indebtedness into senior Indebtedness in accordance with their terms,
(C) any repurchase, prepayments, redemption or acquisition of the LYONs that does not violate the
terms of this Agreement, or (D) any Convertible Note Cash Conversion Settlement in respect of any
Senior Convertible Notes, or any other payment, prepayment, redemption, retirement, sinking fund or
similar payment, purchase or other acquisition of any Senior Convertible Notes, including any
payment of interest or premium thereon, other than any portion of any Convertible
Note Cash Conversion Settlement resulting from an optional election by the Company to effect
settlement of conversion in cash.



     “Revaluation Date” means (a) with respect to any Loan, each of the following: (i)
each date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency,



24









 




(ii) each date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative
Currency pursuant to Section 2.02, and (iii) such additional dates as the Administrative
Agent shall determine or the Required Lenders shall require; and (b) with respect to any Letter of
Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in an
Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect
of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of
any payment by any L/C Issuer under any Letter of Credit denominated in an Alternative Currency,
(iv) in the case of the Existing Letters of Credit, August 28, 2006, and (v) such additional dates
as the Administrative Agent or any L/C Issuer shall determine or the Required Lenders shall
require.




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



     “Same Day Funds” means (a) with respect to disbursements and payments in Dollars,
immediately available funds, and (b) with respect to disbursements and payments in an Alternative
Currency, same day or other funds as may be determined by the Administrative Agent or the
applicable L/C Issuer, as the case may be, to be customary in the place of disbursement or payment
for the settlement of international banking transactions in the relevant Alternative Currency.



     “Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the PCAOB.



     “Security Agreement” means the Security Agreement dated as of the date hereof and made
by the Company and each U.S. Subsidiary (other than the Excluded U.S. Subsidiaries) in favor of the
Collateral Agent for the benefit of the Lenders, in substantially the form of Exhibit M.



     “SEH” means Solectron Europe Holdings LLC.



     “Senior Convertible Notes” means any Convertible Notes other than Convertible Notes
which constitute Subordinated Indebtedness.



     “Senior Notes” has the meaning set forth in Schedule 7.03 to the Disclosure Letter.



     “Solvent” means, with respect to any Person, that as of the date of determination both
(i) (a) the sum of such Person’s debt (including contingent liabilities) does not exceed all of its
property, at a fair valuation; (b) the Person is able to pay the probable liabilities on such
Person’s then existing debts as they become absolute and matured; (c) such Person’s capital is not
unreasonably small in relation to its business or any contemplated or undertaken transaction; and
(d) such Person does not intend to incur, or believe (nor should it reasonably believe) that it
will



25









 







incur, debts beyond its ability to pay such debts as they become due; and (ii) such Person is
“solvent” within the meaning given that term and similar terms under applicable laws relating to
fraudulent transfers and conveyances. For purposes of this definition, the amount of any
contingent liability at any time shall be computed as the amount that, in light of all of the facts
and circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability (irrespective of whether such contingent liabilities meet the
criteria for accrual under Statement of Financial Accounting Standards No. 5).



     “Special Notice Currency” means at any time an Alternative Currency, other than the
currency of a country that is a member of the Organization for Economic Cooperation and Development
at such time located in North America or Europe.



     “Special Purpose Subsidiary” means any bankruptcy remote special purpose subsidiary of
the Company or any of its Subsidiaries formed for the purpose of securitizing accounts receivable
or undivided interests therein and/or other related assets transferred by the Company and/or any of
its other Subsidiaries to such subsidiary for financing purposes.



     “Spot Rate” for a currency means the rate determined by the Administrative Agent or
the applicable L/C Issuer, as applicable, to be the rate quoted by the Person acting in such
capacity as the spot rate for the purchase by such Person of such currency with another currency
through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two
Business Days prior to the date as of which the foreign exchange computation is made;
provided that the Administrative Agent or the applicable L/C Issuer may obtain such spot
rate from another financial institution designated by the Administrative Agent or such L/C Issuer
if the Person acting in such capacity does not have as of the date of determination a spot buying
rate for any such currency; and provided further that an L/C Issuer may use such
spot rate quoted on the date as of which the foreign exchange computation is made in the case of
any Letter of Credit denominated in an Alternative Currency.



     “Sterling” and “£” mean the lawful currency of the United Kingdom.



     “Subordinated Indebtedness” means (i) the ACES until such time as they shall have
become senior Indebtedness in accordance with their terms, (ii) Intercompany Indebtedness of the
Company or any of its Subsidiaries subordinated in right of payment to the Obligations pursuant to
the Interco Subordination Agreement and (iii) other subordinated Indebtedness of the Company or any
of its Subsidiaries with subordination terms not materially less favorable to the Lenders than
those contained in the Indenture, dated as of February 21, 2006, by and among Solectron Global
Finance LTD, the Company and U.S. Bank National Association, as trustee.



     “Subordinated Indenture” means the indenture, dated December 27, 2001, by and between
Solectron Corporation and State Street Bank and Trust Company of California, N.A., as trustee, and
any other document, supplement, instrument or other agreement evidencing Subordinated Indebtedness
issued thereunder.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than



26









 







securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise Controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Company.



     “Subsidiary Guarantors” means each direct and indirect U.S. Material Subsidiary
whether now existing or hereafter acquired or organized.



     “Subsidiary Guaranty” means the Subsidiary Guaranty made by the Subsidiary Guarantors
in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit
F.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



     “Swap Counterparty” has the meaning set forth in Section 2.04(a).



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



27









 





     “TARGET Day” means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be
operative, such other payment system (if any) determined by the Administrative Agent to be a
suitable replacement) is open for the settlement of payments in Euro.



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.



     “Threshold Amount” means $25,000,000.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.



     “Type” means, with respect to a Committed Loan, its character as a Base Rate Loan or a
Eurocurrency Rate Loan.



     “Unfriendly Acquisition” means any Acquisition that has not, at the time of the first
public announcement of an offer relating thereto, been approved by the board of directors (or other
legally recognized governing body) of the Person to be acquired; except that with respect to any
Acquisition of a non-U.S. Person, an otherwise friendly Acquisition shall not be deemed to be
unfriendly if it is not customary in such jurisdiction to obtain such approval prior to the first
public announcement of an offer relating to a friendly Acquisition.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.



     “United States” and “U.S.” mean the United States of America.



     “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).



     “U.S. Material Subsidiary” means any U.S. Subsidiary that is a Material Subsidiary.



     “U.S. Subsidiary” means any Subsidiary of the Company that is organized under the laws
of a jurisdiction of the United States or a state thereof, which is not owned directly or
indirectly by a non-U.S. Subsidiary, provided that, so long as it is solely a holding
company for one or more non-U.S. Subsidiaries, SEH shall not be a U.S. Subsidiary hereunder, and
provided further that Solectron USA, Inc. shall be a U.S. Subsidiary for all
purposes hereunder.



     “Wal-Mart Letter of Credit” means that certain letter of credit no. S235913, listed on
Schedule 1.01-2 to the Disclosure Letter.



     “Yen” and “¥” mean the lawful currency of Japan.



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



28









 





     (a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word
“will” shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be construed as referring
to such agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications
set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending replacing or interpreting
such law and any reference to any law or regulation shall, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented from time to time, and (vi) the words
“asset” and “property” shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.



     (b) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;”
and the word “through” means “to and including.”



     (c) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.



     1.03 Accounting Terms.



     (a) Generally. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements, except as
otherwise specifically prescribed herein.



     (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Company or the
Required Lenders shall so request, the Administrative Agent, the Lenders and the Company shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Company shall



29









 







provide to the Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving effect to such
change in GAAP.



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



     1.05 Exchange Rates; Currency Equivalents.



     (a) The Administrative Agent or the applicable L/C Issuer, as applicable, shall determine the
Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of
Credit Extensions and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates
shall become effective as of such Revaluation Date and shall be the Spot Rates employed in
converting any amounts between the applicable currencies until the next Revaluation Date to occur.
Except for purposes of financial statements delivered by Loan Parties hereunder or calculating
financial covenants hereunder or except as otherwise provided herein, the applicable amount of any
currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent
amount as so determined by the Administrative Agent or the applicable L/C Issuer, as applicable.



     (b) Wherever in this Agreement in connection with a Committed Borrowing, conversion,
continuation or prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension of a
Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in
Dollars, but such Committed Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in
an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such
Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being
rounded upward), as determined by the Administrative Agent or the applicable L/C Issuer, as the
case may be.



     1.06 Additional Alternative Currencies.



     (a) The Company may from time to time request that Eurocurrency Rate Loans be made and/or
Letters of Credit be issued in a currency other than those specifically listed in the definition of
“Alternative Currency”; provided that such requested currency is a lawful currency (other than
Dollars) that is readily available and freely transferable and convertible into Dollars. In the
case of any such request with respect to the making of Eurocurrency Rate Loans, such request shall
be subject to the approval of the Administrative Agent and the Lenders; and in the case of any such
request with respect to the issuance of Letters of Credit, such request shall be subject to the
approval of the Administrative Agent and the applicable L/C Issuer.



     (b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m., 20
Business Days prior to the date of the desired Credit Extension (or such other time or date as may
be agreed by the Administrative Agent and, in the case of any such request



30









 







pertaining to Letters of Credit, the applicable L/C Issuer, in its or their sole discretion).
In the case of any such request pertaining to Eurocurrency Rate Loans, the Administrative Agent
shall promptly notify each Lender thereof; and in the case of any such request pertaining to
Letters of Credit, the Administrative Agent shall promptly notify the applicable L/C Issuer
thereof. Each Lender (in the case of any such request pertaining to Eurocurrency Rate Loans) or
the applicable L/C Issuer (in the case of a request pertaining to Letters of Credit) shall notify
the Administrative Agent, not later than 11:00 a.m., ten Business Days after receipt of such
request whether it consents, in its sole discretion, to the making of Eurocurrency Rate Loans or
the issuance of Letters of Credit, as the case may be, in such requested currency.



     (c) Any failure by a Lender or any L/C Issuer, as the case may be, to respond to such request
within the time period specified in the preceding sentence shall be deemed to be a refusal by such
Lender or such L/C Issuer, as the case may be, to permit Eurocurrency Rate Loans to be made or
Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the
Lenders consent to making Eurocurrency Rate Loans in such requested currency, the Administrative
Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to
be an Alternative Currency hereunder for purposes of any Committed Borrowings of Eurocurrency Rate
Loans; and if the Administrative Agent and such L/C Issuer consent to the issuance of Letters of
Credit in such requested currency, the Administrative Agent shall so notify the Company and such
currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for
purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain
consent to any request for any additional currency under this Section 1.05, the
Administrative Agent shall promptly so notify the Company. Any specified currency of an Existing
Letter of Credit of any L/C Issuer that is neither Dollars nor one of the Alternative Currencies
specifically listed in the definition of “Alternative Currency” shall be deemed an Alternative
Currency with respect to such Existing Letter of Credit only.



     1.07 Change of Currency.



     (a) Each obligation of the Borrowers to make a payment denominated in the national currency
unit of any member state of the European Union that adopts the Euro as its lawful currency after
the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with
the EMU Legislation). If, in relation to the currency of any such member state, the basis of
accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent
with any convention or practice in the London interbank market for the basis of accrual of interest
in respect of the Euro, such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful currency;
provided that if any Committed Borrowing in the currency of such member state is
outstanding immediately prior to such date, such replacement shall take effect, with respect to
such Committed Borrowing, at the end of the then current Interest Period.



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



31









 





     (c) Each provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to reflect
a change in currency of any other country and any relevant market conventions or practices relating
to the change in currency.



     1.08 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Pacific time (daylight or standard, as applicable).



     1.09 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of
Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter
of Credit in effect at such time; provided, however, that with respect to any
Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides
for one or more automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of
Credit after giving effect to all such increases, whether or not such maximum stated amount is in
effect at such time.



ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Committed Loans. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a “Committed Loan”) to the Borrowers in
Dollars or in one or more Alternative Currencies from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of
such Lender’s Commitment; provided, however, that after giving effect to any
Committed Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and
(ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall not exceed
such Lender’s Commitment. Within the limits of each Lender’s Commitment, and subject to the other
terms and conditions hereof, the Borrowers may borrow under this Section 2.01, prepay under
Section 2.05, and reborrow under this Section 2.01. Committed Loans may be Base
Rate Loans or Eurocurrency Rate Loans, as further provided herein.



     2.02 Borrowings, Conversions and Continuations of Committed Loans.



     (a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other,
and each continuation of Eurocurrency Rate Loans shall be made upon the Company’s irrevocable
notice to the Administrative Agent, which may be given by telephone. Each such notice must be
received by the Administrative Agent not later than 9:00 a.m. (i) three Business Days prior to the
requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans
denominated in Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars to
Base Rate Committed Loans, (ii) four Business Days (or five Business Days in the case of a Special
Notice Currency) prior to the requested date of any Borrowing or continuation of
Eurocurrency Rate Loans denominated in Alternative Currencies, and (iii) on the requested date of
any Borrowing of Base Rate Committed Loans. Each telephonic notice by the Company pursuant to this
Section 2.02(a) must be confirmed promptly



32









 







by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of the Company. Each Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c), each
Committed Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Committed Loan Notice
(whether telephonic or written) shall specify (i) whether the Company is requesting a Committed
Borrowing, a conversion of Committed Loans from one Type to the other, or a continuation of
Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as
the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to
be borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which
existing Committed Loans are to be converted, (v) if applicable, the duration of the Interest
Period with respect thereto, (vi) the currency of the Committed Loans to be borrowed, and (vii) if
applicable, the Designated Borrower. If the Company fails to specify a currency in a Committed
Loan Notice requesting a Borrowing, then the Committed Loans so requested shall be made in Dollars.
If the Company fails to specify a Type of Committed Loan in a Committed Loan Notice or if the
Company fails to give a timely notice requesting a conversion or continuation, then the applicable
Committed Loans shall be made as, or converted to, Base Rate Loans; provided,
however, that in the case of a failure to timely request a continuation of Committed Loans
denominated in an Alternative Currency, such Loans shall be continued as Eurocurrency Rate Loans in
their original currency with an Interest Period of one month. Any automatic conversion to Base
Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurocurrency Rate Loans. If the Company requests a Borrowing of, conversion to,
or continuation of Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify
an Interest Period, it will be deemed to have specified an Interest Period of one month. No
Committed Loan may be converted into or continued as a Committed Loan denominated in a different
currency, but instead must be prepaid in the original currency of such Committed Loan and
reborrowed in the other currency.



     (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount (and currency) of its Applicable Percentage of the applicable
Committed Loans, and if no timely notice of a conversion or continuation is provided by the
Company, the Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans or continuation of Committed Loans denominated in a currency other
than Dollars, in each case as described in the preceding subsection. In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed Loan available to the Administrative
Agent in Same Day Funds at the Administrative Agent’s Office for the applicable currency not later
than 11:00 a.m., in the case of any Committed Loan denominated in Dollars, and not later than the
Applicable Time specified by the Administrative Agent in the case of any Committed Loan in an
Alternative Currency, in each case on the Business Day specified in the applicable Committed Loan
Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent
shall make all funds so received available to the Company or the other applicable Borrower in like
funds as received by the Administrative Agent either by (i) crediting the account of such Borrower
on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds,
in each case in accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Company; provided, however, that if,



33









 







on the date the Committed Loan Notice with respect to such Borrowing denominated in Dollars is
given by the Company, there are L/C Borrowings outstanding, then the proceeds of such Borrowing,
first, shall be applied to the payment in full of any such L/C Borrowings, and,
second, shall be made available to the applicable Borrower as provided above.



     (c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. During the
existence of a Default, no Loans may be requested as, converted to or continued as Eurocurrency
Rate Loans (whether in Dollars or any Alternative Currency) without the consent of the Required
Lenders, and the Required Lenders may demand that any or all of the then outstanding Eurocurrency
Rate Loans denominated in an Alternative Currency be prepaid, or redenominated into Dollars in the
amount of the Dollar Equivalent thereof, on the last day of the then current Interest Period with
respect thereto.



     (d) The Administrative Agent shall promptly notify the Company and the Lenders of the interest
rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such
interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall
notify the Company and the Lenders of any change in Bank of America’s prime rate used in
determining the Base Rate promptly following the public announcement of such change.



     (e) After giving effect to all Committed Borrowings, all conversions of Committed Loans from
one Type to the other, and all continuations of Committed Loans as the same Type, there shall not
be more than six Interest Periods in effect with respect to Committed Loans.



     2.03 Letters of Credit.



     (a) The Letter of Credit Commitments.




     (i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees,
in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1)
from time to time on any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in
one or more Alternative Currencies for the account of the Company or its Subsidiaries, and
to amend or extend Letters of Credit previously issued by it, in accordance with subsection
(b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for the account of the Company or
its Subsidiaries and any drawings thereunder; provided that after giving effect to
any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings
shall not exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the
Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all L/C Obligations shall not exceed such Lender’s Commitment, and (z)
the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit
Sublimit. Each request by the Company for the issuance or amendment of a Letter of Credit
shall be deemed to be a representation by the Company that the L/C Credit Extension so
requested complies with the conditions set forth in the proviso to the preceding sentence.
Within the foregoing limits, and subject to



34









 







the terms and conditions hereof, the Company’s ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Company may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or that have been
drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been
issued pursuant hereto, and from and after the Closing Date shall be subject to and governed
by the terms and conditions hereof.




     (ii) No L/C Issuer shall issue any Letter of Credit, if:




     (A) subject to Section 2.03(b)(iii), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of issuance or
last extension, unless the Required Lenders have approved such expiry date (provided
that the Wal-Mart Letter of Credit may have a term of 24 months after the date of
issuance or last extension); or




     (B) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Lenders (other than Defaulting
Lenders) have approved such expiry date.




     (iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:




     (A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such
Letter of Credit, or any Law applicable to such L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C
Issuer refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon such L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which such L/C
Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or
shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which such L/C Issuer in good faith deems
material to it;




     (B) the issuance of such Letter of Credit would violate one or more policies of
such L/C Issuer applicable to letters of credit generally;




     (C) except as otherwise agreed by the Administrative Agent and such L/C Issuer,
such Letter of Credit is in an initial stated amount less than $1,000,000;




     (D) except as otherwise agreed by the Administrative Agent and the applicable
L/C Issuer, such Letter of Credit is to be denominated in a currency other than
Dollars or an Alternative Currency;




     (E) such L/C Issuer does not as of the issuance date of such requested Letter
of Credit issue Letters of Credit in the requested currency;  or



35









 






     (F) a default of any Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless such L/C
Issuer has entered into satisfactory arrangements with the Company or such Lender to
eliminate such L/C Issuer’s risk with respect to such Lender.




     (iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms
hereof.




     (v) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A)
such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of Credit.




     (vi) Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and each L/C Issuer shall have
all of the benefits and immunities (A) provided to the Administrative Agent in Article
IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used
in Article IX included each L/C Issuer with respect to such acts or omissions, and
(B) as additionally provided herein with respect to such L/C Issuer.




     (vii) No L/C Issuer shall issue or amend any Letter of Credit if such L/C Issuer has
received written notice from any Lender, the Administrative Agent or the Company, on or
prior to the Business Day prior to the requested date of issuance or amendment of such
Letter of Credit, that one or more applicable conditions contained in Article IV shall not
then be satisfied.



     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Company delivered to the applicable L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application, appropriately completed
and signed by a Responsible Officer of the Company. Such Letter of Credit Application must
be received by the applicable L/C Issuer and the Administrative Agent not later than 11:00
a.m. at least two Business Days (or such later date and time as the Administrative Agent and
such L/C Issuer may agree in a particular instance in their sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the case of a request
for an initial issuance of a Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the applicable L/C Issuer: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the
amount and currency thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any
drawing thereunder; (F) the full text of any certificate to be



36









 







presented by such beneficiary in case of any drawing thereunder; and (G) such other
matters as such L/C Issuer may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to such L/C Issuer (W) the Letter of Credit to be amended; (X) the
proposed date of amendment thereof (which shall be a Business Day); (Y) the nature of the
proposed amendment; and (Z) such other matters as such L/C Issuer may require.
Additionally, the Company shall furnish to the applicable L/C Issuer and the Administrative
Agent such other documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as such L/C Issuer or the
Administrative Agent may require. Upon the effectiveness of any issuance, amendment or
renewal of a Letter of Credit that will constitute a Letter of Credit hereunder, the
Administrative Agent and the Lenders shall be entitled to assume that the relevant L/C
Issuer has obtained such Issuer Documents as it shall have requested, executed by the
relevant parties thereto to the extent required thereby.




