Exhibit 10.30


 


CONFORMED COPY


 




 





 


 


CREDIT AGREEMENT


 


 


among


 


 


INTERNATIONAL ADVISORY HOLDINGS CORP.,


 


 


INTERNATIONAL CONSULTING ACQUISITION CORP.,


 


VARIOUS LENDERS


 


 


and


 


 


DEUTSCHE BANK TRUST COMPANY AMERICAS,


as ADMINISTRATIVE AGENT


 


 






 


Dated as of November 16, 2007


 






 


DEUTSCHE BANK SECURITIES INC.,


as LEAD ARRANGER and BOOK RUNNING MANAGER


 


 




 





 


 

















 


CREDIT AGREEMENT, dated as of November 16, 2007, among
INTERNATIONAL ADVISORY HOLDINGS CORP., a Delaware corporation (“Holdings”),
INTERNATIONAL CONSULTING ACQUISITION CORP., a Delaware corporation (the “Borrower”),
the Lenders party hereto from time to time, and DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Administrative Agent. All capitalized terms used herein and
defined in Section 1 are used herein as therein defined.


 


W  I  T  N
E  S  S  E  T  H:


 


WHEREAS, subject to and upon the terms and conditions set forth herein,
the Lenders are willing to make available to the Borrower the respective credit
facilities provided for herein;


 


NOW, THEREFORE, IT IS AGREED:


 


SECTION 1.           Definitions and Accounting Terms.


 


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


 


“Acquired Entity or Business” shall mean either (x) the assets
constituting a business, division or product line of any Person not already a
Subsidiary of the Borrower or (y) 100% of the Equity Interests of any such
Person, which Person shall, as a result of the acquisition of such Equity
Interests, become a Wholly-Owned Domestic Subsidiary of the Borrower (or shall
be merged with and into the Borrower or a Wholly-Owned Domestic Subsidiary of
the Borrower that is a Subsidiary Guarantor, with the Borrower or such Subsidiary
Guarantor being the surviving or continuing Person).


 


“Acquisition” shall mean the acquisition by the Borrower of all
of the outstanding Equity Interests of TPI pursuant to, and in accordance with
the terms and conditions of, the Acquisition Agreement.


 


“Acquisition Agreement” shall mean the Purchase Agreement, dated
as of April 24, 2007, by and between MCP-TPI Holdings, LLC and Information
Services Group, Inc., as the same may be amended, modified and/or
supplemented from time to time in accordance with the terms hereof and thereof.


 


“Acquisition Documents” shall mean the Acquisition Agreement and
all other agreements and documents relating to the Acquisition, as the same may be
amended, modified and/or supplemented from time to time in accordance with the
terms hereof and thereof.


 


“Additional Security Documents” shall have the meaning provided
in Section 9.12.


 

















 


“Adjusted Consolidated Net Income” shall mean, for any period,
Consolidated Net Income for such period plus the sum of the amount of
all net non-cash charges (including, without limitation, depreciation,
amortization, deferred tax expense and non-cash interest expense) and net
non-cash losses which were included in arriving at Consolidated Net Income for
such period, less the amount of all net non-cash gains and non-cash
credits which were included in arriving at Consolidated Net Income for such
period.


 


“Adjusted Consolidated Working Capital” shall mean, at any time,
Consolidated Current Assets less Consolidated Current Liabilities at
such time.


 


“Administrative Agent” shall mean DBTCA, in its capacity as
Administrative Agent for the Lenders hereunder and under the other Credit
Documents, and shall include any successor to the Administrative Agent
appointed pursuant to Section 12.09.


 


“Affiliate” shall mean, with respect to any Person, any other
Person directly or indirectly controlling (including, but not limited to, all
directors and officers of such Person), controlled by, or under direct or
indirect common control with, such Person. A Person shall be deemed to control
another Person if such Person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the
election of directors (or equivalent governing body) of such Person or (ii) to
direct or cause the direction of the management and policies of such other
Person, whether through the ownership of voting securities, by contract or
otherwise; provided, however, that neither the Administrative
Agent (nor any Affiliate thereof) nor any Lender (nor any Affiliate thereof)
shall be considered an Affiliate of Holdings or any Subsidiary thereof.


 


“Aggregate Consideration” shall mean, with respect to any
Permitted Acquisition, the sum (without duplication) of (i) the Fair
Market Value of all Holdings Common Stock (or the Equity Interests of any
direct or indirect parent of Holdings) (based on the average closing trading
price of the Holdings Common Stock or such other Equity Interests, as the case may be,
for the 20 trading days immediately prior to the date of such Permitted
Acquisition on the stock exchange on which Holdings Common Stock or such other
Equity Interests, as the case may be, is listed or, if Holdings Common
Stock or such other Equity Interests are not so listed, the good faith determination
thereof by the board of directors of Holdings or the direct or indirect parent
of Holdings, as applicable) issued (or to be issued) as consideration in
connection with such Permitted Acquisition (including, without limitation,
Holdings Common Stock or such other Equity Interests which may be required
to be issued as earn-out consideration upon the achievement of certain future
performance goals of the respective Acquired Entity or Business), (ii) the
aggregate amount of all cash paid (or to be paid) by Holdings or any of its
Subsidiaries in connection with such Permitted Acquisition (including, without
limitation, payments of fees and costs and expenses in connection therewith)
and all contingent cash purchase price, earn-out, non-compete and other similar
obligations of Holdings and its Subsidiaries incurred and reasonably expected
to be incurred in connection therewith (as determined in good faith by
Holdings), (iii) the aggregate principal amount of all Indebtedness
assumed, incurred, refinanced and/or issued for the purpose of (or as part of)
such Permitted Acquisition to the extent permitted by Section 10.04, (iv) the
aggregate liquidation preference of all Qualified Preferred Stock of Holdings
issued (or to be issued) as consideration in connection with the proposed
Permitted


 


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Acquisition and (v) the Fair Market Value of all other
consideration payable in connection with such Permitted Acquisition.


 


“Agreement” shall mean this Credit Agreement, as modified,
supplemented, amended, restated (including any amendment and restatement
hereof), extended or renewed from time to time.


 


“Applicable Excess Cash Flow Repayment Percentage” shall mean
50%; provided, however, so long as the Total Leverage Ratio as of
the last day of the respective Excess Cash Flow Payment Period is less than
3.00:1.00, then the Applicable Excess Cash Flow Repayment Percentage instead
shall be 0%.


 


“Applicable Increased Term Loan Margin” shall mean, at any time,
with respect to any Incremental Term Loans made available pursuant to a given
Incremental Term Loan Commitment Agreement, the amount determined by the
Administrative Agent (and notified to the Lenders) to which the Applicable
Margin then in effect for each Type and Tranche of Term Loan theretofore
incurred must be increased, if at all, to equalize the Applicable Margin for
each Type and Tranche of all then outstanding Term Loans and the effective
interest rate margin for each Type of such Incremental Term Loans then being
incurred. It is understood and agreed that each determination of the “Applicable
Increased Term Loan Margin” shall be made by the Administrative Agent taking
into account the relevant factors outlined in the proviso appearing in clause (viii) of
Section 2.14(a) and shall be conclusive and binding on the Borrower
and all Lenders absent manifest error.


 


“Applicable Margin” shall mean a percentage per annum equal to: (i) in
the case of Initial Term Loans (A) maintained as Base Rate Loans, 2.50%
(or, on and after the date of the most recent incurrence of any Incremental
Term Loans bearing interest utilizing the Applicable Increased Term Loan
Margin, the Applicable Increased Term Loan margin for such Incremental Term
Loans), and (B) maintained as Eurodollar Loans, 3.50% (or, on and after
the date of the most recent incurrence of any Incremental Term Loans bearing
interest utilizing the Applicable Increased Term Loan Margin, the Applicable
Increased Term Loan Margin for such Incremental Term Loans); (ii) in the
case of Revolving Loans (A) maintained as Base Rate Loans, 2.50%, and (B) maintained
as Eurodollar Loans, 3.50%; (iii) in the case of Swingline Loans, 2.50%;
and (iv) with respect to any Type of Incremental Term Loan of a given
Tranche that is not an Initial Term Loan, that percentage per annum set forth
in, or calculated in accordance with, Section 2.14 and the respective
Incremental Term Loan Commitment Agreement (or, on and after the date of the
most recent incurrence of any Incremental Term Loans bearing interest utilizing
the Applicable Increased Term Loan Margin, the Applicable Increased Term Loan
margin for such Incremental Term Loans).


 


“Asset Sale” shall mean any sale, transfer or other disposition
by Holdings or any of its Subsidiaries to any Person (including by way of
redemption by such Person) other than to Holdings or a Wholly-Owned Subsidiary
of Holdings of any asset (including, without limitation, any capital stock or
other securities of, or Equity Interests in, another Person), but excluding
sales of assets pursuant to Sections 10.02(ii), (vi), (vii) (viii), (ix),
(x) and (xii).


 


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“Assignment and Assumption Agreement” shall mean an Assignment
and Assumption Agreement substantially in the form of Exhibit K
(appropriately completed).


 


“Authorized Officer” shall mean, with respect to (i) delivering
Notices of Borrowing, Notices of Conversion/Continuation, Letter of Credit
Requests and similar notices, any person or persons that has or have been authorized
by the board of directors of the Borrower to deliver such notices pursuant to
this Agreement and that has or have appropriate signature cards on file with
the Administrative Agent, the Swingline Lender or the respective Issuing
Lender, (ii) delivering financial information and officer’s certificates
pursuant to this Agreement, the chief financial officer, the treasurer or the
principal accounting officer of Holdings, and (iii) any other matter in
connection with this Agreement or any other Credit Document, any officer (or a
person or persons so designated by any two officers) of Holdings or the
Borrower.


 


“Bankruptcy Code” shall have the meaning provided in Section 11.05.


 


“Base Rate” shall mean, at any time, the higher of (i) the
Prime Lending Rate at such time and (ii) 1/2 of 1% in excess of the
overnight Federal Funds Rate at such time.


 


“Base Rate Loan” shall mean (i) each Swingline Loan and (ii) each
other Loan designated or deemed designated as such by the Borrower at the time
of the incurrence thereof or conversion thereto.


 


“Borrowing” shall mean the borrowing of one Type of Loan of a
single Tranche from all the Lenders having Commitments of the respective
Tranche (or from the Swingline Lender in the case of Swingline Loans) on a
given date (or resulting from a conversion or conversions on such date) having
in the case of Eurodollar Loans the same Interest Period, provided that (i) Base
Rate Loans incurred pursuant to Section 2.10(b) shall be considered part of
the related Borrowing of Eurodollar Loans and (ii) any Incremental Term
Loans incurred pursuant to Section 2.01(c) that are being added to a
then existing Tranche of Term Loans shall be considered part of the
related Borrowing of the then outstanding Tranche of Term Loans to which such
Incremental Term Loans are added pursuant to, and in accordance with the
requirements of, Section 2.14(c).


 


“Business Day” shall mean (i) for all purposes other than
as covered by clause (ii) below, any day except Saturday, Sunday and any
day which shall be in New York, New York a legal holiday or a day on which
banking institutions are authorized or required by law or other government
action to close, and (ii) with respect to all notices and determinations
in connection with, and payments of principal and interest on, Eurodollar
Loans, any day which is a Business Day described in clause (i) above and
which is also a day for trading by and between banks in U.S. dollar deposits in
the applicable interbank Eurodollar market.


 


“Calculation Period” shall mean, with respect to any Permitted
Acquisition or any other event expressly required to be calculated on a Pro
Forma Basis pursuant to the terms of this Agreement, the Test Period
most recently ended prior to the date of such Permitted Acquisition or other
event for which financial statements have been delivered to the Lenders
pursuant to this Agreement.


 


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“Capital Expenditures” shall mean, with respect to any Person,
all expenditures by such Person which should be capitalized in accordance with
GAAP and, without duplication, the amount of Capitalized Lease Obligations
incurred by such Person.


 


“Capitalized Lease Obligations” shall mean, with respect to any
Person, all rental obligations of such Person which, under GAAP, are or will be
required to be capitalized on the books of such Person, in each case taken at
the amount thereof accounted for as indebtedness in accordance with such
principles.


 


“Cash Equivalents” shall mean, as to any Person, (i) securities
issued or directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States is pledged in support thereof) having maturities of
not more than twelve months from the date of acquisition, (ii) marketable
direct obligations issued by any state of the United States or any political
subdivision of any such state or any public instrumentality thereof maturing
within twelve months from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either
S&P or Moody’s, (iii) Dollar denominated time deposits, certificates
of deposit and bankers acceptances of any Lender or any commercial bank having,
or which is the principal banking subsidiary of a bank holding company having,
a long-term unsecured debt rating of at least “A” or the equivalent thereof
from S&P or “A2” or the equivalent thereof from Moody’s with maturities of
not more than twelve months from the date of acquisition by such Person, (iv) repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (iii) above, (v) commercial
paper issued by any Person incorporated in the United States rated at least A-1
or the equivalent thereof by S&P or at least P-1 or the equivalent thereof
by Moody’s and in each case maturing not more than six months after the date of
acquisition by such Person, and (vi) investments in money market funds
substantially all of whose assets are comprised of securities of the types
described in clauses (i) through (v) above.


 


“CERCLA” shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same has been amended and may hereafter
be amended from time to time, 42 U.S.C. § 9601 et  seq.


 


“Change of Control” shall mean (i) Holdings shall at any
time and for any reason fail to own directly 100% of the outstanding Equity
Interests of the Borrower, (ii) the Permitted Holders shall at any time
and for any reason fail to own, directly or indirectly, at least 66-2/3% of the
economic and voting interests of Holdings’ outstanding Equity Interests, (iii) any
“Person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act as in effect on the Effective Date), (A) is or shall
become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5
under the Exchange Act as in effect on the Effective Date), directly or
indirectly, of 35% or more of the outstanding total voting interests of the
Sponsor’s Equity Interests (determined on a fully diluted basis) or (B) shall
have obtained the power (whether or not exercised) to elect a majority of the
Sponsor’s directors, or (iv) at any time and for any reason the board of
directors of the Sponsor shall cease to consist of a majority of Continuing
Directors.


 


“Code” shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the


 


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Code are to the Code, as in effect on the Effective Date and any
subsequent provisions of the Code, amendatory thereof, supplemental thereto or
substituted therefor.


 


“Collateral” shall mean all property (whether real or personal)
with respect to which any security interests have been granted (or purported to
be granted) pursuant to any Security Document, including, without limitation, all
Pledge Agreement Collateral, all Security Agreement Collateral, all Mortgaged
Properties and all cash and Cash Equivalents delivered as collateral pursuant
to Section 5.02 or 11.


 


“Collateral Agent” shall mean the Administrative Agent acting as
collateral agent for the Secured Creditors pursuant to the Security Documents.


 


“Commitment” shall mean any of the commitments of any Lender, i.e.,
either an Initial Term Loan Commitment, an Incremental Term Loan Commitment
under a given Tranche or a Revolving Loan Commitment.


 


“Commitment Commission” shall have the meaning provided in Section 4.01(a).


 


“Company” shall mean any corporation, limited liability company,
partnership or other business entity (or the adjectival form thereof,
where appropriate).


 


“Company Material Adverse Effect” shall mean any change,
circumstance or event that, individually or in the aggregate with all other
changes, circumstances and events, has or is reasonably likely to have a
material adverse effect on the business, assets, results of operations or
condition (financial or otherwise) of TPI and its Subsidiaries, taken as a
whole, other than any change or event resulting from, relating to or arising
out of (i) general economic conditions in any of the geographical areas in
which TPI or any of its Subsidiaries operate, to the extent that such change or
event does not have, or is reasonably likely not to have, a disproportionate
effect on TPI and its Subsidiaries relative to other Persons in the sourcing
advisory industry, (ii) any change in the financial, banking, currency or
capital markets in general (whether in the United States or any other country
or in any international market), to the extent that such change or event does
not have, or is reasonably likely not to have, a disproportionate effect on TPI
and its Subsidiaries relative to other Persons in the sourcing advisory
industry, (iii) conditions generally affecting any of the industries in
which TPI or any of its Subsidiaries operate, to the extent that such change or
event does not have, or is reasonably likely not to have, a disproportionate
effect on TPI and its Subsidiaries relative to other Persons in the sourcing
advisory industry, (iv) acts of God, national disaster, national or
international political or social conditions, including the engagement in
hostilities by the United States or any foreign country in which TPI or any of
its Subsidiaries operate (each, a “Foreign Territory”), whether
commenced before or after the date hereof, and whether or not pursuant to the
declaration of a national emergency or war, or the occurrence of any military
or terrorist attack upon the United States or any Foreign Territory or any of
their respective territories, possessions, or diplomatic or consular offices or
upon any military installation, equipment or personnel of the United States or
any Foreign Territory, to the extent that such change or event does not have,
or is reasonably likely not to have, a disproportionate effect on TPI and its
Subsidiaries relative to other Persons in the sourcing advisory industry, (v) any
action taken by the Borrower or any of its Affiliates, (vi) the
announcement or pendency of the transactions contemplated by the


 


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Acquisition Agreement or the disclosure of the fact that the Borrower
is the prospective acquirer of TPI and its Subsidiaries, (vii) any change
in accounting requirements or principles imposed upon TPI or any of its
Subsidiaries or any change in applicable laws, rules or regulations or the
interpretation thereof, to the extent that such change or event does not have,
or is reasonably likely not to have, a disproportionate effect on TPI and its
Subsidiaries relative to other Persons in the sourcing advisory industry, or (viii) compliance
with the terms of, or the taking of any action required by, the Acquisition
Agreement.


 


“Consolidated Current Assets” shall mean, at any time, the
consolidated current assets of Holdings and its Subsidiaries at such time, but
excluding therefrom (to the extent otherwise included therein) the amount of
all cash and Cash Equivalents at such time.


 


“Consolidated Current Liabilities” shall mean, at any time, the
consolidated current liabilities of Holdings and its Subsidiaries at such time,
but excluding therefrom (to the extent otherwise included therein) the current
portion of any Indebtedness under this Agreement and the current portion of any
other long-term Indebtedness at such time.


 


“Consolidated EBITDA” shall mean, for any period, Consolidated
Net Income for such period (without giving effect to (in each case to the
extent otherwise included in determining Consolidated Net Income for such
period), without duplication, (v) any extraordinary income or gains, (w)
any non-cash income (excluding items which represent the reversal of a non-cash
charge referred to in clause (y) below of this definition), (x) any
extraordinary losses, (y) any non-cash charges or losses (except to the extent
that any such non-cash charge or loss would require an anticipated cash payment
(or a reserve for an anticipated cash payment) in any future period), and (z)
any gains or losses from sales of assets other than inventory sold in the
ordinary course of business) and adjusted by adding thereto (in each case to
the extent deducted in determining Consolidated Net Income for such period),
without duplication, the amount of (i) total interest expense (inclusive
of amortization of deferred financing fees and other original issue discount
and banking fees, charges and commissions (e.g., letter of credit fees
and commitment fees)) of Holdings and its Subsidiaries determined on a
consolidated basis for such period, (ii) provision for taxes based on
income and foreign withholding taxes for Holdings and its Subsidiaries
determined on a consolidated basis for such period, (iii) all depreciation
and amortization expense of Holdings and its Subsidiaries determined on a
consolidated basis for such period, (iv) the amount of all fees and
expenses incurred in connection with the Transaction during such period, (v) the
amount of all fees and expenses incurred in connection with any equity
offering, Investment, acquisition, disposition or recapitalization permitted
hereunder (or refinancing thereof) for such period, in each case to the extent
that such fees and expenses are not funded with internally generated cash flow
or cash on the balance sheet, (vi) up to $5,000,000 in the aggregate of
restructuring charges relating to the Borrower’s value creation plan to the
extent incurred on or prior to December 31, 2008, (vii) any costs or
expenses incurred by Holdings or any of its Subsidiaries pursuant to any
management equity plan or stock option plan or in connection with any other
management or employee benefit plan or agreement or any stock subscription or
shareholder agreement, to the extent that such costs or expenses are funded
with cash proceeds contributed to the capital of Holdings, and (viii) one
time costs and expenses incurred during such period to the extent relating to
the initial study and implementation of procedures to comply with the
Sarbanes-Oxley


 


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Act to the extent incurred on or prior to December 31, 2008, provided
that (A) no amounts may be added back pursuant to this clause (viii) until
such time as Holdings and its Subsidiaries shall have incurred at least
$750,000 in the aggregate of such costs and expenses (and only the amounts in
excess of such $750,000, subject to succeeding sub-clause (B), may be so
added back) and (B) no more than $500,000 in the aggregate may be
added back pursuant to this clause (viii). For the avoidance of doubt, it is
understood and agreed that, to the extent any amounts are excluded from
Consolidated Net Income by virtue of the proviso to the definition thereof
contained herein, any add backs to Consolidated Net Income in determining
Consolidated EBITDA as provided above shall be limited (or denied) in a fashion
consistent with the proviso to the definition of Consolidated Net Income
contained herein. Notwithstanding anything to the contrary contained above in
this definition, for purposes of determining Consolidated EBITDA for any Test
Period which ends on or prior to December 31, 2008, Consolidated EBITDA
for all portions of such period occurring prior to December 31, 2007 shall
be (i) in the case of Holdings’ fiscal quarter ended December 31,
2006, $4,529,000, (ii) in the case of Holdings’ fiscal quarter ended March 31,
2007, $4,815,000, (iii) in the case of Holdings’ fiscal quarter ended June 30,
2007, $6,297,000, (iv) in the case of Holdings’ fiscal quarter ended September 30,
2007, $7,370,000, and (v) in the case of Holdings’ fiscal quarter ending December 31,
2007, the actual Consolidated EBITDA as determined above in this definition
without regard to this sentence for the period from and including the first day
of such fiscal quarter to and including the last day of such fiscal quarter but
determined on a pro  forma basis as if the Transaction (and
related financings) had occurred on the first day of such fiscal quarter.


 


“Consolidated Indebtedness” shall mean, at any time, the sum of
(without duplication) (i) all Indebtedness of Holdings and its
Subsidiaries (on a consolidated basis) as would be required to be reflected as
debt or Capitalized Lease Obligations on the liability side of a consolidated
balance sheet of Holdings and its Subsidiaries in accordance with GAAP, (ii) all
Indebtedness of Holdings and its Subsidiaries of the type described in clauses (ii) (excluding
undrawn amounts in respect of letters of credit) and (vii) of the
definition of Indebtedness and (iii) all Contingent Obligations of
Holdings and its Subsidiaries in respect of Indebtedness of any third Person of
the type referred to in preceding clauses (i) and (ii); provided
that, for purposes of calculating the Total Leverage Ratio under clause (x) of
the definition of Incremental Term Loan Commitment Cap, Consolidated
Indebtedness shall exclude any Indebtedness that is expressly subordinated in
right of payment to the Obligations on terms reasonably satisfactory to the
Administrative Agent.


 


“Consolidated Net Income” shall mean, for any period, the
remainder of (A) the net income (or loss) of Holdings and its Subsidiaries
determined on a consolidated basis for such period (taken as a single
accounting period) in accordance with GAAP (after deduction for all minority
interests) minus (B) the aggregate amount of all Dividends paid
pursuant to Section 10.03(vii) during such period, provided that
the following items shall be excluded in computing Consolidated Net Income to
the extent otherwise included therein (without duplication):  (i) the net income or loss of any other
Person which is not a Subsidiary of Holdings or is accounted for by Holdings by
the equity method of accounting except (x) in the case of net income, to the
extent of the payment of cash dividends or cash distributions by such other
Person to Holdings or a Subsidiary thereof of such net income during such
period and (y) in the case of a loss, to the extent that Holdings or a
Subsidiary thereof contributes cash to such other Person to fund such loss
during such period, (ii) except for determinations expressly required to
be made on a Pro


 


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Forma Basis, the net income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Holdings or all or
substantially all of the property or assets of such Person are acquired by a
Subsidiary of Holdings and (iii) the net income of any Subsidiary of
Holdings (other than the Borrower) to the extent that the declaration or
payment of cash dividends or similar cash distributions by such Subsidiary of
such net income is not at the time permitted by the operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Subsidiary.


 


“Contingent Obligation” shall mean, as to any Person, any
obligation of such Person as a result of such Person being a general partner of
any other Person, unless the underlying obligation is expressly made
non-recourse as to such general partner, and any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness, leases, dividends or
other obligations (“primary obligations”) of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (iv) otherwise to assure or hold harmless
the holder of such primary obligation against loss in respect thereof; provided,
however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be the
lower of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made and (b) the
maximum amount for which such guaranteeing Person may be liable pursuant
to the terms of the instrument embodying such Contingent Obligation, unless
such primary obligation and the maximum amount for which such guaranteeing
Person may be liable are not stated or determinable, in which case the
amount of such Contingent Obligation shall be such guaranteeing Person’s
maximum reasonably anticipated liability in respect thereof as determined by
the Borrower in good faith.


 


“Continuing Directors” shall mean the directors of the Sponsor
on the Effective Date and each other director of the Sponsor if such director’s
nomination for election to the board of directors of the Sponsor is recommended
by a majority of the then Continuing Directors.


 


“Credit Documents” shall mean this Agreement, the Subsidiaries
Guaranty, the Pledge Agreement, the Security Agreement, and after the execution
and delivery thereof pursuant to the terms of this Agreement, each Note, each
Mortgage, each Additional Security Document and each Incremental Term Loan
Commitment Agreement.


 


“Credit Event” shall mean the making of any Loan or the issuance
of any Letter of Credit.


 


“Credit Party” shall mean Holdings, the Borrower and each
Subsidiary Guarantor.


 


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“DBTCA” shall mean Deutsche Bank Trust Company Americas, in its
individual capacity, and any successor corporation thereto by merger,
consolidation or otherwise.


 


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


 


“Defaulting Lender” shall mean any Lender with respect to which
a Lender Default is in effect.


 


“Dividend” shall mean, with respect to any Person, that such
Person has paid a dividend or distribution or returned any equity capital to
its stockholders, partners or members or made any other distribution, payment
or delivery of property (other than common Equity Interests of such Person) or
cash to its stockholders, partners or members in their capacity as such, or
redeemed, retired, purchased or otherwise acquired, directly or indirectly, for
a consideration any shares of any class of its capital stock or any other
Equity Interests outstanding on or after the Effective Date (or any options or
warrants issued by such Person with respect to its capital stock or other
Equity Interests), or set aside any funds for any of the foregoing purposes, or
shall have permitted any of its Subsidiaries to purchase or otherwise acquire
for consideration any shares of any class of the capital stock or any
other Equity Interests of such Person outstanding on or after the Effective
Date (or any options or warrants issued by such Person with respect to its
capital stock or other Equity Interests). Without limiting the foregoing, “Dividends”
with respect to any Person shall also include all payments made or required to
be made by such Person with respect to any stock appreciation rights, plans,
equity incentive or achievement plans or any similar plans or setting aside of
any funds for the foregoing purposes.


 


“Documents” shall mean, collectively, (i) the Credit
Documents, (ii) the Refinancing Documents and (iii) the Acquisition
Documents.


 


“Dollars” and the sign “$” shall each mean freely transferable
lawful money of the United States.


 


“Domestic Subsidiary” of any Person shall mean any Subsidiary of
such Person incorporated or organized in the United States or any State thereof
or the District of Columbia.


 


“Drawing” shall have the meaning provided in Section 3.05(b).


 


“Effective Date” shall have the meaning provided in Section 13.10.


 


“Eligible Transferee” shall mean and include a commercial bank,
an insurance company, a finance company, a financial institution, any fund that
invests in loans or any other “accredited investor” (as defined in Regulation D
of the Securities Act), but in any event excluding the Sponsor, its Affiliates
and Holdings and its Subsidiaries.


 


“Environmental Claims” shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of non-compliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, “Claims”),
including, without limitation, (a) any and all Claims by governmental or
regulatory


 


10

















 


authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b) any
and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment
due to the presence of Hazardous Materials.


 


“Environmental Law” shall mean any Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, guideline, policy and rule of
common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
employee health and safety or Hazardous Materials, including, without
limitation, CERCLA; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901
et  seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251
et  seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et
seq.; the Clean Air Act, 42 U.S.C. § 7401 et  seq.;
the Safe Drinking Water Act, 42 U.S.C. § 3803 et  seq.; the
Oil Pollution Act of 1990, 33 U.S.C. § 2701 et  seq.; the
Emergency Planning and the Community Right-to-Know Act of 1986, 42 U.S.C. § 11001
et  seq.; the Hazardous Material Transportation Act, 49 U.S.C. § 1801
et  seq.; the Occupational Safety and Health Act, 29 U.S.C. § 651
et  seq.; and any state and local or foreign counterparts or
equivalents, in each case as amended from time to time.


 


“Equity Financing” shall mean the cash common equity financing
to Holdings from the Sponsor in an aggregate amount of at least $121,000,000.


 


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


 


“ERISA” shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the Effective Date and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.


 


“ERISA Affiliate” shall mean each person (as defined in Section 3
(9) of ERISA) which together with Holdings or a Subsidiary of Holdings
would be deemed to be a “single employer” (i) within the meaning of Section 414(b) or
(c) of the Code or (ii) solely for purposes of Section 302 of
ERISA and/ or Sections 412, 4971 and/ or each “applicable section” under Section 414(t)(2)
of the Code, within the meaning of Section 414(b), (c), (m) or (o) of the
Code.


 


“Eurodollar Loan” shall mean each Loan (other than a Swingline
Loan) designated as such by the Borrower at the time of the incurrence thereof
or conversion thereto.


 


“Eurodollar Rate” shall mean (a) the offered quotation to
first-class banks in the New York interbank Eurodollar market by the
Administrative Agent for Dollar deposits of amounts in immediately available
funds comparable to the outstanding principal amount of the Eurodollar Loan of
the Administrative Agent (in its capacity as a Lender (or, if the
Administrative Agent is not a Lender with respect thereto, taking the average
principal amount


 


11

















 


of the Eurodollar Loan then being made by the various Lenders pursuant
thereto)) with maturities comparable to the Interest Period applicable to such
Eurodollar Loan commencing two Business Days thereafter as of 10:00 A.M.
(New York time) on the applicable Interest Determination Date, divided (and
rounded upward to the nearest 1/16 of 1%) by (b) a percentage equal to
100% minus the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves required by applicable law) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency funding or liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D).


 


“Event of Default” shall have the meaning provided in Section 11.


 


“Excess Cash Flow” shall mean, for any period, the remainder of
(if positive) (a) the sum of, without duplication, (i) Adjusted
Consolidated Net Income for such period, and (ii) the decrease, if any, in
Adjusted Consolidated Working Capital from the first day to the last day of
such period, minus (b) the sum of, without duplication, (i) the
aggregate amount of all Capital Expenditures made by Holdings and its Subsidiaries
during such period (other than Capital Expenditures to the extent financed with
equity proceeds, Equity Interests, Asset Sale proceeds, insurance proceeds or
Indebtedness (other than with Revolving Loans and Swingline Loans)), (ii) the
aggregate amount of permanent principal payments of Indebtedness for borrowed
money of Holdings and its Subsidiaries and the permanent repayment of the
principal component of Capitalized Lease Obligations of Holdings and its
Subsidiaries during such period (other than (1) repayments made with the
proceeds of Asset Sales, equity issuances or contributions, Equity Interests,
insurance or Indebtedness and (2) payments of Loans, provided that
repayments of Loans shall be deducted in determining Excess Cash Flow to the
extent such repayments were required as a result of a Scheduled Term Loan
Repayment pursuant to Section 5.02(b)), (iii) the increase, if any,
in Adjusted Consolidated Working Capital from the first day to the last day of
such period, (iv) the Aggregate Consideration paid in cash by Holdings or
any of its Subsidiaries in respect of all Permitted Acquisitions during such
period (other than Permitted Acquisitions to the extent financed with equity
proceeds, Equity Interests, Asset Sale proceeds, insurance proceeds or Indebtedness),
(v) the aggregate amount of all Dividends paid during such period pursuant
to Section 10.03(iii) to the extent such Dividends were financed with
internally generated cash flow of Holdings and its Subsidiaries and (vi) without
duplication of amounts deducted from Excess Cash Flow in prior periods, the
amount of cash taxes paid or tax reserves set aside or payable (without
duplication) in such period to the extent they exceed the amount of tax expense
deducted in determining Consolidated Net Income for such period.


 


“Excess Cash Flow Payment Date” shall mean the date occurring
100 days after the last day of each fiscal year of Holdings (commencing with
the fiscal year of Holdings ending December 31, 2008).


 


“Excess Cash Flow Payment Period” shall mean, with respect to
the repayment required on each Excess Cash Flow Payment Date, the immediately
preceding fiscal year of Holdings.


 


“Exchange Act” shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.


 


12

















 


“Existing Indebtedness” shall have the meaning provided in Section 8.20.


 


“Existing Indebtedness Agreements” shall have the meaning
provided in Section 6.05.


 


“Facing Fee” shall have the meaning provided in Section 4.01(c).


 


“Fair Market Value” shall mean, with respect to any asset
(including Equity Interests of any Person), the fair market value of such asset
as determined in good faith by the board of directors or other governing body
or, pursuant to a specific authorization by such board of directors or
governing body, a designated senior executive officer, of Holdings, or the
Subsidiary of Holdings selling such asset.


 


“Federal Funds Rate” shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.


 


“Fees” shall mean all amounts payable pursuant to or referred to
in Section 4.01.


 


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


 


“GAAP” shall mean generally accepted accounting principles in
the United States as in effect from time to time; provided that
determinations in accordance with GAAP for purposes of Sections 5.02, 9.15 and
10, including defined terms as used therein, and for all purposes of
determining the Total Leverage Ratio, are subject (to the extent provided
therein) to Section 13.07(a).


 


“Guaranteed Creditors” shall mean and include each of the
Administrative Agent, the Collateral Agent, the Issuing Lenders, the Lenders
and each party (other than Holdings or any of its Subsidiaries) party to an
Interest Rate Protection Agreement or an Other Hedging Agreement to the extent
such party constitutes a Secured Creditor under the Security Documents.


 


“Guaranteed Obligations” shall mean and include (i) the
full and prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of the principal, premium (if any) and interest on
each Note issued by, and all Loans made to, the Borrower under this Agreement
and all reimbursement obligations and Unpaid Drawings with respect to Letters
of Credit, together with all the other obligations (including obligations
which, but for the automatic stay under Section 362(a) of the Bankruptcy
Code, would become due), indebtedness and liabilities (including, without
limitation, indemnities, fees and interest (including any interest accruing
after the commencement of any bankruptcy, insolvency, receivership or similar
proceeding at the rate provided for herein, whether or not such interest is an
allowed claim in any such proceeding) thereon) of the Borrower to the Lenders,
the Issuing Lenders, the


 


13

















 


Administrative Agent and the Collateral Agent now existing or hereafter
incurred under, arising out of or in connection with this Agreement and each
other Credit Document to which the Borrower is a party and the due performance
and compliance by the Borrower with all the terms, conditions and agreements
contained in this Agreement and in each such other Credit Document and (ii) the
full and prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of all obligations (including obligations which, but
for the automatic stay under Section 362(a) of the Bankruptcy Code,
would become due), liabilities and indebtedness (including any interest
accruing after the commencement of any bankruptcy, insolvency, receivership or
similar proceeding at the rate provided for in the respective Interest Rate
Protection Agreement or Other Hedging Agreement, whether or not such interest
is an allowed claim in any such proceeding) of the Borrower and/or one or more
of its Subsidiaries owing under each Interest Rate Protection Agreement and Other
Hedging Agreement entered into by the Borrower and/or one or more of its
Subsidiaries with any Lender or any affiliate thereof (even if such Lender
subsequently ceases to be a Lender under this Agreement for any reason) so long
as such Lender or affiliate participates in such Interest Rate Protection
Agreement or Other Hedging Agreement and their subsequent assigns party to any
such Interest Rate Protection Agreement or Other Hedging Agreement, if any,
whether now in existence or hereafter arising, and the due performance and
compliance with all terms, conditions and agreements contained therein.


 


“Guaranteed Party” shall mean the Borrower and each Subsidiary
thereof party to any Interest Rate Protection Agreement or Other Hedging
Agreement with a Guaranteed Creditor.


 


“Guarantor” shall mean each of Holdings and each Subsidiary
Guarantor.