     (ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C
Issuer will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from the
Company and, if not, such L/C Issuer will provide the Administrative Agent with a copy
thereof. Unless such L/C Issuer has received written notice from any Lender, the
Administrative Agent or any Loan Party, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article IV shall not then be satisfied, then,
subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date,
issue a Letter of Credit for the account of the Company (or the applicable Subsidiary) or
enter into the applicable amendment, as the case may be, in each case in accordance with
such L/C Issuer’s usual and customary business practices. Immediately upon the issuance of
each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from such L/C Issuer a risk participation in such Letter
of Credit in an amount equal to the product of such Lender’s Applicable Percentage
times the amount of such Letter of Credit.




     (iii) If the Company so requests in any applicable Letter of Credit Application, the
applicable L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic extension provisions (each, an “Auto-Extension Letter of
Credit”); provided that any such Auto-Extension Letter of Credit must permit
such L/C Issuer to prevent any such extension 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 beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in
each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.
Unless otherwise directed by such L/C Issuer, the Company shall not be required to make a
specific request to such L/C Issuer for any such extension. Once an Auto-Extension Letter
of Credit has been issued, the Lenders shall be deemed to have authorized (but may not
require) such L/C Issuer to permit the extension of such Letter of Credit at any time to an
expiry date not later than the Letter of Credit Expiration Date; provided,
however, that such L/C Issuer shall not permit any such extension if (A) such L/C
Issuer has determined that it would not be permitted, or would have no obligation, at such
time



37









 







to issue such Letter of Credit in its revised form (as extended) under the terms hereof
(by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone or in writing) on or
before the day that is seven Business Days before the Non-Extension Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to permit such extension or
(2) from the Administrative Agent, any Lender or the Company that one or more of the
applicable conditions specified in Section 4.02 is not then satisfied, and in each
such case directing such L/C Issuer not to permit such extension. Each L/C Issuer (other
than Bank of America) shall be required to provide prior notice to the Administrative Agent
of any pending extension of an Auto-Extension Letter of Credit at least ten Business Days
before the applicable Non-Extension Notice Date.




     (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the
applicable L/C Issuer will also deliver to the Company and the Administrative Agent a true
and complete copy of such Letter of Credit or amendment.



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Company and
the Administrative Agent thereof. In the case of a Letter of Credit denominated in an
Alternative Currency, the Company shall reimburse such L/C Issuer in such Alternative
Currency, unless (A) such L/C Issuer (at its option) shall have specified in such notice
that it will require reimbursement in Dollars, or (B) in the absence of any such requirement
for reimbursement in Dollars, the Company shall have notified such L/C Issuer promptly
following receipt of the notice of drawing that the Company will reimburse such L/C Issuer
in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of
Credit denominated in an Alternative Currency, such L/C Issuer shall notify the Company of
the Dollar Equivalent of the amount of the drawing promptly following the determination
thereof. Not later than 9:00 a.m. on the date of any payment by an L/C Issuer under a
Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the date of any
payment by an L/C Issuer under a Letter of Credit to be reimbursed in an Alternative
Currency (each such date, an “Honor Date”), the Company shall reimburse such L/C
Issuer directly in an amount equal to the amount of such drawing and in the applicable
currency. If the Company reimburses such L/C Issuer by such time on the applicable Honor
Date, such L/C Issuer shall so notify the Administrative Agent (with a copy to the Company),
and specify in such notice the amount of the drawing so reimbursed. If the Company fails to
so reimburse such L/C Issuer by such time on the Honor Date, such L/C Issuer shall so notify
the Administrative Agent (with a copy to the Company), and specify in such notice the amount
of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent
thereof in the case of a Letter of Credit denominated in an Alternative Currency) (the
“Unreimbursed Amount”). Immediately upon receipt of such notice from such L/C
Issuer of an outstanding Unreimbursed Amount with respect to a Letter of Credit, the
Administrative Agent shall promptly notify each Lender of the Honor Date, the Unreimbursed
Amount, and the amount of such Lender’s Applicable Percentage thereof.



38









 







In such event, the Company shall be deemed to have requested a Committed Borrowing of
Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in Section 2.02 for
the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion
of the Aggregate Commitments and the conditions set forth in Section 4.02 (other
than the delivery of a Committed Loan Notice). Any notice given by any L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone
if immediately confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.




     (ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available to the Administrative Agent for the account of the applicable L/C Issuer, in
Dollars, at the Administrative Agent’s Office for Dollar-denominated payments in an amount
equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on
the Business Day specified in such notice by the Administrative Agent, whereupon, subject to
the provisions of Section 2.03(c)(iii), each such Lender that so makes funds
available shall be deemed to have made a Base Rate Committed Loan to the Company in such
amount. The Administrative Agent shall remit the funds so received to the L/C Issuers in
Dollars.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Committed Borrowing of Base Rate Loans because the conditions set forth in Section
4.02 cannot be satisfied or for any other reason, the Company shall be deemed to have
incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In such event, each
Lender’s payment to the Administrative Agent for the account of such L/C Issuer pursuant to
Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such
L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.




     (iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under
any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such
amount shall be solely for the account of such L/C Issuer.




     (v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse
applicable L/C Issuer for amounts drawn under Letters of Credit, issued by such L/C Issuer
as contemplated by this Section 2.03(c), shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against such L/C Issuer, the
Company, any Subsidiary or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each Lender’s
obligation to make Committed Loans pursuant to this Section 2.03(c) is subject to
the conditions set forth in Section 4.02 (other than delivery by the Company



39









 







of a Committed Loan Notice). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Company to reimburse such L/C Issuer for the amount
of any payment made by such L/C Issuer under any Letter of Credit, together with interest as
provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the account
of any L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), such L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to such L/C Issuer at a rate per annum equal to the applicable
Overnight Rate from time to time in effect, plus any administrative, processing or similar
fees customarily charged by such L/C Issuer in connection with the foregoing. If such
Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or L/C
Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the
applicable L/C Issuer submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be conclusive absent manifest
error.



     (d) Repayment of Participations.




     (i) At any time after any L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent receives for the
account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Company or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such Lender’s L/C
Advance was outstanding) in Dollars and in the same funds as those received by the
Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of any L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.05 (including pursuant to any settlement
entered into by such L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of such L/C Issuer its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination of this
Agreement.



     (e) Obligations Absolute. The obligation of the Company to reimburse an L/C Issuer
for each drawing under each Letter of Credit issued by such L/C Issuer and to repay each L/C



40









 







Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including the following:




     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;




     (ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Company or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), such L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




     (iv) any payment by such L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by such L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law;




     (v) any adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Company or any Subsidiary or in the relevant currency
markets generally; or




     (vi) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Company or any Subsidiary.



     The Company shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Company’s
instructions or other irregularity, the Company will immediately notify the applicable L/C Issuer.
The Company shall be conclusively deemed to have waived any such claim against such L/C Issuer and
its correspondents unless such notice is given as aforesaid.



     (f) Role of L/C Issuers. Each Lender and the Company agree that, in paying any
drawing under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuers, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuers shall be liable to any Lender for (i) any action taken or omitted in



41









 







connection herewith at the request or with the approval of the Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or
willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Issuer Document. The Company hereby
assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit; provided, however, that this assumption is not intended
to, and shall not, preclude the Company’s pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuers shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.03(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Company may have a claim against an
L/C Issuer, and such L/C Issuer may be liable to the Company, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Company
which the Company proves were caused by such L/C Issuer’s willful misconduct or gross negligence or
such L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by
the beneficiary of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, each L/C
Issuer may accept documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary, and no L/C Issuer
shall be responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.



     (g) Cash Collateral.




     (i) Upon the request of the Administrative Agent, (A) if the applicable L/C Issuer has
honored any full or partial drawing request under any Letter of Credit and such drawing has
resulted in an L/C Borrowing, or (B) if, as of the applicable Letter of Credit Expiration
Date, any L/C Obligation for any reason remains outstanding, the Company shall, in each
case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.




     (ii) In addition, if the Administrative Agent notifies the Company at any time that the
Outstanding Amount of all L/C Obligations at such time exceeds the Letter of Credit Sublimit
then in effect by $250,000 or more, then, within two Business Days after receipt of such
notice, the Company shall Cash Collateralize the L/C Obligations in an amount equal to the
amount by which the Outstanding Amount of all L/C Obligations exceeds the Letter of Credit
Sublimit.




     (iii) The Administrative Agent may, at any time and from time to time after the initial
deposit of Cash Collateral, request that additional Cash Collateral be provided in order to
protect against the results of exchange rate fluctuations.




     (iv) Sections 2.05 and 8.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. For purposes of this Section
2.03, Section 2.05 and Section 8.02(c), “Cash Collateralize”
means to pledge and deposit with or deliver to the



42









 







Administrative Agent, for the benefit of applicable L/C Issuers and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Administrative Agent and the
applicable L/C Issuers (which documents are hereby consented to by the Lenders).
Derivatives of such term have corresponding meanings. The Company hereby grants to the
Administrative Agent, for the benefit of the applicable L/C Issuers and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein and all
proceeds of the foregoing. Cash Collateral shall be maintained in blocked, interest bearing
deposit accounts at Bank of America.



     (h) Applicability of ISP. Unless otherwise expressly agreed by the applicable L/C
Issuer and the Company when a Letter of Credit is issued (including any such agreement applicable
to an Existing Letter of Credit), the rules of the ISP shall apply to each Letter of Credit.



     (i) Letter of Credit Fees. The Company shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, in Dollars, a Letter of Credit
fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the Dollar Equivalent of the daily amount available to be drawn under such Letter of
Credit. For purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with Section
1.08. Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due
and payable on the tenth Business Day after the end of each March, June, September and December in
respect of the most recently ended quarterly period (or portion thereof, in the case of the first
payment), commencing with the first such date to occur after the issuance of such Letter of Credit,
on the Letter of Credit Expiration Date and thereafter on demand. If there is any change in the
Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect. Notwithstanding anything to the
contrary contained herein, upon the request of the Required Lenders, while any Event of Default
exists, all Letter of Credit Fees shall accrue at the Default Rate.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuers. The
Company shall pay directly to each L/C Issuer for its own account, in Dollars, a fronting fee with
respect to each Letter of Credit, at the rate per annum specified in its Issuer Fee Letter,
computed on the Dollar Equivalent of the daily amount available to be drawn under such Letter of
Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the tenth
Business Day after the end of each March, June, September and December in respect of the most
recently ended quarterly period (or portion thereof, in the case of the first payment), commencing
with the first such date to occur after the issuance of such Letter of Credit, on the Letter of
Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.08. In addition, the Company shall pay directly to
each L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment
and other processing fees, and other standard costs and charges, of such L/C Issuer relating to
letters of credit as from time to time in effect. Such customary fees and standard costs and
charges are due and payable on demand and are nonrefundable.



43









 





     (k) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.



     (l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Company shall be obligated to reimburse the applicable L/C Issuer hereunder
for any and all drawings under such Letter of Credit. The Company hereby acknowledges that the
issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Company,
and that the Company’s business derives substantial benefits from the businesses of such
Subsidiaries.



     (m) Additional L/C Issuers. (i) The Company may from time to time, upon not less
than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period
as may be agreed by the Administrative Agent in its sole discretion), replace a previously
designated L/C Issuer by designating another Lender as L/C Issuer (upon obtaining such Lender’s
prior consent thereto and provided that there are no outstanding Letters of Credit issued
by, or L/C Obligations owing to, the L/C Issuer to be replaced). Any such designation shall be
subject to the approval of the Administrative Agent (such approval not to be unreasonably
withheld). The Administrative Agent will promptly notify the Company and the Lenders of any
designation and approval of a replacement L/C Issuer. Upon any such approval of an L/C Issuer by
the Administrative Agent and delivery by such L/C Issuer to the Administrative Agent of such
contact and other information regarding such L/C Issuer as the Administrative Agent shall
reasonably request, such Lender shall be an L/C Issuer for all purposes of this Agreement, and
references to the L/C Issuers shall mean and include such Lender in its capacity as L/C Issuer.



     (n) Reconciliation of Outstanding Letters of Credit. On the last Business Day of each
month, each of the Company and the L/C Issuers shall provide to the Administrative Agent such
information regarding the outstanding Letters of Credit as the Administrative Agent shall
reasonably request, in form and substance satisfactory to the Administrative Agent (and in such
standard electronic format as the Administrative Agent shall reasonably specify), for purposes of
the Administrative Agent’s ongoing tracking and reporting of outstanding Letters of Credit. The
Administrative Agent shall maintain a record of all outstanding Letters of Credit based upon
information provided by the Company and the L/C Issuers pursuant to this Section 2.03(n),
and such record of the Administrative Agent shall, absent manifest error, be deemed a correct and
conclusive record of all Letters of Credit outstanding from time to time hereunder.
Notwithstanding the foregoing, if and to the extent the Administrative Agent determines that there
are one or more discrepancies between information provided by the Company and any L/C Issuer
hereunder, the Administrative Agent will notify the Company and such L/C Issuer thereof shall
endeavor to reconcile any such discrepancy.



     (o) Notice to Lenders. The Administrative Agent shall provide notice to the Lenders
not less frequently than quarterly as to the Letters of Credit outstanding hereunder (and in any
event, to an individual Lender from time to time upon the request of such Lender).



44









 





     2.04 Swap Commitments.



     (a) The Company may from time to time enter into interest-rate Swap Contracts (“Interest
Rate Swaps”) with the Lenders or other Persons that are Eligible Assignees (each, a “Swap
Counterparty”), subject to the terms and conditions hereof. Prior to entering into an Interest
Rate Swap with a Swap Counterparty, the Company, such Swap Counterparty and the Administrative
Agent shall enter into a Joinder Agreement, substantially in the form of Exhibit I, to
which there shall be attached an executed copy of an ISDA Master Agreement, including the Schedule
thereto and any other documents required to have been delivered thereunder, between the Company and
the Swap Counterparty that will govern all Interest Rate Swaps between them. Receipt of each
Joinder Agreement will be acknowledged by the Administrative Agent and such Joinder Agreement shall
be recorded in the Register. Interest Rate Swaps may thereafter be entered into between the
Company and the Swap Counterparty, which will constitute Loan Documents to the extent provided
herein; provided, however, that each Interest Rate Swap shall be entered in the
ordinary course of the Company’s business; provided, further that, on the trade
date for each Interest Rate Swap (the “Swap Trade Date”), (i) no Default shall exist on
such date before or after giving effect to such Interest Rate Swap; (ii) both before and after
giving effect to such Interest Rate Swap, each of the conditions set forth in Section 4.02
shall be satisfied; and (iii) the Company and its Subsidiaries shall be in pro forma compliance
with each of the covenants set forth in Section 7.13 as of the last day of the most
recently ended fiscal quarter after giving effect to such Interest Rate Swap, as certified by a
Responsible Officer of Company. The Administrative Agent shall not have any duty or responsibility
to monitor the creation of any Interest Rate Swap, and each Swap Counterparty hereby agrees to
promptly notify (which notice may be by facsimile or electronic mail) the Administrative Agent of
any default, event of default, earlier termination or equivalent event thereunder. The Joinder
Agreement dated as of April 25, 2002 among Lehman Brothers Special Financing Inc., the Company, the
Subsidiary Guarantors specified therein and Bank of America, the Joinder Agreement dated as of May
1, 2002 among Goldman Sachs Capital Markets, L.P., the Company, the Subsidiary Guarantors specified
therein and Bank of America, the Joinder Agreement dated as of May 14, 2002 among JPMorgan Chase,
the Company, the Subsidiary Guarantors specified therein and Bank of America, the Joinder Agreement
dated as of December 22, 2005 among Morgan Stanley Capital Services Inc., the Company, and Bank of
America, and the Joinder Agreement dated as of February 16, 2006 among The Royal Bank of Scotland
plc, the Company and Bank of America, shall each be deemed to be a Joinder Agreement entered into
pursuant to this Section 2.04.



     (b) This Section 2.04 shall supersede any provisions in Section 10.01 to the
contrary.



     2.05 Prepayments.



     (a) Each Borrower may, upon notice from the Company to the Administrative Agent, at any time
or from time to time voluntarily prepay Committed Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the Administrative Agent not
later than 9:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate
Loans denominated in Dollars, (B) four Business Days (or five, in the case of prepayment of Loans
denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate
Loans denominated in Alternative Currencies, and (C) on the date of prepayment of Base Rate
Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans



45









 







denominated in Dollars shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Loans denominated in
Alternative Currencies shall be in a minimum principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof or, in each
case, if less, the entire principal amount thereof then outstanding. Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Committed Loans to be prepaid
and, if Eurocurrency Loans are to be prepaid, the Interest Period(s) of such Loans. The
Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of
the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by
the Company, the applicable Borrower shall make such prepayment and the payment amount specified in
such notice shall be due and payable on the date specified therein. Any prepayment of a
Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05. Each such prepayment shall
be applied to the Committed Loans of the Lenders in accordance with their respective Applicable
Percentages.



     (b) If the Administrative Agent notifies the Company at any time that the Total Outstandings
at such time exceed the Aggregate Commitments then in effect by an amount equal to $250,000 or
more, then, within two Business Days after receipt of such notice, the Borrowers shall prepay Loans
and/or the Company shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient
to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the
Aggregate Commitments then in effect; provided, however, that, subject to the
provisions of Section 2.03(g)(ii), the Company shall not be required to Cash Collateralize
the L/C Obligations pursuant to this Section 2.05(b) unless after the prepayment of the
Loans pursuant to this Section 2.05(b) the Total Outstandings exceed the Aggregate
Commitments then in effect. The Administrative Agent may, at any time and from time to time after
the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in
order to protect against the results of further exchange rate fluctuations.



     2.06 Termination or Reduction of Commitments. The Company may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 9:00 a.m. five Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Company shall not terminate or reduce the
Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder,
the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving effect to
any reduction of the Aggregate Commitments the Letter of Credit Sublimit exceeds the amount of the
Aggregate Commitments, the Letter of Credit Sublimit shall be automatically reduced by the amount
of such excess. The Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Commitments. The amount of any such Aggregate Commitment
reduction shall not be applied to Letter of Credit Sublimit unless otherwise specified by the
Company. Any reduction of the Aggregate Commitments shall be applied to the Commitment of each
Lender according to its Applicable Percentage. All fees accrued until the effective date of



46









 







any termination of the Aggregate Commitments shall be paid on the effective date of such
termination.



     2.07 Repayment of Loans. Each Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Committed Loans made to such Borrower outstanding on such date.



     2.08 Interest.



     (a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate
plus (in the case of a Eurocurrency Rate Loan of any Lender which is lent from a Lending
Office in the United Kingdom or a Participating Member State) the Mandatory Cost and (ii) each Base
Rate Committed Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate.



     (b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.




     (i) If any amount (other than principal of any Loan) payable by any Borrower under any
Loan Document is not paid when due (without regard to any applicable grace periods), whether
at stated maturity, by acceleration or otherwise, then upon the request of the Required
Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (ii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrowers shall pay interest on the principal amount of all outstanding Obligations
hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.




     (iii) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.



     2.09 Fees. In addition to certain fees described in subsections (i) and (j) of Section
2.03:



     (a) Unused Fee. The Company shall pay to the Administrative Agent for the account of
each Lender in accordance with its Applicable Percentage, a fee in Dollars (the “Unused
Fee”)



47









 







equal to the Applicable Rate times the actual daily unused portion of such Lender’s
Commitment. The Unused Fee shall accrue at all times during the Availability Period, including at
any time during which one or more of the conditions in Article IV is not met, and shall be
due and payable quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date, and on the Maturity
Date. The Unused Fee shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect.



     (b) Utilization Fee. The Company shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a utilization fee in Dollars
equal to the Applicable Rate times the Total Outstandings on each day that the Total
Outstandings exceed 25% of the actual daily amount of the Aggregate Commitments then in effect (or,
if terminated, in effect immediately prior to such termination). The utilization fee shall be due
and payable quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date, and on the Maturity
Date. The utilization fee shall be calculated quarterly in arrears and if there is any change in
the Applicable Rate during any quarter, the daily amount shall be computed and multiplied by the
Applicable Rate for each period during which such Applicable Rate was in effect. The utilization
fee shall accrue at all times, including at any time during which one or more of the conditions in
Article IV is not met.