 


“Guaranty” shall mean each of the Holdings Guaranty and the
Subsidiaries Guaranty.


 


“Hazardous Materials” shall mean (a) any petroleum or
petroleum products, radioactive materials, asbestos in any form that is or
could become friable, urea formaldehyde foam insulation, dielectric fluid
containing levels of polychlorinated biphenyls, and radon gas; (b) any
chemicals, materials or substances defined as or included in the definition of “hazardous
substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous
substances,” “restricted hazardous waste,” “toxic substances,” “toxic
pollutants,” “contaminants,” or “pollutants,” or words of similar import, under
any applicable Environmental Law; and (c) any other chemical, material or
substance, the exposure to, or Release of which is prohibited, limited or
regulated by any governmental authority.


 


“Holdings” shall have the meaning provided in the first
paragraph of this Agreement.


 


“Holdings Common Stock” shall have the meaning provided in Section 8.13.


 


“Holdings Guaranty” shall mean the guaranty of Holdings pursuant
to Section 14.


 


“Incremental Term Loan” shall have the meaning provided in Section 2.01(c).


 


14

















 


“Incremental Term Loan Borrowing Date” shall mean, with respect
to each Tranche of Incremental Term Loans, each date on which Incremental Term
Loans of such Tranche are incurred pursuant to Section 2.01(c) and as
otherwise permitted by Section 2.14.


 


“Incremental Term Loan Commitment” shall mean, for each Lender,
any commitment to make Incremental Term Loans provided by such Lender pursuant
to Section 2.14, in such amount as agreed to by such Lender in the
respective Incremental Term Loan Commitment Agreement and as set forth opposite
such Lender’s name in Schedule I (as modified in accordance with Section 2.14)
directly below the column entitled “Incremental Term Loan Commitment,” as the
same may be terminated pursuant to Section 4.03 or 11.


 


“Incremental Term Loan Commitment Agreement” shall mean each
Incremental Term Loan Commitment Agreement in the form of Exhibit M
(appropriately completed) and executed in accordance with Section 2.14.


 


“Incremental Term Loan Commitment Cap” shall mean an aggregate
amount equal to the lesser of (x) that amount which would not cause the Total
Leverage Ratio, calculated on a Pro  forma Basis, to exceed
5.00:1.00 for the then most recently ended Calculation Period and (y)
$30,000,000.


 


“Incremental Term Loan Commitment Requirements” shall mean, with
respect to any provision of Incremental Term Loan Commitments on an Incremental
Term Loan Borrowing Date, the satisfaction of each of the following conditions
on such date: (i) no Default or Event of Default then exists or would
result therefrom; (ii) calculations are made by Holdings demonstrating
compliance with the financial covenant contained in Section 10.07 for the
Calculation Period most recently ended prior to the respective Incremental Term
Loan Borrowing Date, on a Pro  Forma Basis, as if the Incremental
Term Loans to be made pursuant to the Incremental Term Loan Commitments
(assuming the full utilization thereof) had been incurred on the first day of
such Calculation Period and had remained outstanding throughout such
Calculation Period; (iii) the delivery by Holdings to the Administrative
Agent on or prior to such date of an officer’s certificate executed by an
Authorized Officer of Holdings and certifying as to compliance with preceding
clauses (i) and (ii) and containing the calculations (in reasonable
detail) required by preceding clause (ii); (iv) the delivery by Holdings
to the Administrative Agent on or prior to such date of an acknowledgement in form and
substance reasonably satisfactory to the Administrative Agent and executed by
each Guarantor, acknowledging that such Incremental Term Loan Commitments and
all Incremental Term Loans to be incurred pursuant thereto shall constitute
(and be included in the definition of) “Guaranteed Obligations” hereunder and
under the Subsidiaries Guaranty; (v) the delivery by Holdings to the
Administrative Agent of an opinion or opinions, in form and substance
reasonably satisfactory to the Administrative Agent, from counsel to the Credit
Parties reasonably satisfactory to the Administrative Agent and dated such
date, covering such of the matters set forth in the opinions of counsel
delivered to the Administrative Agent on the Initial Borrowing Date pursuant to
Section 6.03 as may be reasonably requested by the Administrative
Agent, and such other matters incident to the transactions contemplated thereby
as the Administrative Agent may reasonably request; (vi) the delivery
by Holdings and the other Credit Parties to the Administrative Agent on or prior
to such date of such other officers’ certificates, board of director
resolutions and evidence of good standing as the Administrative Agent shall
reasonably


 


15

















 


request; and (vii) the completion by Holdings and the other Credit
Parties by such date of such other actions as the Administrative Agent may reasonably
request in connection with such Incremental Term Loan Commitments.


 


“Incremental Term Loan Lender” shall have the meaning provided
in Section 2.14(b).


 


“Incremental Term Loan Maturity Date” shall mean, for any
Tranche of Incremental Term Loans, the final maturity date set forth for such
Tranche of Incremental Term Loans in the respective Incremental Term Loan
Commitment Agreement, provided that the final maturity date for all
Incremental Term Loans of a given Tranche shall be the same date.


 


“Incremental Term Note” shall have the meaning provided in Section 2.05(a).


 


“Indebtedness” shall mean, as to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or for
the deferred purchase price of property or services (other than (i) trade
accounts payable in the ordinary course of business and (ii) any earn-out
obligation until such obligation becomes a liability on the balance sheet of
such Person in accordance with GAAP), (ii) the maximum amount (after
giving effect to any prior drawings or reductions which may have been
reimbursed) of all letters of credit, bankers’ acceptances, bank guaranties,
surety and appeal bonds and similar obligations issued for the account of such
Person and all unpaid drawings and unreimbursed payments in respect of such
letters of credit, bankers’ acceptances, bank guaranties, surety and appeal
bonds and similar obligations, (iii) all indebtedness of the types
described in clause (i), (ii), (iv), (v), (vi) or (vii) of this
definition secured by any Lien on any property owned by such Person, whether or
not such indebtedness has been assumed by such Person (provided that, if
the Person has not assumed or otherwise become liable in respect of such
indebtedness, such indebtedness shall be deemed to be in an amount equal to the
Fair Market Value of the property to which such Lien relates), (iv) all
Capitalized Lease Obligations of such Person, (v) all Contingent
Obligations of such Person, (vi) all net obligations under any Interest
Rate Protection Agreement, any Other Hedging Agreement or under any similar
type of agreement and (vii) all Off-Balance Sheet Liabilities of such
Person. The Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general
partner) to the extent such Person is directly liable therefor as a result of
such Person’s ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor. Notwithstanding the foregoing, Indebtedness shall not
include accrued expenses and deferred tax and other credits incurred by any Person
in accordance with customary practices and in the ordinary course of business
of such Person.


 


“Initial Borrowing Date” shall mean the date occurring on or
after the Effective Date on which the initial Borrowing of Loans occurs.


 


“Initial Term Loan” shall have the meaning provided in Section 2.01(a).


 


“Initial Term Loan Commitment” shall mean, for each Lender, the
amount set forth opposite such Lender’s name in Schedule I directly below
the column entitled “Initial Term Loan Commitment,” as the same may be
terminated pursuant to Section 4.03 or 11.


 


16

















 


“Initial Term Loan Maturity Date” shall mean November 16,
2014.


 


“Initial Term Note” shall have the meaning provided in Section 2.05(a).


 


“Intercompany Loans” shall have the meaning provided in Section 10.05(viii).


 


“Intercompany Note” shall mean a promissory note evidencing
Intercompany Loans, duly executed and delivered substantially in the form of
Exhibit L (or such other form as shall be reasonably satisfactory to
the Administrative Agent), with blanks completed in conformity herewith.


 


“Interest Determination Date” shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.


 


“Interest Period” shall have the meaning provided in Section 2.09.


 


“Interest Rate Protection Agreement” shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.


 


“Investments” shall have the meaning provided in Section 10.05.


 


“IRS” shall mean the Internal Revenue Service, or any successor
thereto.


 


“Issuing Lender” shall mean each of DBTCA (except as otherwise
provided in Section 12.09) and any other Lender reasonably acceptable to
the Administrative Agent which agrees to issue Letters of Credit hereunder. Any
Issuing Lender may, in its discretion, arrange for one or more Letters of
Credit to be issued by one or more Affiliates of such Issuing Lender (and such
Affiliate shall be deemed to be an “Issuing Lender” for all purposes of the
Credit Documents). To the extent that any Affiliate of the Administrative Agent
is an Issuing Lender hereunder, such Affiliate also shall cease to be an
Issuing Lender hereunder as provided in Section 12.09 to the same extent
as the Administrative Agent.


 


“L/C Supportable Obligations” shall mean (i) obligations of
the Borrower or any of its Subsidiaries incurred in the ordinary course of
business with respect to insurance obligations and workers compensation, surety
bonds and other similar statutory obligations and (ii) any other
obligations of the Borrower or any of its Subsidiaries as are permitted to
exist pursuant to the terms of this Agreement (other than obligations in
respect of (x) any Indebtedness or other obligations that are subordinated to
the Obligations and (y) any Equity Interests).


 


“Lead Arranger” shall mean Deutsche Bank Securities Inc., in its
capacity as Lead Arranger for the credit facilities provided herein, and any
successor thereto.


 


“Leaseholds” of any Person shall mean all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.


 


17

















 


“Lender” shall mean each financial institution listed on Schedule I,
as well as any Person that becomes a “Lender” hereunder pursuant to Section 2.13,
2.14 or 13.04(b).


 


“Lender Default” shall mean (i) the wrongful refusal (which
has not been retracted) or the failure of a Lender to make available its
portion of any Borrowing (including any Mandatory Borrowing) or to fund its
portion of any unreimbursed payment under Section 3.04(c) or (ii) a
Lender having notified in writing the Borrower and/or the Administrative Agent
that such Lender does not intend to comply with its obligations under Section 2.01(a),
2.01(b), 2.01(c), 2.01(e) or 3.


 


“Letter of Credit” shall have the meaning provided in Section 3.01(a).


 


“Letter of Credit Fee” shall have the meaning provided in Section 4.01(b).


 


“Letter of Credit Outstandings” shall mean, at any time, the sum
of (i) the Stated Amount of all outstanding Letters of Credit at such time
and (ii) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit at such time.


 


“Letter of Credit Request” shall have the meaning provided in Section 3.03(a).


 


“Lien” shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).


 


“Loan” shall mean each Initial Term Loan, each Incremental Term
Loan, each Revolving Loan and each Swingline Loan.


 


“Majority Lenders” of any Tranche shall mean those
Non-Defaulting Lenders which would constitute the Required Lenders under, and
as defined in, this Agreement if all outstanding Obligations under the other
Tranches under this Agreement were repaid in full and all Commitments with
respect thereto were terminated.


 


“Management Agreements” shall have the meaning provided in Section 6.05.


 


“Mandatory Borrowing” shall have the meaning provided in Section 2.01(e).


 


“Margin Stock” shall have the meaning provided in Regulation U.


 


“Material Adverse Effect” shall mean (i) a material adverse
effect on the business, operations, property, assets, liabilities (actual or
contingent) or financial condition of Holdings and its Subsidiaries taken as a
whole or (ii) a material adverse effect (x) on the rights or remedies of
the Lenders, the Administrative Agent or the Collateral Agent hereunder or
under any other Credit Document or (y) on the ability of the Credit Parties
(taken as a whole) to perform their respective payment obligations to the
Lenders, the Administrative Agent, the Issuing Lenders or the Collateral Agent
hereunder or under any other Credit Document.


 


18

















 


“Maturity Date” shall mean, with respect to the relevant Tranche
of Loans, the Initial Term Loan Maturity Date, each Incremental Term Loan
Maturity Date, the Revolving Loan Maturity Date or the Swingline Expiry Date,
as the case may be.


 


“Maximum Swingline Amount” shall mean $2,500,000.


 


“Minimum Borrowing Amount” shall mean (i) for Term Loans,
$5,000,000, (ii) for Revolving Loans, $500,000, and (iii) for
Swingline Loans, $100,000.


 


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


 


“Mortgage” shall mean a mortgage, leasehold mortgage, deed of
trust, leasehold deed of trust, deed to secure debt, leasehold deed to secure
debt or similar security instrument.


 


“Mortgage Policy” shall mean a Lender’s title insurance policy
(ALTA Form 1992).


 


“Mortgaged Property” shall mean any Real Property owned by any
Credit Party which is encumbered (or required to be encumbered) by a Mortgage
pursuant to the terms hereof.


 


“Multiemployer Plan” shall mean a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.


 


“NAIC” shall mean the National Association of Insurance
Commissioners.


 


“Net Cash Proceeds” shall mean (a) for any Recovery Event
requiring a repayment of Term Loans pursuant to Section 5.02(f), the gross
cash proceeds (including any such proceeds received by way of deferred payment
of principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) from such
Recovery Event, net of attorneys’ fees, accountants’ fees, amounts required to
be applied to the repayment of Indebtedness secured by a Lien expressly
permitted hereunder on any asset which is the subject of such Recovery Event
(other than any Lien pursuant to a Security Document) and other customary fees
and expenses actually incurred in connection therewith, and net of taxes paid
or reasonably estimated to be payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements), and (b) for any issuance, incurrence or sale of
Indebtedness requiring a repayment of Term Loans pursuant to Section 5.02(c),
the gross cash proceeds received from such issuance, sale or incurrence, net of
attorneys’ fees, investment banking fees, accountants’ fees, underwriting
discounts and commissions and other customary fees and expenses actually
incurred in connection therewith.


 


“Net Sale Proceeds” shall mean for any sale or other disposition
of assets pursuant to an Asset Sale, the gross cash proceeds (including any
cash received by way of deferred payment pursuant to a promissory note,
receivable or otherwise, but only as and when received) received from such
Asset Sale, net of (i) reasonable transaction costs (including, without
limitation, any underwriting, brokerage or other customary selling commissions,
reasonable legal, advisory and other fees and expenses (including title and
recording expenses), associated therewith and sales, VAT and transfer taxes
arising therefrom), (ii) payments of


 


19

















 


unassumed liabilities relating to the assets sold or otherwise disposed
of at the time of, or within 45 days after, the date of such Asset Sale, (iii) the
amount of such gross cash proceeds required to be used to permanently repay any
Indebtedness (other than (x) Indebtedness pursuant to this Agreement and (y)
Indebtedness in respect of Interest Rate Protection Agreements and Other
Hedging Agreements entitled to the benefits of the respective Security
Documents) which is secured by the respective assets which were sold or
otherwise disposed of, (iv) the estimated net marginal increase in income
taxes which will be payable by Holdings’ consolidated group or any Subsidiary
of Holdings with respect to the fiscal year of Holdings in which the sale or
other disposition occurs as a result of such sale or other disposition, and (v) the
amount of all reserves required to be made maintained by Holdings or any of its
Subsidiaries in accordance with GAAP for any potential indemnity obligations
that may be required to be made by Holdings or any of its Subsidiaries as
a result of such Asset Sale; provided, however, (x) that such
gross proceeds shall not include any portion of such gross cash proceeds which
Holdings determines in good faith should be reserved for post-closing
adjustments (to the extent Holdings delivers to the Administrative Agent a
certificate signed by an Authorized Officer of Holdings as to such
determination), it being understood and agreed that on the day that all such
post-closing adjustments have been determined (which shall not be later than
six months following the date of the respective Asset Sale), the amount (if
any) by which the reserved amount in respect of such Asset Sale exceeds the
actual post-closing adjustments payable by Holdings or any of its Subsidiaries
shall constitute Net Sale Proceeds on such date received by Holdings and/or any
of its Subsidiaries from such Asset Sale, and (y) at such time as Holdings or
any of its Subsidiaries are no longer required to maintain any indemnity
reserves in accordance with GAAP as a result of any Asset Sale, the amount (if
any) by which such reserved amount in respect of such Asset Sale exceeds the
actual amount of indemnity payments made by Holdings or any of its Subsidiaries
for which such reserves were required to be maintained in respect of such Asset
Sale shall constitute Net Sale Proceeds at such time.


 


“Non-Defaulting Lender” and “Non-Defaulting RL Lender”
shall mean and include each Lender or RL Lender, as the case may be, other
than a Defaulting Lender.


 


“Non-U.S. Plan” shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by Holdings or any one or more
of its Subsidiaries primarily for the benefit of employees of Holdings or such
Subsidiaries residing outside the United States of America, which plan, fund or
other similar program provides, or results in, retirement income, a deferral of
income in contemplation of retirement or payments to be made upon termination
of employment, and which plan is not subject to ERISA or the Code.


 


“Non-Wholly Owned Subsidiary” shall mean, as to any Person, each
Subsidiary of such Person which is not a Wholly-Owned Subsidiary of such
Person.


 


“Note” shall mean each Initial Term Note, each Incremental Term
Note, each Revolving Note and the Swingline Note.


 


“Notice of Borrowing” shall have the meaning provided in Section 2.03(a).


 


20

















 


“Notice of Conversion/Continuation” shall have the meaning
provided in Section 2.06.


 


“Notice Office” shall mean (i) for credit notices, the
office of the Administrative Agent located at 60 Wall Street, New York, New
York 10005, Attention: Erin Morrissey, Telephone No.: (212) 250-1765, and
Telecopier No.: (212) 797-5690, and (ii) for operational notices, the office
of the Administrative Agent located at 100 Plaza One, Jersey City New Jersey
07311, Attention: Maxeen Jacques, Telephone No.: (201) 593-2483, and Telecopier
No.: (201) 593-2307, with a copy to Mary Hong at the above address in this
clause (ii), Telephone No.: (201) 593-2166, and Telecopier No.: (201) 593-2307,
or (in either case) such other office or person as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.


 


“Obligations” shall mean all amounts owing to the Administrative
Agent, the Collateral Agent, any Issuing Lender, the Swingline Lender or any
Lender pursuant to the terms of this Agreement or any other Credit Document,
including, without limitation, all amounts in respect of any principal,
premium, interest (including any interest accruing subsequent to the filing of
a petition in bankruptcy, reorganization or similar proceeding at the rate
provided for in this Agreement, whether or not such interest is an allowed
claim under any such proceeding or under applicable state, federal or foreign
law), penalties, fees, expenses, indemnifications, reimbursements (including
Unpaid Drawings with respect to Letters of Credit), damages and other
liabilities, and guarantees of the foregoing amounts.


 


“Off-Balance Sheet Liabilities” of any Person shall mean any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person.


 


“Other Hedging Agreements” shall mean any foreign exchange
contracts, currency swap agreements, commodity hedging agreements or other
similar arrangements designed to protect against fluctuations in currency
values or commodity prices.


 


“Participant” shall have the meaning provided in Section 3.04(a).


 


“Patriot Act” shall have the meaning provided in Section 13.18.


 


“Payment Office” shall mean the office of the Administrative
Agent located at 100 Plaza One, Jersey City, New Jersey 07311 or such other
office as the Administrative Agent may hereafter designate in writing as
such to the other parties hereto.


 


“PBGC” shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.


 


“Percentage” of a Tranche of Loans shall mean, at any time, a
fraction (expressed as a percentage), the numerator of which is equal to the
aggregate outstanding principal amount of all Loans of such Tranche at such
time and the denominator of which is equal to the aggregate outstanding
principal amount of all Loans of all Tranches at such time.


 


21
















 


“Permitted Acquisition” shall mean the acquisition by the
Borrower or a Wholly-Owned Domestic Subsidiary of the Borrower which is a
Subsidiary Guarantor of an Acquired Entity or Business (including by way of
merger of such Acquired Entity or Business with and into the Borrower (so long
as the Borrower is the surviving corporation) or a Wholly-Owned Domestic
Subsidiary of the Borrower which is a Subsidiary Guarantor (so long as the
Subsidiary Guarantor is the surviving corporation)), provided that (in
each case) (A) the consideration paid or to be paid by the Borrower or
such Wholly-Owned Domestic Subsidiary consists solely of cash (including
proceeds of Revolving Loans or Swingline Loans), Holdings Common Stock,
Qualified Preferred Stock of Holdings, the issuance or incurrence of
Indebtedness otherwise permitted by Section 10.04 and the
assumption/acquisition of any Indebtedness (calculated at face value) which is
permitted to remain outstanding in accordance with the requirements of Section 10.04,
(B) in the case of the acquisition of 100% of the Equity Interests of any
Acquired Entity or Business (including by way of merger), such Acquired Entity
or Business shall own no Equity Interests of any other Person (other than de
minimis amounts) unless either (x) such Acquired Entity or Business owns
100% of the Equity Interests of such other Person or (y) if such Acquired
Entity or Business owns Equity Interests in any other Person which is a
Non-Wholly Owned Subsidiary of such Acquired Entity or Business, (1) such
Acquired Entity or Business shall not have been created or established in
contemplation of, or for purposes of, the respective Permitted Acquisition, (2) any
such Non-Wholly Owned Subsidiary of the Acquired Entity or Business shall have
been a Non-Wholly Owned Subsidiary of such Acquired Entity or Business prior to
the date of the respective Permitted Acquisition and shall not have been
created or established in contemplation thereof and (3) such Acquired
Entity or Business and/or its Wholly-Owned Subsidiaries own at least 85% of the
total value of all the assets owned by such Acquired Entity or Business and its
Subsidiaries (for purposes of such determination, excluding the value of the
Equity Interests of Non-Wholly Owned Subsidiaries held by such Acquired Entity
or Business and its Wholly-Owned Subsidiaries), (C) the Acquired Entity or
Business acquired pursuant to the respective Permitted Acquisition is in a
business permitted by Section 10.10 and (D) all requirements of
Sections 9.15, 10.02 and 10.12 applicable to Permitted Acquisitions are
satisfied. Notwithstanding anything to the contrary contained in the
immediately preceding sentence, an acquisition which does not otherwise meet
the requirements set forth above in the definition of “Permitted Acquisition”
shall constitute a Permitted Acquisition if, and to the extent, the Required
Lenders agree in writing, prior to the consummation thereof, that such
acquisition shall constitute a Permitted Acquisition for purposes of this
Agreement.


 


“Permitted Encumbrance” shall mean, with respect to any
Mortgaged Property, such exceptions to title as are set forth in the Mortgage
Policy delivered with respect thereto, all of which exceptions must be
acceptable to the Administrative Agent in its reasonable discretion.


 


“Permitted Holders” shall mean the collective reference to the
Sponsor and its Affiliates (provided that, for purposes of this definition, the
reference to 10% in the definition of Affiliate contained in this Section 1.01
shall be deemed to be 51%, but excluding Holdings and its Subsidiaries).


 


“Permitted
Liens” shall have the meaning provided in Section 10.01.


 


22

















 


“Person” shall mean any individual, partnership, joint venture,
firm, corporation, association, limited liability company, trust or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.


 


“Plan” shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) Holdings or a Subsidiary of Holdings or an ERISA
Affiliate, and each such plan for the five year period immediately following
the latest date on which Holdings, a Subsidiary of Holdings or an ERISA
Affiliate maintained, contributed to or had an obligation to contribute to such
plan.


 


“Pledge Agreement” shall have the meaning provided in Section 6.11.


 


“Pledge Agreement Collateral” shall mean all “Collateral” as
defined in the Pledge Agreement.


 


“Pledgee” shall have the meaning provided in the Pledge
Agreement.


 


“Preferred Equity”, as applied to the Equity Interests of any
Person, shall mean Equity Interests of such Person (other than common Equity
Interests of such Person) of any class or classes (however designed) that
ranks prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of
such Person, to shares of Equity Interests of any other class of such
Person, and shall include any Qualified Preferred Stock of Holdings.


 


“Prime Lending Rate” shall mean the rate which the
Administrative Agent announces from time to time as its prime lending rate, the
Prime Lending Rate to change when and as such prime lending rate changes. The
Prime Lending Rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer by the Administrative
Agent, which may make commercial loans or other loans at rates of interest
at, above or below the Prime Lending Rate.


 


“Pro
Forma Basis” shall mean, in connection with any calculation of compliance
with any financial covenant or financial term, the calculation thereof after
giving effect on a pro  forma basis to (x) the incurrence of any
Indebtedness (other than revolving Indebtedness, except to the extent same is
incurred to refinance other outstanding Indebtedness or to finance a Permitted
Acquisition) after the first day of the relevant Calculation Period or Test
Period, as the case may be, as if such Indebtedness had been incurred (and
the proceeds thereof applied) on the first day of such Test Period or
Calculation Period, as the case may be, (y) the permanent repayment of any
Indebtedness (other than revolving Indebtedness, except to the extent
accompanied by a corresponding permanent commitment reduction) after the first
day of the relevant Test Period or Calculation Period, as the case may be,
as if such Indebtedness had been retired or repaid on the first day of such
Test Period or Calculation Period, as the case may be, and (z) any
Permitted Acquisition then being consummated as well as any other Permitted
Acquisition if consummated after the first day of the relevant Test Period or
Calculation Period, as the case may be, and on or prior to the date of the
respective Permitted Acquisition then being effected, with the following rules to
apply in connection therewith:


 


23

















 


(i)                                     all Indebtedness (x) (other than revolving Indebtedness,
except to the extent same is incurred to refinance other outstanding
Indebtedness or to finance Permitted Acquisitions) incurred or issued after the
first day of the relevant Test Period or Calculation Period (whether incurred
to finance a Permitted Acquisition, to refinance Indebtedness or otherwise)
shall be deemed to have been incurred or issued (and the proceeds thereof
applied) on the first day of such Test Period or Calculation Period, as the
case may be, and remain outstanding through the date of determination and
(y) (other than revolving Indebtedness, except to the extent accompanied by a
corresponding permanent commitment reduction) permanently retired or redeemed
after the first day of the relevant Test Period or Calculation Period shall be
deemed to have been retired or redeemed on the first day of such Test Period or
Calculation Period, as the case may be, and remain retired through the
date of determination;


 


(ii)                                  all Indebtedness assumed to be outstanding pursuant to
preceding clause (i) shall be deemed to have borne interest at (x) the
rate applicable thereto, in the case of fixed rate indebtedness, or (y) the
rates which would have been applicable thereto during the respective period
when same was deemed outstanding, in the case of floating rate Indebtedness
(although interest expense with respect to any Indebtedness for periods while
same was actually outstanding during the respective period shall be calculated
using the actual rates applicable thereto while same was actually outstanding);
provided that all Indebtedness (whether actually outstanding or deemed
outstanding) bearing interest at a floating rate of interest shall be tested on
the basis of the rates applicable at the time the determination is made
pursuant to said provisions; and


 


(iii)                               in making any
determination of Consolidated EBITDA on a Pro  Forma Basis, pro
forma effect shall be given to any Permitted Acquisition if effected
during the respective Calculation Period or Test Period as if same had occurred
on the first day of the respective Calculation Period or Test Period, as the
case may be, and taking into account factually supportable and
identifiable cost savings and expenses which would otherwise be accounted for
as an adjustment pursuant to Article 11 of Regulation S-X under the
Securities Act, as if such cost savings or expenses were realized on the first
day of the respective period.


 


“Projections” shall mean the projections that were prepared by
or on behalf of the Borrower in connection with the Transaction that were delivered
to the Administrative Agent on October 10, 2007.


 


“Qualified Preferred Stock” shall mean any Preferred Equity of
Holdings so long as the terms of any such Preferred Equity (v) do not
contain any mandatory put, redemption, repayment, sinking fund or other similar
provision prior to the one year anniversary following the latest Maturity Date
then in effect, (w) do not require the cash payment of dividends or
distributions that would otherwise not be permitted to be paid or declared by
the terms of this Agreement or any other agreement or contract of Holdings or
any of its Subsidiaries, (x) do not contain any covenants (other than periodic
reporting requirements), (y) do not grant the holders thereof any voting rights
except for (I) voting rights required to be granted to such holders under
applicable law and (II) limited customary voting rights on fundamental matters
such as mergers,


 


24

















 


consolidations,
sales of all or substantially all of the assets of Holdings, or liquidations
involving Holdings, and (z) are otherwise reasonably satisfactory to the
Administrative Agent.


 


“Quarterly Payment Date” shall mean the last Business Day of
each March, June, September and December occurring after the Initial Borrowing
Date.


 


“Real Property” of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures,
including Leaseholds.


 


“Recovery Event” shall mean the receipt by Holdings or any of
its Subsidiaries of any cash insurance proceeds or condemnation awards payable (i) by
reason of theft, loss, physical destruction, damage, taking or any other
similar event with respect to any property or assets of Holdings or any of its
Subsidiaries and (ii) under any policy of insurance required to be
maintained under Section 9.03 (other than business interruption insurance
proceeds).


 


“Refinancing” shall mean the repayment in full of all amounts
owing under, the termination of all commitments in respect of, and the
termination and release of all guaranties and security interest relating to,
the Credit Agreement, dated as of June 14, 2004, among Technology Partners
International, Inc., Madison Capital Funding LLC, as agent, and the other
lenders party thereto.


 


“Refinancing Documents” shall mean all pay-off letters, guaranty
releases, Lien releases (including, without limitation, UCC termination
statements and mortgage releases) and other documents and agreements entered
into in connection with the Refinancing.


 


“Register” shall have the meaning provided in Section 13.15.


 


“Regulation D” shall mean Regulation D of the Board of Governors
of the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof establishing reserve requirements.


 


“Regulation T” shall mean Regulation T of the Board of Governors
of the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof.


 


“Regulation U” shall mean Regulation U of the Board of Governors
of the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof.


 


“Regulation X” shall mean Regulation X of the Board of Governors
of the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof.


 


“Release” shall mean the disposing, discharging, injecting,
spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying,
pouring, seeping, migrating or the like, into or upon any land or water or air,
or otherwise entering into the environment.


 


“Replaced
Lender” shall have the meaning provided in Section 2.13.


 


25

















 


“Replacement Lender” shall have the meaning provided in Section 2.13.


 


“Reportable Event” shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection .22,
..23, .25, .27 or .28 of PBGC Regulation Section 4043.


 


“Required Lenders” shall mean, at any time, Non-Defaulting
Lenders the sum of whose outstanding Term Loans and Revolving Loan Commitments
at such time (or, after the termination of such Revolving Loan Commitments,
outstanding Revolving Loans and RL Percentages of (x) outstanding Swingline
Loans at such time and (y) Letter of Credit Outstandings at such time)
represents at least a majority of the sum of (i) all outstanding Term
Loans of Non-Defaulting Lenders at such time and (ii) the Total Revolving
Loan Commitment in effect at such time less the Revolving Loan Commitments of
all Defaulting Lenders at such time (or, after the termination of such
Revolving Loan Commitment, the sum of then total outstanding Revolving Loans of
Non-Defaulting Lenders and the aggregate RL Percentages of all Non-Defaulting
Lenders of the total outstanding Swingline Loans and Letter of Credit
Outstandings at such time).


 


“Returns” shall have the meaning provided in Section 8.09.


 


“Revolving Loan” shall have the meaning provided in Section 2.01(b).


 


“Revolving Loan Commitment” shall mean, for each Lender, the
amount set forth opposite such Lender’s name in Schedule I directly below
the column entitled “Revolving Loan Commitment,” as same may be (x)
reduced from time to time or terminated pursuant to Sections 4.02, 4.03 and/or
11, as applicable, or (y) adjusted from time to time as a result of assignments
to or from such Lender pursuant to Section 2.13 or 13.04(b).


 


“Revolving Loan Maturity Date” shall mean November 16,
2014.


 


“Revolving Note” shall have the meaning provided in Section 2.05(a).


 


“RL Lender” shall mean each Lender with a Revolving Loan
Commitment or with outstanding Revolving Loans.


 


“RL Percentage” of any RL Lender at any time shall mean a
fraction (expressed as a percentage) the numerator of which is the Revolving
Loan Commitment of such RL Lender at such time and the denominator of which is
the Total Revolving Loan Commitment at such time, provided that if the
RL Percentage of any RL Lender is to be determined after the Total Revolving
Loan Commitment has been terminated, then the RL Percentages of such RL Lender
shall be determined immediately prior (and without giving effect) to such
termination.


 


“S&P” shall mean Standard & Poor’s Ratings
Services, a division of McGraw-Hill, Inc.


 


“Scheduled
Incremental Term Loan Repayment” shall have the meaning provided in Section 5.02(b)(ii).


 


26

















 


“Scheduled Incremental Term Loan Repayment Date” shall have the
meaning provided in Section 5.02(b)(ii).


 


“Scheduled Initial Term Loan Repayment” shall have the meaning
provided in Section 5.02(b)(i).


 


“Scheduled Initial Term Loan Repayment Date” shall have the
meaning provided in Section 5.02(b)(i).


 


“Scheduled Term Loan Repayment” shall mean each Scheduled
Initial Term Loan Repayment and each Scheduled Incremental Term Loan Repayment
of a given Tranche, as the context may require.


 


“Scheduled Term Loan Repayment Date” shall mean each Scheduled
Initial Term Loan Repayment Date and each Scheduled Incremental Term Loan Repayment
Date of a given Tranche, as the context may require.


 


“SEC” shall have the meaning provided in Section 9.01(g).


 


“Section 5.04(b)(ii) Certificate” shall have the
meaning provided in Section 5.04(b)(ii).


 


“Secured Creditors” shall have the meaning assigned that term in
the respective Security Documents.


 


“Securities Act” shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.


 


“Security Agreement” shall have the meaning provided in Section 6.12.


 


“Security Agreement Collateral” shall mean all “Collateral” as
defined in the Security Agreement.


 


“Security Document” shall mean and include each of the Security
Agreement, the Pledge Agreement, and, after the execution and delivery thereof,
each Mortgage and each Additional Security Document.


 


“Shareholders’ Agreements” shall have the meaning provided in Section 6.05.


 


“Shareholder Subordinated Note” shall mean an unsecured junior
subordinated note issued by Holdings and not guaranteed by any Subsidiary of Holdings
in the form of Exhibit O, as the same may be modified, amended
or supplemented from time to time pursuant to the terms hereof and thereof.


 


“Sponsor”
shall mean Information Services Group, Inc., a Delaware corporation.


 


27

















 


“Stated Amount” of each Letter of Credit shall mean, at any
time, the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could then be
met).


 


“Subsidiaries Guaranty” shall have the meaning provided in Section 6.10.


 


“Subsidiary” shall mean, as to any Person, (i) any
corporation more than 50% of whose stock of any class or classes having by
the terms thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person and/or
one or more Subsidiaries of such Person and (ii) any partnership, limited
liability company, association, joint venture or other entity in which such
Person and/or one or more Subsidiaries of such Person has more than a 50%
equity interest at the time. Unless otherwise qualified, all references to a “Subsidiary”
or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or
Subsidiaries of Holdings.


 


“Subsidiary Guarantor” shall mean each Wholly-Owned Domestic
Subsidiary of Holdings (other than the Borrower) (whether existing on the
Initial Borrowing Date or established, created or acquired after the Initial
Borrowing Date), unless and until such time as the respective Wholly-Owned
Domestic Subsidiary is released from all of its obligations under the Subsidiaries
Guaranty in accordance with the terms and provisions thereof.


 


“Swingline Expiry Date” shall mean that date which is five
Business Days prior to the Revolving Loan Maturity Date.


 


“Swingline Lender” shall mean the Administrative Agent, in its
capacity as Swingline Lender hereunder.


 


“Swingline Loan” shall have the meaning provided in Section 2.01(d).


 


“Swingline Note” shall have the meaning provided in Section 2.05(a).


 


“Syndication Date” shall mean that date upon which the
Administrative Agent reasonably determines (in consultation with the Borrower)
that the primary syndication (and resultant addition of Persons as Lenders
pursuant to Section 13.04(b)) has been completed.


 


“Tax Sharing Agreements” shall have the meaning provided in Section 6.05.


 


“Taxes” shall have the meaning provided in Section 5.04(a).


 


“Term Loan” shall mean each Initial Term Loan and each
Incremental Term Loan.


 


“Term Loan Percentage” of a Tranche of Term Loans shall mean, at
any time, a fraction (expressed as a percentage), the numerator of which is
equal to the aggregate outstanding principal amount of all Term Loans of such
Tranche at such time and the


 


28

















 


denominator
of which is equal to the aggregate outstanding principal amount of all Term
Loans of all Tranches at such time.