     (c) Other Fees. (i) The Company shall pay to BAS and the Administrative Agent for
their own respective accounts, in Dollars, fees in the amounts and at the times specified in the
Agent/BAS Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for
any reason whatsoever.




     (ii) The Company shall pay to JPMS for its own account, in Dollars, fees in the amounts
and at the times specified in the JPMS Fee Letter. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.




     (iii) The Company shall pay to the Lenders, in Dollars, such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified. Such fees
shall be fully earned when paid and shall not be refundable for any reason whatsoever.




     (iv) Except as otherwise specifically provided herein, the Company shall pay to the
L/C Issuers fees in the amounts and at the times specified in the applicable Issuer Fee
Letter. Such fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever.



     2.10 Computation of Interest and Fees.



     (a) All computations of interest for Base Rate Loans when the Base Rate is determined by Bank
of America’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest



48









 







shall be made on the basis of a 360-day year and actual days elapsed (which results in more
fees or interest, as applicable, being paid than if computed on the basis of a 365-day year), or,
in the case of interest in respect of Committed Loans denominated in Alternative Currencies as to
which market practice differs from the foregoing, in accordance with such market practice.
Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is paid,
provided that any Loan that is repaid on the same day on which it is made shall, subject to
Section 2.12(a), bear interest for one day. Each determination by the Administrative Agent
of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent
manifest error.



     (b) Each determination by the Administrative Agent of interest and fees payable by the Company
hereunder, in the absence of manifest error, shall be conclusive and binding upon all parties
hereto. Notwithstanding the foregoing, in the event that, as a result of any reconciliation of the
Administrative Agent’s record of outstanding Letters of Credit pursuant to Section 2.03(n)
or otherwise, the Administrative Agent determines that there has been an underpayment or
overpayment of any fees payable by the Company hereunder, the Administrative Agent shall promptly
notify the Company, the L/C Issuers and the Lenders thereof, and the Company shall pay to the
Administrative Agent for the account of the L/C Issuers or the Lenders, as the case may be (in the
case of any underpayment) or the L/C Issuers or the Lenders, as the case may be, shall pay to the
Administrative Agent for the account of the Company (in the case of any overpayment), any amount
due as a result of such reconciliation, on the next regularly occurring payment date for such fee.



     2.11 Evidence of Debt.



     (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the
Borrowers and the interest and payments thereon. The accounts or records maintained by any Swap
Counterparty shall be conclusive absent manifest error of the amount owed to such Swap Counterparty
by the Company, and the Administrative Agent shall not be obligated to maintain any account or
record thereof. Any failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to
the Obligations. In the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.
Upon the request of any Lender to a Borrower made through the Administrative Agent, such Borrower
shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall
evidence such Lender’s Loans to such Borrower in addition to such accounts or records. Each Lender
may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount, currency
and maturity of its Loans and payments with respect thereto.



     (b) In addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters of Credit.



49









 




In the event of any conflict between the accounts and records maintained by the Administrative
Agent and the accounts and records of any Lender in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest error.




     2.12 Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by the Borrowers shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein all payments by the Borrowers hereunder to be made directly to an L/C Issuer shall
be made to such L/C Issuer in accordance with its payment instructions in Same Day Funds and in
Dollars or, in respect of Letters of Credit denominated in an Alternative Currency, in such
Alternative Currency, not later than the times and on the dates specified herein. Except as
otherwise expressly provided herein and except with respect to such payments to be made directly to
an L/C Issuer or principal of and interest on Loans denominated in an Alternative Currency, all
payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of
the respective Lenders or L/C Issuers to which such payment is owed, at the applicable
Administrative Agent’s Office in Dollars and in Same Day Funds not later than 11:00 a.m. on the
date specified herein. Except as otherwise expressly provided herein, all payments by the
Borrowers hereunder with respect to principal and interest on Loans denominated in an Alternative
Currency shall be made to the Administrative Agent, for the account of the respective Lenders to
which such payment is owed, at the applicable Administrative Agent’s Office in such Alternative
Currency and in Same Day Funds not later than the Applicable Time specified by the Administrative
Agent on the dates specified herein. Without limiting the generality of the foregoing, the
Administrative Agent may require that any payments due under this Agreement be made in the United
States. If, for any reason, any Borrower is prohibited by any Law from making any required payment
hereunder in an Alternative Currency, such Borrower shall make such payment in Dollars in the
Dollar Equivalent of the Alternative Currency payment amount. The Administrative Agent will
promptly distribute to each L/C Issuer its applicable share as provided herein, or to each Lender
its Applicable Percentage (or other applicable share as provided herein) of such payment in like
funds as received by wire transfer to such L/C Issuer in accordance with its payment instructions
or to such Lender at its Lending Office. All payments received by the Administrative Agent after
11:00 a.m., or by an L/C Issuer after the time specified herein or in any Issuer Document, shall in
each case be deemed received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue. All payments received by an L/C Issuer after the time specified herein
or in any Issuer Document, or by the Administrative Agent (i) after 11:00 a.m., in the case of
payments in Dollars, or (ii) after the Applicable Time specified by the Administrative Agent in the
case of payments in an Alternative Currency, shall in each case be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to accrue. If any
payment to be made by any Borrower shall come due on a day other than a Business Day, payment shall
be made on the next following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.



     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Committed Borrowing of Eurocurrency Rate Loans (or, in the case of any Committed Borrowing of Base
Rate Loans, prior to 12:00 noon on the date of such Committed Borrowing) that such



50









 







Lender will not make available to the Administrative Agent such Lender’s share of such
Committed Borrowing, the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with Section 2.02 (or, in the case of a Committed
Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and
at the time required by Section 2.02) and may, in reliance upon such assumption, make
available to the applicable Borrower a corresponding amount. In such event, if a Lender has not in
fact made its share of the applicable Committed Borrowing available to the Administrative Agent,
then the applicable Lender and the applicable Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for
each day from and including the date such amount is made available to such Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be
made by such Lender, the Overnight Rate, plus any administrative, processing or similar fees
customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the
case of a payment to be made by such Borrower, the interest rate applicable to Base Rate Loans. If
such Borrower and such Lender shall pay such interest to the Administrative Agent for the same or
an overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of
such interest paid by such Borrower for such period. If such Lender pays its share of the
applicable Committed Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Committed Loan included in such Committed Borrowing. Any payment by such
Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall
have failed to make such payment to the Administrative Agent.




     (ii) Payments by Borrowers; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C
Issuers hereunder that such Borrower will not make such payment, the Administrative Agent
may assume that such Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders or the applicable L/C
Issuer(s), as the case may be, the amount due. In such event, if such Borrower has not in
fact made such payment, then each of the Lenders or applicable L/C Issuer(s), as the case
may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount
so distributed to such Lender or applicable L/C Issuer(s), in Same Day Funds 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 Overnight Rate.



     A notice of the Administrative Agent to any Lender or Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender to any Borrower as provided in
the foregoing provisions of this Article II, and such funds are not made available to such
Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set
forth in Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such Lender) to



51









 







such Lender, without interest; provided, however, that if such funds are not
returned within one Business Day, such funds shall bear interest at the Overnight Rate.



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Committed Loans, to fund participations in Letters of Credit and to make payments pursuant to
Section 10.04(c) are several and not joint, and the obligations of each Swap Counterparty
hereunder to make Interest Rate Swaps are several and not joint. The failure of any Lender to make
any Committed Loan, to make any Interest Rate Swap, to fund any such participation or to make any
payment under Section 10.04(c) on any date required hereunder shall not relieve any other
Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible
for the failure of any other Lender to so make its Committed Loan, to make its Interest Rate Swap,
to purchase its participation or to make its payment under Section 10.04(c).



     (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



     2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
the Committed Loans made by it, or the participations in L/C Obligations held by it resulting in
such Lender’s receiving payment of a proportion of the aggregate amount of such Committed Loans or
participations and accrued interest thereon greater than its pro rata share thereof
as provided herein, then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the
Committed Loans and subparticipations in L/C Obligations of the other Lenders, or make such other
adjustments as shall be equitable, 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 Committed Loans and other amounts owing them, provided that:




     (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by a Borrower pursuant to and in accordance with the express terms of this Agreement or
(y) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Committed Loans or subparticipations in L/C Obligations to any
assignee or participant, other than to the Company or any Subsidiary thereof (as to which
the provisions of this Section shall apply).



     Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Borrower rights of setoff and counterclaim with respect



52









 







to such participation as fully as if such Lender were a direct creditor of such Borrower in
the amount of such participation.



     2.14 Designated Borrowers.



     (a) The Company may at any time, upon not less than 15 Business Days’ notice from the Company
to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in
its sole discretion), designate any wholly-owned Subsidiary of the Company (an “Applicant
Borrower”) as a Designated Borrower to receive Loans hereunder by delivering to the
Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a duly
executed notice and agreement in substantially the form of Exhibit G (a “Designated
Borrower Request and Assumption Agreement”). The parties hereto acknowledge and agree that
prior to any Applicant Borrower becoming entitled to utilize the credit facility provided for
herein the Administrative Agent and the Lenders shall have received such supporting resolutions,
incumbency certificates, opinions of counsel and other documents or information, in form, content
and scope reasonably satisfactory to the Administrative Agent, as may be required by the
Administrative Agent or the Required Lenders in their sole discretion, and Notes signed by such new
Borrowers to the extent any Lenders so require. If the Administrative Agent and the Required
Lenders agree that an Applicant Borrower shall be entitled to receive Loans hereunder, then
promptly following receipt of all such requested resolutions, incumbency certificates, opinions of
counsel and other documents or information, the Administrative Agent shall send a notice in
substantially the form of Exhibit H (a “Designated Borrower Notice”) to the Company
and the Lenders specifying the effective date upon which the Applicant Borrower shall constitute a
Designated Borrower for purposes hereof, whereupon each of the Lenders agrees to permit such
Designated Borrower to receive Loans hereunder, on the terms and conditions set forth herein, and
each of the parties agrees that such Designated Borrower otherwise shall be a Borrower for all
purposes of this Agreement; provided that no Committed Loan Notice or Letter of Credit
Application may be submitted by or on behalf of such Designated Borrower until the date five
Business Days after such effective date.



     (b) The Obligations of the Company and each Designated Borrower that is a Domestic Subsidiary
shall be joint and several in nature. The Obligations of all Designated Borrowers that are
non-U.S. Subsidiaries shall be several in nature.



     (c) Each Subsidiary of the Company that becomes a “Designated Borrower” pursuant to this
Section 2.14 hereby irrevocably appoints the Company as its agent for all purposes relevant
to this Agreement and each of the other Loan Documents, including (i) the giving and receipt of
notices, (ii) the execution and delivery of all documents, instruments and certificates
contemplated herein and all modifications hereto, and (iii) the receipt of the proceeds of any
Loans made by the Lenders, to any such Designated Borrower hereunder. Any acknowledgment, consent,
direction, certification or other action which might otherwise be valid or effective only if given
or taken by all Borrowers, or by each Borrower acting singly, shall be valid and effective if given
or taken only by the Company, whether or not any such other Borrower joins therein. Any notice,
demand, consent, acknowledgement, direction, certification or other communication delivered to the
Company in accordance with the terms of this Agreement shall be deemed to have been delivered to
each Designated Borrower.



53









 





     (d) The Company may from time to time, upon not less than 15 Business Days’ notice from the
Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative
Agent in its sole discretion), terminate a Designated Borrower’s status as such, provided
that there are no outstanding Loans payable by such Designated Borrower, or other amounts payable
by such Designated Borrower on account of any Loans made to it, as of the effective date of such
termination. The Administrative Agent will promptly notify the Lenders of any such termination of a
Designated Borrower’s status.



     2.15 Increase in Commitments.



     (a) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Company may from time to time
request an increase in the Aggregate Commitments by an amount (for all such requests) not exceeding
$150,000,000; provided that (i) any such request for an increase shall be in a minimum
amount of $25,000,000, (ii) the Company may make a maximum of two such requests, and (iii) no such
increase shall increase the Letter of Credit Sublimit or any other sublimit under the credit
facility provided for hereunder. At the time of sending such notice, the Company (in consultation
with the Administrative Agent) shall specify the time period within which each Lender is requested
to respond (which shall in no event be less than ten Business Days from the date of delivery of
such notice to the Lenders).



     (b) Lender Elections to Increase. Each Lender shall notify the Administrative Agent
within such time period whether or not it agrees to increase its Commitment and, if so, whether by
an amount equal to, greater than, or less than its Applicable Percentage of such requested
increase. Any Lender not responding within such time period shall be deemed to have declined to
increase its Commitment.



     (c) Notification by Administrative Agent; Additional Lenders. The Administrative
Agent shall notify the Company and each Lender of the Lenders’ responses to each request made
hereunder. To achieve the full amount of a requested increase and subject to the approval of the
Administrative Agent and the applicable L/C Issuers (which approvals shall not be unreasonably
withheld), the Company may also invite additional Eligible Assignees to become Lenders pursuant to
a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel.



     (d) Effective Date and Allocations. If the Aggregate Commitments are increased in
accordance with this Section, the Administrative Agent and the Company shall determine the
effective date (the “Increase Effective Date”) and the final allocation of such increase.
The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation
of such increase and the Increase Effective Date.



     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Company shall deliver to the Administrative Agent a certificate of each Loan Party
dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such
Loan Party approving or consenting to such increase, and (ii) in the case of the Company,
certifying that, before and after giving effect to such increase, (A) the representations and



54









 







warranties contained in Article V and the other Loan Documents are true and correct in
all material respects on and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this Section 2.15, the
representations and warranties contained in subsections (a) and (b) of Section 5.05 shall
be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b),
respectively, of Section 6.01, and (B) no Default exists. The Borrowers shall prepay any
Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts required
pursuant to Section 3.05) to the extent necessary to keep the outstanding Committed Loans
ratable with any revised Applicable Percentages arising from any nonratable increase in the
Commitments under this Section.



     (f) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.13 or 10.01 to the contrary.



ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the respective Borrowers hereunder or under any other Loan Document shall be made free and clear
of and without reduction or withholding for any Indemnified Taxes or Other Taxes, provided
that if the applicable Borrower shall be required by applicable law to deduct any Indemnified Taxes
(including any 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) each Agent, each Lender or each L/C Issuer, as the case
may be, receives an amount equal to the sum it would have received had no such deductions been
made, (ii) such Borrower shall make such deductions and (iii) such Borrower shall timely pay the
full amount deducted to the relevant Governmental Authority in accordance with applicable law.



     (b) Payment of Other Taxes by the Borrowers. Without limiting the provisions of
subsection (a) above, each Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.



     (c) Indemnification by the Borrowers. Each Borrower shall indemnify each Agent, each
Lender and each L/C Issuer, within 10 days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by such Agent, such Lender or such L/C
Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to a Borrower by a Lender or an L/C Issuer (with a copy to
the Administrative Agent), or by an Agent on its own behalf or on behalf of a Lender or an L/C
Issuer, shall be conclusive absent manifest error.



55









 





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



     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which a Borrower is resident for
tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Company (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Company or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by the Company or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Company or the Administrative Agent as will enable the Company or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.



     Without limiting the generality of the foregoing, in the event that a Borrower is resident for
tax purposes in the United States, any Foreign Lender shall deliver to Company and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Company or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:




     (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is a party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 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 applicable Borrower within the meaning of
section 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




     (iv) 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 Company to
determine the withholding or deduction required to be made.



     Without limiting the obligations of the Lenders set forth above regarding delivery of certain
forms and documents to establish each Lender’s status for U.S. withholding tax purposes,



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each Lender agrees promptly to deliver to the Administrative Agent or the Company, as the
Administrative Agent or the Company shall reasonably request, on or prior to the Closing Date, and
in a timely fashion thereafter, such other documents and forms required by any relevant taxing
authorities under the Laws of any other jurisdiction, duly executed and completed by such Lender,
as are required under such Laws to confirm such Lender’s entitlement to any available exemption
from, or reduction of, applicable withholding taxes in respect of all payments to be made to such
Lender outside of the U.S. by the Borrowers pursuant to this Agreement or otherwise to establish
such Lender’s status for withholding tax purposes in such other jurisdiction. Each Lender shall
promptly (i) notify the Administrative Agent of any change in circumstances which would modify or
render invalid any such claimed exemption or reduction, and (ii) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement
of applicable Laws of any such jurisdiction that any Borrower make any deduction or withholding for
taxes from amounts payable to such Lender. Additionally, each of the Borrowers shall promptly
deliver to the Administrative Agent or any Lender, as the Administrative Agent or such Lender shall
reasonably request, on or prior to the Closing Date, and in a timely fashion thereafter, such
documents and forms required by any relevant taxing authorities under the Laws of any jurisdiction,
duly executed and completed by such Borrower, as are required to be furnished by such Lender or the
Administrative Agent under such Laws in connection with any payment by the Administrative Agent or
any Lender of Taxes or Other Taxes, or otherwise in connection with the Loan Documents, with
respect to such jurisdiction.



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



     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurocurrency Rate Loans (whether denominated in Dollars or an
Alternative Currency), or to determine or charge interest rates based upon the Eurocurrency Rate,
or any Governmental Authority has imposed material restrictions on the authority of such Lender to
purchase or sell, or to take deposits of, Dollars or any Alternative Currency in the applicable
interbank market, then, on notice thereof by such Lender to the



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Company through the Administrative Agent, any obligation of such Lender to make or continue
Eurocurrency Rate Loans in the affected currency or currencies or, in the case of Eurocurrency Rate
Loans in Dollars, to convert Base Rate Committed Loans to Eurocurrency Rate Loans, shall be
suspended until such Lender notifies the Administrative Agent and the Company that the
circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the
Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or,
if applicable and such Loans are denominated in Dollars, convert all such Eurocurrency Rate Loans
of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately,
if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans. Upon any such
prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or
converted.



     3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof
that (a) deposits (whether in Dollars or an Alternative Currency) are not being offered to banks in
the applicable offshore interbank market for such currency for the applicable amount and Interest
Period of such Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurocurrency Rate for any requested Interest Period with respect to a proposed
Eurocurrency Rate Loan (whether denominated in Dollars or an Alternative Currency), or (c) the
Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate
Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency
Rate Loan, the Administrative Agent will promptly so notify the Company and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the
affected currency or currencies shall be suspended until the Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Company
may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency
Rate Loans in the affected currency or currencies or, failing that, will be deemed to have
converted such request into a request for a Committed Borrowing of Base Rate Loans in the amount
specified therein.



     3.04 Increased Costs; Reserves on Eurocurrency Rate Loans.



     (a) Increased Costs Generally. If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except (A) any reserve requirement
contemplated by Section 3.04(e) and (B) the requirements of the Bank of England and
the Financial Services Authority or the European Central Bank reflected in the Mandatory
Cost, other than as set forth below) or any L/C Issuer;




     (ii) subject any Lender or any L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurocurrency Rate Loan made by it, or change the basis of taxation of payments to such
Lender or such L/C Issuer in respect thereof (except for Indemnified



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Taxes or Other Taxes which are covered by Section 3.01 and the imposition of,
or any change in the rate of, any Excluded Tax payable by such Lender or such L/C Issuer);




     (iii) result in the failure of the Mandatory Cost, as calculated hereunder, to
represent the cost to any Lender of complying with the requirements of the Bank of England
and/or the Financial Services Authority or the European Central Bank in relation to its
making, funding or maintaining Eurocurrency Rate Loans; or




     (iv) impose on any Lender or any L/C Issuer or the London interbank market any other
condition, cost or expense 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 Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C
Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such
Lender or such L/C Issuer, the Company will pay (or cause the applicable Designated Borrower to
pay) to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as
will compensate such Lender or such L/C Issuer, as the case may be, for such additional costs
incurred or reduction suffered.




     (b) Capital Requirements. If any Lender or any L/C Issuer determines that any Change
in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such
Lender’s or such L/C Issuer’s holding company, if any, regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or such L/C Issuer’s capital or on
the capital of such Lender’s or such L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below
that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company
could have achieved but for such Change in Law (taking into consideration such Lender’s or such L/C
Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s holding company with
respect to capital adequacy), then from time to time the Company will pay (or cause the applicable
Designated Borrower to pay) to such Lender or such L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or such L/C Issuer or such Lender’s or such L/C
Issuer’s holding company for any such reduction suffered.