 


“Test Period” shall mean each period of four consecutive fiscal
quarters of Holdings then last ended, in each case taken as one accounting
period (determined, except as expressly provided in this Agreement, as if
Holdings and the Borrower were in existence, and owned TPI and its
Subsidiaries, for the respective periods prior to the Initial Borrowing Date); provided
that in the case of determinations of the Total Leverage Ratio, such further
adjustments (if any) as described in the proviso to the definition of “Total
Leverage Ratio” contained herein shall be made to the extent applicable.


 


“Total Commitment” shall mean, at any time, the sum of the
Commitments of each of the Lenders at such time.


 


“Total Incremental Term Loan Commitment” of any Tranche of
Incremental Term Loans shall mean, at any time, the sum of the Incremental Term
Loan Commitments of such Tranche of each of the Lenders at such time.


 


“Total Initial Term Loan Commitment” shall mean, at any time,
the sum of the Initial Term Loan Commitments of each of the Lenders at such
time.


 


“Total
Leverage Ratio” shall mean, on any date of determination, the ratio of (x) Consolidated Indebtedness on such
date to (y) Consolidated EBITDA for the Test Period most recently ended on or
prior to such date; provided that for purposes of any calculation of the
Total Leverage Ratio pursuant to this Agreement, Consolidated EBITDA shall be
determined on a Pro  Forma Basis in accordance with clause (iii) of
the definition of “Pro  Forma Basis” contained herein.


 


“Total Revolving Loan Commitment” shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Lenders at such time.


 


“Total Unutilized Revolving Loan Commitment” shall mean, at any
time, an amount equal to the remainder of (x) the Total Revolving Loan
Commitment in effect at such time less (y) the sum of (i) the
aggregate principal amount of all Revolving Loans and Swingline Loans
outstanding at such time plus (ii) the aggregate amount of all Letter
of Credit Outstandings at such time.


 


“TPI” shall mean TPI Advisory Services Americas, Inc., a
Texas corporation.


 


“Tranche” shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being three separate Tranches on
the Effective Date, i.e., Initial Term Loans, Revolving Loans and
Swingline Loans; provided that, for purposes of Sections 2.13, 5.02(g),
13.04(b), 13.12(a), 13.12(b) and the definition of “Majority Lenders,”
Revolving Loans and Swingline Loans shall be deemed to constitute part of
a single “Tranche.” In addition, and notwithstanding the foregoing, any
Incremental Term Loans extended after the Initial Borrowing Date shall, except
to the extent provided in Section 2.14(c), be made pursuant to one or more
additional Tranches of Term Loans which shall be designated pursuant to the
respective


 


29

















 


Incremental Term Loan Commitment Agreement in accordance with the
relevant requirements specified in Section 2.14.


 


“Transaction” shall mean, collectively, (i) the
consummation of the Equity Financing, (ii) the consummation of the
Acquisition, (iii) the consummation of the Refinancing, (iv) the
execution and delivery by each Credit Party of the Credit Documents to which it
is a party and the incurrence of Initial Term Loans on the Initial Borrowing
Date and the use of proceeds thereof, and (v) the payment of all fees and
expenses in connection with the foregoing.


 


“Type” shall mean the type of Loan determined with regard to the
interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.


 


“UCC” shall mean the Uniform Commercial Code as from time
to time in effect in the relevant jurisdiction.


 


“Unfunded Current Liability” of any Plan shall mean the amount,
if any, by which the Accumulated Benefit Obligation (as defined under the
Statement of Financial Accounting Standards No. 87 (“SFAS 87”))
under the Plan as of the close of its most recent plan year, determined in
accordance with SFAS 87 as in effect on the date hereof, exceeds the fair
market value of the assets allocable thereto.


 


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


 


“Unpaid Drawing” shall have the meaning provided in Section 3.05(a).


 


“Unutilized Revolving
Loan Commitment” shall mean, with respect to any Lender at any time, such
Lender’s Revolving Loan Commitment at such time less the sum of (i) the
aggregate outstanding principal amount of all Revolving Loans made by such
Lender at such time and (ii) such Lender’s RL Percentage of the Letter of
Credit Outstandings at such time.


 


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


 


“Wholly-Owned Domestic Subsidiary” shall mean, as to any Person,
any Wholly-Owned Subsidiary of such Person which is a Domestic Subsidiary.


 


“Wholly-Owned Foreign Subsidiary” shall mean, as to any Person,
any Wholly-Owned Subsidiary of such Person which is a Foreign Subsidiary.


 


“Wholly-Owned Subsidiary” shall mean, as to any Person, (i) any
corporation 100% of whose capital stock is at the time owned by such Person
and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in which such Person
and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity
interest at such time (other than, in the case of a Foreign Subsidiary of the


 


30

















 


Borrower with respect to the preceding clauses (i) and (ii),
director’s qualifying shares and/or other nominal amount of shares required to
be held by Persons other than the Borrower and its Subsidiaries under
applicable law).


 


SECTION 2.                                                        Amount and Terms of Credit.


 


2.01.                        The Commitments. (a) Subject
to and upon the terms and conditions set forth herein, each Lender with an
Initial Term Loan Commitment severally agrees to make, on the Initial Borrowing
Date, a term loan or term loans (each, an “Initial Term Loan” and,
collectively, the “Initial Term Loans”) to the Borrower, which Initial
Term Loans (i) shall be denominated in Dollars, (ii) except as
hereinafter provided, shall, at the option of the Borrower, be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided
that, (A) except as otherwise specifically provided in Section 2.10(b),
all Initial Term Loans comprising the same Borrowing shall at all times be of
the same Type, and (B) unless the Administrative Agent otherwise has
agreed or has determined that the Syndication Date has occurred (at which time
this clause (B) shall no longer be applicable), no more than three
Borrowings of Initial Term Loans to be maintained as Eurodollar Loans may be
incurred prior to the 90th day after the Initial Borrowing Date (or, if later,
the last day of the Interest Period applicable to the third Borrowing of
Eurodollar Loans referred to below), each of which Borrowings of Eurodollar
Loans may only have an Interest Period of one month, and the first of
which Borrowings may only be made within five Business Days after the
Initial Borrowing Date, the second of which Borrowings may only be made on
the last day of the Interest Period of the first such Borrowing and the third
of which Borrowings may only be made on the last day of the Interest
Period of the second such Borrowing, and (iii) shall be made by each such
Lender in that aggregate principal amount which does not exceed the Initial
Term Loan Commitment of such Lender on the Initial Borrowing Date. Once repaid,
Initial Term Loans incurred hereunder may not be reborrowed.


 


(b) Subject to and upon the terms and conditions set
forth herein, each Lender with a Revolving Loan Commitment severally agrees to
make, at any time and from time to time on or after the Initial Borrowing Date
and prior to the Revolving Loan Maturity Date, a revolving loan or revolving
loans (each, a “Revolving Loan” and, collectively, the “Revolving
Loans”) to the Borrower, which Revolving Loans (i) shall be
denominated in Dollars, (ii) shall, at the option of the Borrower, be
incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar
Loans, provided that, except as otherwise specifically provided in Section 2.10(b),
all Revolving Loans comprising the same Borrowing shall at all times be of the
same Type, (iii) may be repaid and reborrowed in accordance with the
provisions hereof, (iv) shall not exceed for any such Lender at any time
outstanding that aggregate principal amount which, when added to the product of
(x) such Lender’s RL Percentage and (y) the sum of (I) the aggregate amount of
all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) at such time and (II) the aggregate
principal amount of all Swingline Loans (exclusive of Swingline Loans which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) then outstanding, equals the
Revolving Loan Commitment of such Lender at such time, and (v) shall not
exceed for all such Lenders at any time outstanding that aggregate principal
amount which, when added to the sum of (I) the aggregate amount of all Letter
of Credit Outstandings (exclusive of Unpaid Drawings


 


31

















 


which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) at such time and (II) the aggregate
principal amount of all Swingline Loans (exclusive of Swingline Loans which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) then outstanding, equals the Total
Revolving Loan Commitment at such time.


 


(c) Subject to and upon the terms and conditions set
forth herein, each Lender with an Incremental Term Loan Commitment for a given
Tranche of Incremental Term Loans severally agrees to make a term loan or term
loans (each, an “Incremental Term Loan” and, collectively, the “Incremental
Term Loans”) to the Borrower, which Incremental Term Loans (i) shall
be incurred pursuant to a single drawing of such Tranche on the respective
Incremental Term Loan Borrowing Date, (ii) shall be denominated in
Dollars, (iii) except as hereinafter provided, shall, at the option of the
Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans
or Eurodollar Loans, provided that, except as otherwise specifically
provided in Section 2.10(b), all Incremental Term Loans of a given Tranche
made as part of the same Borrowing shall at all times consist of Incremental
Term Loans of the same Type, and (iv) shall not exceed for any such
Incremental Term Loan Lender at any time of any incurrence thereof, the
Incremental Term Loan Commitment of such Incremental Term Loan Lender for such
Tranche on the respective Incremental Term Loan Borrowing Date. Once repaid,
Incremental Term Loans incurred hereunder may not be reborrowed.


 


(d) Subject to and
upon the terms and conditions set forth herein, the Swingline Lender agrees to
make, at any time and from time to time on or after the Initial Borrowing Date
and prior to the Swingline Expiry Date, a revolving loan or revolving loans
(each, a “Swingline Loan” and, collectively, the “Swingline Loans”)
to the Borrower, which Swingline Loans (i) shall be incurred and
maintained as Base Rate Loans, (ii) shall be denominated in Dollars, (iii) may be
repaid and reborrowed in accordance with the provisions hereof, (iv) shall
not exceed in aggregate principal amount at any time outstanding, when combined
with the aggregate principal amount of all Revolving Loans then outstanding and
the aggregate amount of all Letter of Credit Outstandings at such time, an
amount equal to the Total Revolving Loan Commitment at such time, and (v) shall
not exceed in aggregate principal amount at any time outstanding the Maximum
Swingline Amount. Notwithstanding anything to the contrary contained in this Section 2.01(d),
(i) the Swingline Lender shall not be obligated to make any Swingline
Loans at a time when a Lender Default exists with respect to an RL Lender
unless the Swingline Lender has entered into arrangements satisfactory to it
and the Borrower to eliminate the Swingline Lender’s risk with respect to the
Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline
Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting
Lenders’ RL Percentage of the outstanding Swingline Loans, and (ii) the
Swingline Lender shall not make any Swingline Loan after it has received
written notice from the Borrower, any other Credit Party or the Required
Lenders stating that a Default or an Event of Default exists and is continuing
until such time as the Swingline Lender shall have received written notice (A) of
rescission of all such notices from the party or parties originally delivering
such notice or notices or (B) of the waiver of such Default or Event of
Default by the Required Lenders.


 


(e) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the RL Lenders that the Swingline Lender’s
outstanding Swingline Loans shall be


 


32

















 


funded
with one or more Borrowings of Revolving Loans (provided that such
notice shall be deemed to have been automatically given upon the occurrence of
a Default or an Event of Default under Section 11.05 or upon the exercise
of any of the remedies provided in the last paragraph of Section 11), in
which case one or more Borrowings of Revolving Loans constituting Base Rate
Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on
the immediately succeeding Business Day by all RL Lenders pro  rata
based on each such RL Lender’s RL Percentage (determined before giving effect
to any termination of the Revolving Loan Commitments pursuant to the last
paragraph of Section 11) and the proceeds thereof shall be applied
directly by the Swingline Lender to repay the Swingline Lender for such
outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make
Revolving Loans upon one Business Day’s notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified in writing by the Swingline Lender notwithstanding (i) the
amount of the Mandatory Borrowing may not comply with the Minimum
Borrowing Amount otherwise required hereunder, (ii) whether any conditions
specified in Section 7 are then satisfied, (iii) whether a Default or
an Event of Default then exists, (iv) the date of such Mandatory
Borrowing, and (v) the amount of the Total Revolving Loan Commitment at
such time. In the event that any Mandatory Borrowing cannot for any reason be
made on the date otherwise required above (including, without limitation, as a
result of the commencement of a proceeding under the Bankruptcy Code with
respect to the Borrower), then each RL Lender hereby agrees that it shall
forthwith purchase (as of the date the Mandatory Borrowing would otherwise have
occurred, but adjusted for any payments received from the Borrower on or after
such date and prior to such purchase) from the Swingline Lender such
participations in the outstanding Swingline Loans as shall be necessary to
cause the RL Lenders to share in such Swingline Loans ratably based upon their
respective RL Percentages (determined before giving effect to any termination
of the Revolving Loan Commitments pursuant to the last paragraph of Section 11),
provided that (x) all interest payable on the Swingline Loans shall be
for the account of the Swingline Lender until the date as of which the
respective participation is required to be purchased and, to the extent
attributable to the purchased participation, shall be payable to the
participant from and after such date and (y) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing RL
Lender shall be required to pay the Swingline Lender interest on the principal
amount of participation purchased for each day from and including the day upon
which the Mandatory Borrowing would otherwise have occurred to but excluding
the date of payment for such participation, at the overnight Federal Funds Rate
for the first three days and at the interest rate otherwise applicable to
Revolving Loans maintained as Base Rate Loans hereunder for each day
thereafter.


 


2.02.        Minimum Amount of
Each Borrowing. The aggregate principal amount of each Borrowing of Loans
under a respective Tranche shall not be less than the Minimum Borrowing Amount
applicable to such Tranche. More than one Borrowing may occur on the same
date, but at no time shall there be outstanding more than twelve Borrowings of
Eurodollar Loans in the aggregate for all Tranches of Loans (unless a greater
number of such Borrowings is agreed to by the Administrative Agent).


 


2.03.        Notice of Borrowing. (a) Whenever
the Borrower desires to incur (x) Eurodollar Loans hereunder, the Borrower
shall give the Administrative Agent at the Notice Office at least three
Business Days’ prior notice of each Eurodollar Loan to be incurred hereunder,
and (y) Base Rate Loans hereunder (excluding Swingline Loans and Revolving
Loans


 


33

















 


made
pursuant to a Mandatory Borrowing), the Borrower shall give the Administrative
Agent at the Notice Office at least one Business Day’s prior notice of each
Base Rate Loan to be incurred hereunder, provided that (in each case)
any such notice shall be deemed to have been given on a certain day only if
given before 11:00 A.M. (New York time) on such day. Each such notice
(each, a “Notice of Borrowing”), except as otherwise expressly provided
in Section 2.10, shall be irrevocable and shall be in writing, or by
telephone promptly confirmed in writing, in the form of Exhibit A-1,
appropriately completed to specify: (i) the aggregate principal amount of
the Loans to be incurred pursuant to such Borrowing; (ii) the date of such
Borrowing (which shall be a Business Day); (iii) whether the Loans being
incurred pursuant to such Borrowing shall constitute Initial Term Loans,
Revolving Loans or Incremental Term Loans and, if Incremental Term Loans, the
specific Tranche thereof; (iv) whether the Loans being incurred pursuant
to such Borrowing are to be initially maintained as Base Rate Loans or, to the
extent permitted hereunder, Eurodollar Loans and, if Eurodollar Loans, the
initial Interest Period to be applicable thereto; and (v) in the case of a
Borrowing of Revolving Loans the proceeds of which are to be utilized to
finance, in whole or in part, a Permitted Acquisition (or to pay any fees and
expenses incurred in connection therewith), the amount of the Total Unutilized
Revolving Loan Commitment after giving effect to such Borrowing. The
Administrative Agent shall promptly give each Lender which is required to make
Loans of the Tranche specified in the respective Notice of Borrowing, notice of
such proposed Borrowing, of such Lender’s proportionate share thereof and of
the other matters required by the immediately preceding sentence to be
specified in the Notice of Borrowing.


 


(b) (i) Whenever the Borrower desires to incur
Swingline Loans hereunder, the Borrower shall give the Swingline Lender no
later than 1:00 P.M. (New York time) on the date that a Swingline Loan is
to be incurred, written notice or telephonic notice promptly confirmed in
writing of each Swingline Loan to be incurred hereunder. Each such notice shall
be irrevocable and specify in each case (A) the date of Borrowing (which
shall be a Business Day), (B) the aggregate principal amount of the
Swingline Loans to be incurred pursuant to such Borrowing, and (C) in the
case of a Borrowing of Swingline Loans the proceeds of which are to be utilized
to finance, in whole or in part, a Permitted Acquisition (or to pay any fees
and expenses incurred in connection therewith), the amount of the Total
Unutilized Revolving Loan Commitment after giving effect to such Borrowing.


 


(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 2.01(e), with the Borrower irrevocably agreeing, by
its incurrence of any Swingline Loan, to the making of the Mandatory Borrowings
as set forth in Section 2.01(e).


(c) Without in any way limiting the obligation of the
Borrower to confirm in writing any telephonic notice of any Borrowing or
prepayment of Loans, the Administrative Agent or the Swingline Lender, as the
case may be, may act without liability upon the basis of telephonic
notice of such Borrowing or prepayment, as the case may be, believed by
the Administrative Agent or the Swingline Lender, as the case may be, in
good faith to be from an Authorized Officer of the Borrower, prior to receipt
of written confirmation. In each such case, the Borrower hereby waives the
right to dispute the Administrative Agent’s or the Swingline Lender’s record of
the terms of such telephonic notice of such Borrowing or prepayment of Loans,
as the case may be, absent manifest error.


 


34

















 


2.04.                        Disbursement of Funds. No later than 1:00 P.M. (New York
time) on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, no later than 4:00 P.M. (New York time) on the date
specified pursuant to Section 2.03(b)(i) or (y) in the case of
Mandatory Borrowings, no later than 1:00 P.M. (New York time) on the date
specified in Section 2.01(e)), each Lender with a Commitment of the
respective Tranche will make available its pro  rata portion
(determined in accordance with Section 2.07) of each such Borrowing
requested to be made on such date (or in the case of Swingline Loans, the
Swingline Lender will make available the full amount thereof). All such amounts
will be made available in Dollars and in immediately available funds at the
Payment Office, and the Administrative Agent will, except in the case of
Revolving Loans made pursuant to a Mandatory Borrowing, make available to the
Borrower at the Payment Office the aggregate of the amounts so made available
by the Lenders. Unless the Administrative Agent shall have been notified by any
Lender prior to the date of Borrowing that such Lender does not intend to make
available to the Administrative Agent such Lender’s portion of any Borrowing to
be made on such date, the Administrative Agent may assume that such Lender
has made such amount available to the Administrative Agent on such date of
Borrowing and the Administrative Agent may (but shall not be obligated
to), in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent by such Lender, the Administrative Agent
shall be entitled to recover from such Lender such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent’s demand therefor, the Administrative
Agent shall promptly notify the Borrower and the Borrower shall immediately pay
such corresponding amount to the Administrative Agent. The Administrative Agent
also shall be entitled to recover on demand from such Lender or the Borrower,
as the case may be, interest on such corresponding amount in respect of
each day from the date such corresponding amount was made available by the
Administrative Agent to the Borrower until the date such corresponding amount
is recovered by the Administrative Agent, at a rate per annum equal to (i) if
recovered from such Lender, the overnight Federal Funds Rate for the first
three days and at the interest rate otherwise applicable to such Loans for each
day thereafter, and (ii) if recovered from the Borrower, the rate of
interest applicable to the respective Borrowing, as determined pursuant to Section 2.08.
Nothing in this Section 2.04 shall be deemed to relieve any Lender from
its obligation to make Loans hereunder or to prejudice any rights which the
Borrower may have against any Lender as a result of any failure by such
Lender to make Loans hereunder.


 


2.05.                        Notes. (a) The Borrower’s obligation to pay the
principal of, and interest on, the Loans made by each Lender shall be evidenced
in the Register maintained by the Administrative Agent pursuant to Section 13.15
and shall, if requested by such Lender, also be evidenced (i) in the case
of Initial Term Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-1, with blanks
appropriately completed in conformity herewith (each, an “Initial Term Note”
and, collectively, the “Initial Term Notes”), (ii) in the case of
Revolving Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-2, with blanks
appropriately completed in conformity herewith (each, a “Revolving Note”
and, collectively, the “Revolving Notes”), (iii) in the case of
Incremental Term Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-3, with blanks appropriately
completed in conformity herewith (each, an “Incremental Term Note” and,
collectively, the “Incremental Term Notes”), and (iv) in the case
of Swingline Loans, by a promissory note duly executed and


 


35

















 


delivered
by the Borrower substantially in the form of Exhibit B-4, with blanks
appropriately completed in conformity herewith (the “Swingline Note”).


 


(b) The Initial Term Note issued to each Lender that has
an Initial Term Loan Commitment or outstanding Initial Term Loans shall (i) be
executed by the Borrower, (ii) be payable to such Lender or its registered
assigns and be dated the Initial Borrowing Date (or, if issued after the
Initial Borrowing Date, be dated the date of issuance thereof), (iii) be
in a stated principal amount equal to the Initial Term Loans made by such
Lender on the Initial Borrowing Date (or, if issued after the Initial Borrowing
Date, be in a stated principal amount equal to the outstanding Initial Term
Loans of such Lender at such time) and be payable in the outstanding principal
amount of Initial Term Loans evidenced thereby from time to time, (iv) mature
on the Initial Term Loan Maturity Date, (v) bear interest as provided in
the appropriate clause of Section 2.08 in respect of the Base Rate Loans
and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be
subject to voluntary prepayment as provided in Section 5.01, and mandatory
repayment as provided in Section 5.02, and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.


 


(c) The Revolving Note issued to each Lender that has a
Revolving Loan Commitment or outstanding Revolving Loans shall (i) be
executed by the Borrower, (ii) be payable to such Lender or its registered
assigns and be dated the Initial Borrowing Date (or, if issued after the
Initial Borrowing Date, be dated the date of the issuance thereof), (iii) be
in a stated principal amount equal to the Revolving Loan Commitment of such
Lender (or, if issued after the termination thereof, be in a stated principal
amount equal to the outstanding Revolving Loans of such Lender at such time)
and be payable in the outstanding principal amount of the Revolving Loans
evidenced thereby from time to time, (iv) mature on the Revolving Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of Section 2.08
in respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment as provided in Section 5.01,
and mandatory repayment as provided in Section 5.02, and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.


 


(d) The Incremental Term Note issued to each Lender with
an Incremental Term Loan Commitment or outstanding Incremental Term Loans under
a given Tranche shall (i) be executed by the Borrower, (ii) be
payable to such Lender or its registered assigns and be dated the applicable
Incremental Term Loan Borrowing Date (or, if issued after such Incremental Term
Loan Borrowing Date, be dated the date of the issuance thereof), (iii) be
in a stated principal amount equal to the Incremental Term Loans of such
Tranche made by such Lender on the applicable Incremental Term Loan Borrowing
Date (or, if issued thereafter, be in a stated principal amount equal to the
outstanding principal amount of the Incremental Term Loans of such Lender at
such time for such Tranche of Incremental Term Loans), (iv) mature on the
Incremental Term Loan Maturity Date for such Tranche of Incremental Term Loans,
(v) bear interest as provided in the appropriate clause of Section 2.08
in respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment as provided in Section 5.01,
and mandatory repayment as provided in Section 5.02, and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.


 


36

















 


(e) The Swingline Note issued to the Swingline Lender
shall (i) be executed by the Borrower, (ii) be payable to the
Swingline Lender or its registered assigns and be dated the Initial Borrowing
Date, (iii) be in a stated principal amount equal to the Maximum Swingline
Amount and be payable in the outstanding principal amount of the Swingline
Loans evidenced thereby from time to time, (iv) mature on the Swingline
Expiry Date, (v) bear interest as provided in the appropriate clause of Section 2.08
in respect of the Base Rate Loans evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 5.01, and mandatory repayment
as provided in Section 5.02, and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.


 


(f) Each Lender will note on its internal records the
amount of each Loan made by it and each payment in respect thereof and prior to
any transfer of any of its Notes will endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation or any error in such notation shall not affect the Borrower’s
obligations in respect of such Loans.


 


(g) Notwithstanding anything to the contrary contained
above in this Section 2.05 or elsewhere in this Agreement, Notes shall
only be delivered to Lenders which at any time specifically request the
delivery of such Notes. No failure of any Lender to request or obtain a Note
evidencing its Loans to the Borrower shall affect or in any manner impair the
obligations of the Borrower to pay the Loans (and all related Obligations)
incurred by the Borrower which would otherwise be evidenced thereby in
accordance with the requirements of this Agreement, and shall not in any way
affect the security or guaranties therefor provided pursuant to the various
Credit Documents. Any Lender which does not have a Note evidencing its
outstanding Loans shall in no event be required to make the notations otherwise
described in preceding clause (f). At any time when any Lender requests the
delivery of a Note to evidence any of its Loans, the Borrower shall promptly execute
and deliver to the respective Lender the requested Note in the appropriate
amount or amounts to evidence such Loans.


 


2.06.        Conversions.
The Borrower shall have the option to convert, on any Business Day, all or a
portion equal to at least the Minimum Borrowing Amount of the outstanding
principal amount of Loans (other than Swingline Loans which may not be
converted pursuant to this Section 2.06) made pursuant to one or more
Borrowings (so long as of the same Tranche) of one or more Types of Loans into
a Borrowing (of the same Tranche) of another Type of Loan, provided that
(i) except as otherwise provided in Section 2.10(b), Eurodollar Loans
may be converted into Base Rate Loans only on the last day of an Interest
Period applicable to the Loans being converted and no such partial conversion
of Eurodollar Loans shall reduce the outstanding principal amount of such
Eurodollar Loans made pursuant to a single Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) unless the Required Lenders
otherwise agree, Base Rate Loans may only be converted into Eurodollar
Loans if no Event of Default is in existence on the date of the conversion, (iii) unless
the Administrative Agent otherwise has agreed or has determined that the Syndication
Date has occurred (at which time this clause (iii) shall no longer be
applicable), prior to the 90th day following
the Initial Borrowing Date, conversions of Initial Term Loans that are
maintained as Base Rate Loans into Eurodollar Loans may only be made if any
such conversion is effective on the first day of the first, second or third
Interest Period referred to in clause (B) of Section 2.01(a)(ii) and
so long as such conversion does not result in a greater number of Borrowings of


 


37

















 


Eurodollar
Loans prior to the 90th day after the Initial Borrowing Date than are permitted
under Section 2.01(a)(ii), and (iv) no conversion pursuant to this Section 2.06
shall result in a greater number of Borrowings of Eurodollar Loans than is
permitted under Section 2.02. Each such conversion shall be effected by
the Borrower by giving the Administrative Agent at the Notice Office prior to
11:00 A.M. (New York time) at least (x) in the case of conversions of Base
Rate Loans into Eurodollar Loans, three Business Days’ prior notice, and (y) in
the case of conversions of Eurodollar Loans into Base Rate Loans, one Business
Day’s prior notice (each, a “Notice of Conversion/Continuation”), in
each case in the form of Exhibit A-2, appropriately completed to
specify the Loans to be so converted, the Borrowing or Borrowings pursuant to
which such Loans were incurred and, if to be converted into Eurodollar Loans,
the Interest Period to be initially applicable thereto. The Administrative Agent
shall give each Lender prompt notice of any such proposed conversion affecting
any of its Loans.


 


2.07.                        Pro Rata Borrowings.
All Borrowings of Initial Term Loans, Incremental Term Loans and Revolving
Loans under this Agreement shall be incurred from the Lenders pro  rata
on the basis of their Initial Term Loan Commitments, applicable Incremental
Term Loan Commitments or Revolving Loan Commitments, as the case may be, provided
that all Mandatory Borrowings shall be incurred from the RL Lenders pro  rata
on the basis of their RL Percentages. It is understood that no Lender shall be
responsible for any default by any other Lender of its obligation to make Loans
hereunder and that each Lender shall be obligated to make the Loans provided to
be made by it hereunder, regardless of the failure of any other Lender to make
its Loans hereunder.


 


2.08.                        Interest. (a) The
Borrower agrees to pay interest in respect of the unpaid principal amount of
each Base Rate Loan from the date of Borrowing thereof until the earlier of (i) the
maturity thereof (whether by acceleration or otherwise) and (ii) the
conversion of such Base Rate Loan to a Eurodollar Loan pursuant to Section 2.06
or 2.09, as applicable, at a rate per annum which shall be equal to the sum of
the relevant Applicable Margin plus the Base Rate as in effect from time
to time.


 


(b) The Borrower agrees to pay interest in respect of
the unpaid principal amount of each Eurodollar Loan from the date of Borrowing
thereof until the earlier of (i) the maturity thereof (whether by
acceleration or otherwise) and (ii) the conversion of such Eurodollar Loan
to a Base Rate Loan pursuant to Section 2.06, 2.09 or 2.10, as applicable,
at a rate per annum which shall, during each Interest Period applicable
thereto, be equal to the sum of the relevant Applicable Margin plus the
Eurodollar Rate for such Interest Period.


 


(c) Overdue principal and, to the extent permitted by
law, overdue interest in respect of each Loan shall, in each case, bear
interest at a rate per annum equal to the rate which is 2% in excess of the
rate then borne by such Loans from time to time, and all other overdue amounts
payable hereunder and under any other Credit Document shall bear interest at a
rate per annum equal to the rate which is 2% in excess of the rate applicable
to Revolving Loans that are maintained as Base Rate Loans from time to time. Interest
that accrues under this Section 2.08(c) shall be payable on demand.


 


(d) Accrued (and theretofore unpaid) interest shall be
payable (i) in respect of each Base Rate Loan, (x) quarterly in arrears on
each Quarterly Payment Date, (y) on the date of


 


38

















 


any
repayment or prepayment in full of all outstanding Base Rate Loans of any
Tranche, and (z) at maturity (whether by acceleration or otherwise) and, after
such maturity, on demand, and (ii) in respect of each Eurodollar Loan, (x)
on the last day of each Interest Period applicable thereto and, in the case of
an Interest Period in excess of three months, on each date occurring at three
month intervals after the first day of such Interest Period, and (y) on the
date of any repayment or prepayment (on the amount repaid or prepaid), at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.


 


(e) Upon each Interest Determination Date, the
Administrative Agent shall determine the Eurodollar Rate for each Interest
Period applicable to the respective Eurodollar Loans and shall promptly notify
the Borrower and the Lenders thereof. Each such determination shall, absent
manifest error, be final and conclusive and binding on all parties hereto.


 


2.09.                        Interest Periods. At the time the Borrower gives any
Notice of Borrowing or Notice of Conversion/Continuation in respect of the
making of, or conversion into, any Eurodollar Loan (in the case of the initial
Interest Period applicable thereto) or prior to 11:00 A.M. (New York time)
on the third Business Day prior to the expiration of an Interest Period
applicable to such Eurodollar Loan (in the case of any subsequent Interest
Period), the Borrower shall have the right to elect the interest period (each,
an “Interest Period”) applicable to such Eurodollar Loan, which Interest
Period shall, at the option of the Borrower (but otherwise subject to the
provisions of clause (B) of the proviso in Section 2.01(a)(ii)), be a
one, two, three, six or (if agreed to by all Lenders under the relevant
Tranche) nine or twelve month period, provided that (in each case):


 


(i)                                     all Eurodollar Loans comprising a Borrowing shall at all
times have the same Interest Period;


 


(ii)                                  the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including the date
of any conversion thereto from a Base Rate Loan) and each Interest Period
occurring thereafter in respect of such Eurodollar Loan shall commence on the
day on which the next preceding Interest Period applicable thereto expires;


 


(iii)                               if any Interest
Period for a Eurodollar Loan begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period,
such Interest Period shall end on the last Business Day of such calendar month;


 


(iv)                              if any Interest Period for a Eurodollar Loan would otherwise
expire on a day which is not a Business Day, such Interest Period shall expire
on the next succeeding Business Day; provided, however, that if
any Interest Period for a Eurodollar Loan would otherwise expire on a day which
is not a Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;


 


(v)                                 unless the Required Lenders otherwise agree, no Interest
Period may be selected at any time when an Event of Default is then in
existence; and


 


39

















 


(vi)                              no Interest Period in respect of any Borrowing of any Tranche
of Loans shall be selected which extends beyond the Maturity Date for such
Tranche of Loans.


 


If
by 11:00 A.M. (New York time) on the third Business Day prior to the
expiration of any Interest Period applicable to a Borrowing of Eurodollar
Loans, the Borrower has failed to elect, or is not permitted to elect, a new
Interest Period to be applicable to such Eurodollar Loans as provided above,
the Borrower shall be deemed to have elected to convert such Eurodollar Loans
into Base Rate Loans effective as of the expiration date of such current
Interest Period.


 


2.10.                        Increased
Costs, Illegality, etc. (a) In the event that any Lender shall have
determined (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto but, with respect to clause (i) below,
may be made only by the Administrative Agent):


 


(i)                                     on any Interest Determination Date that, by reason of any
changes arising after the Effective Date affecting the interbank Eurodollar
market, adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of Eurodollar Rate;
or


 


(ii)                                  at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to any
Eurodollar Loan because of (x) any change since the Effective Date in any
applicable law or governmental rule, regulation, order, guideline or request
(whether or not having the force of law) or in the interpretation or
administration thereof and including the introduction of any new law or
governmental rule, regulation, order, guideline or request, such as, but not
limited to: (A) a change in the basis of taxation of payment to any Lender
of the principal of or interest on the Loans or the Notes or any other amounts
payable hereunder (except for changes in the rate of tax on, or determined by
reference to, the net income or net profits of such Lender pursuant to the laws
of the jurisdiction in which it is organized or in which its principal office
or applicable lending office is located or any subdivision thereof or therein)
or (B) a change in official reserve requirements, but, in all events,
excluding reserves required under Regulation D to the extent included in the
computation of the Eurodollar Rate and/or (y) other circumstances arising since
the Effective Date affecting such Lender, the interbank Eurodollar market or
the position of such Lender in such market; or


 


(iii)                               at any time, that the making or
continuance of any Eurodollar Loan has been made (x) unlawful by any law or
governmental rule, regulation or order, (y) impossible by compliance by any
Lender in good faith with any governmental request (whether or not having force
of law) or (z) impracticable as a result of a contingency occurring after the
Effective Date which materially and adversely affects the interbank Eurodollar
market;


 


then, and in any such event, such Lender (or the
Administrative Agent, in the case of clause (i) above) shall promptly give
notice (by telephone promptly confirmed in writing) to the Borrower and, except
in the case of clause (i) above, to the Administrative Agent of such determination
(which notice the Administrative Agent shall promptly transmit to each of the


 


40

















 


other
Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans
shall no longer be available until such time as the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to
such notice by the Administrative Agent no longer exist, and any Notice of
Borrowing or Notice of Conversion/Continuation given by the Borrower with
respect to Eurodollar Loans which have not yet been incurred (including by way
of conversion) shall be deemed rescinded by the Borrower, (y) in the case of
clause (ii) above, the Borrower agrees to pay to such Lender, upon such
Lender’s written request therefor, such additional amounts (in the form of
an increased rate of, or a different method of calculating, interest or
otherwise as such Lender in its sole discretion shall determine) as shall be
required to compensate such Lender for such increased costs or reductions in
amounts received or receivable hereunder (a written notice as to the additional
amounts owed to such Lender, showing in reasonable detail the basis for the
calculation thereof, submitted to the Borrower by such Lender shall, absent manifest
error, be final and conclusive and binding on all the parties hereto) and (z)
in the case of clause (iii) above, the Borrower shall take one of the
actions specified in Section 2.10(b) as promptly as possible and, in
any event, within the time period required by law.


 


(b) At any time that any Eurodollar Loan is affected by
the circumstances described in Section 2.10(a)(ii), the Borrower may, and
in the case of a Eurodollar Loan affected by the circumstances described in Section 2.10(a)(iii),
the Borrower shall, either (x) if the affected Eurodollar Loan is then being
made initially or pursuant to a conversion, cancel such Borrowing by giving the
Administrative Agent telephonic notice (confirmed in writing) on the same date
that the Borrower was notified by the affected Lender or the Administrative
Agent pursuant to Section 2.10(a)(ii) or (iii) or (y) if the
affected Eurodollar Loan is then outstanding, upon at least three Business Days’
written notice to the Administrative Agent, require the affected Lender to
convert such Eurodollar Loan into a Base Rate Loan, provided that, if
more than one Lender is affected at any time, then all affected Lenders must be
treated the same pursuant to this Section 2.10(b).