     (c) Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Company shall be conclusive absent manifest error. The Company shall pay (or
cause the applicable Designated Borrower to pay) such Lender or such L/C Issuer, as the case may
be, the amount shown as due on any such certificate within 10 days after receipt thereof.



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     (d) Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or such L/C Issuer’s right to demand such compensation, provided
that no Borrower shall be required to compensate a Lender or such L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than nine months prior to the date that such Lender or such L/C Issuer, as the case may be,
notifies the Company of the Change in Law giving rise to such increased costs or reductions and of
such Lender’s or such L/C Issuer’s intention to claim compensation therefor (except that, if the
Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month
period referred to above shall be extended to include the period of retroactive effect thereof).



     (e) Additional Reserve Requirements. The Company shall pay (or cause the applicable
Designated Borrower to pay) to each Lender, (i) as long as such Lender shall be required to
maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency
funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the
unpaid principal amount of each Eurocurrency Rate Loan equal to the actual costs of such reserves
allocated to such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), and (ii) as long as such Lender shall be required to comply
with any reserve ratio requirement or analogous requirement of any other central banking or
financial regulatory authority imposed in respect of the maintenance of the Commitments or the
funding of the Eurocurrency Rate Loans, such additional costs (expressed as a percentage per annum
and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs
allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith,
which determination shall be conclusive), which in each case shall be due and payable on each date
on which interest is payable on such Loan, provided the Company shall have received at
least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional interest
or costs from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest
Payment Date, such additional interest or costs shall be due and payable 10 days from receipt of
such notice.



     3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time, the Company shall promptly compensate (or cause the applicable Designated
Borrower to compensate) such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);



     (b) any failure by any Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Company or the applicable Designated Borrower;



     (c) any failure by any Borrower to make payment of any Loan or drawing under any Letter of
Credit (or interest due thereon) denominated in an Alternative Currency on its scheduled due date
or any payment thereof in a different currency; or



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     (d) any assignment of a Eurocurrency Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Company pursuant to Section 10.13;


including any loss of anticipated profits, any foreign exchange losses and any loss or expense
arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from
fees payable to terminate the deposits from which such funds were obtained or from the performance
of any foreign exchange contract. The Company shall also pay (or cause the applicable Designated
Borrower to pay) any customary administrative fees charged by such Lender in connection with the
foregoing.



For purposes of calculating amounts payable by the Company (or the applicable Designated Borrower)
to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each
Eurocurrency Rate Loan made by it at the Eurocurrency Rate for such Loan by a matching deposit or
other borrowing in the offshore interbank market for such currency for a comparable amount and for
a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.




     3.06 Mitigation Obligations; Replacement of Lenders.



     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or any Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, 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 judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Company hereby agrees to pay (or to cause the
applicable Designated Borrower to pay) all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Company
may replace such Lender in accordance with Section 10.13.



     3.07 Survival. All of the Borrowers’ obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations hereunder.



ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension. The obligations of the Lenders and L/C Issuers
to make their initial Credit Extensions hereunder is subject to satisfaction of the following
conditions precedent:



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     (a) The Administrative Agent’s receipt of the following, each of which shall be originals or
telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date) and each in form and
substance satisfactory to the Administrative Agent and each of the Lenders:




     (i) executed counterparts of this Agreement, the Guaranties, the Pledge Agreement, the
Security Agreement, the Interco Subordination Agreement and the Intercreditor Agreement
sufficient in number for distribution to the Administrative Agent, each Lender and the
Company;




     (ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;




     (iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Document Party as the Administrative
Agent may require evidencing the identity, authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in connection with this Agreement
and the other Loan Documents to which such Loan Document Party is a party;




     (iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Document Party is duly organized or formed, and that each
Loan Document Party is validly existing, in good standing and qualified to engage in
business;




     (v) except as otherwise specified in Section 6.15, favorable opinions of
counsel to the Loan Document Parties, addressed to the Administrative Agent, each L/C Issuer
and each Lender, as to the matters set forth in Exhibit O and such other matters
concerning the Loan Document Parties and the Loan Documents as the Required Lenders may
reasonably request;




     (vi) a certificate of a Responsible Officer of each Loan Document Party either (A)
attaching copies of all consents, licenses and approvals required in connection with the
execution, delivery and performance by such Loan Document Party and the validity against
such Loan Document Party of the Loan Documents to which it is a party, and such consents,
licenses and approvals shall be in full force and effect, or (B) stating that no such
consents, licenses or approvals are so required;




     (vii) a certificate signed by a Responsible Officer of the Company certifying (A) that
the conditions specified in Sections 4.02(a) and (b) have been satisfied,
(B) that there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either individually or in
the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;




     (viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter
of the Company most recently ended prior to the Closing Date, signed by a Responsible
Officer of the Company;



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     (ix) except as otherwise specified in Section 6.15, evidence satisfactory to
the Administrative Agent that the Liens granted to the Collateral Agent for the benefit of
the Lenders in the collateral described in the Pledge Agreement and the Security Agreement
are perfected security interests (except that with respect to the pledge of any Capital
Stock of First Tier non-U.S. Subsidiaries, perfected to the extent that the Uniform
Commercial Code in the relevant jurisdiction is applicable) in each case subject to
nonconsensual Permitted Liens; and no Lien (other than nonconsensual Permitted Liens) exists
on any such collateral described above other than the Lien created in favor of the
Collateral Agent, for the benefit of the Lenders, pursuant to the Loan Documents;




     (x) evidence that all insurance required to be maintained pursuant to the Loan
Documents has been obtained and is in effect;




     (xi) evidence that all amounts owing under the Existing Credit Agreement have been or
concurrently with the Closing Date are being paid; and




     (xii) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuers, or the Required Lenders reasonably may require.



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



     (c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges
and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by
the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of such fees, charges and disbursements as shall constitute its reasonable
estimate of such fees, charges and disbursements incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter preclude a final settling of
accounts between the Company and the Administrative Agent).



     (d) The Closing Date shall have occurred on or before August 31, 2006.



     Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender and
L/C Issuer that has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to a Lender or L/C Issuer unless the Administrative
Agent shall have received notice from such Lender or L/C Issuer prior to the proposed Closing Date
specifying its objection thereto.



     4.02 Conditions to all Credit Extensions. The obligations of the Lenders and the L/C Issuers
to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Committed Loans to the other Type, or a continuation of Eurocurrency Rate Loans)
shall be subject to the following conditions precedent:



     (a) The representations and warranties of (i) the Borrowers contained in Article V and (ii)
each Loan Party contained in each other Loan Document or in any document furnished at any time
under or in connection herewith or therewith, shall be true and correct in all material respects on
and as of the date of such Credit Extension, except to the extent that such



63









 







representations and warranties specifically refer to an earlier date, in which case they shall
be true and correct in all material respects as of such earlier date, and except that for purposes
of this Section 4.02, the representations and warranties contained in subsections (a) and
(b) of Section 5.05 shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 6.01.



     (b) No Default shall exist, or would result from such proposed Credit Extension or the
application of the proceeds thereof.



     (c) The Administrative Agent and, if applicable, the applicable L/C Issuer shall have received
a Request for Credit Extension in accordance with the requirements hereof.



     (d) If the applicable Borrower is a Designated Borrower, then the conditions of Section
2.14 to the designation of such Borrower as a Designated Borrower shall have been met to the
satisfaction of the Administrative Agent.



     (e) In the case of a Credit Extension to be denominated in an Alternative Currency, there
shall not have occurred any change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which, in the reasonable opinion of the
Administrative Agent, the Required Lenders (in the case of any Loans to be denominated in an
Alternative Currency) or the applicable L/C Issuer (in the case of any Letter of Credit to be
denominated in an Alternative Currency) would make it impracticable for such Credit Extension to be
denominated in the relevant Alternative Currency.



     Each Request for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Committed Loans to the other Type or a continuation of Eurocurrency Rate Loans)
submitted by the Company shall be deemed to be a representation and warranty that the conditions
specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of
the applicable Credit Extension.



ARTICLE V

REPRESENTATIONS AND WARRANTIES




     Each Borrower represents and warrants to the Administrative Agent, the L/C Issuers and the
Lenders that:



     5.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Document Party (a)
is a corporation, partnership or limited liability company duly organized or formed, validly
existing and in good standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all governmental licenses,
authorizations, consents and approvals to (i) own its assets and carry on its business and (ii)
execute, deliver, and perform its obligations under the Loan Documents to which it is a party, (c)
is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where
its ownership, lease or operation of properties or the conduct of its business requires such
qualification or license, and (d) is in compliance with all Laws, except in each case referred to
in subsection (b)(i), (c) or this subsection (d), to the extent that
failure to do so could not reasonably be expected to have a Material Adverse Effect.



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     5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan
Document Party of each Loan Document to which such Person is party, have been duly authorized by
all necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any material Contractual Obligation to which
such Person is a party or any order, injunction, writ or decree of any Governmental Authority to
which such Person or its property is subject; or (c) violate any Law applicable to such Loan
Document Party.



     5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, any Loan Document Party of this Agreement or any other Loan Document other
than those previously obtained and filings and other actions in connection with the Liens on any
collateral. All applicable waiting periods in connection with the transactions contemplated by the
Loan Documents have expired without any action having been taken by any competent authority
restraining, preventing or imposing materially adverse conditions upon the transactions
contemplated by the Loan Documents.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been duly executed and delivered by each Loan Document Party that is party
thereto. This Agreement constitutes, and each other Loan Document when so delivered will
constitute, a legal, valid and binding obligation of such Loan Document Party, enforceable against
each Loan Document Party that is party thereto in accordance with its terms, except to the extent
that the enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditor’s rights generally and by equitable
principles (regardless of whether enforcement is sought in equity or at law).



     5.05 Financial Statements; No Material Adverse Effect.



     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)
fairly present in all material respects the financial condition of the Company and its Subsidiaries
as of the date thereof and their results of operations for the period covered thereby in accordance
with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities, direct or
contingent, of the Company and its Subsidiaries as of the date thereof, including liabilities for
taxes and material commitments in accordance with GAAP consistently applied throughout the period
covered thereby.



     (b) The unaudited consolidated balance sheet of the Company and its Subsidiaries as at May 26,
2006, and the related consolidated statements of income, shareholders’ equity and cash flows for
the fiscal quarter then ended, (A) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby (subject to normal year-end adjustments and the absence of
notes), except as otherwise expressly noted therein; (B) fairly present in all material respects
the financial condition of the Company and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby in accordance with



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GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (C) show all material indebtedness and other liabilities, direct or contingent,
of the Company and its Subsidiaries as of the date thereof, including liabilities for taxes,
material commitments and Indebtedness in accordance with GAAP consistently applied throughout the
period covered thereby.



     (c) Since the date of the Audited Financial Statements, there has been no event or
circumstance that has had or could reasonably be expected to have a Material Adverse Effect, except
as disclosed (i) in public filings by the Company with the SEC or (ii) in press releases of the
Company or other public disclosures of the Company, in each case publicly filed or publicly
released after August 31, 2005 but prior to the Closing Date.



     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Company threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Company or any of its Subsidiaries or against
any of their properties or revenues which (a) purport to affect or pertain to this Agreement or any
other Loan Document, or any of the transactions contemplated hereby, or (b) if determined
adversely, could reasonably be expected to have a Material Adverse Effect, or, to the knowledge of
the Company, any investigation by any Governmental Authority of the Company’s or any Subsidiary’s
affairs or properties which could reasonably be expected to cause or result in a Material Adverse
Effect.



     5.07 No Default. Neither the Company nor any Subsidiary is in default under or with respect
to any Contractual Obligation that could be reasonably expected to have a Material Adverse Effect.
No Default has occurred and is continuing or would result from the consummation of the transactions
contemplated by this Agreement or any other Loan Document.



     5.08 Ownership of Property; Liens. The Company and each Subsidiary have good record and
marketable title in fee simple to, or valid leasehold interests in, all real property necessary or
used in the ordinary conduct of their respective businesses, except for such defects in title as
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. As of the Closing Date, the property of the Company and its Subsidiaries is subject to no
Liens, other than Permitted Liens.



     5.09 Environmental Compliance. The Company and its Subsidiaries conduct in the ordinary
course of business a review of the effect of existing Environmental Laws and claims alleging
potential liability or responsibility for violation of any Environmental Law on their respective
businesses, operations and properties, and as a result thereof the Company has reasonably concluded
that such Environmental Laws and claims could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.



     5.10 Insurance. The properties of the Company and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Company, in such amounts,
with such deductibles and covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where the Company or its
Subsidiaries operate (after giving affect to customary self-insurance).



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     5.11 Taxes. The Company and its Subsidiaries have filed all federal, state and other material
tax returns and reports required to be filed, and have paid all federal, state and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. To the Company’s knowledge, no proposed tax assessment against the Company
or any Subsidiary would, if made, have a Material Adverse Effect.



     5.12 ERISA Compliance.



     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other federal or state Laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto and, to
the knowledge of the Company, nothing has occurred which would prevent, or cause the loss of, such
qualification. The Company and each ERISA Affiliate have made all required contributions to each
Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of
any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.



     (b) There are no pending or, to the knowledge of the Company, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan (or any employee
benefit plan that was maintained by the Company or any ERISA Affiliate within the prior six years)
that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect to any Plan that has
resulted or could be reasonably expected to result in a Material Adverse Effect.



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) neither the Company nor any ERISA Affiliate has incurred,
or reasonably expects to incur, any liability under Title IV of ERISA (other than premiums due and
not delinquent under Section 4007 of ERISA); (iv) neither the Company nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the Company nor any ERISA
Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.



     5.13 Subsidiaries.



     (a) The Company has no Subsidiaries as of the date hereof other than those specifically
disclosed in Part (a) of Schedule 5.13 to the Disclosure Letter, and neither the Company nor any
Subsidiary has any equity investments in any other corporation or entity as of the date hereof
other than those specifically disclosed in Part (b) of Schedule 5.13 to the Disclosure Letter; and



     (b) Schedule 5.13 to the Disclosure Letter sets forth as of the date hereof (i) each
Subsidiary of the Company and identifies its status as either a U.S. Material Subsidiary, a First



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Tier non-U.S. Subsidiary, a non-U.S. Subsidiary that is not a First Tier non-U.S. Subsidiary
or a non-Material U.S. Subsidiary, (ii) a list of all issued and outstanding Capital Stock of each
such U.S. Material Subsidiary or First Tier non-U.S. Subsidiary, and (iii) the percentage of such
Capital Stock that is directly owned by the Company or any of its U.S. Subsidiaries. All of the
issued and outstanding Capital Stock of the Company and its Subsidiaries have been duly authorized
and are validly issued, fully paid and non-assessable, and, except with respect to non-consensual
Permitted Liens, are free and clear of any Liens and other restrictions (including any restrictions
on the right to vote, sell or otherwise dispose of such Capital Stock), and of any preemptive or
other similar rights to subscribe for or to purchase any such Capital Stock. There are no
outstanding rights to acquire Capital Stock in any Subsidiary and no additional Capital Stock of
any Subsidiary of the Company will become issuable to any Person pursuant to any “anti-dilution”
provisions of any such issued and outstanding Capital Stock. All Capital Stock of each Subsidiary
of the Company have been issued and offered in compliance in all material respects with applicable
Laws.



     5.14 Margin Regulations; Investment Company Act.



     (a) No Borrower is engaged, principally or as one of its important activities, in the business
of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock.



     (b) None of the Company, any Person Controlling the Company, or any Subsidiary is or is
required to be registered as an “investment company” under the Investment Company Act of 1940.



     5.15 Disclosure. No written statement, information, report, certification, representation, or
warranty made by any Loan Document Party or any Responsible Officer of any Loan Document Party in
any Loan Document or furnished to the Joint Lead Arrangers, the Administrative Agent or any Lender
by or on behalf of any Loan Party in connection with any Loan Document (including in any and all
disclosure materials furnished by or on behalf of any Loan Document Party or filed with the SEC on
forms 10-K, 10-Q or 8-K) contains any untrue statement of a material fact or, taken as a whole,
omits any material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading; provided that to
the extent any such document, information, report, financial statement, exhibit or schedule was
based upon or constitutes a forecast or projection, the Company represents only that it acted in
good faith and utilized reasonable assumptions and due care in the preparation of such document,
information, report, financial statement, exhibit or schedule (it being understood that forecasts
and projections by their nature involve approximations and uncertainties).



     5.16 Taxpayer Identification Number. The true and correct U.S. taxpayer identification number
of the Company is set forth on Schedule 10.02 to the Disclosure Letter.



     5.17 Intellectual Property; Licenses, Etc. The Company and its Subsidiaries own, or possess
the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective businesses,
without conflict



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with the rights of any other Person, except for such conflicts that could not reasonably be
expected to have a Material Adverse Effect. To the knowledge of the Company, no slogan or other
advertising device, product, process, method, substance, part or other material now employed, or
now contemplated to be employed, by the Company or any Subsidiary infringes upon any rights held by
any other Person, except for any such infringement that could not reasonably be expected to have a
Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to
the knowledge of the Company, threatened, and no patent, invention, device, application, principle
or any statute, law, rule, regulation, standard or code is pending or, to the knowledge of the
Company, proposed, which, in either case, could reasonably be expected to have a Material Adverse
Effect.



     5.18 Senior Indebtedness. The Company has taken all actions necessary for the Obligations to
constitute “Senior Indebtedness” and “Designated Senior Indebtedness” for the
purposes of and as defined in the Subordinated Indenture.



     5.19 Security Interest. The Loan Documents create for the benefit of the Lenders a valid and
perfected security interest in the collateral described in the Pledge Agreement (except that with
respect to the pledge of any Capital Stock of First Tier non-U.S. Subsidiaries, a perfected
security interest to the extent applicable), subject to no other Liens (other than as expressly
permitted by the Pledge Agreement), and a valid and perfected security interest in the collateral
described in the Security Agreement, subject to no other Liens (other than Liens expressly
permitted by the Security Agreement), securing in each case the payment of the Obligations, and all
filings and other actions necessary or desirable to perfect or protect such security interests have
been duly taken or arrangements therefor reasonably satisfactory to the Administrative Agent have
been made.



     5.20 No Restricted Junior Payments. Since the Closing Date, neither the Company nor any of
its Subsidiaries has directly or indirectly declared, ordered, paid or made, or set apart any sum
or property for, any Restricted Junior Payment or agreed to do so except as permitted pursuant to
Section 7.06.



     5.21 Solvency. Each Loan Document Party is, and upon the incurrence of any Obligation by such
Loan Document Party on any date on which this representation and warrant is made will be, Solvent.



ARTICLE VI

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other
than inchoate indemnity obligations) shall remain unpaid or unsatisfied, or any Letter of Credit or
Interest Rate Swap shall remain outstanding, the Company shall, and shall (except in the case of
the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11)
cause each Subsidiary to:



     6.01 Financial Statements. Deliver to the Administrative Agent in form and detail
satisfactory to the Administrative Agent and the Required Lenders:



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     (a) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Company, a consolidated balance sheet of the Company and its Subsidiaries as at the end of such
fiscal year, and the related consolidated statements of income or operations, shareholders’ equity
and cash flows for such fiscal year, setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail, audited and accompanied by a report and opinion
of a Registered Public Accounting Firm of nationally recognized standing reasonably acceptable to
the Required Lenders (the Lenders and the Administrative Agent hereby acknowledge that KPMG LLP is
acceptable), which report and opinion shall be prepared in accordance with GAAP and shall not be
subject to any qualifications or exceptions as to the scope of the audit nor to any qualifications
and exceptions not reasonably acceptable to the Required Lenders; and



     (b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Company, a consolidated balance sheet of the
Company and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and
for the portion of the Company’s fiscal year then ended, setting forth in each case in comparative
form the figures for the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail and certified by a
Responsible Officer of the Company as fairly presenting in all material respects the financial
condition, results of operations and cash flows of the Company and its Subsidiaries in accordance
with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.


As to any information contained in materials furnished pursuant to Section 6.02(d), the
Company shall not be separately required to furnish such information under Sections 6.01(a)
and 6.01(b), but the foregoing shall not be in derogation of the obligation of the
Company to furnish the information and materials described in Sections 6.01(a) and
6.01(b) at the times specified therein.




     6.02 Certificates; Other Information. Deliver to the Administrative Agent (and, if delivered
electronically, with a courtesy copy to each L/C Issuer and each Lender), in form and detail
satisfactory to the Administrative Agent and the Required Lenders:



     (a) concurrently with the delivery of the financial statements referred to in Section
6.01(a), a certificate of the Registered Public Accounting Firm certifying such financial
statements and stating that in making the examination necessary therefor no knowledge was obtained
of any Default under the financial covenants set forth herein (which certificate may be limited to
the extent required by accounting rules or guidelines) or, if any such Default shall exist, stating
the nature and status of such event;



     (b) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and 6.01(b), (i) a duly completed Compliance Certificate signed by a
Responsible Officer of the Company and (ii) a list of Material Subsidiaries, and First Tier
non-U.S. Subsidiaries and Designated Borrowers as of the date of such Compliance Certificate;



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     (c) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of directors
(or the audit committee of the board of directors) of the Company by independent accountants in
connection with the accounts or books of the Company or any Subsidiary, or any audit of any of
them;



     (d) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or written communication sent to the stockholders generally of the
Company, and copies of all annual, regular, periodic and special reports and registration
statements which the Company may file or be required to file with the SEC under Section 13 or 15(d)
of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto, in each case, other than the exhibits thereto unless
otherwise requested by the Administrative Agent or any Lender; and



     (e) promptly, such additional information regarding the business, financial or corporate
affairs of the Company or any Subsidiary as the Administrative Agent, at the request of any Lender,
may from time to time request.



     Reports required to be delivered pursuant to Sections 6.01(a), 6.01(b) or
6.02(d) (to the extent any such financial statements, reports or proxy statements are
included in materials otherwise filed with the SEC) may be delivered electronically and if so,
shall be deemed to have been delivered on the date on which the Company posts such reports, or
provides a link thereto, on the Company’s website on the Internet at the website address listed on
Schedule 10.02; or on which such documents are posted on the Company’s behalf on an
Internet or intranet website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the Administrative Agent);
provided that: (i) the Company shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Company to deliver such paper copies until a
written request to cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) the Company shall notify the Administrative Agent and each Lender (by telecopier or
electronic mail) of the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Company shall be required to provide paper copies
of the Compliance Certificates required by Section 6.02(b) to the Administrative Agent.
Except for such Compliance Certificates, the Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to above, and in any event
shall have no responsibility to monitor compliance by the Company with any such request for
delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.



     Each Borrower hereby acknowledges that (a) the Administrative Agent will make available to the
Lenders and the L/C Issuers materials and/or information provided by or on behalf of such Borrower
hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on
IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the
Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public
information with respect to any Borrower or its securities) (each, a “Public Lender”).
Each Borrower hereby agrees that (w) all Borrower Materials that are to be made available to



71









 







Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall
mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking
Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative
Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials
as not containing any material non-public information with respect to the Borrowers or their
respective securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 10.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated “Public Investor;” and (z) the Administrative Agent and the Joint Lead Arrangers shall
be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for
posting on a portion of the Platform not designated “Public Investor.” Notwithstanding the
foregoing, no Borrower shall be under any obligation to mark any Borrower Materials “PUBLIC.”



     6.03 Notices. Promptly notify the Administrative Agent, each L/C Issuer and each Lender:



     (a) of the occurrence of any Default;



     (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of the Company or any Subsidiary or (ii) any dispute, litigation, investigation,
proceeding or suspension between the Company or any Subsidiary and any Governmental Authority;



     (c) of one or more litigation, investigations or proceedings (or adverse development therein)
affecting any Loan Party in which the amounts reasonably expected to be paid in the aggregate
exceed the Threshold Amount, or in which injunctive relief or similar relief is sought, which
relief, if granted, could be reasonably expected to have a Material Adverse Effect;



     (d) of the occurrence of any ERISA Event that, alone or together with any other ERISA Events
that have occurred, could reasonably be expected to result in a liability of the Company and its
Subsidiaries in an aggregate amount exceeding $5,000,000;



     (e) of any material change in accounting policies or financial reporting practices by the
Company or any Subsidiary; provided that, the description of any such changes set forth in the
Company’s filings with the SEC, or the notes to any financial statements included therein, when
delivered to the Administrative Agent, shall constitute notice sufficient under this subsection
(e); and



     (f) of any announcement by Moody’s or S&P of any change or possible change in a Debt Rating.



     Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Company setting forth details of the occurrence referred to therein and stating what
action the Company has taken and proposes to take with respect thereto. Each notice pursuant to
Section 6.03(a) shall describe with particularity any and all provisions of this Agreement
or any other Loan Document that have been breached.



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     6.04 Payment of Obligations. Except to the extent the failure of which could not reasonably
be expected to have a Material Adverse Effect, pay and discharge as the same shall become due and
payable (or within any applicable grace period) all its obligations and liabilities, including (a)
material tax liabilities, assessments and governmental charges or levies upon it or its properties
or assets, unless the same are being contested in good faith by appropriate proceedings and
adequate reserves in accordance with GAAP are being maintained by the Company or such Subsidiary
and (b) all indebtedness, as and when due and payable, but subject to any subordination provisions
contained in any instrument or agreement evidencing such Indebtedness.



     6.05 Preservation of Existence, Etc. Except to the extent the failure of which could not
reasonably be expected to have a Material Adverse Effect, (a) preserve, renew and maintain in full
force and effect its legal existence and good standing under the Laws of the jurisdiction of its
organization, and take all reasonable action to maintain all rights, privileges, permits, licenses
and franchises necessary or desirable in the normal conduct of its business, except, pursuant to a
transaction permitted by Section 7.05; and (b) preserve or renew all of its registered
patents, trademarks, trade names and service marks.



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



     6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of the Company, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons engaged in the same or
similar business, of such types and in such amounts and with such deductibles as are customarily
carried under similar circumstances by such other Persons (after giving effect to customary
self-insurance).



     6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws
applicable to it or to its business or property, except in such instances in which (i) such
requirement of Law is being contested in good faith or a bona fide dispute exists with respect
thereto, or (ii) the failure to comply therewith could not be reasonably expected to have a
Material Adverse Effect.



     6.09 Books and Records. Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Company or such Subsidiary, as
the case may be.



     6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender (provided that such Person shall be subject to a
nondisclosure agreement the terms of which shall be substantially similar to Section 10.07)
to visit and inspect any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts



73









 







with its directors, officers, and independent public accountants, all at the expense of the
Company and at such reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Company; provided, however, that
when an Event of Default exists the Administrative Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the expense of the
Company at any time during normal business hours and without advance notice. Notwithstanding the
foregoing, while no Event of Default exists, neither the Company nor any of its Subsidiaries will
be required to disclose, permit the inspection, examination or making extracts of, or discussion
of, any document, information or other matter that (i) constitutes non-financial trade secrets or
non-financial proprietary information or (ii) in respect to which disclosure to the Administrative
Agent or any Lender (or designated representative) is then prohibited by Law or any agreement
binding on the Company or any of its Subsidiaries that was not entered into by the Company or any
of its Subsidiaries for the purpose of concealing information from the Administrative Agent and the
Lenders or evading the provisions of this Agreement.



     6.11 Compliance with ERISA.



     (a) Do, and cause each of its ERISA Affiliates to do, each of the following: (i) maintain
each Plan in compliance in all material respects with the applicable provisions of ERISA, the Code
and other federal or state law; (ii) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification, except to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (iii) make all required contributions
to any Plan subject to Section 412 of the Code.



     (b) Comply, and cause each of its relevant Subsidiaries to comply, in all material respects
with all applicable Laws relating to the maintenance or operation of each Foreign Plan, and
maintain in full force and effect all material registrations of any Foreign Plans.



     6.12 Use of Proceeds. Use the proceeds of the Credit Extensions for working capital and other
general corporate purposes (including to finance acquisitions and to refinance Indebtedness) not
in contravention of any Law or of any Loan Document, subject to the limitations set forth in
Section 7.12.



     6.13 Senior Indebtedness. The Obligations are hereby designated as “Senior
Indebtedness” and “Designated Senior Indebtedness” for the purposes of and as defined
in the Subordinated Indenture. The Company shall take all additional actions that may be necessary
for the Obligations to continue at all times to constitute “Senior Indebtedness” and
“Designated Senior Indebtedness” (to the extent applicable) under all Subordinated
Indebtedness and otherwise be entitled to all the benefits of any Senior Indebtedness under all
Subordinated Indebtedness.



     6.14 Covenant to Guarantee Obligations and Give Security.



     (a) If, at any time, any Subsidiary of the Company that is not a Loan Party shall be a
Material Subsidiary of the Company, then, in each case at the Company’s expense:



74









 






     (i) in the case of a U.S. Material Subsidiary, within 45 days of attaining such status,
the Company shall cause such Subsidiary to duly execute and deliver to the Administrative
Agent a guaranty substantially in the form of Exhibit F or a supplement thereto,
guaranteeing all of the Obligations under the Loan Documents;




     (ii) in the case of either a U.S. Material Subsidiary or a First Tier non-U.S.
Subsidiary, within 90 days of attaining such status (A) the Company shall, or shall cause
any Subsidiary that is a shareholder of such Material Subsidiary to, as applicable, duly
execute and deliver to the Administrative Agent (x) a pledge agreement substantially in the
form of Exhibit N or a pledge supplement thereto, and (y) certificates evidencing,
in the case of a U.S. Material Subsidiary, all of the issued and outstanding Capital Stock
of such Subsidiary owned by the Company or any of its Subsidiaries and, in the case of a
First Tier non-U.S. Subsidiary, 65% (or such greater percentage, if applicable, pursuant to
the Pledge Agreement) of the issued and outstanding Capital Stock of such Subsidiary owned
by the Company or any U.S. Subsidiary, which certificates shall be accompanied by undated
stock powers duly executed in blank or the equivalent under applicable law, and (B) with
respect to any Intercompany Indebtedness of the Loan Parties payable to such Material
Subsidiary, (x) the Company shall, and shall cause such other Loan Parties and such Material
Subsidiary to, execute and deliver an Interco Subordination Agreement or a supplement
thereto, provided that neither the Company nor any of its Subsidiaries shall be required to
comply with the pledge provisions of this clause (ii) with respect to any First Tier
non-U.S. Subsidiary in the event the Administrative Agent determines in its reasonable
discretion after consultation with the Company and with the concurrence of the Required
Lenders that any such pledge is not commercially feasible; and (y) such Material Subsidiary
shall be otherwise subject to the limitations and requirements of Section 7.03(f);




     (iii) evidence satisfactory to the Administrative Agent that the Lien granted to the
Collateral Agent for the benefit of the Lenders in the collateral described in clause (ii)
above is a perfected security interest (except that with respect to the pledge of any
Capital Stock of any such First Tier non-U.S. Subsidiary, perfected to the extent
applicable), and no Lien exists on any such collateral described above other than the Lien
created in favor of the Collateral Agent, for the benefit of the Lenders, pursuant to the
Loan Documents and non-consensual Permitted Liens; and




     (iv) at any time and from time to time, promptly execute and deliver any and all
further instruments and documents and take all such other action as the Administrative Agent
may deem necessary or desirable in obtaining the full benefits of, or in perfecting and
preserving the Liens of, the pledges and guaranties contemplated by this Section
6.14.



     (b) If, at any time after the Closing Date, the status of any Subsidiary of the Company shall
change so that it no longer meets the definition of “Material Subsidiary” or “First Tier non-U.S.
Subsidiary”, as the case may be, (whether by voluntary liquidation, dissolution, sale or other
transaction or occurrence permitted under this Agreement, or as a result of a change in its
financial position), upon receipt of a written request by a Responsible Officer of the Company (i)
requesting the release of such Subsidiary from its obligations under the Subsidiary Guaranty



75









 







and release of such Subsidiary’s Capital Stock from the pledge of such Capital Stock under the
Pledge Agreement or other applicable collateral documentation with respect to First Tier non-U.S.
Subsidiaries, and certifying that such Subsidiary is no longer a “Material Subsidiary” or “First
Tier non-U.S. Subsidiary”, as the case may be, and no Default is existing or would exist after
giving effect to such release and (ii) certifying that concurrently therewith it has caused any
pledge or guaranty required by the terms of this Agreement to be delivered in accordance herewith
(e.g., the substitution of one First Tier non-U.S. Subsidiary for another resulting from an
internal reorganization permitted under Section 7.05(c)), the Administrative Agent shall
(A) release such Subsidiary from its obligations under the Subsidiary Guaranty and (B) request the
Collateral Agent to release the shareholder pledgor of such Subsidiary’s Capital Stock from the
pledge under the Pledge Agreement.



     (c) If, at any time, the Company incorporates, creates or acquires any additional U.S.
Subsidiary (other than an Excluded U.S. Subsidiary), or the status of any Excluded U.S. Subsidiary
shall change so that it no longer meets the definition of “Excluded U.S. Subsidiary,” then, at the
Company’s expense:




     (i) within 45 days after such incorporation, creation or acquisition, or after any U.S.
Subsidiary no longer qualifies as an Excluded U.S. Subsidiary, the Company shall (A) cause
such U.S. Subsidiary to duly execute and deliver to the Administrative Agent a security
agreement in substantially the form of Exhibit M or a supplement thereto and (B)
deliver evidence satisfactory to the Administrative Agent that the Lien granted to the
Collateral Agent for the benefit of the Lenders on the collateral described in such security
agreement is a valid and perfected security interest and that no Lien (other than Liens
permitted by the Security Agreement) exists on any such collateral other than the Lien
granted to the Collateral Agent for the benefit of the Lenders pursuant to the Loan
Documents; and




     (ii) at any time and from time to time, the Company shall promptly execute and deliver
all further instruments and documents and take all such other action as the Administrative
Agent may reasonably believe necessary or desirable to obtain the full benefits of, or in
perfecting and preserving the Liens of, the pledges and guaranties contemplated by this
Section 6.14.



     (d) For the avoidance of doubt, the time periods set forth in clauses (i) and (ii) of
Section 6.14(a) shall relate back to the date on which the applicable Subsidiary attained
the status of a Material Subsidiary of the Company, including with respect to any Subsidiary of the
Company that attained such status prior to the Closing Date.



     (e) Following any release of Liens as provided in Section 9.10(c), and until any
reestablishment of the Liens under the Security Agreement shall be required as provided in
Section 6.16, the obligations of the Company pursuant to Section 6.14(c) shall no
longer apply.



     (f) For the avoidance of doubt, nothing herein shall require the pledge by Solectron Canada
ULC of any Capital Stock of Solectron USA, Inc. owned by Solectron Canada ULC.



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     6.15 Post-Closing Items. Within 90 days after the Closing Date the Company shall deliver to
the Administrative Agent, to the extent not delivered prior thereto, such opinions, assurances and
confirmations of non-U.S. counsel to the Company or its Subsidiaries as may be reasonably required
by the Administrative Agent regarding each of the First Tier non-U.S. Subsidiaries set forth on
Schedule 6.15 to the Disclosure Letter and the enforceability and perfection of the pledge of the
Capital Stock pledged pursuant to the Pledge Agreement.



     6.16 Reestablishment of Liens under the Security Agreement. If, from time to time following
any release of any portion of Liens under the Security Agreement by the Administrative Agent and
the Collateral Agent pursuant to Section 9.10(c) the Company’s Debt Rating shall no longer
be equal to or higher than BB (S&P) / Ba3 (Moody’s) or BB- (S&P) / Ba2 (Moody’s), the Company
shall, and shall cause each U.S. Subsidiary to (other than any Excluded U.S. Subsidiary), within 30
days following such decline in ratings (or such longer period as the Administrative Agent may
agree, in its sole discretion), execute and deliver such instruments and documents in form and
substance reasonably satisfactory to the Administrative Agent and take such other actions, in each
case, as the Administrative Agent shall deem necessary to grant to the Collateral Agent, for the
benefit of the Lenders, a valid and perfected security interest on all assets and properties that
would at that time comprise the collateral under the Security Agreement if the Security Agreement
were still in effect, subject to no Lien (other than Liens permitted by the Security Agreement),
pursuant to a security agreement substantially in the form of the Security Agreement (which
security agreement shall be deemed the Security Agreement for all purposes of this Agreement and
the other Loan Documents).



ARTICLE VII

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other
than inchoate indemnity obligations) shall remain unpaid or unsatisfied, or any Letter of Credit or
Interest Rate Swap shall remain outstanding, the Company shall not, nor shall it permit any
Subsidiary to, directly or indirectly:



     7.01 Liens. Create, incur, assume or suffer to exist, any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the following (collectively
“Permitted Liens”):



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the date hereof and listed on Schedule 7.01 to the Disclosure Letter and
any renewals or extensions thereof, provided that the property covered thereby is not increased and
any renewal or extension of the obligations secured or benefited thereby is permitted by
Section 7.03(b) except that Liens on cash securing Synthetic Lease Obligations shall be
governed by Section 7.01(r);



     (c) Liens for taxes not yet due or which are being contested in good faith and by appropriate
proceedings, if adequate reserves with respect thereto are maintained on the books of the
applicable Person in accordance with GAAP;



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



     (e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any Lien
imposed by ERISA;



     (f) deposits to secure the performance of bids, trade contracts (other than for borrowed
money), contracts for the purchase of property, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature, in each case, incurred in the
ordinary course of business and not representing an obligation for borrowed money;



     (g) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;



     (h) Liens securing judgments for the payment of money in an aggregate amount not in excess of
the Threshold Amount (except to the extent covered by independent third-party insurance as to which
the insurer has acknowledged in writing its obligation to cover), unless any such judgment remains
undischarged for a period of more than 30 consecutive days during which execution is not
effectively stayed;



     (i) Liens securing Indebtedness permitted under Section 7.03(e); provided that (i)
such Liens do not at any time encumber any property other than the property financed by such
Indebtedness or any one or more successive refinancings thereof (and accessions, additions, parts,
replacements, fixtures, improvements and attachments thereto, and the proceeds thereof) and (ii)
the Indebtedness secured thereby does not exceed the cost or Fair Market Value, whichever is lower,
of the property being acquired as measured on the date of acquisition;



     (j) Liens on assets (including real estate) acquired in Permitted Acquisitions after the date
of this Agreement; provided, however, that (i) such Liens existed at the time of
the Permitted Acquisition and were not created in anticipation thereof, (ii) any such Lien does not
by its terms cover any assets (other than after acquired property or proceeds) after the time of
the Permitted Acquisition which were not covered immediately prior thereto, and (iii) any such Lien
does not by its terms secure any Indebtedness other than Indebtedness secured thereby immediately
prior to the time of the Permitted Acquisition;



     (k) Liens in favor of any Loan Party on all or part of the assets of any Subsidiary of the
Company securing Indebtedness owing by such Subsidiary of the Company to any Loan Party, subject to
the limitations and requirements under Section 7.03(f);



     (l) Liens arising by virtue of any contractual, statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts, other
funds maintained with a creditor depository institution, or investment or securities accounts;
provided that (i) such account is not a dedicated cash collateral account and is not



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subject to restrictions against access by the Company or the relevant Subsidiary in excess of
those set forth by the regulations promulgated by the FRB, and (ii) such account is not intended by
the Company or any of its Subsidiaries to provide collateral to the depository institution with
respect to otherwise unrelated obligations of the Company or any such Subsidiary to such depository
institution;



     (m) Liens consisting of pledges of cash collateral or government securities to secure Swap
Contracts on a mark-to-market basis only, provided that the aggregate value of such collateral so
pledged by the Company and its Subsidiaries does not at any time exceed $100,000,000 in the
aggregate;



     (n) Leases or subleases and licenses or sublicenses granted to others in the ordinary course
of business which do not interfere in any material respect with the business operations of the
Company or any applicable Subsidiary;



     (o) 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;



     (p) Liens on insurance proceeds securing the payment of financed insurance premiums;



     (q) customary Liens granted in favor of a trustee to secure fees and other amounts owing to
such trustee under an indenture or other agreement pursuant to which Indebtedness permitted by
Section 7.03 is issued;



     (r) Liens consisting of pledges of cash collateral to secure (i) Synthetic Lease Obligations
in existence on the Closing Date and any refinancings or extensions thereof (provided that the
aggregate amount of such cash collateral securing such Synthetic Lease Obligations shall not at any
time exceed $110,000,000 less any amount of such cash collateral released to the Company or
its Subsidiaries as a result of any refinancing or restructuring of such obligations or otherwise,
other than any of such cash collateral utilized to collateralize any reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in each case to the extent the
same are capitalized in connection with any such refinancing or restructuring), or (ii)
Indebtedness of any non-U.S. Subsidiary solely for the purpose of repatriating, on a tax-efficient
basis, cash held by any non-U.S. Subsidiary out of the applicable foreign jurisdiction for the
benefit of any Loan Party;



     (s) additional Liens on its U.S. property, assets or revenue securing Indebtedness in an
aggregate amount so secured at any time not exceeding $25,000,000;



     (t) additional Liens on its non-U.S. property, assets or revenue securing Indebtedness in an
aggregate amount so secured at any time not exceeding $75,000,000; and



     (u) Liens on Receivables Program Assets in connection with any Disposition of such Receivables
Program Assets permitted by Section 7.05(i);


provided that, notwithstanding any of Sections 7.01(a) through 7.01(u), in
no event shall the Company or any Subsidiary of the Company create, incur, assume or suffer to
exist any Lien




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(other than non-consensual Permitted Liens) upon (i) any collateral under the Pledge Agreement or
upon any Capital Stock of any Material Subsidiary owned by a Loan Party, except in accordance with
Section 7.01(a) or (ii) any Receivables, except pursuant to Sections 7.01(a),
7.01(b), 7.01(c), 7.01(j), 7.01(k) or 7.01(u).