 


(c) If any Lender determines that after the Effective
Date the introduction of or any change in any applicable law or governmental
rule, regulation, order, guideline, directive or request (whether or not having
the force of law) concerning capital adequacy, or any change in interpretation
or administration thereof by the NAIC or any governmental authority, central
bank or comparable agency, will have the effect of increasing the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender based on the existence of such Lender’s Commitments
hereunder or its obligations hereunder, then the Borrower agrees to pay to such
Lender, upon such Lender’s written request therefor, such additional amounts as
shall be required to compensate such Lender or such other corporation for the
increased cost to such Lender or such other corporation or the reduction in the
rate of return to such Lender or such other corporation as a result of such
increase of capital. In determining such additional amounts, each Lender will
act reasonably, in good faith and in a manner generally consistent with such
Lender’s standard practices, provided that such Lender’s determination
of compensation owing under this Section 2.10(c) shall, absent
manifest error, be final and conclusive and binding on all the parties hereto. Each
Lender, upon determining that any additional amounts will be payable pursuant
to this Section 2.10(c), will give prompt written notice thereof to the
Borrower, which notice shall show in reasonable detail the basis for
calculation of such additional amounts.


 


41
















 


2.11.        Compensation. The Borrower agrees
to compensate each Lender, upon its written request (which request shall set
forth in reasonable detail the basis for requesting such compensation), for all
losses, expenses and liabilities (including, without limitation, any loss,
expense or liability incurred by reason of the liquidation or reemployment of
deposits or other funds required by such Lender to fund its Eurodollar Loans
but excluding loss of anticipated profits) which such Lender may sustain:  (i) if for any reason (other than a default
by such Lender or the Administrative Agent) a Borrowing of, or conversion from
or into, Eurodollar Loans does not occur on a date specified therefor in a
Notice of Borrowing or Notice of Conversion/Continuation (whether or not
withdrawn by the Borrower or deemed withdrawn pursuant to Section 2.10(a));
(ii) if any prepayment or repayment (including any prepayment or repayment made
pursuant to Section 5.01, Section 5.02 or as a result of an acceleration of the
Loans pursuant to Section 11) or conversion of any of its Eurodollar Loans
occurs on a date which is not the last day of an Interest Period with respect
thereto; (iii) if any prepayment of any of its Eurodollar Loans is not made on
any date specified in a notice of prepayment given by the Borrower; or (iv) as
a consequence of (x) any other default by the Borrower to repay Eurodollar
Loans when required by the terms of this Agreement or any Note held by such
Lender or (y) any election made pursuant to Section 2.10(b). Any Lender’s
determination of compensation owing to it under this Section 2.11 shall, absent
manifest error, be final and conclusive and binding on all parties hereto.


 


2.12.        Change of Lending Office. Each
Lender agrees that on the occurrence of any event giving rise to the operation
of Section 2.10(a)(ii) or (iii), Section 2.10(c), Section 3.06 or Section 5.04
with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans or Letters of Credit affected by
such event, provided that such designation is made on such terms that
such Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of such Section. Nothing in this Section 2.12 shall
affect or postpone any of the obligations of the Borrower or the right of any
Lender provided in Sections 2.10, 3.06 and 5.04.


 


2.13.        Replacement of Lenders. (x) If
any Lender becomes a Defaulting Lender, (y) upon the occurrence of any event
giving rise to the operation of Section 2.10(a)(ii) or (iii), Section 2.10(c),
Section 3.06 or Section 5.04 with respect to any Lender which results in such
Lender charging to the Borrower increased costs in excess of those being
generally charged by the other Lenders or (z) in the case of a refusal by a
Lender to consent to a proposed change, waiver, discharge or termination with
respect to this Agreement which has been approved by the Required Lenders as
(and to the extent) provided in Section 13.12(b), the Borrower shall have the
right, in accordance with Section 13.04(b), if no Default or Event of Default
then exists or would exist after giving effect to such replacement, to replace
such Lender (the “Replaced Lender”) with one or more other Eligible
Transferees, none of whom shall constitute a Defaulting Lender at the time of
such replacement (collectively, the “Replacement Lender”) and each of
which shall be reasonably acceptable to the Administrative Agent (if not
already a Lender) or, in the case of a replacement as provided in Section
13.12(b) where the consent of the respective Lender is required with respect to
less than all Tranches of its Loans or Commitments, to replace the Commitments
and/or outstanding Loans of such Lender in respect of each Tranche where the
consent of such Lender would otherwise be individually required, with identical


 


42

















 


Commitments
and/or Loans of the respective Tranche provided by the Replacement Lender; provided
that:


 


(a)           at the time of any
replacement pursuant to this Section 2.13, the Replacement Lender shall enter
into one or more Assignment and Assumption Agreements pursuant to Section
13.04(b) (and with all fees payable pursuant to said Section 13.04(b) to be
paid by the Replacement Lender and/or the Replaced Lender (as may be agreed to
at such time by and among the Borrower, the Replacement Lender and the Replaced
Lender)) pursuant to which the Replacement Lender shall acquire all of the
Commitments and outstanding Loans (or, in the case of the replacement of only
(a) the Revolving Loan Commitment, the Revolving Loan Commitment and
outstanding Revolving Loans and participations in Letter of Credit Outstandings
and/or (b) the outstanding Term Loans of a Tranche, the outstanding Term Loans
of such Tranche) of, and in each case (except for the replacement of only the
outstanding Term Loans of the Replaced Lender) all participations in Letters of
Credit by, the Replaced Lender and, in connection therewith, shall pay to (x)
the Replaced Lender in respect thereof an amount equal to the sum of (A) an
amount equal to the principal of, and all accrued interest on, all outstanding
Loans of the respective Replaced Lender under each Tranche with respect to
which such Replaced Lender is being replaced, (B) an amount equal to all Unpaid
Drawings (unless there are no Unpaid Drawings with respect to the Tranche being
replaced) that have been funded by (and not reimbursed to) such Replaced
Lender, together with all then unpaid interest with respect thereto at such
time, and (C) an amount equal to all accrued, but theretofore unpaid, Fees
owing to the Replaced Lender (but only with respect to the relevant Tranche, in
the case of the replacement of less than all Tranches of Loans then held by the
respective Replaced Lender) pursuant to Section 4.01, (y) except in the case of
the replacement of only the outstanding Term Loans of a Replaced Lender, each
Letter of Credit Issuer an amount equal to such Replaced Lender’s RL Percentage
of any Unpaid Drawing relating to Letters of Credit issued by such Letter of
Credit Issuer (which at such time remains an Unpaid Drawing) to the extent such
amount was not theretofore funded by such Replaced Lender and (z) in the case
of any replacement of Revolving Loan Commitments, the Swingline Lender an
amount equal to such Replaced Lender’s RL Percentage of any Mandatory Borrowing
to the extent such amount was not theretofore funded by such Replaced Lender to
the Swingline Lender; and


 


(b)           all obligations of
the Borrower then owing to the Replaced Lender (other than those (x)
specifically described in clause (a) above in respect of which the assignment
purchase price has been, or is concurrently being, paid, but including all
amounts, if any, owing under Section 2.11 or (y) relating to any Tranche of
Loans and/or Commitments of the respective Replaced Lender which will remain
outstanding after giving effect to the respective replacement) shall be paid in
full to such Replaced Lender concurrently with such replacement.


 


Upon receipt
by the Replaced Lender of all amounts required to be paid to it pursuant to
this Section 2.13, the Administrative Agent shall be entitled (but not
obligated) and authorized to execute an Assignment and Assumption Agreement on
behalf of such Replaced Lender, and any such Assignment and Assumption
Agreement so executed by the Administrative Agent and the


 


43

















 


Replacement
Lender shall be effective for purposes of this Section 2.13 and Section 13.04.
Upon the execution of the respective Assignment and Assumption Agreement, the
payment of amounts referred to in clauses (a) and (b) above, recordation of the
assignment on the Register by the Administrative Agent pursuant to Section
13.15 and, if so requested by the Replacement Lender, delivery to the
Replacement Lender of the appropriate Note or Notes executed by the Borrower,
(x) the Replacement Lender shall become a Lender hereunder and, unless the
respective Replaced Lender continues to have outstanding Term Loans and/or a
Revolving Loan Commitment hereunder, the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to indemnification
provisions under this Agreement (including, without limitation, Sections 2.10,
2.11, 3.06, 5.04, 12.06, 13.01 and 13.06), which shall survive as to such
Replaced Lender, and (y) except in the case of the replacement of only
outstanding Term Loans pursuant to this Section 2.13, the RL Percentages of the
Lenders shall be automatically adjusted at such time to give effect to such
replacement.


 


2.14.        Incremental Term Loan Commitments.
(a) The Borrower shall have the right, in coordination with the Administrative
Agent as to all of the matters set forth below in this Section 2.14, but
without requiring the consent of any of the Lenders, to request at any time
after the earlier to occur of (x) 60 days following the Initial Borrowing Date
and (y) the Syndication Date, that one or more Lenders (and/or one or more
other Persons which are Eligible Transferees and which will become Lenders)
provide Incremental Term Loan Commitments to the Borrower and, subject to the
terms and conditions contained in this Agreement and in the respective
Incremental Term Loan Commitment Agreement, make Incremental Term Loans
pursuant thereto; it being understood and agreed, however, that (i) no Lender
shall be obligated to provide an Incremental Term Loan Commitment as a result
of any such request by the Borrower, and until such time, if any, as such
Lender has agreed in its sole discretion to provide an Incremental Term Loan
Commitment and executed and delivered to the Administrative Agent and the
Borrower an Incremental Term Loan Commitment Agreement as provided in clause
(b) of this Section 2.14, such Lender shall not be obligated to fund any
Incremental Term Loans, (ii) any Lender (including any Eligible Transferee who
will become a Lender) may so provide an Incremental Term Loan Commitment
without the consent of any other Lender, (iii) each Tranche of Incremental Term
Loan Commitments shall be denominated in Dollars, (iv) the aggregate amount of
all Incremental Term Loan Commitments provided pursuant to this Section 2.14
(and the aggregate principal amount of all Incremental Term Loans funded
pursuant thereto) shall not exceed the Incremental Term Loan Commitment Cap,
and an Authorized Officer of Holdings shall have delivered to the
Administrative Agent a certificate certifying (and containing the calculations
in reasonable detail demonstrating) the remaining amount of the Incremental
Term Loan Commitment Cap as of such time pursuant to clause (x) of the
definition thereof, (v) the amount of each Tranche of Incremental Term Loan
Commitments shall be in a minimum aggregate amount for all Lenders which
provide an Incremental Term Loan Commitment under such Tranche of Incremental
Term Loans (including Eligible Transferees who will become Lenders) of at least
(I) for Incremental Term Loan Commitments being added to (and thereafter
constituting a part of) a then outstanding Tranche of Term Loans, $5,000,000,
and (II) for Incremental Term Loan Commitments constituting a new Tranche of
Incremental Term Loans, $25,000,000 and, in either case, in integral multiples
of $1,000,000 in excess thereof, (vi) all Incremental Term Loans shall be made
on or prior to November 16, 2013, (vii) the up front fees and, if applicable,
any unutilized commitment fees and/or other fees, payable to each Incremental
Term Loan Lender in respect of each Incremental Term Loan Commitment shall be
separately


 


44

















 


agreed to by
the Borrower, the Administrative Agent and each such Incremental Term Loan
Lender, (viii) each Tranche of Incremental Term Loans shall (I) have an
Incremental Term Loan Maturity Date of no earlier than the Initial Term Loan
Maturity Date, (II) have a Weighted Average Life to Maturity of no less than
the Weighted Average Life to Maturity as then in effect for the Initial Term
Loans and (III) be subject to the Applicable Margins as are set forth in the
Incremental Term Loan Commitment Agreement governing such Tranche of
Incremental Term Loans; provided, however, that if the effective “interest
rate margin” for such Incremental Term Loans as of the Incremental Term Loan
Borrowing Date therefor (which, for such purposes only, shall be determined by
the Administrative Agent and deemed to include all upfront or similar fees
and/or original issue discount (amortized over the shorter of (x) the life of
such Incremental Term Loans and (y) the four years following the date of
incurrence of such Incremental Term Loans) payable to all Lenders providing
such Incremental Term Loans, but exclusive of any arrangement, structuring or
other fees payable in connection therewith that are not shared with all Lenders
providing such Incremental Term Loans) exceeds the effective “interest rate
margin” then applicable to the then outstanding Term Loans of each Tranche (as
such “interest rate margin” shall have been determined by the Administrative
Agent on the same basis as provided in the immediately preceding
parenthetical), then the Applicable Margin for the then outstanding Term Loans
of each Tranche shall be increased to the Applicable Increased Term Loan Margin
for the Incremental Term Loans effective as of the relevant Incremental Term
Loan Borrowing Date, (ix) the proceeds of all Incremental Term Loans shall be
used only for the purposes permitted by Section 8.08(c), (x) each Incremental
Term Loan Commitment Agreement shall specifically designate the Tranche or
Tranches of the Incremental Term Loan Commitments being provided thereunder
(which Tranche shall be a new Tranche (i.e., not the same as the Initial
Term Loans or any other then existing Tranche of Term Loans) unless the
requirements of Section 2.14(c) are satisfied), (xi) all Incremental Term Loans
(and all interest, fees and other amounts payable thereon) shall be Obligations
under this Agreement and the other applicable Credit Documents and shall be
secured by the Security Documents, and guaranteed under the Guaranties, on a pari
passu basis with all other Obligations secured by the Security Documents
and guaranteed under the Guaranties, and (xii) each Lender (including any
Eligible Transferee who will become a Lender) agreeing to provide an
Incremental Term Loan Commitment pursuant to an Incremental Term Loan
Commitment Agreement shall, subject to the satisfaction of the relevant
conditions set forth in this Agreement, make Incremental Term Loans under the
Tranche specified in such Incremental Term Loan Commitment Agreement as
provided in Section 2.01(c) and such Incremental Term Loans shall thereafter be
deemed to be Incremental Term Loans under such Tranche for all purposes of this
Agreement and the other applicable Credit Documents.


 


(b)  At the time of the provision of Incremental Term Loan
Commitments pursuant to this Section 2.14, the Borrower, the Administrative
Agent and each such Lender or other Eligible Transferee which agrees to provide
an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”)
shall execute and deliver to the Administrative Agent an Incremental Term Loan
Commitment Agreement, with the effectiveness of each Incremental Term Loan
Commitment provided therein (and the making of the respective Incremental Term
Loans thereunder) to occur on the date set forth in such Incremental Term Loan
Commitment Agreement, which date in any event shall be no earlier than the date
on which (w) all fees required to be paid in connection therewith at the time
of such effectiveness shall have been paid (including, without limitation, any
agreed upon up-front or arrangement fees owing to the 


 


45

















 


Administrative Agent (or any
affiliate thereof)), (x) all Incremental Term Loan Commitment Requirements are
satisfied, (y) all other conditions set forth in this Section 2.14 shall have
been satisfied, and (z) all other conditions precedent that may be set forth in
such Incremental Term Loan Commitment Agreement shall have been satisfied.  The Administrative Agent shall promptly
notify each Lender as to the effectiveness of each Incremental Term Loan
Commitment Agreement, and at such time, (i) Schedule I shall be deemed modified
to reflect the Incremental Term Loan Commitments of the affected Lenders and
(ii) to the extent requested by any Incremental Term Loan Lender, Incremental
Term Notes will be issued, at the Borrower’s expense, to such Incremental Term
Loan Lender in conformity with the requirements of Section 2.05. 


 


(c)  Notwithstanding anything to the contrary contained above in
this Section 2.14, the Incremental Term Loan Commitments provided by an
Incremental Term Loan Lender or Incremental Term Loan Lenders, as the case may
be, pursuant to each Incremental Term Loan Commitment Agreement shall
constitute a new Tranche, which shall be separate and distinct from the
existing Tranches pursuant to this Agreement (with a designation which may be made
in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a
combination thereof (i.e., A-1, A-2, A-3, B-1, B-2, B-3, C-1, C-2, C-3,
etc.), provided that, with the consent of the Administrative Agent, the
parties to a given Incremental Term Loan Commitment Agreement may specify
therein that the respective Incremental Term Loans made pursuant thereto shall
constitute part of, and be added to, a then outstanding Tranche of Term Loans
so long as the following requirements are satisfied: 


 


(i)            the Incremental
Term Loans to be made pursuant to such Incremental Term Loan Commitment
Agreement shall have the same Maturity Date and shall have the same Applicable
Margins as the Tranche of Term Loans to which the new Incremental Term Loans
are being added;  


 


(ii)           the new Incremental
Term Loans to be made pursuant to such Incremental Term Loan Commitment
Agreement shall have the same Scheduled Term Loan Repayment Dates as then
remain with respect to the Tranche of Term Loans to which such new Incremental
Term Loans are being added (with the amount of each Scheduled Term Loan
Repayment applicable to such new Incremental Term Loans to be the same (on a
proportionate basis) as is theretofore applicable to the Tranche of Term Loans
to which such new Incremental Term Loans are being added, thereby increasing
the amount of each then remaining Scheduled Term Loan Repayment of the
respective Tranche of Term Loans proportionately); and 


 


(iii)          on the date of the
making of such new Incremental Term Loans, and notwithstanding anything to the
contrary set forth in Section 2.09, such new Incremental Term Loans shall be
added to (and form part of) each Borrowing of outstanding Term Loans of the
respective Tranche on a pro  rata basis (based on the relative
sizes of the various outstanding Borrowings), so that each Lender will
participate proportionately in each then outstanding Borrowing of Term Loans of
the respective Tranche.


 


To the extent
the provisions of preceding clause (iii) require that Lenders making new
Incremental Term Loans add such Incremental Term Loans to the then outstanding
Borrowings


 


46

















 


of Eurodollar
Loans of the respective Tranche of Term Loans, it is acknowledged that the
effect thereof may result in such new Incremental Term Loans having short
Interest Periods (i.e., an Interest Period that began during an Interest
Period then applicable to outstanding Eurodollar Loans of the respective
Tranche and which will end on the last day of such Interest Period).


 


SECTION 3.           Letters of Credit.


 


3.01.        Letters of Credit. (a) Subject to
and upon the terms and conditions set forth herein, the Borrower may request
that an Issuing Lender issue, at any time and from time to time on and after
the Initial Borrowing Date and prior to the 30th day prior to the Revolving
Loan Maturity Date, for the account of the Borrower and for the benefit of (x)
any holder (or any trustee, agent or other similar representative for any such
holders) of L/C Supportable Obligations, an irrevocable standby letter of
credit, in a form customarily used by such Issuing Lender or in such other form
as is reasonably acceptable to such Issuing Lender, and (y) sellers of goods to
the Borrower or any of its Subsidiaries, an irrevocable trade letter of credit,
in a form customarily used by such Issuing Lender or in such other form as has
been approved by such Issuing Lender (each such letter of credit, a “Letter
of Credit” and, collectively, the “Letters of Credit”). All Letters
of Credit shall be denominated in Dollars and shall be issued on a sight basis
only.


 


(b) Subject to
and upon the terms and conditions set forth herein, each Issuing Lender agrees
that it will, at any time and from time to time on and after the Initial
Borrowing Date and prior to the 30th day prior to the Revolving Loan Maturity
Date, following its receipt of the respective Letter of Credit Request, issue
for account of the Borrower, one or more Letters of Credit as are permitted to
remain outstanding hereunder without giving rise to a Default or an Event of
Default, provided that no Issuing Lender shall be under any obligation
to issue any Letter of Credit of the types described above if at the time of
such issuance:


 


(i)            any order, judgment
or decree of any governmental authority or arbitrator shall purport by its
terms to enjoin or restrain such Issuing Lender from issuing such Letter of
Credit or any requirement of law applicable to such Issuing Lender or any
request or directive (whether or not having the force of law) from any governmental
authority with jurisdiction over such Issuing Lender shall prohibit, or request
that such Issuing Lender refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon such
Issuing Lender with respect to such Letter of Credit any restriction or reserve
or capital requirement (for which such Issuing Lender is not otherwise
compensated hereunder) not in effect with respect to such Issuing Lender on the
date hereof, or any unreimbursed loss, cost or expense which was not applicable
or in effect with respect to such Issuing Lender as of the date hereof and
which such Issuing Lender reasonably and in good faith deems material to it; or


 


(ii)           such Issuing Lender
shall have received from the Borrower, any other Credit Party or the Required
Lenders prior to the issuance of such Letter of Credit notice of the type
described in the second sentence of Section 3.03(b). 


 


3.02.        Maximum Letter of Credit
Outstandings; Final Maturities. Notwithstanding anything to the contrary
contained in this Agreement, (i) no Letter of Credit shall be issued


 


47

















 


the Stated
Amount of which, when added to the Letter of Credit Outstandings (exclusive of
Unpaid Drawings which are repaid on the date of, and prior to the issuance of,
the respective Letter of Credit) at such time would exceed either (x)
$3,500,000 or (y) when added to the sum of (I) the aggregate principal amount
of all Revolving Loans then outstanding and (II) the aggregate principal amount
of all Swingline Loans then outstanding, an amount equal to the Total Revolving
Loan Commitment at such time, and (ii) each Letter of Credit shall by its terms
terminate (x) in the case of standby Letters of Credit, on or before the earlier
of (A) the date which occurs 12 months after the date of the issuance thereof
(although any such standby Letter of Credit may be extendible for successive
periods of up to 12 months, but, in each case, not beyond the second Business
Day prior to the Revolving Loan Maturity Date, on terms reasonably acceptable
to the respective Issuing Lender) and (B) two Business Days prior to the
Revolving Loan Maturity Date, and (y) in the case of trade Letters of Credit,
on or before the earlier of (A) the date which occurs 180 days after the date
of issuance thereof and (B) two Business Days prior to the Revolving Loan
Maturity Date.


 


3.03.        Letter of Credit Requests; Minimum
Stated Amount. (a) Whenever the Borrower desires that a Letter of Credit be
issued for its account, the Borrower shall give the Administrative Agent and
the respective Issuing Lender at least five Business Days’ (or such shorter
period as is acceptable to such Issuing Lender) written notice thereof
(including by way of facsimile). Each notice shall be in the form of Exhibit C,
appropriately completed (each, a “Letter of Credit Request”).


 


(b) The making
of each Letter of Credit Request shall be deemed to be a representation and
warranty by the Borrower to the Lenders that such Letter of Credit may be
issued in accordance with, and will not violate the requirements of,
Section 3.02.  Unless the respective
Issuing Lender has received notice from the Borrower, any other Credit Party or
the Required Lenders before it issues a Letter of Credit that one or more of
the conditions specified in Section 6 or 7, as applicable, are not then
satisfied, or that the issuance of such Letter of Credit would violate Section
3.02, then such Issuing Lender shall, subject to the terms and conditions of
this Agreement, issue the requested Letter of Credit for the account of the
Borrower in accordance with such Issuing Lender’s usual and customary
practices.  Upon the issuance of or
modification or amendment to any Letter of Credit, each Issuing Lender shall
promptly notify the Borrower and the Administrative Agent, in writing of such
issuance, modification or amendment and such notice shall be accompanied by a
copy of such Letter of Credit or the respective modification or amendment
thereto, as the case may be.  Promptly
after receipt of such notice, the Administrative Agent shall notify the
Participants, in writing, of such issuance, modification or amendment.  On the first Business Day of each week, each
Issuing Lender shall furnish the Administrative Agent with a written (including
via facsimile) report of the daily aggregate outstandings of Letters of Credit
issued by such Issuing Lender for the immediately preceding week.  Notwithstanding anything to the contrary
contained in this Agreement, in the event that a Lender Default exists with
respect to an RL Lender, no Issuing Lender shall be required to issue any
Letter of Credit unless such Issuing Lender has entered into arrangements
satisfactory to it and the Borrower to eliminate such Issuing Lender’s risk
with respect to the participation in Letters of Credit by the Defaulting Lender
or Lenders, including by cash collateralizing such Defaulting Lender’s or
Lenders’ RL Percentage of the Letter of Credit Outstandings. 


 


48

















 


(c) The
initial Stated Amount of each Letter of Credit shall not be less than $25,000
or such lesser amount as is acceptable to the respective Issuing Lender. 


 


3.04.        Letter of Credit Participations.
(a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit,
such Issuing Lender shall be deemed to have sold and transferred to each RL
Lender, and each such RL Lender (in its capacity under this Section 3.04, a “Participant”)
shall be deemed irrevocably and unconditionally to have purchased and received
from such Issuing Lender, without recourse or warranty, an undivided interest
and participation, to the extent of such Participant’s RL Percentage, in such
Letter of Credit, each drawing or payment made thereunder and the obligations
of the Borrower under this Agreement with respect thereto, and any security
therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan
Commitments or RL Percentages of the Lenders pursuant to Section 2.13, 4.02(b)
or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters
of Credit and Unpaid Drawings relating thereto, there shall be an automatic
adjustment to the participations pursuant to this Section 3.04 to reflect the
new RL Percentages of the assignor and assignee Lender, as the case may be.


 


(b) In
determining whether to pay under any Letter of Credit, no Issuing Lender shall
have any obligation relative to the other Lenders other than to confirm that
any documents required to be delivered under such Letter of Credit appear to
have been delivered and that they appear to substantially comply on their face
with the requirements of such Letter of Credit. 
Any action taken or omitted to be taken by an Issuing Lender under or in
connection with any Letter of Credit issued by it shall not create for such
Issuing Lender any resulting liability to the Borrower, any other Credit Party,
any Lender or any other Person unless such action is taken or omitted to be
taken with gross negligence or willful misconduct on the part of such Issuing
Lender (as determined by a court of competent jurisdiction in a final and
non-appealable decision). 


 


(c) In the
event that an Issuing Lender makes any payment under any Letter of Credit
issued by it and the Borrower shall not have reimbursed such amount in full to
such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall
promptly notify the Administrative Agent, which shall promptly notify each
Participant of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Lender the amount of such Participant’s RL
Percentage of such unreimbursed payment in Dollars and in same day funds.  If the Administrative Agent so notifies,
prior to 12:00 Noon (New York time) on any Business Day, any Participant
required to fund a payment under a Letter of Credit, such Participant shall
make available to the respective Issuing Lender in Dollars such Participant’s
RL Percentage of the amount of such payment on such Business Day in same day
funds.  If and to the extent such Participant
shall not have so made its RL Percentage of the amount of such payment
available to respective Issuing Lender, such Participant agrees to pay to such
Issuing Lender, forthwith on demand such amount, together with interest
thereon, for each day from such date until the date such amount is paid to such
Issuing Lender at the overnight Federal Funds Rate for the first three days and
at the interest rate applicable to Revolving Loans that are maintained as Base
Rate Loans for each day thereafter.  The failure
of any Participant to make available to an Issuing Lender its RL Percentage of
any payment under any Letter of Credit issued by such Issuing Lender shall not
relieve any other Participant of its obligation hereunder to make available to
such Issuing Lender its RL Percentage of any payment under any Letter of Credit
on the date 


 


49

















 


required, as
specified above, but no Participant shall be responsible for the failure of any
other Participant to make available to such Issuing Lender such other
Participant’s RL Percentage of any such payment. 


 


(d) Whenever
an Issuing Lender receives a payment of a reimbursement obligation as to which
it has received any payments from the Participants pursuant to clause (c)
above, such Issuing Lender shall pay to each such Participant which has paid
its RL Percentage thereof, in Dollars and in same day funds, an amount equal to
such Participant’s share (based upon the proportionate aggregate amount
originally funded by such Participant to the aggregate amount funded by all
Participants) of the principal amount of such reimbursement obligation and
interest thereon accruing after the purchase of the respective participations. 


 


(e) Upon the
request of any Participant, each Issuing Lender shall furnish to such
Participant copies of any Letter of Credit issued by it and such other
documentation as may reasonably be requested by such Participant. 


 


(f) The
obligations of the Participants to make payments to each Issuing Lender with
respect to Letters of Credit shall be irrevocable and not subject to any
qualification or exception whatsoever and shall be made in accordance with the
terms and conditions of this Agreement under all circumstances, including,
without limitation, any of the following circumstances: 


 


(i)            any lack of
validity or enforceability of this Agreement or any of the other Credit
Documents; 


 


(ii)           the existence of
any claim, setoff, defense or other right which Holdings or any of its
Subsidiaries may have at any time against a beneficiary named in a Letter of
Credit, any transferee of any Letter of Credit (or any Person for whom any such
transferee may be acting), the Administrative Agent, any Participant, or any
other Person, whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated herein or any unrelated transactions (including
any underlying transaction between Holdings or any Subsidiary of Holdings and
the beneficiary named in any such Letter of Credit); 


 


(iii)          any draft, certificate
or any other document presented under any 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;


 


(iv)          the surrender or
impairment of any security for the performance or observance of any of the
terms of any of the Credit Documents; or


 


(v)           the occurrence of
any Default or Event of Default.


 


3.05.        Agreement to Repay Letter of Credit
Drawings. (a) The Borrower agrees to reimburse each Issuing Lender, by
making payment to the Administrative Agent in immediately available funds at
the Payment Office, for any payment or disbursement made by such Issuing Lender
under any Letter of Credit issued by it (each such amount, so paid until
reimbursed by the Borrower, an “Unpaid Drawing”), not later than one
Business Day following


 


50

















 


receipt by the
Borrower of notice of such payment or disbursement (provided that no
such notice shall be required to be given if a Default or an Event of Default
under Section 11.05 shall have occurred and be continuing, in which case the
Unpaid Drawing shall be due and payable immediately without presentment,
demand, protest or notice of any kind (all of which are hereby waived by the
Borrower)), with interest on the amount so paid or disbursed by such Issuing
Lender, to the extent not reimbursed prior to 12:00 Noon (New York time) on the
date of such payment or disbursement, from and including the date paid or
disbursed to but excluding the date such Issuing Lender was reimbursed by the
Borrower therefor at a rate per annum equal to the Base Rate as in effect from
time to time plus the Applicable Margin for Revolving Loans that are
maintained as Base Rate Loans; provided, however, to the extent
such amounts are not reimbursed prior to 12:00 Noon (New York time) on the
third Business Day following the receipt by the Borrower of notice of such
payment or disbursement or following the occurrence of a Default or an Event of
Default under Section 11.05, interest shall thereafter accrue on the amounts so
paid or disbursed by such Issuing Lender (and until reimbursed by the Borrower)
at a rate per annum equal to the Base Rate as in effect from time to time plus
the Applicable Margin for Revolving Loans that are maintained as Base Rate
Loans plus 2%, with such interest to be payable on demand. Each Issuing
Lender shall give the Borrower prompt written notice of each Drawing under any
Letter of Credit issued by it, provided that the failure to give any
such notice shall in no way affect, impair or diminish the Borrower’s
obligations hereunder.


 


(b) The
obligations of the Borrower under this Section 3.05 to reimburse each Issuing
Lender with respect to drafts, demands and other presentations for payment
under Letters of Credit issued by it (each, a “Drawing”) (including, in
each case, interest thereon) shall be absolute and unconditional under any and
all circumstances and irrespective of any setoff, counterclaim or defense to
payment which Holdings or any Subsidiary of Holdings may have or have had
against any Lender (including in its capacity as an Issuing Lender or as a
Participant), including, without limitation, any defense based upon the failure
of any drawing under a Letter of Credit to conform to the terms of the Letter
of Credit or any nonapplication or misapplication by the beneficiary of the
proceeds of such Drawing; provided, however, that the Borrower
shall not be obligated to reimburse any Issuing Lender for any wrongful payment
made by such Issuing Lender under a Letter of Credit issued by it as a result
of acts or omissions constituting willful misconduct or gross negligence on the
part of such Issuing Lender (as determined by a court of competent jurisdiction
in a final and non-appealable decision).


 


3.06.        Increased Costs. If at any time
after the Effective Date, the introduction of or any change in any applicable
law, rule, regulation, order, guideline or request or in the interpretation or
administration thereof by the NAIC or any governmental authority charged with
the interpretation or administration thereof, or compliance by any Issuing
Lender or any Participant with any request or directive by the NAIC or by any
such governmental authority (whether or not having the force of law), shall
either (i) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar requirement against letters of credit issued by any Issuing
Lender or participated in by any Participant, or (ii) impose on any Issuing
Lender or any Participant any other conditions relating, directly or
indirectly, to this Agreement or any Letter of Credit; and the result of any of
the foregoing is to increase the cost to any Issuing Lender or any Participant
of issuing, maintaining or participating in any Letter of Credit, or reduce the
amount of any sum received or receivable by any Issuing Lender or any
Participant hereunder or reduce the rate of return on its capital with respect
to Letters of Credit (except for changes in the rate of


 


51

















 


tax on, or
determined by reference to, the net income or net profits of such Issuing
Lender or such Participant pursuant to the laws of the jurisdiction in which it
is organized or in which its principal office or applicable lending office is
located or any subdivision thereof or therein), then, upon the delivery of the
certificate referred to below to the Borrower by any Issuing Lender or any
Participant (a copy of which certificate shall be sent by such Issuing Lender or
such Participant to the Administrative Agent), the Borrower agrees to pay to
such Issuing Lender or such Participant such additional amount or amounts as
will compensate such Issuing Lender or such Participant for such increased cost
or reduction in the amount receivable or reduction on the rate of return on its
capital. Any Issuing Lender or any Participant, upon determining that any
additional amounts will be payable to it pursuant to this Section 3.06, will
give prompt written notice thereof to the Borrower, which notice shall include
a certificate submitted to the Borrower by such Issuing Lender or such
Participant (a copy of which certificate shall be sent by such Issuing Lender
or such Participant to the Administrative Agent), setting forth in reasonable
detail the basis for the calculation of such additional amount or amounts
necessary to compensate such Issuing Lender or such Participant; provided
that the determination of any such amounts shall be made in good faith by such
Lender and in a manner generally consistent with such Lender’s standard
practices. The certificate required to be delivered pursuant to this Section
3.06 shall, absent manifest error, be final and conclusive and binding on the
Borrower.


 


SECTION 4.           Commitment
Commission; Fees; Reductions of Commitment.


 


4.01.        Fees. (a) The Borrower agrees to
pay to the Administrative Agent for distribution to each Non-Defaulting RL
Lender a commitment commission (the “Commitment Commission”) for the
period from and including the Effective Date to and including the Revolving
Loan Maturity Date (or such earlier date on which the Total Revolving Loan
Commitment has been terminated) computed at a rate per annum equal to 1⁄2 of 1%
of the Unutilized Revolving Loan Commitment of such Non-Defaulting RL Lender as
in effect from time to time. Accrued Commitment Commission shall be due and
payable quarterly in arrears on each Quarterly Payment Date and on the date
upon which the Total Revolving Loan Commitment is terminated.


 


(b)  The Borrower agrees to pay to the Administrative Agent for
distribution to each RL Lender (based on each such RL Lender’s respective RL
Percentage) a fee in respect of each Letter of Credit (the “Letter of Credit
Fee”) for the period from and including the date of issuance of such Letter
of Credit to and including the date of termination or expiration of such Letter
of Credit, computed at a rate per annum equal to the Applicable Margin for
Revolving Loans that are maintained as Eurodollar Loans on the daily Stated
Amount of each such Letter of Credit. 
Accrued Letter of Credit Fees shall be due and payable quarterly in
arrears on each Quarterly Payment Date and on the first day on or after the
termination of the Total Revolving Loan Commitment upon which no Letters of
Credit remain outstanding. 


 


(c) The
Borrower agrees to pay to each Issuing Lender, for its own account, a facing
fee in respect of each Letter of Credit issued by it (the “Facing Fee”)
for the period from and including the date of issuance of such Letter of Credit
to and including the date of termination or expiration of such Letter of
Credit, computed at a rate per annum equal to 1/8 of 1% on the daily Stated
Amount of such Letter of Credit, provided that in any event the minimum
amount of Facing Fees payable in any twelve-month period for each Letter of
Credit shall be not


 


52

















 


less than
$500, it being agreed that, on the day of issuance of any Letter of Credit and
on each anniversary thereof prior to the termination or expiration of such
Letter of Credit, if $500 will exceed the amount of Facing Fees that will
accrue with respect to such Letter of Credit for the immediately succeeding
twelve-month period, the full $500 shall be payable on the date of issuance of
such Letter of Credit and on each such anniversary thereof. Except as otherwise
provided in the proviso to the immediately preceding sentence, accrued Facing
Fees shall be due and payable quarterly in arrears on each Quarterly Payment
Date and upon the first day on or after the termination of the Total Revolving
Loan Commitment upon which no Letters of Credit remain outstanding.


 


(d) The
Borrower agrees to pay to each Issuing Lender, for its own account, upon each
payment under, issuance of, or amendment to, any Letter of Credit issued by it,
such amount as shall at the time of such event be the administrative charge and
the reasonable expenses which such Issuing Lender is generally imposing in
connection with such occurrence with respect to letters of credit. 


 


(e) The Borrower
agrees to pay to the Administrative Agent for distribution to the respective
Incremental Term Loan Lenders such fees as may be agreed to as provided in
Section 2.14(a). 


 


(f) The
Borrower agrees to pay to the Administrative Agent (or its applicable affiliate)
such fees as may be agreed to in writing from time to time by Holdings or any
of its Subsidiaries and the Administrative Agent (or its applicable affiliate).



 


4.02.        Voluntary Termination of Unutilized
Commitments. (a) Upon at least three Business Days’ prior written notice to
the Administrative Agent at the Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Lenders), the Borrower shall have
the right, at any time or from time to time, without premium or penalty to
terminate the Total Unutilized Revolving Loan Commitment in whole, or reduce it
in part, pursuant to this Section 4.02(a), in an integral multiple of
$1,000,000 in the case of partial reductions to the Total Unutilized Revolving
Loan Commitment, provided that each such reduction shall apply
proportionately to permanently reduce the Revolving Loan Commitment of each RL
Lender.


 


(b) In the
case of a refusal by a Lender to consent to a proposed change, waiver,
discharge or termination with respect to this Agreement which has been approved
by the Required Lenders as (and to the extent) provided in Section 13.12(b),
the Borrower shall have the right, subject to obtaining the consents required
by Section 13.12(b), upon five Business Days’ prior written notice to the
Administrative Agent at the Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Lenders), to terminate all of the
Commitments of such Lender so long as all Loans, together with accrued and
unpaid interest, Fees and all other amounts, owing to such Lender (including
all amounts, if any, owing pursuant to Section 2.11 but excluding the
termination of any Commitments and payment of amounts owing in respect of Loans
(and related Commitments) of any Tranche maintained by such Lender, if such
Commitments are not being terminated and Loans are not being repaid pursuant to
Section 13.12(b)) are repaid concurrently with the effectiveness of such
termination (at which time Schedule I shall be deemed modified to reflect such
changed amounts) and such Lender’s


 


53

















 


RL Percentage
of all outstanding Letters of Credit is cash collateralized in a manner
satisfactory to the Administrative Agent and the respective Issuing Lenders,
and at such time, unless the respective Lender continues to have outstanding
Loans or Commitments hereunder, such Lender shall no longer constitute a “Lender”
for purposes of this Agreement, except with respect to indemnifications under
this Agreement (including, without limitation, Sections 2.10, 2.11, 3.06, 5.04,
12.06, 13.01 and 13.06), which shall survive as to such repaid Lender.


 


4.03.        Mandatory Reduction of Commitments.
(a) The Total Commitment (and the Commitments of each Lender) shall terminate
in its entirety on February 24, 2008, unless the Initial Borrowing Date has
occurred on or prior to such date.


 


(b) In
addition to any other mandatory commitment reductions pursuant to this Section
4.03, the Total Initial Term Loan Commitment (and the Initial Term Loan
Commitment of each Lender) shall terminate in its entirety on the Initial
Borrowing Date (after giving effect to the incurrence of Initial Term Loans on
such date). 


 


(c) In
addition to any other mandatory commitment reductions pursuant to this Section
4.03, the Total Incremental Term Loan Commitment under a given Tranche (and the
Incremental Term Loan Commitment under such Tranche of each Lender) shall
terminate in its entirety on the Incremental Term Loan Borrowing Date for such
Tranche of Incremental Term Loans (after giving effect to the incurrence of
Incremental Term Loans of such Tranche on such date). 


 


(d) In
addition to any other mandatory commitment reductions pursuant to this Section
4.03, the Total Revolving Loan Commitment (and the Revolving Loan Commitment of
each Lender) shall terminate in its entirety upon the Revolving Loan Maturity
Date. 


 


SECTION 5.   Prepayments; Payments; Taxes.


 


5.01.        Voluntary Prepayments. (a) The
Borrower shall have the right to prepay the Loans, without premium or penalty,
in whole or in part at any time and from time to time on the following terms
and conditions:  (i) the Borrower shall
give the Administrative Agent prior to 11:00 A.M. (New York time) at the Notice
Office (x) at least one Business Day’s prior written notice (or telephonic
notice promptly confirmed in writing) of its intent to prepay Base Rate Loans
(or same day notice in the case of a prepayment of Swingline Loans) and (y) at
least three Business Days’ prior written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay Eurodollar Loans, which notice
(in each case) shall specify whether Initial Term Loans, Incremental Term Loans
under a given Tranche, Revolving Loans or Swingline Loans shall be prepaid, the
amount of such prepayment and the Types of Loans to be prepaid and, in the case
of Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which
such Eurodollar Loans were made, and which notice the Administrative Agent
shall, except in the case of a prepayment of Swingline Loans, promptly transmit
to each of the Lenders; (ii) (x) each partial prepayment of Term Loans pursuant
to this Section 5.01(a) shall be in an aggregate principal amount of at least
$1,000,000 (or such lesser amount as is acceptable to the Administrative Agent
in any given case), (y) each partial prepayment of Revolving Loans pursuant to
this Section 5.01(a) shall be in an aggregate principal amount of at least
$250,000 (or such lesser amount as is acceptable to the Administrative Agent in
any given case) and (z) each


 


54

















 


partial
prepayment of Swingline Loans pursuant to this Section 5.01(a) shall be in an
aggregate principal amount of at least $100,000 (or such lesser amount as is acceptable
to the Administrative Agent in any given case), provided that if any
partial prepayment of Eurodollar Loans made pursuant to any Borrowing shall
reduce the outstanding principal amount of Eurodollar Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, then such Borrowing may not be continued as a Borrowing of Eurodollar
Loans (and same shall automatically be converted into a Borrowing of Base Rate
Loans) and any election of an Interest Period with respect thereto given by the
Borrower shall have no force or effect; (iii) each prepayment pursuant to this
Section 5.01(a) in respect of any Loans made pursuant to a Borrowing shall be
applied pro  rata among such Loans, provided that at the
Borrower’s election in connection with any prepayment of Revolving Loans
pursuant to this Section 5.01(a), such prepayment shall not, so long as no
Default or Event of Default then exists, be applied to any Revolving Loan of a
Defaulting Lender; (iv) each voluntary prepayment in respect of any Tranche of
Term Loans made pursuant to this Section 5.01(a) shall be allocated among each
of the outstanding Tranches of Term Loans on a pro  rata basis,
with each Tranche of Term Loans to be allocated its Term Loan Percentage of the
amount of such prepayment; and (v) each voluntary prepayment of any Tranche of
Term Loans pursuant to this Section 5.01(a) shall be applied to reduce the then
remaining Scheduled Term Loan Repayments of such Tranche of Term Loans in a
manner to be determined by the Borrower at the time that it delivers a (and as
specified in the respective) notice of prepayment pursuant to this Section
5.01(a) (i.e., in direct order of maturity, in inverse order of maturity
or pro  rata based upon the then remaining principal amount of
each such Scheduled Term Loan Repayment of the respective Tranche after giving
effect to all prior reductions thereto), although if the Borrower fails to so
specify the manner of application in any such notice, such voluntary prepayment
shall reduce the then remaining Scheduled Term Loan Repayments of such Tranche
of Term Loans on a pro  rata basis (based upon the then remaining
principal amount of each such Scheduled Term Loan Repayment of the respective
Tranche after giving effect to all prior reductions thereto).


 


(b) In the
case of a refusal by a Lender to consent to a proposed change, waiver,
discharge or termination with respect to this Agreement which has been approved
by the Required Lenders as (and to the extent) provided in Section 13.12(b),
the Borrower may, upon five Business Days’ prior written notice to the
Administrative Agent at the Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Lenders), repay all Loans of such
Lender (including all amounts, if any, owing pursuant to Section 2.11),
together with accrued and unpaid interest, Fees and all other amounts then
owing to such Lender (or owing to such Lender with respect to each Tranche
which gave rise to the need to obtain such Lender’s individual consent) in
accordance with, and subject to the requirements of, said Section 13.12(b), so
long as (A) in the case of the repayment of Revolving Loans of any Lender
pursuant to this clause (b), (x) the Revolving Loan Commitment of such Lender is
terminated concurrently with such repayment pursuant to Section 4.02(b) (at
which time Schedule I shall be deemed modified to reflect the changed Revolving
Loan Commitments) and (y) such Lender’s RL Percentage of all outstanding
Letters of Credit is cash collateralized in a manner satisfactory to the
Administrative Agent and the respective Issuing Lenders, and (B) the consents,
if any, required by Section 13.12(b) in connection with the repayment pursuant
to this clause (b) shall have been obtained. Each prepayment of any Tranche of
Term Loans pursuant to this Section 5.01(b) shall reduce the then remaining
Scheduled Term Loan Repayments of such Tranche of Term Loans on


 


55

















 


a pro  rata
basis (based upon the then remaining principal amount of each such Scheduled
Term Loan Repayment of such Tranche after giving effect to all prior reductions
thereto).


 


5.02.        Mandatory Repayments. (a) On any
day on which the sum of (I) the aggregate outstanding principal amount of all
Revolving Loans (after giving effect to all other repayments thereof on such
date), (II) the aggregate outstanding principal amount of all Swingline Loans
(after giving effect to all other repayments thereof on such date) and (III)
the aggregate amount of all Letter of Credit Outstandings exceeds the Total
Revolving Loan Commitment at such time, the Borrower shall promptly (but, in
any event, within one Business Day thereafter) prepay the principal of
Swingline Loans and, after all Swingline Loans have been repaid in full or if
no Swingline Loans are outstanding, Revolving Loans in an amount equal to such
excess. If, after giving effect to the prepayment of all outstanding Swingline
Loans and Revolving Loans, the aggregate amount of the Letter of Credit
Outstandings exceeds the Total Revolving Loan Commitment at such time, the
Borrower shall promptly (but, in any event, within one Business Day thereafter)
pay to the Administrative Agent at the Payment Office an amount of cash and/or
Cash Equivalents equal to the amount of such excess (up to a maximum amount
equal to the Letter of Credit Outstandings at such time), such cash and/or Cash
Equivalents to be held as security for all Obligations of the Borrower to the
Issuing Lenders and the Lenders hereunder in a cash collateral account to be
established by the Administrative Agent.


 


(b) (i) In
addition to any other mandatory repayments pursuant to this Section 5.02, on
each date set forth below (each, a “Scheduled Initial Term Loan Repayment
Date”), the Borrower shall be required to repay that principal amount of
Initial Term Loans, to the extent then outstanding, as is set forth opposite
each such date below (each such repayment, as the same may be (x) reduced as
provided in Section 5.01(a), 5.01(b) or 5.02(g) or (y) increased as provided in
Section 2.14(c), a “Scheduled Initial Term Loan Repayment”):


 


	
  Scheduled Initial Term Loan Repayment Date

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal
  quarter ending March 31, 2008

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal
  quarter ending June 30, 2008

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal
  quarter ending September 30, 2008

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal
  quarter ending December 31, 2008

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal
  quarter ending March 31, 2009

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal
  quarter ending June 30, 2009

  	
   

  	
  $

  	
  237,500

  	
   

  



 


56

















 


	
  Scheduled Initial Term Loan Repayment Date

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending September 30, 2009

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending December 31, 2009

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending March 31, 2010

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending June 30, 2010

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending September 30, 2010

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending December 31, 2010

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending March 31, 2011

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending June 30, 2011

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending September 30, 2011

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending December 31, 2011

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending March 31, 2012

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending June 30, 2012

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending September 30, 2012

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending December 31, 2012

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending March 31, 2013

  	
   

  	
  $

  	
  237,500

  	
   

  



 


57

















 


	
  Scheduled Initial Term Loan Repayment Date

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending June 30, 2013

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending September 30, 2013

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending December 31, 2013

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending March 31, 2014

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending June 30, 2014

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of Holdings’ fiscal quarter
  ending September 30, 2014

  	
   

  	
  $

  	
  237,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Initial Term Loan Maturity Date

  	
   

  	
  $

  	
  88,587,500

  	
   

  



 


(ii)         In addition to any other
mandatory repayments pursuant to this Section 5.02, the Borrower shall be
required to make, with respect to each Tranche of Incremental Term Loans, to
the extent then outstanding, scheduled amortization payments of such Tranche of
Incremental Term Loans on the dates and in the principal amounts set forth in
the respective Incremental Term Loan Commitment Agreement (each such date, a “Scheduled
Incremental Term Loan Repayment Date”, and each such repayment, as the same
may be (x) reduced as provided in Section 5.01(a), 5.01(b) or 5.02(g) or (y)
increased as provided in Section 2.14(c), a “Scheduled Incremental Term Loan
Repayment”). 


(c)  In addition to any other mandatory repayments pursuant to
this Section 5.02, on each date on or after the Initial Borrowing Date upon
which Holdings or any of its Subsidiaries receives any cash proceeds from any
issuance or incurrence by Holdings or any of its Subsidiaries of Indebtedness
for borrowed money (other than Indebtedness for borrowed money permitted to be
incurred pursuant to Section 10.04 as in effect on the Effective Date), an
amount equal to 100% of the Net Cash Proceeds of the respective issuance or
incurrence of Indebtedness shall be applied on such date as a mandatory
repayment in accordance with the requirements of Sections 5.02(g) and (h). 


(d)  In addition to any other mandatory repayments pursuant to
this Section 5.02, within three Business Days after each date on or after the
Initial Borrowing Date upon which Holdings or any of its Subsidiaries receives
any cash proceeds from any Asset Sale, an amount equal to 100% of the Net Sale
Proceeds therefrom shall be applied within such three-Business Day period as a
mandatory repayment in accordance with the requirements of Sections 5.02(g) and
(h); provided, however, that with respect to no more than
$1,000,000 in the aggregate of such Net Sale Proceeds received by Holdings and
its Subsidiaries in any fiscal year of Holdings, 


 


58

















 


such Net Sale Proceeds shall not be
required to be so applied within such three-Business Day period so long as no
Default or Event of Default then exists and such Net Sale Proceeds shall be
used to purchase assets (other than inventory and working capital) used or to
be used in the businesses permitted pursuant to Section 10.10 within 360 days
following the date of such Asset Sale, and provided  further, that
if all or any portion of such Net Sale Proceeds not required to be so applied
as provided above in this Section 5.02(d) are not so reinvested within such
360-day period (or such earlier date, if any, as Holdings or the relevant
Subsidiary determines not to reinvest the Net Sale Proceeds from such Asset
Sale as set forth above), such remaining portion shall be applied on the last
day of such period (or such earlier date, as the case may be) as provided above
in this Section 5.02(d) without regard to the preceding proviso.


 


(e)  In addition to any other mandatory repayments pursuant to
this Section 5.02, on each Excess Cash Flow Payment Date, an amount equal to
the remainder (if positive) of (x) the Applicable Excess Cash Flow Repayment
Percentage of the Excess Cash Flow for the related Excess Cash Flow Payment
Period minus (y) the aggregate amount of principal repayments of Loans
to the extent (and only to the extent) that such repayments were made as a
voluntary prepayment pursuant to Section 5.01 with internally generated funds
(but in a case of a voluntary prepayment of Revolving Loans or Swingline Loans,
only to the extent accompanied by a voluntary reduction to the Total Revolving
Loan Commitment in an amount equal to such prepayment) during the relevant
Excess Cash Flow Payment Period, shall be applied as a mandatory repayment in
accordance with the requirements of Sections 5.02(g) and (h). 


(f)  In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 5.02, within three Business Days after each
date on or after the Initial Borrowing Date upon which Holdings or any of its
Subsidiaries receives any cash proceeds from any Recovery Event (other than
Recovery Events where the Net Cash Proceeds therefrom do not exceed $25,000),
an amount equal to 100% of the Net Cash Proceeds from such Recovery Event shall
be applied within such three-Business Day period as a mandatory repayment in
accordance with the requirements of Sections 5.02(g) and (h); provided, however,
that (i) so long as no Default or Event of Default then exists and such Net
Cash Proceeds do not exceed $1,000,000, an amount equal to such Net Cash
Proceeds shall not be required to be so applied within such three-Business Day
period to the extent that such Net Cash Proceeds shall be used to replace or
restore properties or assets in respect of which such Net Cash Proceeds were
paid within 360 days following the date of the receipt of such Net Cash
Proceeds, and (ii) if the amount of such Net Cash Proceeds exceeds $1,000,000,
then an amount equal to the entire amount of such Net Cash Proceeds (and not
just the portion thereof in excess of $1,000,000) shall be applied as provided
above in this Section 5.02(f) without regard to preceding clause (i) of this proviso,
and provided  further, that if all or any portion of such Net Cash
Proceeds not required to be so applied pursuant to the preceding proviso are
not so used within 360 days after the date of the receipt of such Net Cash
Proceeds (or such earlier date, if any, as Holdings or the relevant Subsidiary
determines not to reinvest the Net Cash Proceeds relating to such Recovery
Event as set forth above), an amount equal to such remaining portion shall be
applied on the last day of such period (or such earlier date, as the case may
be) as provided above in this Section 5.02(f) without regard to the preceding
proviso. 


 


(g)  Each amount required to be applied pursuant to Sections
5.02(c), (d), (e) and (f) in accordance with this Section 5.02(g) shall be
applied to repay the outstanding principal 


 


59

















 


amount of Term
Loans and shall be allocated among each Tranche of outstanding Term Loans on a pro
rata basis, with each Tranche of outstanding Term Loans to be allocated
its Term Loan Percentage of the amount of the respective repayment; provided,
however, if at the time of any repayment pursuant to this Section
5.02(g) any Event of Default exists or any Default under Section 11.01 or 11.05
exists, each such amount shall be applied to repay the outstanding principal
amount of all Loans (including Revolving Loans) and shall be allocated among
each Tranche of outstanding Loans on a pro  rata basis, with each
Tranche of outstanding Loans to be allocated its Percentage of the amount of
the respective repayment.  The amount of
each principal repayment of each Tranche of Term Loans made as required by
Sections 5.02(c), (d), (e) and (f) shall be applied to reduce the then
remaining Scheduled Term Loan Repayments of such Tranche of Term Loans on a pro
rata basis (based upon the then remaining principal amount of each such
Scheduled Term Loan Repayment of the respective Tranche after giving effect to
all prior reductions thereto). 


 


(h) With respect to each
repayment of Loans required by this Section 5.02, the Borrower may designate
the Types of Loans of the respective Tranche which are to be repaid and, in the
case of Eurodollar Loans, the specific Borrowing or Borrowings of the
respective Tranche pursuant to which such Eurodollar Loans were made, provided
that each repayment of any Loans made pursuant to a Borrowing shall be applied pro
rata among such Loans.  In the
absence of a designation by the Borrower as described in the preceding
sentence, the Administrative Agent shall make such designation in its sole
discretion with a view, but not an obligation, to minimize breakage costs that
would be owing by the Borrower under Section 2.11. 


 


(i) In addition to any other
mandatory repayments pursuant to this Section 5.02, all then outstanding Loans
of a respective Tranche shall be repaid in full on the respective Maturity Date
for such Tranche of Loans. 


 


5.03.        Method and Place of Payment.  Except as otherwise specifically provided
herein, all payments under this Agreement and under any Note shall be made to
the Administrative Agent for the account of the Lender or Lenders entitled
thereto not later than 12:00 Noon (New York time) on the date when due and
shall be made in Dollars in immediately available funds at the Payment Office.  Whenever any payment to be made hereunder or
under any Note shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be extended to the next succeeding Business Day and,
with respect to payments of principal, interest shall be payable at the
applicable rate during such extension. 


 


5.04.        Net Payments. 
(a)  All payments made by the
Borrower hereunder and under any Note will be made without setoff, counterclaim
or other defense.  Except as provided in
Section 5.04(b), all such payments will be made free and clear of, and without
deduction or withholding for, any present or future taxes, levies, imposts,
duties, fees, assessments or other like charges now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein with respect to such payments (but excluding any tax imposed on or
measured in whole or in part by the net income or net franchise taxes (imposed
in lieu of net income taxes) of a Lender pursuant to the laws of the jurisdiction
in which it is organized or the jurisdiction in which the principal office or
applicable lending office of such Lender is located or any subdivision thereof
or therein) and all interest, penalties or similar liabilities with respect
thereto (all such non-excluded taxes, levies, imposts, duties, fees,
assessments or other 


 


60

















 


charges being
referred to collectively as “Taxes”). If any Taxes are so levied or
imposed, the Borrower agrees to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every payment of all amounts due
hereunder or under any Note, after withholding or deduction for or on account
of any Taxes, will not be less than the amount provided for herein or in such
Note. The Borrower will furnish to the Administrative Agent within 45 days
after the date the payment of any Taxes is due pursuant to applicable law
certified copies of tax receipts evidencing such payment by such Borrower. The
Borrower agrees to indemnify and hold harmless each Lender, and reimburse such
Lender upon its written request, for the amount of any Taxes so levied or
imposed and paid by such Lender.


 


(b) Each
Lender that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) agrees to deliver to the Borrower and the
Administrative Agent on or prior to the Effective Date or, in the case of a
Lender that is an assignee or transferee of an interest under this Agreement
pursuant to Section 2.13 or 13.04(b) (unless the respective Lender was already
a Lender hereunder immediately prior to such assignment or transfer), on the
date of such assignment or transfer to such Lender, (i) two accurate and
complete original signed copies of IRS Form W-8ECI or Form W-8BEN (with respect
to a complete exemption under an income tax treaty) (or successor forms)
certifying to such Lender’s entitlement as of such date to a complete exemption
from United States withholding tax with respect to payments to be made under
this Agreement and under any Note, or (ii) if the Lender is not a “bank” within
the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either IRS
Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an
income tax treaty) (or any successor forms) pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit D (any such certificate, a “Section
5.04(b)(ii) Certificate”) and (y) two accurate and complete original signed
copies of IRS Form W-8BEN (with respect to the portfolio interest exemption)
(or successor form) certifying to such Lender’s entitlement as of such date to
a complete exemption from United States withholding tax with respect to
payments of interest to be made under this Agreement and under any Note. In
addition, each Lender agrees that from time to time after the Effective Date,
when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, such Lender will
deliver to the Borrower and the Administrative Agent two new accurate and
complete original signed copies of IRS Form W-8ECI, Form W-8BEN (with respect
to the benefits of any income tax treaty), or Form W-8BEN (with respect to the
portfolio interest exemption) and a Section 5.04(b)(ii) Certificate, as the
case may be, and such other forms as may be required in order to confirm or
establish the entitlement of such Lender to a continued exemption from or
reduction in United States withholding tax with respect to payments under this
Agreement and any Note, or such Lender shall immediately notify the Borrower
and the Administrative Agent of its inability to deliver any such Form or
Certificate, in which case such Lender shall not be required to deliver any
such Form or Certificate pursuant to this Section 5.04(b). Notwithstanding
anything to the contrary contained in Section 5.04(a), but subject to Section
13.04(b) and the immediately succeeding sentence, (x) the Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
income or similar taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, Fees or
other amounts payable hereunder for the account of any Lender which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes to the extent that such Lender has
not provided to the Borrower U.S. IRS Forms that establish a complete exemption
from such deduction or withholding and (y) the Borrower shall not be obligated


 


61

















 


pursuant to
Section 5.04(a) to gross-up payments to be made to a Lender in respect of
income or similar taxes imposed by the United States if (I) such Lender has not
provided to the Borrower the IRS Forms required to be provided to the Borrower
pursuant to this Section 5.04(b) or (II) in the case of a payment, other than
interest, to a Lender described in clause (ii) above, to the extent that such
forms do not establish a complete exemption from withholding of such taxes.
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this Section 5.04, the Borrower agrees to pay any additional
amounts and to indemnify each Lender in the manner set forth in Section 5.04(a)
(without regard to the identity of the jurisdiction requiring the deduction or
withholding) in respect of any amounts deducted or withheld by it as described
in the immediately preceding sentence as a result of any changes after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of income or similar Taxes.


 


(c) If any
Lender, in its sole discretion, determines that it has received or been granted
a refund in respect of any Taxes paid as to which indemnification has been paid
by the Borrower pursuant to this Section 5.04, it shall promptly remit to the
Borrower such refund, net of all out-of-pocket costs and expenses of the
Lender; provided, however, that the Borrower agrees to promptly
return any such amount to such Lender in the event such Lender is required to
repay such refund to the relevant taxing authority (plus interest at the rate
applicable to underpayments of tax). 
Nothing contained herein shall impose an obligation on any Lender to
apply for any such refund or disclose its tax returns or any other information
regarding its taxes that it deems confidential. 
No Lender shall be required to pay any amounts pursuant to this Section
5.04(c) at any time that a Default or an Event of Default exists. 


 


SECTION 6.           Conditions Precedent to Credit
Events on the Initial Borrowing Date. 
The obligation of each Lender to make Loans, and the obligation of each
Issuing Lender to issue Letters of Credit, on the Initial Borrowing Date, are
subject to the satisfaction of the following conditions: 


 


6.01.        Effective Date; Notes. On or
prior to the Initial Borrowing Date, (i) the Effective Date shall have occurred
as provided in Section 13.10 and (ii) there shall have been delivered to the
Administrative Agent for the account of each of the Lenders that has requested
same the appropriate Initial Term Note and/or Revolving Note executed by the
Borrower and, if requested by the Swingline Lender, the Swingline Note executed
by the Borrower, in each case in the amount, maturity and as otherwise provided
herein.


 


6.02.        Officer’s Certificate. On the
Initial Borrowing Date, the Administrative Agent shall have received a certificate,
dated the Initial Borrowing Date and signed on behalf of the Borrower by the
Chairman of the Board, the Chief Executive Officer, the President or any Vice
President of the Borrower, certifying on behalf of the Borrower that all of the
conditions in Sections 6.06, 6.07 and 7.01 have been satisfied on such date.


 


6.03.        Opinions of Counsel. On the
Initial Borrowing Date, the Administrative Agent shall have received from
(i) Simpson Thacher & Bartlett LLP, special counsel to the Credit
Parties, an opinion addressed to the Administrative Agent, the Collateral Agent
and each of the Lenders and dated the Initial Borrowing Date covering the
matters set forth in Exhibit E-1


 


62

















 


and (ii)
Andrews Kurth LLP, Texas counsel to certain of the Credit Parties, an opinion
addressed to the Administrative Agent, the Collateral Agent and each of the
Lenders and dated the Initial Borrowing Date covering the matters set forth in
Exhibit E-2.


 


6.04.        Company Documents; Proceedings; etc. On
the Initial Borrowing Date, the Administrative Agent shall have received (a) a
certificate from each Credit Party, dated the Initial Borrowing Date, signed by
the Chairman of the Board, the Chief Executive Officer, the President or any
Vice President of such Credit Party, and attested to by the Secretary or any
Assistant Secretary of such Credit Party, in the form of Exhibit F with
appropriate insertions, together with copies of the certificate or articles of
incorporation and by-laws (or other equivalent organizational documents), as
applicable, of such Credit Party, the resolutions of such Credit Party referred
to in such certificate and each of the foregoing shall be in form and substance
reasonably acceptable to the Administrative Agent, and (b) good standing
certificates (including bring-down telegrams or facsimiles) of a recent date
for each Credit Party from its jurisdiction of organization.


 


6.05.        Shareholders’ Agreements; Management
Agreements; Tax Sharing Agreements; Existing Indebtedness Agreements.  On or prior to the Initial Borrowing Date,
there shall have been delivered to the Administrative Agent true and correct
copies of the following documents (to the extent that same exist), certified as
such by an Authorized Officer of Holdings: 


 


(i)            all agreements
entered into by Holdings or any of its Subsidiaries governing the terms and
relative rights of its Equity Interests and any agreements entered into by its
shareholders relating to any such entity with respect to its Equity Interests
(collectively, the “Shareholders’ Agreements”); 


 


(ii)           all material
agreements with members of, or with respect to, the management of Holdings or
any of its Subsidiaries (collectively, the “Management Agreements”); 


 


(iii)          all tax sharing,
tax allocation and other similar agreements entered into by Holdings or any of
its Subsidiaries (collectively, the “Tax Sharing Agreements”); and


 


(iv)          all agreements
evidencing or relating to Indebtedness of Holdings or any of its Subsidiaries
which is to remain outstanding after giving effect to the Transaction (the “Existing
Indebtedness Agreements”);


 


all of which
Shareholders’ Agreements, Management Agreements, Tax Sharing Agreements and
Existing Indebtedness Agreements shall be in form and substance reasonably satisfactory
to the Administrative Agent and shall be in full force and effect on the
Initial Borrowing Date.


 


6.06.        Consummation of the Transaction; etc.
(a) On or prior to the Initial Borrowing Date, (i) Holdings shall have received
cash proceeds in an aggregate amount equal to at least $121,000,000 from the
Equity Financing and (ii) Holdings shall have contributed the full amount of
such proceeds to the Borrower as a cash common equity contribution.


 


(b) On the
Initial Borrowing Date (and concurrently with the receipt by the Borrower of
the cash proceeds from the Equity Financing and the incurrence of the Initial
Term


 


63

















 


Loans on such
date), the Acquisition shall have been consummated in accordance with the terms
and conditions of the Acquisition Agreement, and the Acquisition Agreement
shall not have been altered, amended or otherwise changed or supplemented or
any condition therein waived if such alteration, amendment, change, supplement
or waiver would be adverse to the interests of the Lenders in any material
respect, in any such case without the prior written consent of the
Administrative Agent (such consent not to be unreasonably withheld). On the
Initial Borrowing Date, the Administrative Agent shall have received true and
correct copies of all Acquisition Documents.


 


(c)        On the Initial
Borrowing Date (and concurrently with the receipt by the Borrower of the cash
proceeds from the Equity Financing and the incurrence of the Initial Term Loans
on such date), the Refinancing shall have been consummated. On the Initial
Borrowing Date, the Administrative Agent shall have received true and correct
copies of all Refinancing Documents.  


 


6.07.        Adverse Change, Approvals. (a)
Since December 31, 2006, there shall not have occurred any Company Material
Adverse Effect except as set forth in Section 3.1(m) of the Acquisition
Agreement.


 


(b) On or
prior to the Initial Borrowing Date, all necessary governmental (domestic and
foreign) and material third party approvals and/or consents (including
shareholder approvals of TPI and the Sponsor) in connection with the credit
facilities provided in this Agreement shall have been obtained and remain in
effect.


 


6.08.        Patriot Act. On or prior to the
Initial Borrowing Date, the Administrative Agent and the Lenders shall have
received all documentation and other information required by regulatory
authorities under applicable “know your customer” and anti-money laundering
rules and regulations, including, without limitation, the Patriot Act to the
extent reasonably requested prior to the Initial Borrowing Date.


 


6.09.        Financial Statements; Pro Forma
Financial Statements; Projections. On or prior to the Initial Borrowing
Date, the Administrative Agent shall have received true and correct copies of
the historical financial statements, the pro  forma financial
statements and the Projections referred to in Sections 8.05(a) and (d).


 


6.10.        Subsidiaries Guaranty. On the
Initial Borrowing Date, each Subsidiary Guarantor shall have duly authorized,
executed and delivered the Subsidiaries Guaranty in the form of Exhibit G (as
amended, modified or supplemented from time to time, the “Subsidiaries
Guaranty”), and the Subsidiaries Guaranty shall be in full force and
effect.


 


6.11.        Pledge Agreement. On the Initial
Borrowing Date, each Credit Party shall have duly authorized, executed and
delivered the Pledge Agreement in the form of Exhibit H (as amended, modified,
restated and/or supplemented from time to time, the “Pledge Agreement”)
and shall have delivered to the Collateral Agent, as Pledgee thereunder, all of
the Pledge Agreement Collateral, if any, referred to therein and then owned by
such Credit Party, (x) endorsed in blank in the case of promissory notes
constituting Pledge Agreement Collateral and (y) together with executed and
undated endorsements for transfer in the case of Equity Interests


 


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constituting
certificated Pledge Agreement Collateral, along with evidence that all other
actions required by the Pledge Agreement or by applicable law or otherwise
reasonably required by the Collateral Agent, in each case to perfect the
security interests purported to be created by the Pledge Agreement have been
taken and the Pledge Agreement shall be in full force and effect.


 


6.12.        Security Agreement.  On the Initial Borrowing Date, each Credit
Party shall have duly authorized, executed and delivered the Security Agreement
in the form of Exhibit I (as amended, modified, restated and/or supplemented
from time to time, the “Security Agreement”) covering all of such Credit
Party’s Security Agreement Collateral, together with (but otherwise subject to
the grace period (if any) set forth in the Security Agreement for the
perfection of certain Security Agreement Collateral to the extent such
perfection cannot be accomplished by the Initial Borrowing Date after the
Credit Parties’ commercially reasonable efforts to do so): 


 


(i)            proper financing statements (Form
UCC-1 or the equivalent) fully executed or authorized for filing under the UCC
or other appropriate filing offices of each jurisdiction as may be necessary to
perfect the security interests purported to be created by the Security
Agreement; 


 


(ii)           certified copies of requests for
information or copies (Form UCC-11), or equivalent reports as of a recent date,
listing all effective financing statements that name Holdings or any of its
Subsidiaries as debtor and that are filed in the jurisdictions referred to in
clause (i) above and in such other jurisdictions in which Collateral is located
on the Initial Borrowing Date, together with copies of such other financing
statements that name Holdings or any of its Subsidiaries as debtor (none of
which shall cover any of the Collateral except (x) to the extent evidencing
Permitted Liens or (y) those in respect of which the Collateral Agent shall
have received termination statements (Form UCC-3) or such other termination
statements as shall be required by local law fully executed for filing); and 


 


(iii)          evidence that all other actions
required by the Security Agreement or applicable law or otherwise reasonably
required by the Collateral Agent, in each case to perfect and protect the
security interests purported to be created by the Security Agreement have been
taken, and the Security Agreement shall be in full force and effect. 


 


6.13.        Solvency Certificate; Insurance
Certificates.  On the Initial
Borrowing Date, the Administrative Agent shall have received: 


 


(i)            a solvency
certificate from the Chief Financial Officer of Holdings in the form of Exhibit
N; and 


 


(ii)           certificates of
insurance complying with the requirements of Section 9.03 for the business and
properties of Holdings and its Subsidiaries, in form and substance reasonably
satisfactory to the Administrative Agent and naming the Collateral Agent as an
additional insured and/or as loss payee, and stating that such insurance shall
not be canceled without at least 30 days’ prior written notice by the insurer
to the Collateral Agent. 


 


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6.14.        Fees, etc. On the Initial
Borrowing Date, the Borrower shall have paid to the Administrative Agent,
Deutsche Bank Securities Inc. and each Lender all costs, fees and expenses
(including, without limitation, reasonable legal fees and expenses) and other
compensation contemplated hereby payable to the Administrative Agent, Deutsche
Bank Securities Inc. or such Lender to the extent then due.


 


In determining
the satisfaction of the conditions specified in this Section 6, (x) to the
extent any item is required to be satisfactory to any Lender, such item shall
be deemed satisfactory to each Lender which has not notified the Administrative
Agent in writing prior to the occurrence of the Initial Borrowing Date that the
respective item or matter does not meet its satisfaction and (y) in determining
whether any Lender is aware of any fact, condition or event that has occurred
and which would reasonably be expected to have a Company Material Adverse
Effect or a Material Adverse Effect, each Lender which has not notified the
Administrative Agent in writing prior to the occurrence of the Initial
Borrowing Date of such fact, condition or event shall be deemed not to be aware
of any such fact, condition or event on the Initial Borrowing Date. Upon the
Administrative Agent’s good faith determination that the conditions specified
in this Section 6 have been met (after giving effect to the preceding
sentence), then the Initial Borrowing Date shall have been deemed to have
occurred, regardless of any subsequent determination that one or more of the
conditions thereto had not been met (although the occurrence of the Initial
Borrowing Date shall not release Holdings or the Borrower from any liability
for failure to satisfy one or more of the applicable conditions contained in
this Section 6).