     7.02 Investments. Make any Investments, except:



     (a) Investments that are existing on the date hereof and described in Schedule 7.02 to the
Disclosure Letter;



     (b) Investments held by the Company or any Subsidiary in the form of cash equivalents or
short-term marketable securities in accordance with the Company’s investment policy as from time to
time in effect;



     (c) advances to officers, directors and employees of the Company and its Subsidiaries at any
time outstanding in an aggregate amount not to exceed $10,000,000, for travel, entertainment,
relocation and other ordinary business purposes;



     (d) (i) Investments of any Loan Party in any U.S. Subsidiary, or Investments of any Subsidiary
in any Loan Party or another U.S. Subsidiary, provided that with respect to such Investments in the
form of Intercompany Indebtedness, subject to the limitations and requirements under Section
7.03(f), (ii) Investments in the form of Intercompany Indebtedness of any Loan Party in any
non-U.S. Subsidiary, subject to the limitations and requirements under Section 7.03(f),
(iii) Investments of any non-U.S. Subsidiary in any other non-U.S. Subsidiary and (iv) Investments
of any non-Material Subsidiary payable to any other non-Material Subsidiary;



     (e) Investments consisting of extensions of credit in the nature of accounts receivable,
prepaid royalties or notes receivable arising from the sale or lease of goods or services in the
ordinary course of business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably necessary in order to
prevent or limit loss;



     (f) Guarantees permitted by Section 7.03;



     (g) Investments permitted by Section 7.04;



     (h) capital expenditures permitted by Section 7.10;



     (i) Investments to consummate Permitted Acquisitions (and Investments of such acquired Person,
which Investments existed at the time of such acquisition and were not created in contemplation of
such event);



     (j) Investments constituting Swap Contracts or payments or advances under Swap Contracts
permitted under Section 7.03(d);



     (k) Investments accepted in connection with Dispositions permitted by Section 7.05;



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     (l) Investments acquired by the Company or any of its Subsidiaries (i) in exchange for any
other Investment held by the Company or such Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer of such Investment, or (ii)
as a result of a foreclosure by the Company or any of its Subsidiaries with respect to any secured
Investment or other transfer of title with respect to any secured Investment in default;



     (m) Investments (or that portion of any Investment) made (i) solely with Capital Stock of the
Company, or (ii) with up to 50% of the cash proceeds from the contemporaneous sale of Capital Stock
of the Company; and



     (n) Investments at any time outstanding not exceeding in the aggregate 7.5% of Consolidated
Total Assets of the Company and its Subsidiaries as of the last day of the immediately preceding
fiscal quarter during the term of this Agreement.



     7.03 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:



     (a) Indebtedness under the Loan Documents (other than Indebtedness with respect to any
Interest Rate Swap);



     (b) Indebtedness outstanding on the date hereof and listed on Schedule 7.03 to the Disclosure
Letter and any refinancings, refundings, renewals, amendments or extensions thereof; provided that
the amount of such Indebtedness is not increased at the time of such refinancing, refunding,
renewal, amendment or extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in connection with such
refinancing and by an amount equal to any existing commitments unutilized thereunder;



     (c) Guarantees of (i) any Subsidiary of the Company in respect of Indebtedness permitted
hereunder of the Company (other than Indebtedness under the Senior Notes, the ACES, Convertible
Notes and the LYONs), (ii) the Company or any of its Subsidiaries in respect of Indebtedness
permitted hereunder of any Loan Party, or (iii) any non-U.S. Subsidiary of the Company in respect
of Indebtedness permitted hereunder of any other non-U.S. Subsidiary of the Company;



     (d) obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising
under any Swap Contract, provided that (i) such obligations are (or were) entered into by such
Person in the ordinary course of business for the purpose of directly mitigating risks associated
with liabilities, commitments, investments, assets, or property held or reasonably anticipated by
such Person, or changes in the value of securities issued by such Person and not for purposes of
speculation or taking a “market view;” (ii) such Swap Contract does not contain any provision
exonerating the non-defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party and (iii) at any time, the aggregate Swap Termination Value
which would be owed by the Company and its Subsidiaries in the event of a Termination Event under
all such Swap Contracts does not exceed $100,000,000;



     (e) Indebtedness in respect of capital leases, Synthetic Lease Obligations, purchase money
obligations and other obligations, the proceeds of which are used to acquire or construct fixed or
capital assets or improvements with respect thereto within the limitations set forth in



81









 




Section 7.01(i) or any refinancings, refundings, renewals, amendments or extensions
thereof, provided that the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal, amendment or extension except by an amount equal to a reasonable
premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection
with such refinancing and by an amount equal to any existing commitments unutilized thereunder;
provided further, that the aggregate amount of such Indebtedness at any one time
outstanding in reliance on this Section 7.03(e) shall not exceed 5% of Consolidated Total
Assets of the Company and its Subsidiaries as of the last day of the immediately preceding fiscal
quarter;




     (f) (i) Intercompany Indebtedness of any Loan Party payable to the Company or any of its
Subsidiaries or Intercompany Indebtedness of any Subsidiary of the Company payable to any Loan
Party, provided that, simultaneously with the incurrence of such loan (or in the case of any
Subsidiary that is not a U.S. Material Subsidiary, within 10 days after the incurrence thereof),
the Company shall cause (A) all such Intercompany Indebtedness to be subject to a perfected Lien
pursuant to the Pledge Agreement (other than any Intercompany Indebtedness payable to a non-U.S.
Subsidiary of the Company), and (B) all such Intercompany Indebtedness of any Loan Party to be
subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of
the Interco Subordination Agreement; provided further, that no such Intercompany
Indebtedness shall be evidenced by any note or other instrument unless such note is substantially
in the form of Exhibit K and the payee thereunder shall immediately endorse and deliver the
same to the Collateral Agent; (ii) Indebtedness of any non-U.S. Subsidiary payable to any other
non-U.S. Subsidiary; and (iii) Indebtedness of any non-Material Subsidiary payable to any other
non-Material Subsidiary;



     (g) Indebtedness consisting of guarantees (and other credit support) of the obligations of
vendors and suppliers of the Company or its Subsidiaries in respect of transactions entered into in
the ordinary course of business; provided that the aggregate principal amount of the Indebtedness
in respect of which such guarantees (and other credit support) are provided shall not exceed at any
time $10,000,000;



     (h) Indebtedness of any non-U.S. Subsidiary entered into to facilitate repatriation of blocked
cash, the proceeds of which are disbursed to a Loan Party;



     (i) Subordinated Indebtedness at any time outstanding in an aggregate amount not exceeding 10%
of Consolidated Total Assets of the Company and its Subsidiaries as of the last day of the
immediately preceding fiscal quarter;



     (j) Indebtedness constituting any Disposition permitted by Section 7.05(i) and any
Indebtedness incurred to provide credit support put in place in connection with any Receivables
Financing Program; and



     (k) additional Indebtedness (other than Guarantees in respect of the Senior Notes, the ACES,
the LYONs and Convertible Notes) at any time outstanding in reliance on this Section
7.03(k) in an aggregate amount not exceeding 5% of Consolidated Total Assets of the Company and
its Subsidiaries as of the last day of the immediately preceding fiscal quarter.



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     7.04 Fundamental Changes. Merge, consolidate with or into, or convey, transfer lease or
otherwise dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Default exists or would result therefrom:



     (a) any Person may merge into or consolidate with the Company in a transaction in which the
Company is the surviving corporation;



     (b) any Person may merge into or consolidate with any Subsidiary in a transaction in which the
surviving entity is a Subsidiary, provided that if such Subsidiary is a Loan Party, the Loan Party
shall be the surviving entity;



     (c) the Company and the Subsidiaries may make Permitted Acquisitions; and



     (d) any Disposition permitted under Section 7.05.



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



     (a) any Subsidiary may Dispose of any of its property (upon voluntary liquidation or
otherwise) to any other Subsidiary for Fair Market Value in cash or other tangible assets;



     (b) any Subsidiary may Dispose of any of its property (upon voluntary liquidation or
otherwise) to the Company or to another Loan Party, and the Company may Dispose of any of its
assets to any Loan Party;



     (c) the Capital Stock of any Subsidiary that is not a Loan Party or is a First Tier non-U.S.
Subsidiary may be Disposed of to the Company or any other Subsidiary to facilitate internal
reorganizations, provided that any such reorganization shall not be materially adverse to the
interest of the Lenders;



     (d) the Company and its Subsidiaries may Dispose of equipment or real property other than in
the ordinary course of business to the extent that such property is exchanged for credit against
the purchase price of similar property, plant or equipment used or useful in a permitted business
or the proceeds of such disposition are reasonably promptly applied to the purchase price of such
property, plant or equipment used or useful in a permitted business;



     (e) any Subsidiary may liquidate or dissolve if the Company determines in good faith that such
liquidation or dissolution is in the best interests of the Company and is not materially
disadvantageous to the Lenders and any distribution or other transfer of assets in connection with
such liquidation or dissolution is made to the Company or another Subsidiary in an amount
consistent with such person’s ownership percentage of the Subsidiary being dissolved or liquidated;



     (f) the Company and the Subsidiaries may make Dispositions of obsolete, worn out or surplus
property or property that is no longer used or useful in the business of the Company or its
Subsidiaries;



83









 





     (g) the Company and its Subsidiaries may enter into non-exclusive licenses of IP Rights;



     (h) the Company and its Subsidiaries may (i) make any Disposition in any transaction in the
ordinary course of business, (ii) make Investments permitted under Section 7.02, (iii) make
capital expenditures permitted under Section 7.10, (iv) make Restricted Junior Payments
permitted under Section 7.06, (iv) incur or repay Indebtedness permitted under Section
7.03, and (v) incur Liens permitted under Section 7.01;



     (i) the Company and its Subsidiaries may enter into any Receivables Financing Program to
securitize or otherwise make Dispositions of Receivables Program Assets, provided that (i)
any such transaction in respect of Receivables Program Assets owing by account debtors domiciled in
the United States shall not exceed $50,000,000 in the aggregate in any calendar year, and (ii) any
such transaction in respect of Receivables Program Assets owing by account debtors domiciled
outside the United States shall not exceed $250,000,000 in the aggregate in any calendar year; and



     (j) the Company and each Subsidiary may make Dispositions not otherwise permitted hereunder;
provided that (i) such Disposition is for Fair Market Value, (ii) at the time of any disposition
and after giving effect thereto, no Default or no Event of Default shall exist or shall result from
such Disposition, and (iii) the Net Disposition Proceeds from all such Dispositions by the Company
and its Subsidiaries, together, shall not exceed (x) in any fiscal year after the fiscal year
ending August 31, 2006, 5% of the Consolidated Total Assets of the Company and its Subsidiaries as
of the last day of the immediately prior fiscal year.



     7.06 Restricted Junior Payments. Declare, pay, make or set apart, or agree to declare, pay,
make or set apart, any sum for any Restricted Junior Payment, except that



     (a) the Company and its Subsidiaries may make regularly scheduled payments in respect of any
Subordinated Indebtedness in accordance with the terms of, and only to the extent not prohibited
by, and subject to the subordination provisions pursuant to which such Subordinated Indebtedness
was issued and, if applicable, pursuant to the Interco Subordination Agreement;



     (b) each Subsidiary may make any Restricted Junior Payments to the Company and to Subsidiaries
and, so long as no Default shall have occurred and be continuing in the case of a Restricted Junior
Payment by a non-wholly-owned Subsidiary, to the Company, any other Subsidiary and to other owners
of Capital Stock of such Subsidiary on a pro rata basis based on their relative ownership
interests;



     (c) (i) the Company and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock of such Person, and (ii) Solectron Global Services
Canada Inc. or 3942163 Canada Inc. may declare and pay dividends or make distributions with respect
to its non-voting exchangeable shares as required by the instruments currently in effect governing
the terms of such shares; provided that, any such dividend or distribution that is not in the form
of such non-voting exchangeable shares shall be deemed a



84









 







dividend or distribution made by the Company for purposes of Section 7.06(f), and the
Company must have sufficient availability under such subclause to permit the dividend or
distribution;



     (d) the Company and each Subsidiary may (i) purchase, redeem or otherwise acquire shares of
its common stock or warrants or options to acquire any such shares or prepay Subordinated
Indebtedness with the proceeds received from the substantially concurrent issue of new shares of
its common stock or (ii) prepay Subordinated Indebtedness with the proceeds received from the
substantially concurrent issue of new Subordinated Indebtedness, provided that, in each case, no
Default has occurred and is continuing;



     (e) the Company and its Subsidiaries may make payments or distributions to dissenting
stockholders pursuant to applicable law pursuant to or in connection with a Permitted Acquisition;



     (f) the Company may make Restricted Junior Payments up to an amount equal to the greater of
(i) $50,000,000 and (ii) $50,000,000 plus 50% of positive Consolidated Net Income, if any, of the
Company and its Subsidiaries for the period (taken as one accounting period) from the beginning of
the first fiscal quarter commencing after the Closing Date to the end of the Company’s most
recently ended fiscal quarter for which internal financial statements are available at the time of
such Restricted Junior Payment (or if such Consolidated Net Income for such period is a deficit,
minus an amount equal to the sum of 100% of such deficit plus Cash Restructuring Charges and
Non-Cash Restructuring Charges, in each case determined on an after-tax basis and deducted in
calculating Consolidated Net Income for such period), computed on a cumulative basis with other
such transactions under this Section 7.06(f) by the Company since that date;
provided, that, immediately after giving effect to such proposed action, no Default would
exist; and provided further, that, notwithstanding anything to the contrary in this
Section 7.06(f) (other than the requirement that no Default would exist after giving effect
to the proposed action), the Company shall not make any Restricted Junior Payment of the type
described in clause (ii) of the definition of Restricted Junior Payment to the extent it relates to
common stock of the Company (a “Common Stock Buy-Back”) except as provided below, and
provided further, that, notwithstanding anything to the contrary in this
Section 7.06(f) (other than the requirement that no Default would exist after giving effect
to the proposed action), the Company may make Restricted Junior Payments of the type described in
clause (i) of the definition of Restricted Junior Payments (“Distributions”) and Common Stock
Buy-Backs if immediately after giving effect to such Distribution and/or Common Stock Buy-Back the
sum of the Liquidity and Availability would not be less than $700,000,000, calculated as of the
date of such Distribution and/or Common Stock Buy-Back (after and giving effect thereto), and the
Company shall have delivered to the Administrative Agent (in form and substance satisfactory to it
and the Required Lenders), a certificate of a Responsible Officer of the Company to such effect,
together with all relevant computations and data evidencing the foregoing.



     (g) the Company may make (i) any payment on or with respect to, or repurchase, redeem, defease
or acquire or retire for value, any Convertible Notes of the Company in connection with an optional
redemption of such Convertible Notes pursuant to the terms thereof, provided that the current
market price per share of the Company’s common stock (calculated based upon the average closing
price as reported on the New York Stock Exchange (or other national securities exchange on which
such common stock is listed) for the 30-trading day period



85









 







immediately preceding the date any notice of redemption is sent or published) into which such
Convertible Notes is convertible equals or exceeds 150% of the conversion price in effect for such
Convertible Notes on the date of such notice, and (ii) any payment of cash in lieu of any
fractional shares deliverable upon conversion of any such Convertible Notes in compliance with the
terms of the instruments governing such Convertible Notes; provided that, in each case, any amounts
paid in cash pursuant to this subsection will reduce the amount available for Restricted Junior
Payments under Section 7.06(f); and



     (h) the Company may effect any Convertible Note Cash Conversion Settlement in respect of any
Convertible Notes, if at the time of such Convertible Note Cash Conversion Settlement and after
giving effect thereto, no Default or Event of Default shall exist or shall result from such
Convertible Note Cash Conversion Settlement.



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



     7.08 Change in Nature of Business; Fiscal Year End. (a) Engage in any material line of
business substantially different from those lines of business conducted by the Company and its
Subsidiaries on the Closing Date or any business reasonably related or incidental thereto or
reasonable extensions thereof, or (b) change its fiscal year end from the last Friday of August in
each fiscal year.



     7.09 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate
of the Company, whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the Company or any Subsidiary as would reasonably be
expected to be obtainable by the Company or such Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an Affiliate; provided that the foregoing
restriction shall not apply to transactions between or among the Company and any of its
Subsidiaries or between and among any Subsidiaries.



     7.10 Capital Expenditures. Make or become legally obligated to make any expenditure in
respect of the purchase or other acquisition of any fixed or capital asset (excluding normal
replacements and maintenance which are properly charged to current operations, Permitted
Acquisitions, and acquisitions of assets as a result of the termination of Synthetic Lease
Obligations), except for capital expenditures not exceeding, in the aggregate for the Company and
its Subsidiaries for any consecutive four-quarter period beginning on September 1, 2005, and each
four-quarter period beginning on each September 1 thereafter an amount equal to $300,000,000.



     7.11 Burdensome Agreements. Except to the extent included as of the Closing Date in the
provisions of any Contractual Obligation listed in Schedule 7.11 to the Disclosure Letter,



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enter into, incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (i) the ability of the Company or any Subsidiary to create,
incur or permit to exist any Lien upon any of its property or assets in favor of the Lenders under
the Loan Documents, or (ii) the ability of any Subsidiary to pay dividends or other distributions
with respect to any of its Capital Stock or to make or repay loans or advances to the Company or
any other Subsidiary or to guarantee Indebtedness of the Company or any other Subsidiary; if any
such prohibition, restriction or condition is materially more burdensome to any Loan Party than any
similar prohibition, restriction or condition contained in this Agreement or any other Loan
Document; provided that the foregoing shall not apply to:



     (a) restrictions and conditions imposed by Law, by this Agreement or the other Loan Documents;



     (b) restrictions by reason of customary provisions restricting assignments, subletting or
other transfers contained in leases, licenses and similar agreements entered into in the ordinary
course of business (provided that such restrictions are limited to the property or assets secured
by such Liens or the property or assets subject to such leases, licenses or similar agreements, as
the case may be);



     (c) restrictions with respect to the disposition or transfer of assets or property in asset
sale agreements, stock sale agreements and other similar agreements entered into in the ordinary
course of business (provided that in each case (i) the Company or any Subsidiary party to any such
agreement is the seller, and (ii) such restrictions are limited to the property or assets that are
the subject of such agreement);



     (d) restrictions with respect to the disposition or distribution of assets or property in
joint venture agreements, partnership agreements and other similar agreements entered into in the
ordinary course of business, in each case so long as (i) the joint venture, partnership or other
subject of such agreement is not a Subsidiary of the Company, and (ii) the counterparty to such
agreement is not an Affiliate of the Company.