 


SECTION 7.   Conditions Precedent to All Credit Events.
The obligation of each Lender to make Loans (including Loans made on the
Initial Borrowing Date), and the obligation of each Issuing Lender to issue
Letters of Credit (including Letters of Credit issued on the Initial Borrowing
Date), are subject, at the time of each such Credit Event (except as
hereinafter indicated), to the satisfaction of the following conditions:


 


7.01.        No Default; Representations and
Warranties. At the time of each such Credit Event and also after giving
effect thereto (i) there shall exist no Default or Event of Default and (ii)
all representations and warranties contained herein and in the other Credit
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on the date
of such Credit Event (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be required to
be true and correct in all material respects only as of such specified date).


 


7.02.        Notice of Borrowing; Letter of Credit
Request. (a)  Prior to the making of
each Loan (other than a Swingline Loan or a Revolving Loan made pursuant to a
Mandatory Borrowing), the Administrative Agent shall have received a Notice of
Borrowing meeting the requirements of Section 2.03(a). Prior to the making of
each Swingline Loan, the Swingline Lender shall have received the notice
referred to in Section 2.03(b)(i).


 


(b) Prior to
the issuance of each Letter of Credit (other than an Existing Letter of
Credit), the Administrative Agent and the respective Issuing Lender shall have
received a Letter of Credit Request meeting the requirements of Section
3.03(a).


 


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The acceptance
of the benefits of each Credit Event shall constitute a representation and
warranty by Holdings and the Borrower to the Administrative Agent and each of
the Lenders that all the conditions specified in Section 6 (with respect to
Credit Events on the Initial Borrowing Date) and in this Section 7 (with
respect to Credit Events on or after the Initial Borrowing Date) and applicable
to such Credit Event are satisfied as of that time. All of the Notes,
certificates, legal opinions and other documents and papers referred to in
Section 6 and in this Section 7, unless otherwise specified, shall be delivered
to the Administrative Agent at the Notice Office for the account of each of the
Lenders and, except for the Notes, in sufficient counterparts or copies for
each of the Lenders.


 


SECTION 8.   Representations, Warranties and Agreements.
In order to induce the Lenders to enter into this Agreement and to make the
Loans, and issue (or participate in) the Letters of Credit as provided herein,
each of Holdings and the Borrower makes the following representations,
warranties and agreements, in each case after giving effect to the Transaction,
all of which shall survive the execution and delivery of this Agreement and the
Notes and the making of the Loans and the issuance of the Letters of Credit,
with the occurrence of the Initial Borrowing Date and each Credit Event on or
after the Initial Borrowing Date being deemed to constitute a representation
and warranty that the matters specified in this Section 8 are true and correct
in all material respects on and as of the Initial Borrowing Date and on the
date of each such other Credit Event (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date).


 


8.01.        Company Status. Each of Holdings
and each of its Subsidiaries (i) is a duly organized and validly existing
Company in good standing under the laws of the jurisdiction of its
organization, (ii) has the Company power and authority to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified and is authorized to do business
and is in good standing in each jurisdiction where the ownership, leasing or
operation of its property or the conduct of its business requires such
qualifications except for failures to be so qualified or authorized which,
either individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.


 


8.02.        Power and Authority. Each Credit
Party has the power and authority to execute, deliver and perform the terms and
provisions of each of the Documents to which it is party and has taken all
necessary action to authorize the execution, delivery and performance by it of
each of such Documents. Each Credit Party has duly executed and delivered each
of the Documents to which it is party, and each of such Documents constitutes
its legal, valid and binding obligation enforceable in accordance with its
terms, except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors’ rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).


 


8.03.        No Violation. Neither the
execution, delivery or performance by any Credit Party of the Documents to
which it is a party, nor compliance by it with the terms and provisions
thereof, (i) will contravene any provision of any law, statute, rule or
regulation or any order, writ, injunction or decree of any court or
governmental instrumentality, (ii) will conflict with or result in any breach
of any of the terms, covenants, conditions or provisions of, or


 


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constitute a
default under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien (except pursuant to the Security Documents) upon any
of the property or assets of any Credit Party or any of its Subsidiaries
pursuant to the terms of any indenture, mortgage, deed of trust, credit
agreement or loan agreement, or any other material agreement, contract or
instrument, in each case to which any Credit Party or any of its Subsidiaries
is a party or by which it or any of its property or assets is bound or to which
it may be subject, or (iii) will violate any provision of the certificate or articles
of incorporation, certificate of formation, limited liability company agreement
or by-laws (or equivalent organizational documents), as applicable, of any
Credit Party or any of its Subsidiaries.


 


8.04.        Approvals. No order, consent,
approval, license, authorization or validation of, or filing, recording or
registration with (except for (x) those that have otherwise been obtained or
made on or prior to the Initial Borrowing Date and which remain in full force
and effect on the Initial Borrowing Date and (y) filings which are necessary to
perfect the security interests created under the Security Documents, which
filings will be made within ten days following the Initial Borrowing Date), or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to be obtained or made by, or on behalf of, any Credit
Party to authorize, or is required to be obtained or made by, or on behalf of,
any Credit Party in connection with, (i) the execution, delivery and
performance of any Document or (ii) the legality, validity, binding effect or
enforceability of any such Document.


 


8.05.        Financial Statements; Financial
Condition Undisclosed Liabilities; Projections. (a)(i)  The audited consolidated balance sheet of TPI
for its fiscal year ended December 31, 2006 and the related audited
consolidated statements of income and cash flows and changes in shareholders’
equity of TPI for its fiscal year ended on such date, in each case furnished to
the Lenders prior to the Effective Date, present fairly in all material
respects the consolidated financial position of TPI at the date of said balance
sheet and the consolidated results of its operations for the respective periods
covered thereby. The unaudited consolidated balance sheet of TPI for its fiscal
quarter ended June 30, 2007 and the related unaudited consolidated statements
of income and cash flows and changes in shareholders’ equity of TPI for its
fiscal quarter ended on such date, in each case furnished to the Lenders prior
to the Effective Date, present fairly in all material respects the consolidated
financial position of TPI at the date of said financial statements and the
consolidated results of its operations for the period covered thereby (except
for normal year-end audit adjustments and the absence of footnotes). All of the
foregoing historical financial statements have been prepared in accordance with
GAAP consistently applied (except, in the case of the aforementioned interim
financial statements, for normal year-end audit adjustments and the absence of
footnotes).


 


(ii)           The unaudited consolidated pro
forma balance sheet of Holdings as of June 30, 2007 (after giving effect
to the Transaction and the financing therefor), and the related unaudited
consolidated pro  forma statements of income, cash flows and
shareholders equity of Holdings for the twelve-month period ended on such date
(after giving effect to the Transaction and the financing therefor), copies of
which have been furnished to the Lenders prior to the Effective Date, present
fairly in all material respects the consolidated pro  forma
financial position of Holdings as of June 30, 2007 and the consolidated pro
forma results of the operations of Holdings for the period covered
thereby. All of the foregoing pro forma financial statements


 


68

















 


have been
prepared on a basis consistent with the historical financial statements of TPI
set forth in preceding clause (i).


 


(b) On and as
of the Initial Borrowing Date, and after giving effect to the Transaction and
to all Indebtedness (including the Loans) being incurred or assumed and Liens
created by the Credit Parties in connection therewith, (i) the sum of the
assets, at a fair valuation, of the Borrower (on a stand-alone basis) and of Holdings
and its Subsidiaries (taken as a whole) will exceed its or their respective
debts, (ii) the Borrower (on a stand-alone basis) and Holdings and its
Subsidiaries (taken as a whole) has or have not incurred and does or do not
intend to incur, and does or do not believe that it or they will incur, debts
beyond its or their respective ability to pay such debts as such debts mature,
and (iii) the Borrower (on a stand-alone basis) and Holdings and its
Subsidiaries (taken as a whole) will have sufficient capital with which to
conduct its or their respective businesses. For purposes of this Section
8.05(b), “debt” means any liability on a claim, and “claim” means
(a) right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured or (b) right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.


 


(c) Except as
fully disclosed in the financial statements delivered pursuant to Section
8.05(a), and except for the Indebtedness incurred under this Agreement, there
were as of the Initial Borrowing Date no liabilities or obligations with
respect to Holdings or any of its Subsidiaries of any nature whatsoever
(whether absolute, accrued, contingent or otherwise and whether or not due)
which, either individually or in the aggregate, could reasonably be expected to
be material to Holdings and its Subsidiaries taken as a whole. As of the
Initial Borrowing Date, neither Holdings nor the Borrower know of any basis for
the assertion against it or any of its Subsidiaries of any liability or
obligation of any nature whatsoever that is not fully disclosed in the
financial statements delivered pursuant to Section 8.05(a) or referred to in
the immediately preceding sentence which, either individually or in the
aggregate, could reasonably be expected to be material to Holdings and its
Subsidiaries taken as a whole.


 


(d) The
Projections delivered to the Administrative Agent and the Lenders prior to the
Initial Borrowing Date have been prepared in good faith and are based on
reasonable assumptions, and there are no statements or conclusions in the
Projections which are based upon or include information known to Holdings or
the Borrower to be misleading in any material respect or which fail to take
into account material information known to Holdings or the Borrower regarding
the matters reported therein. On the Initial Borrowing Date, Holdings and the
Borrower believe that the Projections are reasonable and attainable, it being
recognized by the Lenders, however, that projections as to future events are
not to be viewed as facts and that the actual results during the period or
periods covered by the Projections may differ from the projected results.


 


(e) After
giving effect to the Transaction (but for this purpose assuming that the
Transaction and the related financing had occurred prior to December 31, 2006),
since


 


69

















 


December 31,
2006, there has not occurred any event, change, occurrence, condition or
circumstance which, either individually or in the aggregate has had, or could
reasonably be expected to have, a Material Adverse Effect (or, to the extent
that this representation and warranty is made on the Initial Borrowing Date, a
Company Material Adverse Effect).


 


8.06.        Litigation. There are no actions,
suits or proceedings pending or, to the knowledge of Holdings and the Borrower,
threatened that has had, or could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect (or, to the extent
that this representation and warranty is made on the Initial Borrowing Date, a
Company Material Adverse Effect).


 


8.07.        True and Complete Disclosure. All
factual information (taken as a whole) furnished by or on behalf of Holdings or
the Borrower in writing to the Administrative Agent or any Lender (including,
without limitation, all information contained in the Documents) for purposes of
or in connection with this Agreement, the other Documents or any transaction
contemplated herein or therein is, and all other such factual information
(taken as a whole) hereafter furnished by or on behalf of Holdings or the
Borrower in writing to the Administrative Agent or any Lender will be, true and
accurate in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any fact necessary
to make such information (taken as a whole) not misleading in any material
respect at such time in light of the circumstances under which such information
was provided, it being understood and agreed that for purposes of this Section
8.07, such factual information shall not include the Projections or any Pro
Forma financial information.


 


8.08.        Use of Proceeds; Margin Regulations.
(a)  All proceeds of the Initial Term
Loans will be used by the Borrower solely to finance, in part, the Refinancing
and the Acquisition and to pay the fees and expenses incurred in connection
with the Transaction.


 


(b) All
proceeds of the Revolving Loans and the Swingline Loans will be used for the
working capital and general corporate purposes of the Borrower and its
Subsidiaries (including to finance Capital Expenditures and Permitted
Acquisitions); provided, however, no part of the proceeds of any
Revolving Loans or Swingline Loans may be used on the Initial Borrowing Date to
finance the Refinancing or the Acquisition or to pay any fees and expenses
incurred in connection with the Transaction.


 


(c) Subject to
Section 2.14(a), all proceeds of the Incremental Term Loans will be used by the
Borrower for the working capital and general corporate purposes of the Borrower
and its Subsidiaries (including to finance Capital Expenditures and Permitted
Acquisitions).


 


(d) No part of
any Credit Event (or the proceeds thereof) will be used to purchase or carry
any Margin Stock or to extend credit for the purpose of purchasing or carrying
any Margin Stock. Neither the making of any Loan nor the use of the proceeds
thereof nor the occurrence of any other Credit Event will violate or be
inconsistent with the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System.


 


8.09.        Tax Returns and Payments. Each of
Holdings and each of its Subsidiaries has timely filed or caused to be timely
filed with the appropriate taxing authority all federal and


 


70

















 


all material
state and other material returns, statements, forms and reports for taxes (the
“Returns”) required to be filed by, or with respect to the income,
properties or operations of, Holdings and/or any of its Subsidiaries. The
Returns accurately reflect in all material respects all liability for taxes of
Holdings and its Subsidiaries, as applicable, for the periods covered thereby. Each
of Holdings and each of its Subsidiaries has paid all material taxes and
assessments payable by it, other than those that are being contested in good
faith and adequately disclosed and for which adequate reserves have been
established and fully provided for on the financial statements of Holdings and
its Subsidiaries in accordance with GAAP. There is no action, suit, proceeding,
investigation, audit or claim now pending or, to the knowledge of Holdings,
threatened by any authority regarding any taxes relating to Holdings or any of
its Subsidiaries that has had, or could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect. As of the Initial
Borrowing Date, neither Holdings nor any of its Subsidiaries has entered into
an agreement or waiver or been requested to enter into an agreement or waiver
extending any statute of limitations relating to the payment or collection of
taxes of Holdings or any of its Subsidiaries, or is aware of any circumstances
that would cause the taxable years or other taxable periods of Holdings or any
of its Subsidiaries not to be subject to the normally applicable statute of
limitations.


 


8.10.        Compliance with ERISA. (a) Except
as could not, either individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect:  (i)
each Plan (and each related trust, insurance contract or fund) is in compliance
with its terms and with all applicable laws, including without limitation ERISA
and the Code; (ii) each Plan (and each related trust, if any) which is intended
to be qualified under Section 401(a) of the Code has received a favorable
determination letter from the IRS to the effect that it meets the requirements
of Sections 401(a) and 501(a) of the Code covering all tax law changes prior to
the Economic Growth and Tax Relief Reconciliation Act of 2001 or is comprised
of a master or prototype plan that has received a favorable opinion letter from
the IRS; (iii) no Reportable Event has occurred; (iv) no Plan which is a
Multiemployer Plan is insolvent or in reorganization; (v) no Plan has an
Unfunded Current Liability; (vi) no Plan which is subject to Section 412 of the
Code or Section 302 of ERISA has an accumulated funding deficiency, within the
meaning of such sections of the Code or ERISA, or has applied for or received a
waiver of an accumulated funding deficiency or an extension of any amortization
period, within the meaning of Section 412 of the Code or Section 303 or 304 of
ERISA; (vii) all contributions required to be made with respect to a Plan have
been timely made or have been reflected on the most recent consolidated balance
sheet of Holdings delivered pursuant to this Agreement or accrued in the
accounting records of Holdings and its Subsidiaries; (viii) neither Holdings
nor any Subsidiary of Holdings nor any ERISA Affiliate has incurred any
liability to or on account of a Plan pursuant to Section 515, 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or Section 436(f), 4971 or 4975 of the Code
or expects to incur any such liability under any of the foregoing sections with
respect to any Plan; (ix) no condition exists which presents a material risk to
Holdings or any Subsidiary of Holdings or any ERISA Affiliate of incurring a
liability to or on account of a Plan pursuant to the foregoing provisions of
ERISA and the Code; (x) no proceedings have been instituted to terminate or
appoint a trustee to administer any Plan which is subject to Title IV of ERISA;
(xi) no action, suit, proceeding, hearing, audit or investigation with respect
to the administration, operation or the investment of assets of any Plan (other
than routine claims for benefits) is pending, expected or threatened; (xii)
there has been no violation of the applicable requirements of Section 404 or
405 of ERISA or the exclusive benefit rule under Section 401(a) of the Code by
any fiduciary or disqualified


 


71

















 


person with
respect to any Plan for which Holdings, any Subsidiary of Holdings or any ERISA
Affiliate may be directly or indirectly liable; (xiii) neither Holdings or any
Subsidiary of Holdings or any ERISA Affiliate has filed, or is considering
filing, an application under the IRS Employee Plans Compliance Resolution
System or the Department of Labor’s Voluntary Fiduciary Correction Program with
respect to any Plan; (xiv) using actuarial assumptions and computation methods
consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of Holdings and its Subsidiaries and its ERISA Affiliates to all
Plans which are Multiemployer Plans in the event of a complete withdrawal
therefrom, as of the close of the most recent fiscal year of each such Plan
ended prior to the date of the most recent Credit Event, would not be material;
(xv) each group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) of Holdings, any Subsidiary of Holdings, or any ERISA
Affiliate has at all times been operated in compliance with the provisions of
Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code; (xvi)
each group health plan (as defined in 45 Code of Federal Regulations Section
160.103) of Holdings, any Subsidiary of Holdings, or any ERISA Affiliate has
been operated in compliance with the provisions of the Health Insurance
Portability and Accountability Act of 1996 and the regulations promulgated
thereunder; (xvii) no lien imposed under the Code or ERISA on the assets of
Holdings or any Subsidiary of Holdings or any ERISA Affiliate exists or is
likely to arise on account of any Plan; (xviii) and Holdings and its
Subsidiaries may cease contributions to or terminate any Plan maintained by any
of them without incurring any liability.


 


(b) Except as
could not, either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect:  each Non-U.S.
Plan has been maintained in compliance with its terms and with the requirements
of any and all applicable laws, statutes, rules, regulations and orders and has
been maintained, where required, in good standing with applicable regulatory
authorities; (ii) all contributions required to be made with respect to a
Non-U.S. Plan have been timely made; (iii) neither Holdings nor any of its
Subsidiaries has incurred any obligation in connection with the termination of,
or withdrawal from, any Non U.S. Plan; and (iv) the present value of the
accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan,
determined as of the end of Holdings’ most recently ended fiscal year on the
basis of actuarial assumptions, each of which is reasonable, did not exceed the
current value of the assets of such Non-U.S. Plan allocable to such benefit
liabilities.


 


8.11.        Security Documents. (a)  The provisions of the Security Agreement are
effective to create in favor of the Collateral Agent for the benefit of the Secured
Creditors a legal, valid and enforceable security interest in all right, title
and interest of the Credit Parties in the Security Agreement Collateral
described therein, and the Collateral Agent, for the benefit of the Secured
Creditors, has (or within 10 days following the Initial Borrowing Date will
have) a fully perfected security interest in all right, title and interest in
all of the Security Agreement Collateral described therein to the extent that
the Security Agreement Collateral consists of the type of property in which a
security interest may be perfected by possession, by filing a financing
statement under the UCC as enacted in any relevant jurisdiction or by a filing
of a Grant of Security Interest in the respective form attached to the Security
Agreement in the United States Patent and Trademark Office or in the United
States Copyright Office, in each case as and to the extent provided in the
Security Agreement, subject to no other Liens other than Permitted Liens. The
recordation of (x) the Grant of Security Interest in U.S. Patents and (y) the
Grant of Security Interest in U.S. Trademarks in the respective form attached
to the Security


 


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Agreement, in
each case in the United States Patent and Trademark Office, together with
filings on Form UCC-1 made pursuant to the Security Agreement, will create, as
may be perfected by such filings and recordation, a perfected security interest
in the United States trademarks and patents covered by the Security Agreement,
and the recordation of the Grant of Security Interest in U.S. Copyrights in the
form attached to the Security Agreement with the United States Copyright
Office, together with filings on Form UCC-1 made pursuant to the Security
Agreement, will create, as may be perfected by such filings and recordation, a
perfected security interest in the United States copyrights covered by the
Security Agreement.


 


(b) The
security interests created under the Pledge Agreement in favor of the
Collateral Agent, as Pledgee, for the benefit of the Secured Creditors,
constitute first priority perfected security interests in the Pledge Agreement
Collateral described in the Pledge Agreement, subject to no security interests
of any other Person. No filings or recordings are required in order to perfect
(or maintain the perfection or priority of) the security interests created in
the Pledge Agreement Collateral under the Pledge Agreement other than with
respect to that portion of the Pledge Agreement Collateral constituting a
“general intangible” under the UCC.


 


(c) After the
execution and delivery thereof, each Mortgage creates, as security for the
obligations purported to be secured thereby, a valid and enforceable perfected
security interest in and mortgage lien on the respective Mortgaged Property in
favor of the Collateral Agent (or such other trustee as may be required or
desired under local law) for the benefit of the Secured Creditors, superior and
prior to the rights of all third Persons (except that the security interest and
mortgage lien created on such Mortgaged Property may be subject to the
Permitted Liens related thereto) and subject to no other Liens (other than
Permitted Liens related thereto).


 


8.12.        Properties. All Real Property
owned or leased by Holdings or any of its Subsidiaries as of the Initial
Borrowing Date, and the nature of the interest therein, is set forth in
Schedule IV. Each of Holdings and each of its Subsidiaries has good and
marketable title to all material properties (and to all buildings, fixtures and
improvements located thereon) owned by it, including all material property
reflected in the most recent historical balance sheets referred to in Section
8.05(a) (except as sold or otherwise disposed of since the date of such balance
sheet in the ordinary course of business or as permitted by the terms of this
Agreement), free and clear of all Liens, other than Permitted Liens. Each of
Holdings and each of its Subsidiaries has a valid leasehold interest in the
material properties leased by it free and clear of all Liens other than
Permitted Liens.


 


8.13.        Capitalization. On the Initial
Borrowing Date, the authorized capital stock of Holdings consists of 1,000
shares of common stock, $.01 par value per share (such authorized shares of
common stock, together with any subsequently authorized shares of common stock
of Holdings, “Holdings Common Stock”), all of which are owned by the
Sponsor on such date. All outstanding shares of capital stock of Holdings have
been duly and validly issued, are fully paid and non-assessable and have been
issued free of preemptive rights. Holdings does not have outstanding any
capital stock or other securities convertible into or exchangeable for its
capital stock or any rights to subscribe for or to purchase, or any options for
the purchase of, or any agreement providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating
to, its capital stock or any stock appreciation or similar rights,


 


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except for (i)
options, warrants and rights which may be issued from time to time to purchase,
or which are convertible into, Holdings Common Stock and (ii) Qualified
Preferred Stock of Holdings that may be convertible into Holdings Common Stock.


 


8.14.        Subsidiaries. On and as of the
Initial Borrowing Date, Holdings has no Subsidiaries other than those
Subsidiaries listed on Schedule V (which Schedule identifies the correct legal
name, direct owner, percentage ownership and jurisdiction of organization of
each Subsidiary). All outstanding shares of Equity Interests of each Subsidiary
of Holdings have been duly and validly issued, are fully paid and
non-assessable and have been issued free of preemptive rights. No Subsidiary of
Holdings has outstanding any securities convertible into or exchangeable for
its Equity Interests or outstanding any right to subscribe for or to purchase,
or any options or warrants for the purchase of, or any agreement providing for
the issuance (contingent or otherwise) of or any calls, commitments or claims
of any character relating to, its Equity Interests or any stock appreciation or
similar rights.


 


8.15.        Compliance with Statutes, etc. (a)  Each of Holdings and each of its Subsidiaries
is in compliance with all applicable statutes, regulations and orders of, and
all applicable restrictions imposed by, all governmental bodies, domestic or
foreign, in respect of the conduct of its business and the ownership of its
property (including, without limitation, applicable statutes, regulations,
orders and restrictions relating to environmental standards and controls),
except such noncompliances as could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


(b) To the
extent applicable, each of Holdings and each of its Subsidiaries is in
compliance, in all material respects, with (i) the Trading with the Enemy Act,
as amended, and each of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any
other enabling legislation or executive order relating thereto, and (ii) the
Patriot Act.


 


8.16.        Investment Company Act. Neither
Holdings nor any of its Subsidiaries is an “investment company” or a company
“controlled” by an “investment company,” within the meaning of the Investment
Company Act of 1940, as amended.


 


8.17.          Environmental Matters. (a)  Each of Holdings and each of its Subsidiaries
is in compliance with all applicable Environmental Laws and the requirements of
any permits issued under such Environmental Laws. There are no pending or, to
the knowledge of Holdings and the Borrower, threatened Environmental Claims
against Holdings or any of its Subsidiaries or any Real Property owned, leased
or operated by Holdings or any of its Subsidiaries (including any such claim
arising out of the ownership, lease or operation by Holdings or any of its
Subsidiaries of any Real Property formerly owned, leased or operated by
Holdings or any of its Subsidiaries but no longer owned, leased or operated by
Holdings or any of its Subsidiaries). There are no facts, circumstances,
conditions or occurrences with respect to the business or operations of
Holdings or any of its Subsidiaries, or any Real Property owned, leased or
operated by Holdings or any of its Subsidiaries (including any Real Property
formerly owned, leased or operated by Holdings or any of its Subsidiaries but
no longer owned, leased or operated by Holdings or any of its Subsidiaries) or,
to the knowledge of Holdings and the Borrower, any property adjoining or
adjacent to any such Real Property that could be reasonably expected (i) to


 


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form the basis
of an Environmental Claim against Holdings or any of its Subsidiaries or any
Real Property owned, leased or operated by Holdings or any of its Subsidiaries
or (ii) to cause any Real Property owned, leased or operated by Holdings or any
of its Subsidiaries to be subject to any restrictions on the ownership, lease,
occupancy or transferability of such Real Property by Holdings or any of its
Subsidiaries under any applicable Environmental Law.


 


(b) Hazardous
Materials have not at any time been generated, used, treated or stored on, or
transported to or from, or Released on or from, any Real Property owned, leased
or operated by the Borrower or any of its Subsidiaries or, to the knowledge of
Holdings and the Borrower, any property adjoining or adjacent to any Real
Property, where such generation, use, treatment, storage, transportation or
Release has violated or could be reasonably expected to violate any applicable
Environmental Law or give rise to an Environmental Claim.


 


(c)
Notwithstanding anything to the contrary in this Section 8.17, the
representations and warranties made in this Section 8.17 shall be untrue only
if the effect of any or all conditions, violations, claims, restrictions,
failures and noncompliances of the types described above could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


 


8.18.        Employment and Labor Relations. Neither
Holdings nor any of its Subsidiaries is engaged in any unfair labor practice
that could reasonably be expected, either individually or in the aggregate, to
have a Material Adverse Effect. There is (i) no unfair labor practice complaint
pending against Holdings or any of its Subsidiaries or, to the knowledge of
Holdings, threatened against any of them, before the National Labor Relations
Board, and no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against Holdings or any of its
Subsidiaries or, to the knowledge of Holdings, threatened against any of them,
(ii) no strike, labor dispute, slowdown or stoppage pending against Holdings or
any of its Subsidiaries or, to the knowledge of Holdings, threatened against
Holdings or any of its Subsidiaries, (iii) 
no equal employment opportunity charges or other claims of employment
discrimination are pending or, to Holdings’ knowledge, threatened against
Holdings or any of its Subsidiaries, and (iv) no wage and hour department
investigation has been made of Holdings or any of its Subsidiaries, except
(with respect to any matter specified in clauses (i) through (iv) above, either
individually or in the aggregate) such as could not reasonably be expected to
have a Material Adverse Effect.


 


8.19.        Intellectual Property, etc. Each
of Holdings and each of its Subsidiaries owns or has the right to use all the
patents, trademarks, permits, domain names, service marks, trade names,
copyrights, licenses, franchises, inventions, trade secrets, proprietary
information and know-how of any type, whether or not written (including, but
not limited to, rights in computer programs and databases) and formulas, or
rights with respect to the foregoing, and has obtained assignments of all
leases, licenses and other rights of whatever nature, necessary for the present
conduct of its business, without any known conflict with the rights of others which,
or the failure to own or have which, as the case may be, could reasonably be
expected, either individually or in the aggregate, to have a Material Adverse
Effect.


 


8.20.        Indebtedness. Schedule VI sets
forth a list of all Indebtedness (including Contingent Obligations) of Holdings
and its Subsidiaries as of the Initial Borrowing Date and


 


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which is to
remain outstanding after giving effect to the Transaction (excluding the Loans
and the Letters of Credit, the “Existing Indebtedness”), in each case
showing the aggregate principal amount thereof and the name of the respective
borrower and any Credit Party or any of its Subsidiaries which directly or
indirectly guarantees such debt.


 


8.21.        Insurance. Schedule VII sets
forth a listing of all insurance maintained by Holdings and its Subsidiaries as
of the Initial Borrowing Date, with the amounts insured (and any deductibles)
set forth therein.


 


8.22.        Representations and Warranties in
Acquisition Agreement. All representations and warranties set forth in the
Acquisition Agreement were true and correct in all material respects at the
time as of which such representations and warranties were made (or deemed made)
and shall be true and correct in all material respects as of the Initial
Borrowing Date as if such representations or warranties were made on and as of
such date (it being understood and agreed that any such representation or
warranty which by its terms is made as of a specified date shall be true and correct
in all material respects as of such specified date (but, in each case, only to
the extent that the Borrower (or an Affiliate thereof) has the right to
terminate its obligations under the Acquisition Agreement as a result of a
breach of such representations and determined without regard to whether any
notice is required to be delivered in connection therewith)).


 


SECTION 9.   Affirmative Covenants. Each of
Holdings and the Borrower hereby covenants and agrees that on and after the
Effective Date and until the Total Commitment and all Letters of Credit have
terminated and the Loans, Notes and Unpaid Drawings (in each case together with
interest thereon), Fees and all other Obligations (other than indemnities
described in Section 13.13 which are not then due and payable) incurred
hereunder and thereunder, are paid in full:


 


9.01.        Information Covenants. Holdings
will furnish to each Lender:


 


(a) Monthly Reports. Within 30 days after the end of each fiscal
month of Holdings (other than the last fiscal month of any fiscal quarter of
Holdings and commencing with Holdings’ fiscal month ending October 31, 2007),
an executive summary report (in form reasonably acceptable to the
Administrative Agent) of the consolidated statements of income of, and the
aggregate amount of Capital Expenditures made by, Holdings and its Subsidiaries
for such fiscal month and for the elapsed portion of the fiscal year ended with
the last day of such fiscal month and the amount of the consolidated cash
balances of Holdings and its Subsidiaries as of the last day of such fiscal
month, in each case setting forth comparative figures for the corresponding
fiscal month in the prior fiscal year, all of which shall be certified by an
Authorized Officer of Holdings that they fairly present in all material
respects in accordance with GAAP the financial condition of Holdings and its
Subsidiaries as of the dates indicated and the results of their operations for
the periods indicated, subject to normal year-end audit adjustments and the
absence of footnotes.


 


(b) Quarterly Financial Statements. Within 45 days after the
close of each of the first three quarterly accounting periods in each fiscal
year of Holdings (commencing


 


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with Holdings’
fiscal quarter ending March 31, 2008), (i) the consolidated balance sheet of
Holdings  and its Subsidiaries as
at the end of such quarterly accounting period and the related consolidated
statements of income and retained earnings and statement of cash flows for such
quarterly accounting period and for the elapsed portion of the fiscal year
ended with the last day of such quarterly accounting period, in each case
setting forth comparative figures for the corresponding quarterly accounting
period in the prior fiscal year and, for all fiscal quarters ending on or prior
to December 31, 2009, comparable budgeted figures for such quarterly accounting
period as set forth in the respective budget delivered prior to the date hereof
or pursuant to Section 9.01(d) (as applicable), all of which shall be certified
by an Authorized Officer of Holdings that they fairly present in all material
respects in accordance with GAAP the financial condition of Holdings and its
Subsidiaries as of the dates indicated and the results of their operations for
the periods indicated, subject to normal year-end audit adjustments and the
absence of footnotes, and (ii) management’s discussion and analysis of the
important operational and financial developments during such quarterly
accounting period.


 


(c) Annual
Financial Statements. Within 90 days after the close of each fiscal year of
Holdings (commencing with Holdings’ fiscal year ending December 31, 2007), (i)
the consolidated balance sheet of Holdings and its Subsidiaries as at the end
of such fiscal year and the related consolidated statements of income and
retained earnings and statement of cash flows for such fiscal year setting
forth comparative figures for the preceding fiscal year and certified by
Rothstein, Kass & Company, PC or an independent certified public
accountants of recognized national standing reasonably acceptable to the
Administrative Agent (which certification shall be without a “going concern” or
like qualification or exception and without any qualification or exception as
to scope of audit), together with a report of such accounting firm, which audit
and report shall be conducted and prepared in accordance with generally
accepted auditing standards, and (ii) management’s discussion and analysis of
the important operational and financial developments during such fiscal year.


 


(d) Budgets.
No later than 60 days following the first day of each fiscal year of Holdings
(commencing with Holdings’ fiscal ending December 31, 2008), a budget in form
reasonably satisfactory to the Administrative Agent (including budgeted
statements of income, sources and uses of cash and balance sheets for Holdings
and its Subsidiaries on a consolidated basis) (i) (A) in respect of Holdings’
fiscal year ending December 31, 2008, for each of the four quarters of such
fiscal year prepared in detail, and (B) in respect of each fiscal year
thereafter, for such fiscal year prepared in detail, and (in each case) (ii)
for the three immediately succeeding fiscal years prepared in summary form, in
each case, setting forth, with appropriate discussion, the principal
assumptions upon which such budget is based and a statement by an Authorized
Officer of Holdings to the effect that the budget is a reasonable estimate for
the periods covered thereby.


 


(e) Officer’s
Certificates. At the time of the delivery of the financial statements
provided for in Sections 9.01(b) and (c), a compliance certificate from an
Authorized Officer of Holdings in the form of Exhibit J certifying on behalf of
Holdings that, to such officer’s knowledge, no Default or Event of Default has
occurred and is continuing or, if any Default or Event of Default has occurred
and is continuing,


 


77

















 


specifying the
nature and extent thereof, which certificate shall (i) set forth in reasonable
detail the calculations required to establish whether Holdings and its
Subsidiaries were in compliance with the provisions of this Agreement referred
to in such Exhibit J at the end of such fiscal quarter or year, as the case may
be, (ii) if delivered with the financial statements required by Section 9.01(c)
(commencing with Holdings’ fiscal year ending December 31, 2008), set forth in
reasonable detail the amount of (and the calculations required to establish the
amount of) Excess Cash Flow for the respective Excess Cash Payment Period, and
(iii) certify that there have been no changes to Annexes A through F of the
Security Agreement and Annexes A through G of the Pledge Agreement, in each
case since the Initial Borrowing Date or, if later, since the date of the most
recent certificate delivered pursuant to this Section 9.01(e), or if there have
been any such changes, a list in reasonable detail of such changes (but, in
each case with respect to this clause (iii), only to the extent that such
changes are required to be reported to the Collateral Agent pursuant to the
terms of such Security Documents) and whether Holdings and the other Credit
Parties have otherwise taken all actions required to be taken by them pursuant
to such Security Documents in connections with any such changes.


 


(f) Notice
of Default, Litigation and Material Adverse Effect. Promptly after any
officer of Holdings or any of its Subsidiaries obtains knowledge thereof,
notice of (i) the occurrence of any event which constitutes a Default or an
Event of Default, (ii) any litigation or governmental investigation or
proceeding pending against Holdings or any of its Subsidiaries which, either
individually or in the aggregate, has had, or could reasonably be expected to have,
a Material Adverse Effect or (iii) any other event, change or circumstance that
has had, or could reasonably be expected to have, a Material Adverse Effect.


 


(g) Other
Reports and Filings. Promptly after the filing or delivery thereof, copies
of all financial information, proxy materials and reports, if any, which
Holdings or any of its Subsidiaries shall publicly file with the Securities and
Exchange Commission or any successor thereto (the “SEC”) or deliver to
holders (or any trustee, agent or other representative therefor) of its
material Indebtedness pursuant to the terms of the documentation governing such
Indebtedness.


 


(h) Environmental
Matters. Promptly after any officer of Holdings or any of its Subsidiaries
obtains knowledge thereof, notice of one or more of the following environmental
matters to the extent that such environmental matters, either individually or
when aggregated with all other such environmental matters, could reasonably be
expected to have a Material Adverse Effect:


 


(i) any pending or threatened Environmental Claim against Holdings or
any of its Subsidiaries or any Real Property owned, leased or operated by
Holdings or any of its Subsidiaries;


 


(ii) any condition or occurrence on or arising from any Real Property
owned, leased or operated by Holdings or any of its Subsidiaries that (a)
results in noncompliance by Holdings or any of its Subsidiaries with any
applicable


 


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Environmental
Law or (b) could reasonably be expected to form the basis of an Environmental
Claim against Holdings or any of its Subsidiaries or any such Real Property;


 


(iii) any condition or occurrence on any Real Property owned, leased or
operated by Holdings or any of its Subsidiaries that could reasonably be expected
to cause such Real Property to be subject to any restrictions on the ownership,
lease, occupancy, use or transferability by Holdings or any of its Subsidiaries
of such Real Property under any Environmental Law; and


 


(iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Material on any Real Property
owned, leased or operated by Holdings or any of its Subsidiaries as required by
any Environmental Law or any governmental or other administrative agency; provided
that in any event Holdings shall deliver to each Lender all notices received by
Holdings or any of its Subsidiaries from any government or governmental agency
under, or pursuant to, CERCLA which identify Holdings or any of its
Subsidiaries as potentially responsible parties for remediation costs or which
otherwise notify Holdings or any of its Subsidiaries of potential liability
under CERCLA.


 


All such
notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and
Holdings’ or such Subsidiary’s response thereto.


 


(i) Other
Information. From time to time, such other information or documents
(financial or otherwise) with respect to Holdings or any of its Subsidiaries as
the Administrative Agent or any Lender may reasonably request.


 


Notwithstanding
the foregoing, the obligations in clauses (b) and (c) of this Section 9.01
(except for any comparison to budget) may be satisfied with respect to
financial information of Holdings and its Subsidiaries by furnishing Holdings’
Form 10-K or 10-Q, as applicable, filed with (and in accordance with the
requirements of) the SEC.


 


9.02.        Books, Records and Inspections. Holdings
will, and will cause each of its Subsidiaries to, keep proper books of record
and accounts in which full, true and correct entries in conformity with GAAP
and all requirements of law shall be made of all dealings and transactions in
relation to its business and activities. Holdings will, and will cause each of
its Subsidiaries to, permit officers and designated representatives of the
Administrative Agent or any Lender to visit and inspect, under guidance of
officers of Holdings or such Subsidiary, any of the properties of Holdings or
such Subsidiary, and to examine the books of account of Holdings or such
Subsidiary and discuss the affairs, finances and accounts of Holdings or such
Subsidiary with, and be advised as to the same by, its and their officers and
independent accountants, all upon reasonable prior notice and at such
reasonable times and intervals and to such reasonable extent as the
Administrative Agent or any such Lender may reasonably request; provided,
however, the Administrative Agent or such Lender shall notify Holdings
prior to any


 


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contact with
such accountants and shall give Holdings the opportunity to participate in such
discussions.


 


9.03.        Maintenance of Property; Insurance.
(a)  Holdings will, and will cause each
of its Subsidiaries to, (i) keep all property necessary to the business of
Holdings and its Subsidiaries in good working order and condition, ordinary
wear and tear excepted and subject to the occurrence of casualty events, (ii)
maintain with financially sound and reputable insurance companies insurance on
all such property and against all such risks as is consistent and in accordance
with industry practice for companies similarly situated owning similar
properties and engaged in similar businesses as Holdings and its Subsidiaries,
and (iii) furnish to the Administrative Agent, upon its request therefor, full
information as to the insurance carried.


 


(b) Holdings
will, and will cause each of its Subsidiaries to, at all times keep its
property insured in favor of the Collateral Agent, and all policies or
certificates (or certified copies thereof) with respect to such insurance (and
any other insurance maintained by Holdings and/or such Subsidiaries) (i) shall
be endorsed to the Collateral Agent’s satisfaction for the benefit of the Collateral
Agent (including, without limitation, by naming the Collateral Agent as loss
payee and/or additional insured), (ii) shall state that such insurance policies
shall not be canceled without at least 30 days’ prior written notice thereof by
the respective insurer to the Collateral Agent, (iii) shall provide that the
respective insurers irrevocably waive any and all rights of subrogation with
respect to the Collateral Agent and the other Secured Creditors, and (iv) shall
be deposited with the Collateral Agent.


 


(c) If
Holdings or any of its Subsidiaries shall fail to maintain insurance in
accordance with this Section 9.03, or if Holdings or any of its Subsidiaries
shall fail to so endorse and deposit all policies or certificates with respect
thereto, the Administrative Agent shall have the right (but shall be under no
obligation) to procure such insurance and Holdings agrees to reimburse the
Administrative Agent for all costs and expenses of procuring such insurance.


 


9.04.        Existence; Franchises. Holdings
will, and will cause each of its Subsidiaries to, (i) do or cause to be done,
all things necessary to preserve and keep in full force and effect its
existence and (ii) take all action to maintain its rights, franchises,
licenses, permits, copyrights, trademarks and patents; provided, however,
that nothing in this Section 9.04 shall (x) prevent sales of assets and other
transactions by Holdings or any of its Subsidiaries in accordance with Section
10.02, (y) prevent the withdrawal by Holdings or any of its Subsidiaries of its
qualification as a foreign Company in any jurisdiction if such withdrawal could
not, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect or (z) require the preservation of any rights,
franchises, licenses, permits, copyrights, trademarks or patents if the failure
to preserve same could not, either individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.


 


9.05.        Compliance with Statutes, etc. Holdings
will, and will cause each of its Subsidiaries to, comply with all applicable
statutes, regulations and orders of, and all applicable restrictions imposed
by, all governmental bodies, domestic or foreign, in respect of the conduct of
its business and the ownership of its property (including applicable
Environmental Laws),


 


80

















 


except such
noncompliances as could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


9.06.        Compliance with Environmental Laws.
(a)  Holdings will comply, and will cause
each of its Subsidiaries to comply, with all Environmental Laws and permits
applicable to, or required by, the ownership, lease or use of its Real Property
now or hereafter owned, leased or operated by Holdings or any of its
Subsidiaries, except such noncompliances as could not, either individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect, and
will promptly pay or cause to be paid all costs and expenses incurred in
connection with such compliance, and will keep or cause to be kept all such
Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws other than Permitted Liens related thereto. Holdings will,
and will cause each of its Subsidiaries to, generate, use, treat, store,
Release and dispose of Hazardous Materials on any Real Property now or
hereafter owned, leased or operated by the Borrower or any of its Subsidiaries,
and transport or cause the transportation of Hazardous Materials to or from any
such Real Property, in compliance with all applicable Environmental Laws and as
required in connection with the normal operation, use and maintenance of the
business or operations of the Borrower or any of its Subsidiaries, except for
such generation, use, treatment, storage, Release, disposal or transportation
that, either individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect.


 


(b) (i) After
the receipt by the Administrative Agent or any Lender of any notice of the type
described in Section 9.01(h), (ii) at any time that Holdings or any of its
Subsidiaries are not in compliance with Section 9.06(a) or (iii) in the event
that the Administrative Agent or the Lenders have exercised any of the remedies
pursuant to the last paragraph of Section 11, Holdings will provide, at the
sole expense of Holdings and at the request of the Administrative Agent, an
environmental site assessment report concerning any Real Property owned, leased
or operated by Holdings or any of its Subsidiaries, prepared by an
environmental consulting firm reasonably approved by the Administrative Agent,
indicating the presence or absence of Hazardous Materials and the potential
cost of any removal or remedial action in connection with such Hazardous
Materials on such Real Property. If Holdings fails to provide the same within
30 days after such request was made, the Administrative Agent may order the
same, the cost of which shall be borne by Holdings, and the Borrower shall
grant and hereby grant to the Administrative Agent and the Lenders and their
respective agents access to such Real Property and specifically grant the
Administrative Agent and the Lenders an irrevocable non-exclusive license,
subject to the rights of tenants, to undertake such an assessment at any
reasonable time upon reasonable notice to Holdings, all at the sole expense of
the Borrower.


 


9.07.        ERISA. (a)  As soon as possible and, in any event, within
ten (10) days after Holdings, any Subsidiary of Holdings or any ERISA Affiliate
knows or has reason to know of the occurrence of any of the following ERISA
matters to the extent that such ERISA matters, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect,
Holdings will deliver to each of the Lenders a certificate of an Authorized
Officer of Holdings setting forth the full details as to such occurrence and
the action, if any, that Holdings, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to
be given or filed by Holdings, such Subsidiary, the Plan administrator or such
ERISA Affiliate to or with the PBGC or any other government agency, or a


 


81

















 


Plan
participant and any notices received by Holdings, such Subsidiary or ERISA
Affiliate from the PBGC or any other government agency, or a Plan participant
with respect thereto:  that a Reportable
Event has occurred (except to the extent that Holdings has previously delivered
to each of the Lenders a certificate and notices (if any) concerning such event
pursuant to the next clause hereof); that a contributing sponsor (as defined in
Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA is subject
to the advance reporting requirement of PBGC Regulation Section 4043.61
(without regard to subparagraph (b)(1) thereof), and an event described in
subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043
is reasonably expected to occur with respect to such Plan within the following
30 days; that an accumulated funding deficiency, within the meaning of Section
412 of the Code or Section 302 of ERISA, has been incurred or an application
may be or has been made for a waiver or modification of the minimum funding
standard (including any required installment payments) or an extension of any
amortization period under Section 412 of the Code or Section 303 or 304 of
ERISA with respect to a Plan; that any contribution required to be made with
respect to a Plan or Non-U.S. Plan has not been timely made; that a Plan has
been or may be terminated, reorganized, partitioned or declared insolvent under
Title IV of ERISA; that a Plan has an Unfunded Current Liability; that
proceedings may be or have been instituted to terminate or appoint a trustee to
administer a Plan which is subject to Title IV of ERISA; that a proceeding has
been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; that Holdings, any Subsidiary of Holdings or any ERISA
Affiliate may be directly or indirectly liable for a violation of the
applicable requirements of Section 404 or 405 of ERISA or the exclusive benefit
rule under Section 401(a) of the Code by any fiduciary or disqualified person
with respect to any Plan; that Holdings, any Subsidiary of Holdings or any
ERISA Affiliate will or may incur any liability (including any indirect,
contingent, or secondary liability) to or on account of the termination of or
withdrawal from a Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212
of ERISA or with respect to a Plan under Section 436(f), 4971, 4975 or 4980 of
the Code or Section 409, 502(i) or 502(l) of ERISA with respect to a group
health plan (as defined in Section 607(1) of ERISA, Section 4980B(g)(2) of the
Code or 45 Code of Federal Regulations Section 160.103) under Section 4980B of
the Code and/or the Health Insurance Portability and Accountability Act of
1996; or that Holdings or any Subsidiary of Holdings may incur any liability
pursuant to any employee welfare benefit plan (as defined in Section 3(1) of
ERISA) that provides benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or any Plan or Non-U.S. Plan. Holdings
also will deliver to each of the Lenders copies of any records, documents or
other information that must be furnished to the PBGC with respect to any Plan
pursuant to Section 4010 of ERISA. Upon request of any Lender, Holdings will
deliver to the requesting Lender (i) a copy of each funding waiver request
filed with the IRS or any other government agency with respect to any Plan and
all communications received by Holdings, any Subsidiary of Holdings or any
ERISA Affiliate from the IRS and (ii) a complete copy of the annual report (on
IRS Form 5500-series) of each Plan (including, to the extent required, the
related financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information) required to be filed
with the IRS. In addition to any certificates or notices delivered to each of
the Lenders pursuant to the first sentence hereof, copies of annual reports and
any material records, documents or other information required to be furnished
to the PBGC or any other government agency, and any material notices received
by Holdings, any Subsidiary of Holdings or any ERISA Affiliate with respect to
any Plan or Non-U.S. Plan shall be delivered to the Lenders no


 


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later than ten
(10) days after the date such annual report has been filed with the IRS or such
records, documents and/or information has been furnished to the PBGC or any
other government agency or such notice has been received by Holdings, the
Subsidiary or the ERISA Affiliate, as applicable.


 


(b) Holdings
and each of its applicable Subsidiaries shall ensure that all Non-U.S. Plans
administered by it or into which it makes payments obtains or retains (as
applicable) registered status under and as required by applicable law and is
administered in a timely manner in all respects in compliance with all
applicable laws except where the failure to do any of the foregoing, either
individually or in the aggregate, could not be reasonably be expected to result
in a Material Adverse Effect.


 


9.08.        End of Fiscal Years; Fiscal Quarters.
Holdings will cause (i) its and each of its Domestic Subsidiaries’ fiscal years
to end on December 31 of each calendar year and (ii) its and each of its
Domestic Subsidiaries’ fiscal quarters to end on March 31, June 30, September
30 and December 31 of each calendar year.


 


9.09.        Performance of Obligations. Holdings
will, and will cause each of its Subsidiaries to, perform all of its
obligations under the terms of each mortgage, indenture, security agreement,
loan agreement or credit agreement and each other agreement, contract or
instrument by which it is bound, except such non-performances as could not,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


9.10.        Payment of Taxes. Holdings will
pay and discharge, and will cause each of its Subsidiaries to pay and
discharge, all material taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or upon any properties belonging
to it, in each case on a timely basis, and all lawful claims which, if unpaid,
might become a Lien or charge upon any properties of Holdings or any of its
Subsidiaries not otherwise permitted under Section 10.01(i); provided
that neither Holdings nor any of its Subsidiaries shall be required to pay any
such tax, assessment, charge, levy or claim which is being contested in good
faith and by proper proceedings if it has maintained adequate reserves with
respect thereto in accordance with GAAP.


 


9.11.        Use of Proceeds. The Borrower
will use the proceeds of the Loans only as provided in Section 8.08.


 


9.12.        Additional Security; Further
Assurances; etc. (a)  Holdings will,
and will cause each other Credit Party to, grant to the Collateral Agent for
the benefit of the Secured Creditors security interests and Mortgages in such
assets and Real Property of the Borrower and such other Credit Party that are
acquired after the Initial Borrowing Date as may be reasonably requested from
time to time by the Administrative Agent or the Required Lenders (collectively,
the “Additional Security Documents”). All such security interests and
Mortgages shall be granted pursuant to documentation reasonably satisfactory in
form and substance to the Collateral Agent and shall constitute valid and
enforceable first priority perfected security interests, hypothecations and
Mortgages superior to and prior to the rights of all third Persons and
enforceable against third parties and subject to no other Liens except for
Permitted Liens. The Additional Security Documents or instruments related
thereto shall have been duly recorded


 


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or filed in
such manner and in such places as are required by law to establish, perfect, preserve
and protect the Liens in favor of the Collateral Agent required to be granted
pursuant to the Additional Security Documents and all taxes, fees and other
charges payable in connection therewith shall have been paid in full. Notwithstanding
the foregoing, this Section 9.12(a) shall not apply to (and Holdings and its
Subsidiaries shall not be required to grant a Mortgage in) any Real Property
the Fair Market Value of which (including for this purpose, without limitation,
all land, improvements and fixtures) is less than $250,000.


 


(b) Holdings
will, and will cause each of the other Credit Parties to, at the expense of
Holdings, make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such vouchers, invoices, schedules,
confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, real property surveys, reports,
landlord waivers, bailee agreements, control agreements and other assurances or
instruments and take such further steps relating to the Collateral covered by
any of the Security Documents as the Collateral Agent may reasonably require. Furthermore,
Holdings will, and will cause the other Credit Parties that are Subsidiaries of
Holdings to, deliver to the Collateral Agent such opinions of counsel, title
insurance and other related documents as may be reasonably requested by the
Administrative Agent to assure itself that this Section 9.12 has been complied
with.


 


(c) If the
Administrative Agent or the Required Lenders reasonably determine that they are
required by law or regulation to have appraisals prepared in respect of any
Real Property of Holdings and the other Credit Parties constituting Collateral,
Holdings will, at its own expense, provide to the Administrative Agent
appraisals which satisfy the applicable requirements of the Real Estate
Appraisal Reform Amendments of the Financial Institution Reform, Recovery and
Enforcement Act of 1989, as amended, and which shall otherwise be in form and
substance reasonably satisfactory to the Administrative Agent.


 


(d) Holdings
agrees that each action required by clauses (a) through (c) of this Section
9.12 shall be completed as soon as possible, but in no event later than 60 days
after such action is required to be taken or is requested to be taken by the
Administrative Agent or the Required Lenders; provided that, in no event
will Holdings or any of its Subsidiaries be required to take any action, other
than using its commercially reasonable efforts, to obtain consents from third
parties with respect to its compliance with this Section 9.12.


 


9.13.        Ownership of Subsidiaries; etc. Except
as otherwise permitted by Section 10.05(xvi) or (xvii) or pursuant to a
Permitted Acquisition consummated in accordance with the terms hereof, Holdings
will, and will cause each of its Subsidiaries to, own 100% of the Equity
Interests of each of their Subsidiaries (other than directors’ qualifying
shares to the extent required by applicable law).


 


9.14.        Interest Rate Protection. No
later than 90 days following the Initial Borrowing Date, the Borrower will
enter into (and thereafter maintain through at least January 31, 2011) one or
more Interest Rate Protection Agreements mutually acceptable to the Borrower
and the Administrative Agent and establishing a fixed or maximum interest rate
reasonably acceptable to the Administrative Agent for an aggregate notional
principal amount


 


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equal to at
least 40% of the aggregate principal amount of all Initial Term Loans incurred
on the Initial Borrowing Date.


 


9.15.        Permitted Acquisitions. (a)  Subject to the provisions of this Section
9.15 and the requirements contained in the definition of Permitted Acquisition,
the Borrower and each Wholly-Owned Domestic Subsidiary of the Borrower which is
a Subsidiary Guarantor may from time to time effect Permitted Acquisitions, so
long as (in each case except to the extent the Required Lenders otherwise
specifically agree in writing in the case of a specific Permitted
Acquisition):  (i) no Default or Event of
Default shall have occurred and be continuing at the time of the consummation
of the proposed Permitted Acquisition or immediately after giving effect
thereto; (ii) the Borrower shall have given to the Administrative Agent and the
Lenders at least 10 Business Days’ prior written notice of any Permitted
Acquisition (or such shorter period of time as may be reasonably acceptable to
the Administrative Agent), which notice shall describe in reasonable detail the
principal terms and conditions of such Permitted Acquisition; (iii)
calculations are made by the Borrower with respect to the financial covenant
contained in Section 10.07 for the respective Calculation Period on a Pro Forma
Basis as if the respective Permitted Acquisition (as well as all other
Permitted Acquisitions theretofore consummated after the first day of such
Calculation Period) had occurred on the first day of such Calculation Period,
and such calculations shall show that such financial covenant would have been
complied with on the last day of such Calculation Period; (iv) all
representations and warranties contained herein and in the other Credit
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as of
the date of such Permitted Acquisition (both before and after giving effect
thereto), unless stated to relate to a specific earlier date, in which case
such representations and warranties shall be true and correct in all material
respects as of such earlier date; (v) the Aggregate Consideration payable for
the proposed Permitted Acquisition, when added to the Aggregate Consideration
paid or payable for all other Permitted Acquisitions theretofore consummated,
shall not exceed $5,000,000, of which no more than $1,000,000 may be spent in
any fiscal year of Holdings; (vi) immediately before and after giving effect to
such Permitted Acquisition, the Total Unutilized Revolving Loan Commitment
shall equal or exceed $5,000,000; and (vii) the Borrower shall have delivered
to the Administrative Agent and each Lender a certificate executed by an
Authorized Officer, certifying to the best of such officer’s knowledge,
compliance with the requirements of preceding clauses (i) through (vi),
inclusive, and containing the calculations (in reasonable detail) required by
preceding clauses (iii), (v) and (vi).


 


(b) At the
time of each Permitted Acquisition involving the creation or acquisition of a
Subsidiary, or the acquisition of capital stock or other Equity Interest of any
Person, the capital stock or other Equity Interests thereof created or acquired
in connection with such Permitted Acquisition shall be pledged for the benefit
of the Secured Creditors pursuant to (and to the extent required by) the Pledge
Agreement.


 


(c) Holdings
will cause each Subsidiary which is formed to effect, or is acquired pursuant
to, a Permitted Acquisition to comply with, and to execute and deliver all of
the documentation as and to the extent required by, Sections 9.12 and 10.12, to
the reasonable satisfaction of the Administrative Agent.


 


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(d) The consummation of each Permitted Acquisition shall be
deemed to be a representation and warranty by Holdings and the Borrower that
the certifications pursuant to this Section 9.15 are true and correct and
that all conditions thereto have been satisfied (or waived by the Required
Lenders in accordance with the terms of this Agreement) and that same is
permitted in accordance with the terms of this Agreement, which representation
and warranty shall be deemed to be a representation and warranty for all purposes
hereunder, including, without limitation, Sections 8 and 11.


 


9.16.                 Foreign
Subsidiaries Security. In the
event that there is a change in the relevant sections of the Code or the
regulations, rules, rulings, notices or other official pronouncements issued or
promulgated thereunder, with respect to any Foreign Subsidiary of the Borrower
which has not already had all of its Equity Interests pledged pursuant to the
Pledge Agreement to secure all of the Obligations (as defined in the Pledge
Agreement) that a pledge of more than 66% of the total combined voting power of
all classes of Equity Interests of such Foreign Subsidiary entitled to vote
could not reasonably be expected to cause the undistributed earnings of such
Foreign Subsidiary as determined for Federal income tax purposes to be treated
as a deemed dividend to such Foreign Subsidiary’s United States parent for
Federal income tax purposes, then, at the request of the Administrative Agent
or the Required Lenders, that portion of such Foreign Subsidiary’s outstanding
Equity Interests so issued by such Foreign Subsidiary and owned by a Credit
Party, in each case not theretofore pledged pursuant to the Pledge Agreement to
secure all of the Obligations (as defined in the Pledge Agreement), shall be pledged
to the Collateral Agent for the benefit of the Secured Creditors pursuant to
the Pledge Agreement (or another pledge agreement in substantially similar
form, if needed).


 


9.17.                           Contributions. (a) Holdings
will, upon its receipt thereof, contribute as a cash common equity contribution
to the capital of the Borrower, any cash proceeds received by Holdings from any
asset sale, any incurrence of Indebtedness, any Recovery Event, any sale or
issuance of its equity, any cash capital contributions or any tax refunds.


 


(b) The Borrower will use the proceeds of all equity contributions
received by it from Holdings as provided in the relevant clause of Section 5.02
to the extent required to be so applied.


 


SECTION 10.                          Negative Covenants. Each of
Holdings and the Borrower hereby covenants and agrees that on and after the
Effective Date and until the Total Commitment and all Letters of Credit have
terminated and the Loans, Notes and Unpaid Drawings (in each case, together
with interest thereon), Fees and all other Obligations (other than any
indemnities described in Section 13.13 which are not then due and payable)
incurred hereunder and thereunder, are paid in full:


 


10.01.                  Liens. Holdings will
not, and will not permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Lien upon or with respect to any property or assets (real
or personal, tangible or intangible) of Holdings or any of its Subsidiaries,
whether now owned or hereafter acquired, provided that the provisions of
this Section 10.01 shall not prevent the creation, incurrence, assumption
or existence of the following (Liens described below are herein referred to as “Permitted
Liens”):


 


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(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due or Liens for taxes, assessments or governmental
charges or levies being contested in good faith and by appropriate proceedings
for which adequate reserves have been established in accordance with GAAP;


 


(ii) Liens in respect of property or assets
of Holdings or any of its Subsidiaries imposed by law, which were incurred in
the ordinary course of business and do not secure Indebtedness for borrowed
money, such as carriers’, warehousemen’s, materialmen’s and mechanics’ liens
and other similar Liens arising in the ordinary course of business, and (x)
which do not in the aggregate materially detract from the value of Holdings’ or
such Subsidiary’s property or assets or materially impair the use thereof in
the operation of the business of Holdings or such Subsidiary or (y) which are
being contested in good faith by appropriate proceedings, which proceedings
have the effect of preventing the forfeiture or sale of the property or assets
subject to any such Lien;


 


(iii) Liens in existence on the Initial
Borrowing Date which are listed, and the property subject thereto described, in
Schedule VIII, but only to the respective date, if any, set forth in such Schedule VIII
for the removal, replacement and termination of any such Liens, plus renewals,
replacements and extensions of such Liens to the extent set forth on such Schedule VIII,
provided that (x) the aggregate principal amount of the Indebtedness, if any,
secured by such Liens does not increase from that amount outstanding at the
time of any such renewal, replacement or extension and (y) any such renewal,
replacement or extension does not encumber any additional assets or properties
of Holdings or any of its Subsidiaries; 


 


(iv) Liens created by or pursuant to this Agreement and the Security
Documents;


 


(v) licenses, sublicenses, leases or subleases granted to other Persons
not materially interfering with the conduct of the business of Holdings or any
of its Subsidiaries;


 


(vi) Liens upon assets of the Borrower or any of its Subsidiaries
subject to Capitalized Lease Obligations to the extent such Capitalized Lease
Obligations are permitted by Section 10.04(iv), provided that (x) such
Liens only serve to secure the payment of Indebtedness arising under such
Capitalized Lease Obligation and (y) the Lien encumbering the asset giving rise
to the Capitalized Lease Obligation does not encumber any asset of Holdings or
any other asset of the Borrower or any Subsidiary of the Borrower;


 


(vii) Liens placed upon equipment or machinery acquired after the
Initial Borrowing Date and used in the ordinary course of business of the
Borrower or any of its Subsidiaries and placed at the time of the acquisition
thereof by the Borrower or such Subsidiary or within 90 days thereafter to
secure Indebtedness incurred to pay all or a portion of the purchase price
thereof or to secure Indebtedness incurred solely for the purpose of financing
the acquisition of any such equipment or machinery or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount,


 


87

















 


provided that (x) the
Indebtedness secured by such Liens is permitted by Section 10.04(iv) and
(y) in all events, the Lien encumbering the equipment or machinery so acquired
does not encumber any asset of Holdings or any other asset of the Borrower or
such Subsidiary;


 


(viii) easements,
rights-of-way, restrictions, encroachments and other similar charges or
encumbrances, and minor title deficiencies, in each case not securing
Indebtedness and not materially interfering with the conduct of the business of
Holdings or any of its Subsidiaries;


 


(ix) Liens arising from precautionary UCC financing
statement filings regarding operating leases entered into in the ordinary
course of business;


 


(x) Liens arising out of the existence of judgments or
awards in respect of which Holdings or any of its Subsidiaries shall in good
faith be prosecuting an appeal or proceedings for review and in respect of
which there shall have been secured a subsisting stay of execution pending such
appeal or proceedings, provided that the aggregate amount of all cash
and the Fair Market Value of all other property subject to such Liens does not
exceed $1,500,000 at any time outstanding;


 


(xi) statutory and common law landlords’ Liens under
leases to which the Borrower or any of its Subsidiaries is a party;


 


(xii) Liens (other than Liens imposed under
ERISA) incurred in the ordinary course of business in connection with workers
compensation claims, unemployment insurance and social security benefits and
Liens on deposits securing the performance of bids, tenders, leases and
contracts in the ordinary course of business, statutory obligations, insurance
contracts, surety bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business and consistent with past
practice (in each case exclusive of obligations in respect of the payment for
borrowed money), provided that the aggregate amount of all cash and the Fair
Market Value of all other property subject to all Liens permitted by this
clause (xii) shall not at any time exceed $1,500,000;


 


(xiii) Permitted Encumbrances;


 


(xiv) Liens on property or assets acquired
pursuant to a Permitted Acquisition, or on property or assets of a Subsidiary
of the Borrower in existence at the time such Subsidiary is acquired pursuant
to a Permitted Acquisition, provided that (x) any Indebtedness that is secured
by such Liens is permitted to exist under Section 10.04(vii), and (y) such
Liens are not incurred in connection with, or in contemplation or anticipation
of, such Permitted Acquisition and do not attach to any asset of Holdings or
any other asset of the Borrower or any of its Subsidiaries;


 


(xv) Liens arising out of any conditional sale, title retention,
consignment or other similar arrangements for the sale of goods entered into by
the Borrower or any of its Subsidiaries in the ordinary course of business to
the extent such Liens do not attach to any assets other than the goods subject to
such arrangements;


 


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(xvi)
Liens (x) incurred in the ordinary course of business in connection with the
purchase or shipping of goods or assets (or the related assets and proceeds
thereof), which Liens are in favor of the seller or shipper of such goods or
assets and only attach to such goods or assets, and (y) 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;


 


(xvii) bankers’ Liens, rights of setoff and
other similar Liens existing solely with respect to cash and Cash Equivalents
on deposit in one or more accounts maintained by Holdings or any Subsidiary of
Holdings, in each case granted in the ordinary course of business in favor of
the bank or banks with which such accounts are maintained, securing amounts
owing to such bank or banks with respect to cash management and operating
account arrangements;


 


(xviii) Liens on property of any Foreign Subsidiary securing
Indebtedness of such Foreign Subsidiary incurred pursuant to Section 10.04(xiii);


 


(xix) Liens solely on any cash earnest money deposits made by Holdings
or any of its Subsidiaries in connection with any letter of intent or purchase
agreement relating to an acquisition permitted hereunder; and


 


(xx)
additional Liens of the Borrower or any Subsidiary of the Borrower not
otherwise permitted by this Section 10.01 that (w) do not encumber
Collateral, (x) do not encumber any other assets of Holdings or any of its
Subsidiaries the Fair Market Value of which exceeds the amount of the
Indebtedness or other obligations secured by such assets, (y) do not materially
impair the use of such assets in the operation of the business of the Borrower
or such Subsidiary and (z) do not secure obligations in excess of $500,000 in
the aggregate for all such Liens at any time.


 


In
connection with the granting of Liens of the type described in clauses (iii),
(vi), (vii) and (xiv) of this Section 10.01 by Holdings of any of its
Subsidiaries, the Administrative Agent and the Collateral Agent shall be
authorized to take any actions deemed appropriate by it in connection therewith
without any additional consent of the Lenders (including, without limitation,
by executing appropriate lien releases or lien subordination agreements in
favor of the holder or holders of such Liens, in either case solely with
respect to the item or items of equipment or other assets subject to such
Liens).


 


10.02.                  Consolidation, Merger,
Purchase or Sale of Assets, etc. Holdings will not, and
will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its
affairs or enter into any partnership, joint venture, or transaction of merger
or consolidation, or convey, sell, lease or otherwise dispose of all or any part of
its property or assets (other than sales of inventory in the ordinary course of
business), or enter into any sale-leaseback transactions, or purchase or
otherwise acquire (in one or a series of related transactions) any part of
the property or assets (other than purchases or other acquisitions of
inventory, materials and equipment in the ordinary course of business) of any
Person (or agree to do any of the foregoing at any future time), except that:


 


89

















 


(i)                           Capital Expenditures by the Borrower and its Subsidiaries
shall be permitted (excluding Capital Expenditures which may arise as a
result of the purchase of any capital stock or other Equity Interests in any,
or the assets constituting any, Acquired Entity or Business, which Capital
Expenditures may only be made pursuant to Permitted Acquisitions effected
in accordance with the relevant provisions of this Agreement);


 


(ii)                        the Borrower and its Subsidiaries may sell, convey or
otherwise dispose of obsolete or worn-out property in the ordinary course of
business;


 


(iii)                     Investments
may be made to the extent permitted by Section 10.05;


 


(iv)                    the
Borrower and its Subsidiaries may sell assets (excluding the capital stock
or other Equity Interests of the Borrower or any Subsidiary of the Borrower,
unless all of the capital stock or other Equity Interests of such Subsidiary of
the Borrower are sold in accordance with this clause (iv)), so long as (v) no
Default or Event of Default then exists or would result therefrom, (w) each
such sale is in an arm’s-length transaction and the Borrower or the respective
Subsidiary receives at least Fair Market Value, (x) the consideration received
by the Borrower or such Subsidiary consists of at least 75% cash or Cash
Equivalents and is paid at the time of the closing of such sale, (y) the Net
Sale Proceeds therefrom are applied and/or reinvested as (and to the extent)
required by Section 5.02(d) and (z) the aggregate amount of the cash
and non-cash proceeds received from all assets sold pursuant to this clause (iv) shall
not exceed $2,000,000 in any fiscal year of Holdings (for this purpose, using
the Fair Market Value of property other than cash);


 


(v)                       each of the Borrower and its Subsidiaries may lease (as
lessee) or license (as licensee) real or personal property (so long as any such
lease or license does not create a Capitalized Lease Obligation except to the
extent permitted by Section 10.04(iv));


 


(vi)                    each
of the Borrower and its Subsidiaries may sell or discount, in each case
without recourse and in the ordinary course of business, accounts receivable
arising in the ordinary course of business, but only in connection with the
compromise or collection thereof and not as part of any financing
transaction;


 


(vii)                 each of the Borrower and its Subsidiaries may grant
licenses, sublicenses, leases or subleases to other Persons not materially
interfering with the conduct of the business of the Borrower or any of its
Subsidiaries, in each case so long as no such grant otherwise affects the
Collateral Agent’s security interest in the asset or property subject thereto;


 


(viii)                   (A) the Borrower may convey, sell
or otherwise transfer assets to one or more Wholly-Owned Domestic Subsidiaries
of the Borrower that are Subsidiary Guarantors and (B) any Subsidiary of
the Borrower may convey, sell or otherwise transfer all or any part of
its business, properties and assets to the Borrower or to any Wholly-Owned
Domestic Subsidiary of the Borrower that is a Subsidiary Guarantor, provided
that any security interests granted to the Collateral Agent for the benefit of
the


 


90

















 


Secured
Creditors pursuant to the Security Documents in the assets so transferred shall
remain in full force and effect and perfected (to at least the same extent as
in effect immediately prior to such transfer) and all actions required to
maintain said perfected status have been taken;


 


(ix)                      any Subsidiary of the Borrower may merge
or consolidate with and into, or be dissolved or liquidated into, the Borrower
or any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary
Guarantor, so long as (i) in the case of any such merger, consolidation,
dissolution or liquidation involving the Borrower, the Borrower is the
surviving or continuing corporation of any such merger, consolidation,
dissolution or liquidation, (ii) in all other cases, a Wholly-Owned
Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor is the
surviving or continuing Person of any such merger, consolidation, dissolution
or liquidation, and (iii) any security interests granted to the Collateral
Agent for the benefit of the Secured Creditors pursuant to the Security
Documents in the assets of such Subsidiary shall remain in full force and
effect and perfected (to at least the same extent as in effect immediately
prior to such merger, consolidation, dissolution or liquidation) and all
actions required to maintain said perfected status have been taken;


 


(x)                         any Foreign Subsidiary of the Borrower may be merged,
consolidated or amalgamated with and into, or be dissolved or liquidated into,
or transfer any of its assets to, any Wholly-Owned Foreign Subsidiary of the
Borrower, so long as (i) such Wholly-Owned Foreign Subsidiary of the
Borrower is the surviving or continuing Person of any such merger,
consolidation, amalgamation, dissolution or liquidation and (ii) any
security interests granted to the Collateral Agent for the benefit of the
Secured Creditors pursuant to the Security Documents in the Equity Interests of
such Wholly-Owned Foreign Subsidiary and such Foreign Subsidiary shall remain
in full force and effect and perfected and enforceable (to at least the same
extent as in effect immediately prior to such merger, consolidation,
amalgamation, dissolution, liquidation or transfer) and all actions required to
maintain said perfected status have been taken;


 


(xi)                      Permitted Acquisitions may be consummated in accordance
with the requirements of Section 9.15;


 


(xii)                   the Borrower and its Subsidiaries may sell,
convey or otherwise dispose of Cash Equivalents in the ordinary course of
business, in each case for cash at Fair Market Value;


 


(xiii)                the Borrower may consummate the
Acquisition;


 


(xiv)               the Borrower and its Subsidiaries may unwind
any Interest Rate Protection Agreement or Other Hedging Agreement pursuant to
its terms; and


 


(xv)                  the Borrower
and its Subsidiaries may dispose of Investments in joint ventures
otherwise permitted hereunder to the extent required by, or made pursuant to
customary buy/sell arrangements between, the joint venture parties set forth in
joint venture arrangements and similar binding arrangements.


 


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To
the extent the Required Lenders waive the provisions of this Section 10.02
with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 10.02 (other than to Holdings or a Subsidiary
thereof), such Collateral shall be sold free and clear of the Liens created by
the Security Documents, and the Administrative Agent and the Collateral Agent
shall be authorized to take any actions deemed appropriate in order to effect
the foregoing.