     (e) restrictions in agreements evidencing Indebtedness (A) permitted by (i) Section
7.03(b), to the extent such restrictions exist on the Closing Date (or to the extent that a
substantially similar restriction existed in the agreements evidencing Indebtedness outstanding on
the Closing Date that has been subsequently refinanced, refunded, renewed, amended or extended) and
(ii) Section 7.03(e), that impose restrictions on the property so acquired or (B) secured
by cash collateral in compliance with Section 7.01 that imposes restrictions on any cash
collateral therefor;



     (f) restrictions on property to be transferred or optioned that are or were created by virtue
of any transfer of, agreement to transfer or option or right with respect to any property, assets
or Capital Stock not otherwise prohibited under this Agreement;



     (g) restrictions and conditions applicable to any Subsidiary acquired after the date hereof if
such restrictions and conditions existed at the time such Subsidiary was acquired, were not created
in anticipation of such acquisition, and applying solely to such acquired Subsidiary;



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     (h) restrictions in any agreement for the sale or other disposition of a Subsidiary that
relate to such Subsidiary pending its sale or other disposition;



     (i) restrictions contained in any working capital facility entered into by a non-U.S.
Subsidiary and applying solely to such non-U.S. Subsidiary; provided that the aggregate Fair Market
Value of assets subject to any such facilities shall not at any time exceed 2% of Consolidated
Total Assets of the Company and its Subsidiaries as of the last day of the immediately preceding
fiscal quarter;



     (j) restrictions in agreements entered into in connection with the incurrence of Permitted
Liens that limit the right of the Company or any of its Subsidiaries to dispose of the assets
subject to such Permitted Lien; and



     (k) restrictions on cash or other deposits provided or made by customers, in each case under
contracts entered into in the ordinary course of business.



     In no event shall any agreement or other arrangement (except as permitted under Sections
7.11(a) through 7.11(k)) restrict the ability of the Company or any of its Subsidiaries
to grant Liens in favor of the Lenders under the Loan Documents.



     7.12 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to (a) purchase or carry margin
stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose
of purchasing or carrying margin stock or to refund indebtedness originally incurred for such
purpose, in each case in violation of, or for a purpose which violates, or would be inconsistent
with, Regulation T, U or X of the FRB, or (b) finance any Unfriendly Acquisition. Without limiting
the generality of the foregoing, the Company shall not use the proceeds of any Credit Extension to
finance all or any part of any Distribution or Common Stock Buy-Back.



     7.13 Financial Covenants.



     (a) Leverage Ratio. Permit the Leverage Ratio as of the end of any fiscal quarter of
the Company to be greater than the ratio set forth opposite such fiscal quarter below:



	 	 	 	 	 
	Fiscal quarter	 	Maximum ratio
	Fiscal quarter ending in August, 2006
	 	 	4.25 to 1.0	 
	Each fiscal quarter in the fiscal year ending in August, 2007
	 	 	4.25 to 1.0	 
	Each fiscal quarter in the fiscal year ending in August, 2008
	 	 	4.00 to 1.0	 
	Each fiscal quarter thereafter
	 	 	3.75 to 1.0	 






     (b) Cash Interest Coverage Ratio. Permit the Cash Interest Coverage Ratio, as of the
end of any fiscal quarter of the Company, to be less than 4 to 1.



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With respect to any period during which a Permitted Acquisition or an asset sale has occurred
(each, a “Subject Transaction”), for purposes of determining compliance with the financial
covenants set forth in this Section 7.13, Consolidated EBITDA and the components of
Consolidated Cash Interest Charges shall be calculated with respect to such period on a pro forma
basis (including pro forma adjustments arising out of events which are directly attributable to a
Subject Transaction, are factually supportable and are expected to have a continuing impact, in
each case determined on a basis consistent with Article 11 of Regulation S-X promulgated under the
Securities Act of 1933, and as interpreted by the staff of the Securities and Exchange Commission,
which would include cost savings resulting from head count reduction, closure of facilities and
similar restructuring charges, which pro forma adjustments shall be certified by the chief
financial officer of the Company) using the historical audited, if available, financial statements
of any business so acquired or to be acquired or sold or to be sold and the consolidated financial
statements of the Company and its Subsidiaries which shall be reformulated as if such Subject
Transaction, and any Indebtedness incurred or repaid in connection therewith, had been consummated
or incurred or repaid at the beginning of such period (and assuming that such Indebtedness bears
interest during any portion of the applicable measurement period prior to the relevant acquisition
at the weighted average of the interest rates applicable to outstanding Loans incurred during such
period).




ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:



     (a) Non-Payment. Any Borrower fails to pay (i) when and as required to be paid
herein, and in the currency required hereunder, any amount of principal of any Loan or any L/C
Obligation, or (ii) within three (3) Business Days after the same becomes due, any interest on any
Loan or on any L/C Obligation, or any commitment, facility, utilization or other fee due hereunder,
or (iii) within five days after the same becomes due, any other amount payable hereunder or under
any other Loan Document; or



     (b) Specific Covenants. The Company fails to perform or observe any term, covenant or
agreement contained in any of Sections 6.03, 6.05, 6.12 or Article
VII; or



     (c) Other Defaults. Any Loan Document Party fails to perform or observe any other
covenant or agreement (not specified in Sections 8.01(a) or 8.01(b)) contained in
any Loan Document on its part to be performed or observed and such failure continues for 30 days;
or



     (d) Representations and Warranties. Any representation or warranty made or deemed
made by the Company or any other Loan Document Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith proves to have been incorrect in any
material aspect when made or deemed made; or



     (e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
in respect of one or more items of Indebtedness or Guarantees (other than Indebtedness hereunder)
having an aggregate principal amount (including undrawn committed or



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available amounts and including amounts owing to all creditors under one or more combined or
syndicated credit arrangements) of more than $25,000,000, and such failure continues beyond the
applicable grace period specified in the agreement or instrument relating to such Indebtedness or
Guarantees, or (B) fails to observe or perform any other agreement or condition relating to any
Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts)
having a principal amount (including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement) of more than
$25,000,000, or any other similar event occurs, the effect of which default or other similar event
is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or
beneficiaries of any such Guarantee (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to
be demanded or to become due or to be repurchased or redeemed (automatically or otherwise) prior to
its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to
be demanded; or (ii) there occurs under one or more Swap Contracts an Early Termination Date (as
defined in such Swap Contracts) resulting from (A) any event of default under such Swap Contracts
as to which the Company or any Subsidiary is the Defaulting Party (as defined in such Swap
Contracts), or (B) any Termination Event (as so defined) under such Swap Contracts as to which the
Company or any Subsidiary is an Affected Party (as so defined) and, in any event, the Swap
Termination Value owed by the Company or such Subsidiary as a result thereof is greater than
$25,000,000 in the aggregate; or



     (f) Insolvency Proceedings, Etc. The Company or any of its Subsidiaries (other than
an Insignificant Subsidiary) institutes or consents to the institution of any proceeding under any
Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents
to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to the Company or any of its
Subsidiaries or to all or any part of its property is instituted without the consent of the Company
or any of its Subsidiaries and continues undismissed or unstayed for 60 calendar days, or an order
for relief is entered in any such proceeding; or



     (g) Inability to Pay Debts; Attachment. (i) The Company or any of its Subsidiaries
(other than an Insignificant Subsidiary) becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or
execution or similar process is issued or levied against all or any material part of the property
of any such Person and is not released, vacated or fully bonded within 30 days after its issue or
levy; or



     (h) Judgments. There is entered against the Company or any Subsidiary (other than an
Insignificant Subsidiary) (i) a final judgment or order for the payment of money in an aggregate
amount exceeding the Threshold Amount (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), or (ii) any non-monetary final
judgments that have, or would reasonably be expected to have, taken as a whole a Material Adverse
Effect and, in either case, (A) enforcement proceedings are commenced by any creditor



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upon such judgment or order, or (B) there is a period of 30 consecutive days during which a
stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect;
or



     (i) ERISA. (i) With respect to any Plan that has any Unfunded Pension Liability, the
occurrence of either (A) the filing of a notice of intent to terminate, the treatment of any Plan
amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate any Pension Plan or Multiemployer Plan; or (B) any event or
condition that might reasonably be expected to constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; (ii) an ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan
which has resulted or could reasonably be expected to result in liability of the Company under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of the Threshold Amount; or (iii) the Company or any ERISA Affiliate fails to pay when due,
after the expiration of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of the Threshold Amount; or



     (j) Failure by the Company or any Subsidiary Guarantor to Perform Covenants; Invalidity of
any Guaranty. The Company or any Subsidiary Guarantor shall fail to perform or observe any
term, covenant or agreement contained in the applicable Guaranty on its part to be performed or
observed, or any default shall occur under such Guaranty, and any such failure or default shall
continue after the applicable grace period, if any, specified in such Guaranty as of the date of
such failure, or any defined “Event of Default” as defined in any Guaranty shall have occurred and
is continuing; or any Guaranty shall for any reason be revoked or invalidated, or otherwise cease
to be in full force and effect (except as expressly permitted hereunder), or the Company or any
Subsidiary Guarantor or any other Person shall contest in any manner the validity or enforceability
thereof or deny that it has any further liability or obligation thereunder; or



     (k) Impairment of Security, etc. Any Loan Document or any Lien granted thereunder
shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective
or cease to be the legally valid, binding and enforceable obligation of any Loan Document Party
thereto; any Loan Document Party or any other party shall, directly or indirectly, contest in any
manner such effectiveness, validity, binding nature or enforceability; or, except as permitted
under any Loan Document, any Lien securing any Obligation shall, in whole or in part, ceases to be
a perfected first priority Lien (except that with respect to the pledge of any Capital Stock of
First Tier non-U.S. Subsidiaries, perfected first priority Lien to the extent applicable); or



     (l) Change of Control. There occurs, with respect to the Company, any Change of
Control; or there shall occur, with respect to any other Indebtedness of the Company in excess of
$25,000,000, any “change of control” thereunder.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:



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     (a) declare the commitment of each Lender to make Loans and any obligation of an L/C Issuer to
make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be
terminated;



     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
(including any Interest Rate Swap or Joinder Agreement) to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived
by the Borrowers;



     (c) require that the Company Cash Collateralize the L/C Obligations (in an amount equal to the
then Outstanding Amount thereof); and



     (d) exercise on behalf of itself, the Lenders and any Swap Counterparties all rights and
remedies available to it and such parties under the Loan Documents or applicable law;


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans and any obligation of an L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and
all interest and other amounts as aforesaid shall automatically become due and payable, and the
obligation of the Company to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any
Lender.




     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), and subject to the terms of the Intercreditor Agreement, any amounts
received on account of the Obligations shall be applied by the Agents, the L/C Issuers and the
Lenders in the following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Agents in their
capacities as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest and Letter of Credit Fees) payable to the
Lenders or the L/C Issuers (including fees, charges and disbursements of counsel to the respective
Lenders and L/C Issuers (including fees and time charges for attorneys who may be employees of any
Lender or any L/C Issuer) and amounts payable under Article III), ratably among them in
proportion to the amounts described in this clause Second payable to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest and Letter of Credit Fees on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and L/C Issuers in proportion to the respective amounts described in this clause
Third payable to them;



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     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuers in proportion to the
respective amounts described in this clause Fourth held by them;



     Fifth, to the Administrative Agent for the account of the respective L/C Issuers, to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit; and



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Company or as otherwise required by Law.



     Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn
amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy
drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash
Collateral after all Letters of Credit have either been fully drawn or expired, such remaining
amount shall be applied to the other Obligations, if any, in the order set forth above.



ARTICLE IX

THE AGENTS




     9.01 Appointment and Authority. Each of the Lenders and the L/C Issuers hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent and Collateral Agent
hereunder and under the other Loan Documents and authorizes each Agent to take such actions on its
behalf and to exercise such powers as are delegated to such Agent by the terms hereof or thereof,
together with such actions and powers as are reasonably incidental thereto. The provisions of this
Article are solely for the benefit of the Agents, the Joint Lead Arrangers, the Lenders and the L/C
Issuers, and no Borrower shall have rights as a third party beneficiary of any of such provisions.



     9.02 Rights as a Lender. The Persons serving as the Agents hereunder and under the other Loan
Documents shall have the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not an Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires, include the Persons
serving as the Agents hereunder in their individual capacities. Such Person and its Affiliates may
accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Borrowers or any Subsidiary or other
Affiliate thereof as if such Person were not an Agent hereunder and under the other Loan Documents
and without any duty to account therefor to the Lenders.



     9.03 Exculpatory Provisions. No Agent shall have any duties or obligations except those
expressly set forth herein and in the other Loan Documents. Without limiting the generality of the
foregoing, neither Agent:



     (a) shall be subject to any fiduciary or other implied duties, regardless of whether a Default
has occurred and is continuing;



     (b) shall have any duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby or by the other



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Loan Documents that such Agent is required to exercise as directed in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be expressly provided for
herein or in the other Loan Documents), provided that no Agent shall be required to take
any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability
or that is contrary to any Loan Document or applicable law; and



     (c) shall, except as expressly set forth herein and in the other Loan Documents, have any duty
to disclose, and shall not be liable for the failure to disclose, any information relating to any
of the Borrowers or any of their respective Affiliates that is communicated to or obtained by such
Person serving as an Agent or any of its Affiliates in any capacity.



     No Agent shall be liable for any action taken or not taken by it (i) with the consent or at
the request of the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as such Agent shall believe in good faith shall be necessary, under the circumstances
as provided in Sections 10.01 and 8.02) or (ii) in the absence of its own gross
negligence or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless
and until notice describing such Default is given to such Agent by the Company, the other Agent, a
Lender or an L/C Issuer.



     No Agent shall be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder
or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to such Agent.



     9.04 Reliance by Agents. Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, the issuance of a Letter of Credit, or relating to any collateral, that by its
terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, each Agent may presume
that such condition is satisfactory to such Lender or such L/C Issuer unless such Agent shall have
received notice to the contrary from such Lender or such L/C Issuer prior to the making of such
Loan, the issuance of such Letter of Credit or any action (or inaction) or other event relating to
collateral. Each Agent may consult with legal counsel (who may be counsel for the Company),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.



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     9.05 Delegation of Duties. Each Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Loan Document, including holding collateral, by or
through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or through their respective
Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and
to the Related Parties of such Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided for herein as well
as activities as Agent.



     9.06 Resignation of Administrative Agent and Collateral Agent.



     (a) The Administrative Agent may at any time give notice of its resignation to the Lenders,
the L/C Issuers and the Company. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Company, to appoint a successor, which shall
be a bank with an office in the United States, or an Affiliate of any such bank with an office in
the United States. If no such successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and
the L/C Issuers, appoint a successor Administrative Agent meeting the qualifications set forth
above; provided that if the Administrative Agent shall notify the Company and the Lenders
that no qualifying Person has accepted such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and each L/C Issuer directly, until
such time as the Required Lenders appoint a successor Administrative Agent as provided for above in
this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent
shall be discharged from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this Section). The fees
payable by the Company to a successor Administrative Agent shall be the same as those payable to
its predecessor unless otherwise agreed between the Company and such successor. After the retiring
Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of
this Article and Section 10.04 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.



     (b) The Collateral Agent may resign from the performance of all its functions and duties under
the Intercreditor Agreement, the Interco Subordination Agreement and the Pledge Agreement and any
other Loan Document (collectively, the “Collateral Agreements”) at any time by giving notice of its
resignation to the Lenders, the L/C Issuers, the Company, each other pledgor under the Pledge
Agreement and each other debtor under the Security Agreement. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the Company, to
appoint a successor, which shall be a bank with an office in



95









 







the United States, or an Affiliate of any such bank with an office in the United States. If
no such successor shall have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Collateral Agent gives notice of its resignation,
then the retiring Collateral Agent may on behalf of the Lenders and the L/C Issuers, appoint a
successor Collateral Agent meeting the qualifications set forth above; provided that if the
Collateral Agent shall notify the Company and the Lenders that no qualifying Person has accepted
such appointment, then such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Collateral Agent shall be discharged from its duties and obligations
hereunder and under the Collateral Agreements and (2) and the Lenders shall perform all of the
duties of the Collateral Agent hereunder until such time as the Required Lenders appoint a
successor Collateral Agent as provided for above in this Section, pursuant to such intercreditor
documentation as the Required Lenders shall require. Upon the acceptance of a successor’s
appointment as Collateral Agent hereunder, such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring (or retired) Collateral Agent, and
the retiring Collateral Agent shall be discharged from all of its duties and obligations hereunder
or under the Collateral Agreements (if not already discharged therefrom as provided above in this
Section). The fees payable by the Company to a successor Collateral Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Company and such successor.
The retiring Collateral Agent under the Collateral Agreements shall promptly (i) transfer to such
successor collateral agent all sums, securities and other items of collateral described therein,
together with all records and other documents necessary or appropriate in connection with the
performance of the duties of the successor collateral agent under the Collateral Agreements, and
(ii) execute and deliver to such successor collateral agent such amendments to financing
statements, and take such other actions, as may be necessary or appropriate in connection with the
assignment to such successor collateral agent of any security interests created thereunder. After
any retiring Collateral Agent’s resignation hereunder as the collateral agent, the provisions of
the Collateral Agreements and of this Article and Section 10.04 shall continue in effect
for the benefit of such retiring Collateral Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while the retiring
Collateral Agent was acting as Collateral Agent.



     (c) Any resignation by Bank of America as Administrative Agent pursuant to this Section shall
also constitute its resignation as an L/C Issuer. Upon the acceptance of a successor’s appointment
as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all
of the rights, powers, privileges and duties of the retiring L/C Issuers, (b) the retiring L/C
Issuers shall be discharged from all of their respective duties and obligations hereunder or under
the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make
other arrangement satisfactory to the retiring L/C Issuers to effectively assume the obligations of
the retiring L/C Issuers with respect to such Letters of Credit.



     9.07 Non-Reliance on Agents and Other Lenders. Each Lender and each L/C Issuer acknowledges
that it has, independently and without reliance upon the Agents, the Joint Lead Arrangers or any
other Lender or any of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender and each L/C Issuer also acknowledges that it will, independently and without reliance upon
the Agents, the Joint Lead Arrangers or any other Lender or any of



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their Related Parties and based on such documents and information as it shall from time to
time deem appropriate, continue to make its own decisions in taking or not taking action under or
based upon this Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.



     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Joint
Lead Arrangers or Co-Syndication Agents or Joint Book Managers, listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, the Collateral
Agent, a Lender or an L/C Issuer hereunder.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on any Borrower) shall be entitled and
empowered to, and if requested by the Required Lenders shall, by intervention in such proceeding or
otherwise:



     (a) file and prove a claim for the whole amount of the principal and interest owing and unpaid
in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to
file such other documents as may be necessary or advisable in order to have the claims of the
Lenders, the L/C Issuers and the Agents (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the L/C Issuers and the Agents and their
respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and the Agents
under Sections 2.03(i) and (j), 2.09 and 10.04) allowed in such
judicial proceeding; and



     (b) collect and receive any monies or other property payable or deliverable on any such claims
and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by the Collateral Agent, each Lender and the
L/C Issuers to make such payments to the Administrative Agent and, in the event that the
Administrative Agent shall consent to the making of such payments directly to the Collateral Agent,
the Lenders and the L/C Issuers, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09
and 10.04.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of the Collateral Agent, any Lender or L/C Issuer any plan
of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.



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     9.10 Collateral and Guaranty Matters. Each Lender hereby authorizes the Administrative Agent,
on behalf of and for the benefit of the Lenders, to be the agent for and representative of the
Lenders with respect to, and to enter into, or appoint and authorize the Collateral Agent to enter
into, all other Loan Documents, as applicable, including the Guaranties, the Pledge Agreement, the
Security Agreement, the Intercreditor Agreement and the Interco Subordination Agreement. The
Administrative Agent is further authorized on behalf of all the Lenders, without the necessity of
any notice to or further consent from the Lenders, from time to time to take any action, or permit
the Collateral Agent to take any action, with respect to any collateral or the Loan Documents which
may be necessary to perfect and maintain perfected the security interest in and Liens upon any
collateral granted pursuant to any Loan Document. Subject to Section 10.01, the Lenders
and the L/C Issuers irrevocably authorize each of the Agents, at its option and in its discretion:



     (a) to release any Lien on any property granted to or held by such Agent under any Loan
Document (i) upon termination of the Aggregate Commitments and payment in full of all Obligations
(other than contingent indemnification obligations) and the expiration or termination of all
Letters of Credit, or (ii) subject to Section 10.01, if approved, authorized or ratified in
writing by the Required Lenders;



     (b) (i) to release any Lien encumbering any assets constituting collateral under the Security
Agreement, the Pledge Agreement or any other collateral document or the Capital Stock of any
Subsidiary (and any Intercompany Note evidencing indebtedness of such Subsidiary payable to any
Loan Party) that is the subject of a sale or other disposition permitted hereby or is a release
otherwise explicitly permitted by the terms of the Loan Documents or to which the Required Lenders
(or such other Lenders as may be required to give such consent under Section 10.01) have
otherwise consented, (ii) to release any Loan Document Party (other than the Company) that is the
subject of a sale or other disposition permitted hereby or is a release otherwise explicitly
permitted by the terms of the Loan Documents or to which the Required Lenders (or such other
Lenders as may be required to give such consent under Section 10.01) have otherwise
consented, from its obligations under the Security Agreement, the Pledge Agreement, the Interco
Subordination Agreement or other collateral document, or (iii) to release any Subsidiary Guarantor
from the Subsidiary Guaranty that is the subject of a sale or other disposition permitted hereby or
is a release otherwise explicitly permitted by the terms of the Loan Documents or to which the
Lenders have given their consent under Section 10.01;



     (c) subject to the provisions of Section 6.16, to release the Liens encumbering the
assets constituting collateral under the Security Agreement, in the event that the Company has
achieved a Debt Rating of BB (S&P) / Ba3 (Moody’s) (stable/stable) or BB- (S&P) / Ba2 (Moody’s)
(stable/stable) or any higher rating, at the Company’s request and expense within 45 days of the
date upon which the Administrative Agent receives such release request from the Company, together
with a confirmation that the Company has achieved such Debt Ratings, as certified to the Collateral
Agent by a Responsible Officer of the Company; provided, for the avoidance of doubt, that
such Debt Rating is maintained or does not fall below BB- (S&P) / Ba2 (Moody’s) (stable/stable) on
or prior to such release date; or



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     (d) to subordinate any Lien on any property granted to or held by such Agent under any Loan
Document to the holder of any Lien on such property that is permitted by Section 7.01(i).



     Upon request by either Agent at any time, the Required Lenders will confirm in writing such
Agent’s authority to release or subordinate its interest in particular types or items of property,
or to release any Lien or any Subsidiary Guarantor from its obligations under the Subsidiary
Guaranty pursuant to this Section 9.10.



     Anything contained in any of the Loan Documents to the contrary notwithstanding, the Company,
each Agent and each Lender hereby agree that no Lender shall have any right individually to realize
upon any of the collateral under the Pledge Agreement, the Security Agreement or any supplement
thereto or to enforce the Guaranties or the Interco Subordination Agreement, as applicable, it
being understood and agreed that all such powers, rights and remedies thereunder may be exercised
solely by the Administrative Agent or the Collateral Agent, as the case may be, on behalf of
Lenders in accordance with the terms hereof and the other Loan Documents.



ARTICLE X

MISCELLANEOUS




     10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Company or any other Loan Party therefrom,
shall be effective unless in writing signed by the Required Lenders and the Company or the
applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:



     (a) waive any condition set forth in Section 4.01(a) without the written consent of
each Lender;



     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the written consent of such Lender;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under
any other Loan Document without the written consent of each Lender directly affected thereby;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iii) of the second proviso to this Section 10.01) any
fees or other amounts payable hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby; provided, however, that only the
consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to
waive any obligation of any Borrower to pay interest or Letter of Credit Fees at the Default Rate;



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     (e) change Section 2.13 or Section 8.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender;



     (f) amend Section 1.06 or the definition of “Alternative Currency” without the written
consent of each Lender;



     (g) change any provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; or



     (h) release all or substantially all of any collateral in any transaction or series of related
transactions, or release the Company from the Company Guaranty or all or substantially all of the
Subsidiary Guarantors from the Subsidiary Guaranty, in each case without the written consent of
each Lender;


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by any L/C Issuer in addition to the Lenders required above, affect the rights
or duties of such L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the relevant Agent in addition to the Lenders required above, affect the rights or
duties of such Agent under this Agreement or any other Loan Document; and (iii) a Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only by the parties
thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any
right to approve or disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent of such Lender.




     10.02 Notices; Effectiveness; Electronic Communication.



     (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:




     (i) if to the Borrowers, the Agents, or the L/C Issuers, to the address, telecopier
number, electronic mail address or telephone number specified for such Person on
Schedule 10.02;




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire; and




     (iii) if to any Swap Counterparty, as shall be set forth in the applicable Joinder
Agreement(s).



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     Notices sent by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier shall be deemed to
have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next business day
for the recipient). Notices delivered through electronic communications to the extent provided in
subsection (b) below, shall be effective as provided in such subsection (b).



     (b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuers hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or L/C Issuer
pursuant to Article II if such Lender or L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Collateral Agent, the Administrative Agent or the Company may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



     (c) The 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 BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING 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
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to any Borrower, any
Lender, any L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) arising out of any Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to any Borrower, any Lender, any L/C Issuer or any
other



101









 







Person for indirect, special, incidental, consequential or punitive damages (as opposed to
direct or actual damages).



     (d) Change of Address, Etc. Each of the Borrowers, the Agents and the L/C Issuers may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the other parties hereto. Each other Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the Company, the
Agents and the L/C Issuers. In addition, each Lender agrees to notify the Administrative Agent
from time to time to ensure that the Administrative Agent has on record (i) an effective address,
contact name, telephone number, telecopier number and electronic mail address to which notices and
other communications may be sent and (ii) accurate wire instructions for such Lender.



     (e) Reliance by Agents, L/C Issuers and Lenders. The Agents, the Joint Lead
Arrangers, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Committed Loan Notices) purportedly given by or on behalf of any Borrower
even if (i) such notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. The Company shall indemnify
each Agent, each L/C Issuer, each Lender and the Related Parties of each of them from all losses,
costs, expenses and liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of any Borrower. All telephonic notices to and other telephonic
communications with an Agent may be recorded by such Agent, and each of the parties hereto hereby
consents to such recording.



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



     10.04 Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. The Company shall pay (i) all reasonable out-of-pocket
expenses incurred by the Agents, the Joint Lead Arrangers and their Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Agents), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the L/C Issuers in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder, and (iii) all out-of-pocket expenses
incurred by either Agent, either Joint Lead Arranger, any Lender or any L/C Issuer (including the
fees, charges and disbursements of any counsel for each Agent, any Lender or any L/C Issuer), and
shall pay all fees and time charges for attorneys who may be



102









 







employees of either Agent, either Joint Lead Arranger, any Lender or any L/C Issuer, in
connection with the enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in connection with
the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of
Credit. The foregoing costs and expenses shall include (i) all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, (ii) other out-of-pocket
expenses incurred by each Agent and each Related Party thereof arising with respect to or in
connection with the collateral for the Obligations contemplated hereby, (iii) the cost of
independent public accountants and other outside experts retained by each Agent, each Related Party
thereof or any Lender, (iv) all the actual costs and reasonable expenses of creating and perfecting
Liens in favor of the Collateral Agent, for the benefit of Lenders pursuant hereto, including
reasonable fees, expenses and disbursements of counsel to each Agent and of counsel providing any
opinions that any Agent or Required Lenders may request in respect of such collateral or the Liens
created pursuant to the Loan Documents, and (v) all the actual costs and reasonable expenses
(including the reasonable fees, expenses and disbursements of any appraisers, consultants, advisors
and agents employed or retained by either Agent and its counsel) in connection with the custody or
preservation of any of the collateral described in the Loan Documents.



     (b) Indemnification by the Company. The Company shall indemnify each Agent (and any
sub-agent thereof), each Joint Lead Arranger, each Lender and each L/C Issuer, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses (including the fees, charges and disbursements of any counsel for any
Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges
and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee
or asserted against any Indemnitee by any third party or by any Borrower or any other Loan Party
arising out of, in connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby,
the performance by the parties hereto of their respective obligations hereunder or thereunder or
the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any refusal by any L/C
Issuer to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit), or
(iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether brought by a third
party or by the Company or any other Loan Party, and regardless of whether 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 (x) 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 (y) result from a claim brought by the
Company or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any other Loan Document, if the Company or such other Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.



103









 





     (c) Reimbursement by Lenders. To the extent that the Loan Parties for any reason fail
to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by
it to an Agent (or any sub-agent thereof), any Joint Lead Arranger, any L/C Issuer or any Related
Party of any of the foregoing, each Lender severally agrees to pay to each Agent (or any such
sub-agent), such Joint Lead Arranger, such L/C Issuer or such Related Party, as the case may be,
such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against such Agent (or any such sub-agent), such Joint Lead
Arranger, or such L/C Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for such Agent (or any such sub-agent), such Joint Lead Arranger, or an L/C Issuer
in connection with such capacity. The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.12(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Borrower shall assert, and hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual damages resulting from
the gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.



     (e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.



     (f) Survival. The agreements in this Section shall survive the resignation of the
Agents and the L/C Issuers, the replacement of any Lender, the termination of the Aggregate
Commitments, the release of any collateral and the repayment, satisfaction or discharge of all the
other Obligations.



     10.05 Payments Set Aside. To the extent that any payment by or on behalf of any Borrower is
made to either Agent, any L/C Issuer or any Lender, or either Agent, any L/C Issuer or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof
is subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by such Agent, such L/C Issuer or such Lender in
its discretion) to be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had not occurred, and (b)
each Lender and each L/C Issuer severally agrees to pay to the Administrative Agent upon demand its
applicable share (without duplication) of any amount so recovered from



104









 







or repaid by such Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the applicable Overnight Rate from time to time in
effect, in the applicable currency of such recovery or payment. The obligations of the Lenders and
the L/C Issuers under clause (b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.



     10.06 Successors and Assigns.



     (a) Successors and Assigns Generally. 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, except that no Borrower may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of
this Section, or (iii) by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section, (and any other attempted assignment or transfer by
any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their respective successors
and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section
and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents, the
L/C Issuers and the Lenders and the Indemnitees) any legal or equitable right, remedy or claim
under or by reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations) at the time owing to it); provided that any such
assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000 unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Company otherwise consents (each such
consent not to be unreasonably withheld or delayed);



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provided, however, that concurrent assignments to members of an
Assignee Group and concurrent assignments from members of an Assignee Group to a
single assignee (or to an assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met;




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned;




     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:




     (A) the consent of the Company (such consent not to be unreasonably withheld or
delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is to a
Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with
respect to such Lender; and




     (C) the consent of the applicable L/C Issuer (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment that
increases the obligation of the assignee to participate in exposure under one or
more Letters of Credit of such L/C Issuer (whether or not then outstanding).




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Company. No such assignment shall be made to the Company
or any of the Company’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.


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


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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 3.01, 3.04,
3.05, and 10.04 with respect to facts and circumstances occurring prior to the
effective date of such assignment. Upon request, each Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection 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 subsection (d) of this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrowers, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrowers, the Agents and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
any Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations) owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (iii) the
Borrowers, the Agents, the Lenders and the L/C Issuers shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under this Agreement.



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this Section,
each Borrower agrees that each Participant shall be entitled to the benefits of Sections
3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.08 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.13 as
though it were a Lender.



     (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 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 Company’s prior written
consent. A



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Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 3.01 unless the Company is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrowers, to comply with
Section 3.01(e) as though it were a Lender.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note(s), if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.



     (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



     (h) Resignation as L/C Issuer after Assignment. Notwithstanding anything to the
contrary contained herein, if at any time Bank of America assigns all of its Commitment and Loans
pursuant to subsection (b) above, Bank of America may, (i) upon 30 days’ notice to the Company and
the Lenders, resign as L/C Issuer. In the event of any such resignation as L/C Issuer, the Company
shall be entitled to appoint from among the Lenders a successor L/C Issuer hereunder;
provided, however, that no Lender shall be obligated to accept such appointment;
provided further, however, that no failure by the Company to appoint any
such successor shall affect the resignation of Bank of America as L/C Issuer. If Bank of America
resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C
Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Committed Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)).



     10.07 Treatment of Certain Information; Confidentiality. Each of the Agents, the Lenders and
the L/C Issuers agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, advisors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under
any other Loan Document or any action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or



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thereunder, (f) subject to an agreement containing provisions substantially the same as those
of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to a
Borrower and its obligations, (g) with the consent of the Company or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to either Agent, any Lender, the L/C Issuers or any of their respective
Affiliates on a nonconfidential basis from a source other than the Company.



     For purposes of this Section, “Information” means all information received from the
Company or any Subsidiary relating to the Company or any Subsidiary or any of their respective
businesses, other than any such information that is available to either Agent, any Lender or any
L/C Issuer on a nonconfidential basis prior to disclosure by the Company or any Subsidiary,
provided that, in the case of information received from the Company or any Subsidiary after
the date hereof, such information is clearly identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as provided in this Section
shall be considered to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such Person would accord
to its own confidential information.



     Each of the Administrative Agent, the Lenders and the L/C Issuers acknowledges that (a) the
Information may include material non-public information concerning the Company or a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including Federal and state securities Laws.



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by applicable law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final, in whatever currency)
at any time held and other obligations (in whatever currency) at any time owing by such Lender,
such L/C Issuer or any such Affiliate to or for the credit or the account of any Borrower against
any and all of the obligations of such Borrower now or hereafter existing under this Agreement or
any other Loan Document to such Lender or such L/C Issuer, irrespective of whether or not such
Lender or such L/C Issuer shall have made any demand under this Agreement or any other Loan
Document and although such obligations of such Borrower may be contingent or unmatured or are owed
to a branch or office of such Lender or L/C Issuer different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of each Lender, each L/C Issuer and their
respective Affiliates under this Section are in addition to other rights and remedies (including
other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have.
Each Lender and each L/C Issuer agrees to notify the Company and the Administrative Agent promptly
after any such setoff and application, provided that the failure to give such notice shall
not affect the validity of such setoff and application.



     10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum 



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Rate”). If the Administrative Agent or any Lender shall receive interest in an amount
that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans
or, if it exceeds such unpaid principal, refunded to the Company. In determining whether the
interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the
Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any
payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.




     10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.



     10.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by each Agent and each Lender,
regardless of any investigation made by either Agent or any Lender or on their behalf and
notwithstanding that an Agent or any Lender may have had notice or knowledge of any Default at the
time of any Credit Extension, and shall continue in full force and effect as long as any Loan or
any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.



     10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



     10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
or if any Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a
Defaulting Lender, then the Company 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, and consents required



110









 







by, Section 10.06), all of its interests, rights and obligations under this Agreement
and the related Loan Documents to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment), provided that:



     (a) the Company shall have paid (or caused a Designated Borrower to pay) to the Administrative
Agent the assignment fee specified in Section 10.06(b);



     (b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder and under the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or
the Company or applicable Designated Borrower (in the case of all other amounts);



     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and



     (d) such assignment does not conflict with applicable Laws.



     (e) A Lender shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Company to require such assignment and delegation cease to apply.



     10.14 Governing Law; Jurisdiction; Etc.



     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.



     (b) SUBMISSION TO JURISDICTION. EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK SITTING IN THE STATE, COUNTY AND CITY OF NEW YORK AND OF THE UNITED STATES DISTRICT
COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO 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 COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE 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 OR IN ANY OTHER LOAN DOCUMENT
SHALL AFFECT ANY RIGHT THAT AN AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING



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RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY BORROWER OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION.



     (c) WAIVER OF VENUE. EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF
AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     10.16 California Judicial Reference. If any action or proceeding is filed in a court of the
State of California by or against any party hereto in connection with any of the transactions
contemplated by this Agreement or any other Loan Document, (a) the court shall, and is hereby
directed to, make a general reference pursuant to California Code of Civil Procedure Section 638 to
a referee (who shall be a single active or retired judge) to hear and determine all of the issues
in such action or proceeding (whether of fact or of law) and to report a statement of decision,
provided that at the option of any party to such proceeding, any such issues pertaining to
a “provisional remedy” as defined in California Code of Civil Procedure Section 1281.8 shall be
heard and determined by the court, and (b) without limiting the generality of Section
10.04, the Company shall be solely responsible to pay all fees and expenses of any referee
appointed in such action or proceeding.



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     10.17 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby, the Company and each other Loan Party acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) the credit facility provided for hereunder
and any related arranging or other services in connection therewith (including in connection with
any amendment, waiver or other modification hereof or of any other Loan Document) are an
arm’s-length commercial transaction between the Borrowers, the other Loan Parties and their
respective Affiliates, on the one hand, and the Administrative Agent and the Joint Lead Arrangers,
on the other hand, and the Borrowers and the other Loan Parties are capable of evaluating and
understanding and understand and accept the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents (including any amendment, waiver or other
modification hereof or thereof); (ii) in connection with the process leading to such transaction,
the Administrative Agent, and each Joint Lead Arranger each is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary, for any of the Borrowers, any other
Loan Parties or any of their respective Affiliates, stockholders, creditors or employees or any
other Person; (iii) neither the Administrative Agent nor any Joint Lead Arranger has assumed or
will assume an advisory, agency or fiduciary responsibility in favor of any Borrower or any other
Loan Party with respect to any of the transactions contemplated hereby or the process leading
thereto, including with respect to any amendment, waiver or other modification hereof or of any
other Loan Document (irrespective of whether the Administrative Agent or any Joint Lead Arranger
has advised or is currently advising any of the Borrowers, the other Loan Parties or their
respective Affiliates on other matters) and neither the Administrative Agent nor any Joint Lead
Arranger has any obligation to any of the Borrowers, the other Loan Parties or their respective
Affiliates with respect to the transactions contemplated hereby except those obligations expressly
set forth herein and in the other Loan Documents; (iv) the Administrative Agent and the Joint Lead
Arrangers and their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrowers, the other Loan Parties and their
respective Affiliates, and neither the Administrative Agent nor any Joint Lead Arranger has any
obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Administrative Agent and the other Joint Lead Arrangers have not provided
and will not provide any legal, accounting, regulatory or tax advice with respect to any of the
transactions contemplated hereby (including any amendment, waiver or other modification hereof or
of any other Loan Document) and each Borrower and each other Loan Party has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. The
Company and each other Loan Party hereby waives and releases, to the fullest extent permitted by
law, any claims that it may have against the Administrative Agent and the other Joint Lead
Arrangers with respect to any breach or alleged breach of agency or fiduciary duty.



     10.18 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined)
and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the
Borrowers 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 Borrowers, which information includes the name and address
of each Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify such Borrower in accordance with the Act.



     10.19 Time of the Essence. Time is of the essence of the Loan Documents.



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     10.20 Judgment Currency. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligation of each Borrower
in respect of any such sum due from it to the Administrative Agent or any Lender hereunder or under
the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent
that on the Business Day following receipt by the Administrative Agent or such Lender, as the case
may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such
Lender, as the case may be, may in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less
than the sum originally due to the Administrative Agent or any Lender from any Borrower in the
Agreement Currency, such Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent or such Lender, as the case may be, against such
loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due
to the Administrative Agent in such currency, the Administrative Agent or such Lender, as the case
may be, agrees to return the amount of any excess to such Borrower (or to any other Person who may
be entitled thereto under applicable law), without interest.



     10.21 Amendment and Restatement. This Agreement is intended to amend and restate the Existing
Credit Agreement, without novation, with the Commitments set forth herein and the Lenders party
hereto. All Letters of Credit outstanding under the Existing Credit Agreement shall be Letters of
Credit outstanding hereunder. The Company hereby ratifies, affirms and acknowledges all of its
Obligations in respect of the Existing Credit Agreement and the related documents and agreements
delivered by them thereunder, including all outstanding Existing Letters of Credit and related
Issuer Documents. Each Lender hereto that is party to the Existing Credit Agreement agrees that
all previously outstanding promissory notes under the Existing Credit Agreement will be deemed
cancelled upon the occurrence of the Closing Date and the issuance of the Notes hereunder and such
previously outstanding promissory notes shall be returned to the Company for cancellation.
Additionally, those Lenders party hereto which are also party to the Existing Credit Agreement
hereby waive any prior notice requirement under the Existing Credit Agreement with respect to the
termination of commitments thereunder and the making of any prepayments thereunder.


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[Signature Pages Intentionally Omitted]





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