 


10.03.                  Dividends. Holdings will
not, and will not permit any of its Subsidiaries to, authorize, declare or pay
any Dividends with respect to Holdings or any of its Subsidiaries, except that:


 


(i)                                     any Subsidiary of the Borrower may pay Dividends to the
Borrower or to any Wholly-Owned Domestic Subsidiary of the Borrower and any
Foreign Subsidiary of the Borrower also may pay Dividends to any
Wholly-Owned Foreign Subsidiary of the Borrower;


 


(ii)                                  any Non-Wholly-Owned Subsidiary of the Borrower may pay
cash Dividends to its shareholders, members or partners generally, so long as
the Borrower or its respective Subsidiary which owns the Equity Interest in the
Subsidiary paying such Dividends receives at least its proportionate share
thereof (based upon its relative holding of the Equity Interest in the
Subsidiary paying such Dividends and taking into account the relative
preferences, if any, of the various classes of Equity Interests of such
Subsidiary);


 


(iii)                               the Borrower may pay
cash Dividends to Holdings at the times and in the amounts necessary to enable
Holdings to, and Holdings may, redeem or repurchase Equity Interests of
Holdings from officers, employees and directors of Holdings or its Subsidiaries
(or their estates) after the death, disability, retirement or termination of
employment or service as a director of any such Person, or otherwise in accordance
with any stock option plan or any employee stock ownership plan that has been
approved by the board of directors of Holdings and make payments on outstanding
Shareholder Subordinated Notes issued in exchange for such Equity Interests of
Holdings, provided that (w) the only consideration paid by Holdings in respect
of such redemptions, repurchases or other acquisitions for value shall be cash
and Shareholder Subordinated Notes, (x) the sum of (I) the aggregate amount
paid by Holdings in cash in respect of all such redemptions, repurchases or
other acquisitions for value pursuant to this clause (iii) plus
(II) the aggregate amount of all cash payments made on all Shareholder
Subordinated Notes shall not exceed $250,000 in any fiscal year of Holdings,
(y) at the time of any payment of cash in connection with any redemption,
repurchase or other acquisition for value or other payment permitted to be made
pursuant to this Section 10.03(iii), including any cash payment made under
a Shareholder Subordinated Note, no Default or Event of Default shall then
exist or result therefrom, and (z) the cancellation of Indebtedness owing to
Holdings or any of its Subsidiaries from members of management of Holdings or
any of its Subsidiaries in connection with a repurchase of Equity Interests of
Holdings will not be deemed to constitute a Dividend for purposes of this Section 10.03;


 


(iv)                              the Borrower may pay cash Dividends to Holdings at the
times and in the amounts necessary to enable Holdings to pay its tax obligations;
provided that (x) the


 


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amount of cash Dividends paid pursuant to this clause (iv) to
enable Holdings to pay Federal and state income taxes at any time shall not
exceed the amount of such Federal and state income taxes actually owing by
Holdings at such time for the respective period and (y) any refunds received by
Holdings shall promptly be returned by Holdings to the Borrower;


 


(v)                                 the Borrower may pay cash Dividends to Holdings for the
purpose of paying, so long as all of the proceeds thereof are promptly used by
Holdings to pay, its operating expenses incurred in the ordinary course of
business and other corporate overhead costs and expenses (including, without
limitation, legal and accounting expenses and similar expenses), provided that
the aggregate amount of all cash Dividends paid pursuant to this clause (v) shall
not exceed $250,000 in any fiscal year of Holdings;


 


(vi)                              Holdings may pay regularly scheduled Dividends on its
Qualified Preferred Stock pursuant to the terms thereof solely through the
issuance of additional shares of such Qualified Preferred Stock (but not in
cash), provided that in lieu of issuing additional shares of such
Qualified Preferred Stock as Dividends, Holdings may increase the
liquidation preference of the shares of Qualified Preferred Stock in respect of
which such Dividends have accrued; and


 


(vii)                           the Borrower may pay
cash Dividends to Holdings to enable Holdings to pay, and Holdings may pay,
cash Dividends to the Sponsor for the purpose of paying, so long as all of the
proceeds are promptly used by the Sponsor to pay, its corporate overhead costs
and expenses, provided that (x) the aggregate amount of all cash Dividends paid
pursuant to this clause (vii) shall not exceed $250,000 in any fiscal year
of Holdings and (y) at the time of any payment of any cash Dividend pursuant to
this clause (vii), no Default or Event of Default shall then exist or result
therefrom.


 


10.04.                  Indebtedness. Holdings will
not, and will not permit any of its Subsidiaries to, contract, create, incur,
assume or suffer to exist any Indebtedness, except:


 


(i)                                     Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;


 


(ii)                                  Existing Indebtedness outstanding on the Initial Borrowing
Date and listed on Schedule VI (as reduced by any repayments of principal
thereof), including any refinancing thereof, provided that the aggregate
principal amount of the Indebtedness to be extended, renewed or refinanced does
not increase from that amount outstanding at the time of any such extension,
renewal or refinancing;


 


(iii)                               Indebtedness of
the Borrower and its Subsidiaries under (x) Interest Rate Protection Agreements
entered into with respect to other Indebtedness permitted under this Section 10.04
and (y) Other Hedging Agreements entered into in the ordinary course of
business and providing protection to the Borrower and its Subsidiaries against
fluctuations in currency values or commodity prices in connection with the
Borrower’s or any of its Subsidiaries’ ordinary course operations, in either
case so long as the entering


 


93

















 


into of such Interest Rate
Protection Agreements or Other Hedging Agreements are bonafide hedging activities and are not
for speculative purposes;


 


(iv)                              Indebtedness of
the Borrower and its Subsidiaries evidenced by Capitalized Lease Obligations
and purchase money Indebtedness described in Section 10.01(vii), provided
that in no event shall the sum of the aggregate principal amount of all
Capitalized Lease Obligations and purchase money Indebtedness permitted by this
clause (iv) exceed $1,500,000 at any time outstanding;


 


(v)                                 Indebtedness
constituting Intercompany Loans to the extent permitted by Section 10.05(viii);


 


(vi)                              Indebtedness
consisting of guaranties (x) by the Borrower and the Wholly-Owned Domestic
Subsidiaries of the Borrower that are Subsidiary Guarantors of each other’s
Indebtedness (other than Indebtedness permitted under Section 10.04(vii))
and lease and other contractual obligations permitted under this Agreement and
(y) by Wholly-Owned Foreign Subsidiaries of the Borrower of each other’s
Indebtedness and lease and other contractual obligations permitted under this
Agreement;


 


(vii)                           Indebtedness of
a Subsidiary of the Borrower acquired pursuant to a Permitted Acquisition (or
Indebtedness assumed at the time of a Permitted Acquisition of an asset
securing such Indebtedness), provided that (x) such Indebtedness was not
incurred in connection with, or in anticipation or contemplation of, such
Permitted Acquisition, and (y) the aggregate principal amount of all
Indebtedness permitted by this clause (vii) shall not exceed $2,000,000 at
any one time outstanding;


 


(viii)                        Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business, so long as such Indebtedness is extinguished within four
Business Days of its incurrence;


 


(ix)                                Indebtedness of
the Borrower and its Subsidiaries with respect to performance bonds, bid bonds,
surety bonds, appeal bonds or customs bonds required in the ordinary course of
business or in connection with the enforcement of rights or claims of the
Borrower or any of its Subsidiaries or in connection with judgments that do not
result in a Default or an Event of Default, provided that the aggregate
outstanding amount of all such performance bonds, bid bonds, surety bonds,
appeal bonds and customs bonds permitted by this clause (ix) shall not at
any time exceed $1,000,000;


 


(x)                                   Indebtedness of
the Borrower or any of its Subsidiaries which may be deemed to exist in
connection with agreements providing for indemnification, purchase price
adjustments (including earn-outs) and similar obligations in connection with
the acquisition or disposition of assets in accordance with the requirements of
this Agreement, so long as any such obligations are those of the Person making
the respective acquisition or sale, and are not guaranteed by any other Person
except as permitted by Section 10.04(vi);


 


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(xi)                                Indebtedness of the
Borrower or any of its Subsidiaries representing deferred compensation to
employees of the Borrower and its Subsidiaries incurred in the ordinary course
of business;


 


(xii)                             Indebtedness of
Holdings under Shareholder Subordinated Notes issued in connection with any
redemption or repurchase of Holdings Common Stock pursuant to Section 10.03(iii);
and


 


(xiii)                          so long as no
Default or Event of Default then exists or would result therefrom, additional
Indebtedness incurred by the Borrower and its Subsidiaries in an aggregate
principal amount not to exceed $1,500,000 at any one time outstanding; provided
that such Indebtedness shall be unsecured unless incurred by a Foreign
Subsidiary of the Borrower, in which case it may be secured as (and to the
extent) permitted by Section 10.01.


 


For purposes of determining compliance with any Dollar-denominated
restriction on the incurrence of Indebtedness, the Dollar-equivalent principal
amount of Indebtedness denominated in a foreign currency shall be calculated
based on the relevant currency exchange rate in effect on the date such
Indebtedness was incurred, in the case of term debt, or first committed, in the
case of revolving credit debt.


 


10.05.                  Advances,
Investments and Loans. Holdings will not, and will not permit any
of its Subsidiaries to, directly or indirectly, lend money or credit or make
advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other Equity Interest in, or make any capital
contribution to, any other Person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents (each of the foregoing an “Investment” and,
collectively, “Investments”), except that the following shall be
permitted:


 


(i)                                     the Borrower and its Subsidiaries may acquire and hold
accounts receivables owing to any of them, if created or acquired in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms of the Borrower or such Subsidiary;


 


(ii)                                  Holdings and its Subsidiaries may acquire and hold cash
and Cash Equivalents, provided that during any time that Revolving Loans
or Swingline Loans are outstanding, the aggregate amount of cash and Cash
Equivalents permitted to be held by Holdings and its Domestic Subsidiaries
shall not exceed (A) at any time on or prior to December 31, 2009,
$10,000,000 for any period of five consecutive Business Days or (B) at any
time thereafter, the greater of (x) $10,000,000 and (y) 7% of the consolidated
revenues of Holdings and its Subsidiaries for the then most recently ended Test
Period, in either case for any period of five consecutive Business Days;


 


(iii)                               Holdings and
its Subsidiaries may hold the Investments held by them on the Initial
Borrowing Date and described on Schedule III (including all Intercompany
Loans between or among TPI and its Subsidiaries outstanding as of the Initial
Borrowing


 


95

















 


Date), provided that
any additional Investments made with respect thereto shall be permitted only if
permitted under the other provisions of this Section 10.05;


 


(iv)                              the Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in good faith
settlement of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;


 


(v)                                 the Borrower and its Subsidiaries may make loans and
advances to their officers and employees for moving, relocation and travel
expenses and other similar expenditures, in each case in the ordinary course of
business in an aggregate amount not to exceed $250,000 at any time (determined
without regard to any write-downs or writeoffs of such loans and advances);


 


(vi)                              Holdings may acquire and hold obligations of one or more
officers and employees of Holdings or any of its Subsidiaries in connection
with such officers’ and employees’ acquisition of shares of Holdings Common
Stock so long as no cash is actually advanced by Holdings or any of its
Subsidiaries in connection with the acquisition of such obligations;


 


(vii)                           the Borrower
and its Subsidiaries may enter into Interest Rate Protection Agreements
and Other Hedging Agreements to the extent permitted by Section 10.04(iii);


 


(viii)                        (I) the
Borrower and its Domestic Subsidiaries that are Subsidiary Guarantors may make
intercompany loans and advances between or among one another, (II) any Subsidiary of the Borrower which is not a Credit
Party may make intercompany loans and advances to any Credit Party, (III)
any Credit Party may make intercompany loans and advances to any
Subsidiary of the Borrower which is not a Credit Party, provided that
the aggregate outstanding amount of all such Investments pursuant to this sub-clause
(III) shall not exceed $7,000,000 at any time outstanding (determined without
regard to any write-downs or write-offs of such Investments, but determined net
of the aggregate outstanding amount of Intercompany Loans made after the
Initial Borrowing Date by Subsidiaries of the Borrower that are not Credit
Parties to Credit Parties) and (IV) any Wholly-Owned Foreign Subsidiary of the
Borrower may make intercompany loans and advances to any Wholly-Owned
Foreign Subsidiary of the Borrower (such intercompany loans and advances
referred to in preceding clauses (I) through (IV), together with any loans or
advances made pursuant to clause (xv) of this Section 10.05, collectively,
the “Intercompany Loans”), provided, that (x) each Intercompany
Loan shall be evidenced by an Intercompany Note, (y) each such Intercompany
Note owned or held by a Credit Party shall be pledged to the Collateral Agent
pursuant to the Pledge Agreement and (z) each Intercompany Loan made by any
Subsidiary of the Borrower that is not a Credit Party to a Credit Party shall
be subject to the subordination provisions contained in the respective
Intercompany Note;


 


(ix)                                (I) Holdings may make cash capital contributions to the
Borrower, (II) the Borrower and any Subsidiary Guarantor may make cash
capital contributions to any Subsidiary Guarantor which is a Wholly-Owned
Domestic Subsidiary of the Borrower,


 


96

















 


and (III) any Wholly-Owned Foreign Subsidiary of the Borrower
may make cash capital contributions to any other Wholly-Owned Foreign
Subsidiary of the Borrower, and may capitalize or forgive any Indebtedness
owed to it by a Wholly-Owned Foreign Subsidiary of the Borrower;


 


(x)                                   Holdings and its Subsidiaries may own the Equity
Interests of their respective Subsidiaries created or acquired in accordance
with the terms of this Agreement (so long as all amounts invested in such
Subsidiaries are independently justified under another provision of this Section 10.05);


 


(xi)                                Contingent Obligations permitted by Section 10.04, to
the extent constituting Investments;


 


(xii)                             Permitted
Acquisitions shall be permitted in accordance with the requirements of Section 9.15;


 


(xiii)                          the Borrower
and its Subsidiaries may receive and hold promissory notes and other
non-cash consideration received in connection with any asset sale permitted by Section 10.02(iv);


 


(xiv)                         the Borrower may consummate
the Acquisition in accordance with the terms and conditions of the Acquisition
Documents;


 


(xv)                            subject to Section 10.05(viii),
the Borrower and the Subsidiary Guarantors may make Intercompany Loans to
Holdings in lieu of, and not in excess of the amount of (after giving effect to
any other Intercompany Loans or Dividends in respect thereof), Dividends to the
extent permitted to be made to Holdings in accordance with Sections 10.03(iii),
(iv) and (v);


 


(xvi)                         the Borrower
and its Subsidiaries may make Investments to the extent that payment for
such Investments is made solely with Equity Interests of Holdings, provided
that the amount of all Investments made pursuant to this clause (xvi) shall not
exceed (x) $5,000,000 in the aggregate or (y) $1,000,000 in any fiscal year of
Holdings; and


 


(xvii)                      in addition to
Investments permitted by clauses (i) through (xvi) of this Section 10.05,
the Borrower and its Subsidiaries may make additional loans, advances and
other cash Investments to or in a Person in an aggregate amount for all loans,
advances and other Investments made pursuant to this clause (xvii) (determined
without regard to any write-downs or write-offs thereof), net of cash
repayments of principal in the case of loans, sale proceeds in the case of
Investments in the form of debt instruments and cash equity returns
(whether as a distribution, dividend, redemption or sale) in the case of equity
investments, not to exceed $2,500,000.


 


10.06.                  Transactions
with Affiliates. Holdings will not, and will not permit any of its
Subsidiaries to, enter into any transaction or series of related
transactions with any Affiliate of Holdings or any of its Subsidiaries, other
than in the ordinary course of business and on terms and conditions
substantially as favorable to Holdings or such Subsidiary as would reasonably
be


 


97

















 


obtained
by Holdings or such Subsidiary at that time in a comparable arm’s-length
transaction with a Person other than an Affiliate, except that the following in
any event shall be permitted:


 


(i)                                     Dividends may be
paid to the extent provided in Section 10.03;


 


(ii)                                  loans may be
made and other transactions may be entered into by Holdings and its
Subsidiaries to the extent permitted by Sections 10.02, 10.04 and 10.05;


 


(iii)                               customary fees may be
paid to non-officer directors of Holdings and its Subsidiaries;


 


(iv)                              Holdings and its Subsidiaries may enter into, and may make
payments under, employment agreements, severance arrangement, employee benefits
plans, stock option plans, indemnification provisions and other similar
compensatory arrangements with officers, employees and directors of Holdings
and its Subsidiaries in the ordinary course of business;


 


(v)                                 Subsidiaries of the Borrower may pay management fees,
licensing fees and similar fees to the Borrower or to any Wholly-Owned Domestic
Subsidiary of the Borrower that is a Subsidiary Guarantor;


 


(vi)                              the Borrower may reimburse the Sponsor for its
reasonable out-of-pocket expenses incurred in the ordinary course of business
in connection with their providing management services to the Borrower and its
Subsidiaries (including, but not limited to, expenses relating to auditors’
fees for auditing the financial statements of Holdings and its Subsidiaries and
obtaining insurance on behalf of Holdings and its Subsidiaries); and


 


(vii)                           Holdings may issue
shares of its Equity Interests permitted hereunder to any officer, director,
employee or consultant of the Borrower or any of its Subsidiaries or any direct
or indirect parent of Holdings.


 


Notwithstanding
anything to the contrary contained above in this Section 10.06, in no
event shall Holdings or any of its Subsidiaries pay any management, consulting
or similar fee to any of their respective Affiliates except as specifically
provided in clause (v) or (vi) of this Section 10.06.


 


10.07.                  Total
Leverage Ratio. Holdings
will not permit the Total Leverage Ratio at any time during a period set forth
below to exceed the ratio set forth opposite such period below:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Initial Borrowing Date through and
  including June 29, 2008

  	
   

  	
  4.25:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  June 30, 2008 through and including September 29,
  2008

  	
   

  	
  4.00:1.00

  	
   

  



 


98

















 


	
  September 30, 2008 through and
  including March 30, 2009

  	
   

  	
  3.75:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 31, 2009 through and including June 29,
  2009

  	
   

  	
  3.50:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  June 30, 2009 through and including September 29,
  2009

  	
   

  	
  3.25:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September 30, 2009 through and
  including December 30, 2009

  	
   

  	
  3.00:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  December 31, 2009 through and
  including June 29, 2010

  	
   

  	
  2.75:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  June 30, 2010 through and including June 29,
  2011

  	
   

  	
  2.00:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  June 30, 2011 through and including June 29,
  2012

  	
   

  	
  1.75:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  June 30, 2012 and thereafter

  	
   

  	
  1.50:1.00

  	
   

  



 


10.08.                  Limitation
on Certain Restrictions on Subsidiaries.
Holdings will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
Equity Interest or participation in its profits owned by Holdings or any of its
Subsidiaries, or pay any Indebtedness owed to Holdings or any of its
Subsidiaries, (b) make loans or advances to Holdings or any of its
Subsidiaries or (c) transfer any of its properties or assets to Holdings
or any of its Subsidiaries, except for such encumbrances or restrictions
existing under or by reason of (i) applicable law, (ii) this
Agreement and the other Credit Documents, (iii) customary provisions
restricting subletting or assignment of any lease governing any leasehold
interest of Holdings or any of its Subsidiaries, (iv) customary provisions
restricting assignment of any licensing agreement (in which the Borrower or any
of its Subsidiaries is the licensee) or other contract entered into by the
Borrower or any of its Subsidiaries in the ordinary course of business, (v) restrictions
on the transfer of any asset pending the close of the sale of such asset and (vi) restrictions
on the transfer of any asset subject to a Lien permitted by Section 10.01(iii),
(vi), (vii), (xiv), (xv), (xviii) or (xix).


 


10.09.                  Limitation
on Issuance of Equity Interests. (a) Holdings
will not, and will not permit any of its Subsidiaries to, issue (i) any
Preferred Equity other than (x) Qualified Preferred Stock of Holdings and (y)
Preferred Equity of any Wholly-Owned Subsidiary of the Borrower issued to the
Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower)


 


99

















 


or
(ii) any redeemable common stock or other redeemable common Equity
Interests other than common stock or other redeemable common Equity Interests
that is or are redeemable at the sole option of Holdings or such Subsidiary, as
the case may be.


 


(b)                                 Holdings will not permit any of its Subsidiaries to issue any
capital stock or other Equity Interests (including by way of sales of treasury
stock) or any options or warrants to purchase, or securities convertible into,
capital stock or other Equity Interests, except (i) for transfers and
replacements of then outstanding shares of capital stock or other Equity
Interests, (ii) for stock splits, stock dividends and issuances which do
not decrease the percentage ownership of Holdings or any of its Subsidiaries in
any class of the capital stock or other Equity Interests of such
Subsidiary, (iii) in the case of Foreign Subsidiaries of Holdings, to
qualify directors to the extent required by applicable law and for other
nominal share issuances to Persons other than Holdings and its Subsidiaries to
the extent required under applicable law, or (iv) for issuances by
Subsidiaries of the Borrower which are newly created or acquired in accordance
with the terms of this Agreement.


 


10.10.                  Business. (a) Holdings
will not, and will not permit any of its Subsidiaries to, engage directly or
indirectly in any business other than the businesses engaged in by the Borrower
and its Subsidiaries as of the Initial Borrowing Date and reasonable extensions
thereof and businesses ancillary or complimentary thereto.


 


(b) Notwithstanding the foregoing or anything else in
this Agreement to the contrary, Holdings will not engage in any business or own
any significant assets or have any material liabilities other than (i) its
ownership of the Equity Interests of the Borrower and (ii) those
liabilities which it is responsible for under this Agreement and the other
Credit Documents to which it is a party, provided that Holdings may engage
in those activities that are incidental to (x) the maintenance of its existence
in compliance with applicable law and (y) legal, tax and accounting matters in
connection with any of the foregoing activities.


 


10.11.                  Modifications
of Certificate of Incorporation, By-Laws, Shareholder Subordinated Notes and
Certain Other Agreements; Payments on Shareholder Subordinated Notes etc. Holdings will
not, and will not permit any of its Subsidiaries to:


 


(i)                                     amend, modify or change its certificate or articles of
incorporation (including, without limitation, by the filing or modification of
any certificate or articles of designation), certificate of formation, limited
liability company agreement or by-laws (or the equivalent organizational
documents), as applicable, or any agreement entered into by it with respect to
its capital stock or other Equity Interests (including any Shareholders’
Agreement and any Qualified Preferred Stock), or enter into any new agreement
with respect to its capital stock or other Equity Interests, unless such
amendment, modification, change or other action contemplated by this clause (i) could
not reasonably be expected to be adverse to the interests of the Lenders in any
material respect and the terms of any such amendment, modification, change or
other action will not violate any of the other provisions of this Agreement or
any other Credit Document;


 


(ii)                                  amend, modify or change any provision of (A) any
Management Agreement unless such amendment, modification or change could not
reasonably be


 


100

















 


expected to be adverse to the interests of the Lenders in any material
respect (although no amendment, modification or change may be made to any
monetary term thereof) or (B) any Tax Sharing Agreement or enter into any
new tax sharing agreement, tax allocation agreement or similar agreement
without the prior written consent of the Administrative Agent;


 


(iii)                               amend, modify or waive,
or permit the amendment, modification or waiver of, any provision of any
Shareholder Subordinated Note;


 


(iv)                              make (or give any notice
in respect of) any principal, interest or other payment on, or any redemption
or acquisition for value of, any Shareholder Subordinated Note, except to the
extent permitted by Section 10.03(iii); or


 


(v)                                 amend, modify, change
or waive any term or provision of the Acquisition Agreement if such amendment,
modification, change or waiver would be adverse to the interests of the Lenders
in any material respect.


 


10.12.                  Limitation on
Creation of Subsidiaries. (a) Holdings will not, and will not
permit any of its Subsidiaries to, establish, create or acquire after the
Initial Borrowing Date any Subsidiary (other than Non-Wholly Owned Subsidiaries
permitted to be established, created or acquired in accordance with the
requirements of Section 10.12(b)), provided that the Borrower and
its Wholly-Owned Subsidiaries shall be permitted to establish, create and, to
the extent permitted by this Agreement, acquire Wholly-Owned Subsidiaries, so
long as, in each case, (i) at least 5 days’ prior written notice thereof
is given to the Administrative Agent (or such shorter period of time as is
acceptable to the Administrative Agent in any given case), (ii) the
capital stock or other Equity Interests of such new Subsidiary are promptly
pledged pursuant to, and to the extent required by, the Pledge Agreement and
the certificates, if any, representing such stock or other Equity Interests,
together with stock or other appropriate powers duly executed in blank, are
delivered to the Collateral Agent, (iii) each such new Wholly-Owned
Domestic Subsidiary executes a counterpart of the Subsidiaries Guaranty,
the Security Agreement and the Pledge Agreement and (iv) each such new
Wholly-Owned Domestic Subsidiary, to the extent requested by the Administrative
Agent or the Required Lenders, takes all actions required pursuant to Section 9.12.
In addition, each new Wholly-Owned Domestic Subsidiary that is required to
execute any Credit Document shall execute and deliver, or cause to be executed
and delivered, all other relevant documentation (including opinions of counsel)
of the type described in Section 6 as such new Subsidiary would have had
to deliver if such new Subsidiary were a Credit Party on the Initial Borrowing
Date.


 


(b)                                 In addition to
Subsidiaries of the Borrower established, created or acquired pursuant to preceding
clause (a), the Borrower and its Subsidiaries may establish, create or
acquire, and make Investments in, Non-Wholly Owned Subsidiaries after the
Initial Borrowing Date as a result of Permitted Acquisitions (subject to the
limitations contained in the definition thereof) and Investments expressly
permitted to be made pursuant to Sections 10.05(xvi) and (xvii), provided
that all of the capital stock or other Equity Interests of each such Non-Wholly
Owned Subsidiary shall be pledged by any Credit Party which owns same as, and
to the extent, required by the Pledge Agreement.


 


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SECTION 11.     Events of Default.
Upon the occurrence of any of the following specified events (each, an “Event
of Default”):


 


11.01.                  Payments. The Borrower shall (i) default in the payment when due
of any principal of any Loan or any Note or any Unpaid Drawing or (ii) default,
and such default shall continue unremedied for three or more Business Days, in
the payment when due of any interest on any Loan, Note or Unpaid Drawing, any
Fees or any other amounts owing hereunder or under any other Credit Document;
or


 


11.02.                  Representations,
etc. Any representation, warranty or statement made or deemed made by any
Credit Party herein or in any other Credit Document or in any certificate
delivered to the Administrative Agent or any Lender pursuant hereto or thereto
shall prove to be untrue in any material respect on the date as of which made
or deemed made; or


 


11.03.                  Covenants.
Holdings or any of its Subsidiaries shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 9.01(f)(i), 9.08, 9.11, 9.15 or Section 10 or (ii) default
in the due performance or observance by it of any other term, covenant or
agreement contained in this Agreement (other than those set forth in Sections
11.01 and 11.02) and such default shall continue unremedied for a period of 30
days after written notice thereof to the defaulting party by the Administrative
Agent or the Required Lenders; or


 


11.04.                  Default
Under Other Agreements. (i) Holdings or any of its Subsidiaries shall
(x) default in any payment of any Indebtedness (other than the Obligations)
beyond the period of grace, if any, provided in an instrument or agreement
under which such Indebtedness was created or (y) default in the observance or
performance of any agreement or condition relating to any Indebtedness (other
than the Obligations) or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to cause, or
to permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause (determined without regard to
whether any notice is required), any such Indebtedness to become due prior to
its stated maturity, or (ii) any Indebtedness (other than the Obligations)
of Holdings or any of its Subsidiaries shall be declared to be (or shall
become) due and payable, or required to be prepaid other than by a regularly
scheduled required prepayment, prior to the stated maturity thereof, provided
that it shall not be a Default or an Event of Default under this Section 11.04
unless the aggregate principal amount of all Indebtedness as described in
preceding clauses (i) and (ii) is at least $1,500,000; or


 


11.05.                  Bankruptcy,
etc. Holdings or any of its Subsidiaries shall commence a voluntary case
concerning itself under Title 11 of the United States Code entitled “Bankruptcy,”
as now or hereafter in effect, or any successor thereto (the “Bankruptcy
Code”); or an involuntary case is commenced against Holdings or any of its
Subsidiaries, and the petition is not controverted within 10 days, or is not
dismissed within 60 days after the filing thereof; or a custodian (as defined
in the Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of Holdings or any of its Subsidiaries, to
operate all or any substantial portion of the business of Holdings or any of
its Subsidiaries, or Holdings or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, .


 


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adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to Holdings or any of its Subsidiaries, or there is commenced
against Holdings or any of its Subsidiaries any such proceeding which remains
undismissed for a period of 60 days after the filing thereof, or Holdings or
any of its Subsidiaries is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or Holdings
or any of its Subsidiaries makes a general assignment for the benefit of
creditors; or any Company action is taken by Holdings or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or


 


11.06.                  ERISA.
(a) Any Plan shall fail to satisfy the minimum funding standard required
for any plan year or part thereof under Section 412 of the Code or Section 302
of ERISA or a waiver of such standard or extension of any amortization period
is sought or granted under Section 412 of the Code or Section 303 or
304 of ERISA, a Reportable Event shall have occurred, a contributing sponsor
(as defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV
of ERISA shall be subject to the advance reporting requirement of PBGC
Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof)
and an event described in subsection .62, .63, .64, .65, .66, .67 or .68
of PBGC Regulation Section 4043 shall be reasonably expected to occur with
respect to such Plan within the following 30 days, any Plan which is subject to
Title IV of ERISA shall have had or is reasonably likely to have a trustee
appointed to administer such Plan, any Plan which is subject to Title IV of
ERISA is, shall have been or is likely to be terminated or to be the subject of
termination proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a contribution required to be made with respect to a Plan or a
Non-U.S. Plan has not been timely made, Holdings, any Subsidiary of Holdings or
any ERISA Affiliate has incurred or is likely to incur any liability for a
violation of the applicable requirements of Section 404 or 405 of ERISA or
the exclusive benefit rule under Section 401(a) of the Code by
any fiduciary or disqualified person with respect to any Plan, Holdings or any
Subsidiary of Holdings or any ERISA Affiliate has incurred or is reasonably
likely to incur any liability to or on account of a Plan under Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 436(f),
4971 or 4975 of the Code or Holdings or any Subsidiary of Holdings has incurred
or is reasonably likely to incur liabilities pursuant to one or more employee
welfare benefit plans (as defined in Section 3(1) of ERISA) that
provide benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or Plans or Non-U.S. Plans, a “default,”
within the meaning of Section 4219(c)(5) of ERISA, shall occur with
respect to any Plan; (b) there shall result from any such event or events
the imposition of a lien, the granting of a security interest, or a liability
or a material risk of incurring a liability; and (c) such lien, security
interest or liability, either individually and/or in the aggregate, has had, or
could reasonably be expected to have, a Material Adverse Effect; or


 


11.07.                  Security
Documents. Any of the Security Documents shall cease to be in full force
and effect (other than in accordance with its terms), or shall cease to give
the Collateral Agent for the benefit of the Secured Creditors the Liens,
rights, powers and privileges purported to be created thereby (including,
without limitation, a first priority perfected security interest in, and Lien
on, all of the Collateral (other than an immaterial portion of the Collateral),
in favor of the Collateral Agent, superior to and prior to the rights of all
third Persons (except as permitted by Section 10.01), and subject to no
other Liens (except as permitted by Section 10.01) except to the extent
that any such loss of perfection or priority results from the failure of the


 


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Administrative
Agent or the Collateral Agent to maintain possession of certificates actually
delivered to it representing securities pledged under the Security Documents,
or any Credit Party shall default in the due performance or observance of any
term, covenant or agreement on its part to be performed or observed
pursuant to any such Security Document and such default shall continue beyond
the period of grace, if any, specifically applicable thereto pursuant to the
terms of such Security Document (or if no period of grace is specifically
applicable thereto, such default shall continue unremedied for a period of 30
days); or


 


11.08.                  Guaranties.
Any Guaranty or any provision thereof shall cease to be in full force or effect
as to any Guarantor (except as a result of a release of any Subsidiary
Guarantor in accordance with the terms thereof), or any Guarantor or any Person
acting for or on behalf of such Guarantor shall deny or disaffirm such
Guarantor’s obligations under its Guaranty or any Guarantor shall default in
the due performance or observance of any term, covenant or agreement on its part to
be performed or observed pursuant to its Guaranty, in each case subject to the
applicable cure periods (if any) provided for in Section 11.01 or 11.03;
or


 


11.09.                  Judgments.
One or more judgments or decrees shall be entered against Holdings or any
Subsidiary of Holdings involving in the aggregate for Holdings and its
Subsidiaries a liability (not paid or to the extent not covered by a reputable
and solvent insurance company) and such judgments and decrees either shall be
final and non-appealable or shall not be vacated, discharged or stayed or
bonded pending appeal for any period of 45 consecutive days, and the aggregate
amount of all such judgments equals or exceeds $1,500,000; or


 


11.10.                  Change
of Control. A Change of Control shall occur;


 


then,
and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Lenders, shall by written notice to the Borrower, take any or all
of the following actions, without prejudice to the rights of the Administrative
Agent, any Lender or the holder of any Note to enforce its claims against any
Credit Party (provided that, if an Event of Default specified in Section 11.05
shall occur with respect to the Borrower, the result which would occur upon the
giving of written notice by the Administrative Agent as specified in clauses (i) and
(ii) below shall occur automatically without the giving of any such
notice):  (i) declare the Total
Commitment terminated, whereupon all Commitments of each Lender shall forthwith
terminate immediately and any Commitment Commission shall forthwith become due
and payable without any other notice of any kind; (ii) declare the
principal of and any accrued interest in respect of all Loans and the Notes and
all Obligations owing hereunder and thereunder to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by each Credit Party; (iii) terminate
any Letter of Credit which may be terminated in accordance with its terms;
(iv) direct the Borrower to pay (and the Borrower agrees that upon receipt
of such notice, or upon the occurrence of an Event of Default specified in Section 11.05
with respect to the Borrower, it will pay) to the Collateral Agent at the
Payment Office such additional amount of cash or Cash Equivalents, to be held
as security by the Collateral Agent, as is equal to the aggregate Stated Amount
of all Letters of Credit issued for the account of the Borrower and then
outstanding; (v) enforce, as Collateral Agent, all of the Liens and
security interests created pursuant to the Security Documents; and (vi) apply
any cash 


 


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collateral
held by the Administrative Agent pursuant to Section 5.02 to the repayment
of the Obligations.


 


SECTION 12.  The
Administrative Agent.


 


12.01.                  Appointment. (a) The
Lenders hereby irrevocably designate and appoint DBTCA as Administrative Agent
(for purposes of this Section 12 and Section 13.01, the term “Administrative
Agent” also shall include DBTCA in its capacity as Collateral Agent pursuant to
the Security Documents) to act as specified herein and in the other Credit
Documents. Each Lender hereby irrevocably authorizes, and each holder of any
Note by the acceptance of such Note shall be deemed irrevocably to authorize,
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to perform such
duties hereunder and thereunder as are specifically delegated to or required of
the Administrative Agent by the terms hereof and thereof and such other powers
as are reasonably incidental thereto. The Administrative Agent may perform any
of its respective duties hereunder by or through its officers, directors,
agents, employees or affiliates.


 


(b)                                 The provisions
of this Section 12 are solely for the benefit of the Administrative Agent
and the Lenders, and neither the Borrower nor any of its Subsidiaries shall
have any rights as a third party beneficiary of any of the provisions hereof. In
performing its functions and duties under this Agreement, the Administrative
Agent shall act solely as agent for the Lenders, and the Administrative Agent
does not assume (and shall not be deemed to have assumed) any obligation or
relationship of agency or trust with or for the Borrower of any of its
Subsidiaries.


 


12.02.                  Nature of
Duties. (a) The Administrative Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement and in the
other Credit Documents. Neither the Administrative Agent nor any of its
officers, directors, agents, employees or affiliates shall be liable for any
action taken or omitted by it or them hereunder or under any other Credit
Document or in connection herewith or therewith, unless caused by its or their
gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision). The duties of the
Administrative Agent shall be mechanical and administrative in nature; the
Administrative Agent shall not have by reason of this Agreement or any other
Credit Document a fiduciary relationship in respect of any Lender or the holder
of any Note; and nothing in this Agreement or in any other Credit Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent any obligations in respect of this Agreement or any
other Credit Document except as expressly set forth herein or therein.


 


(b)                                 Notwithstanding
any other provision of this Agreement or any provision of any other Credit
Document, the Lead Arranger is named as such for recognition purposes only, and
in its capacity as such shall have no powers, duties, responsibilities or
liabilities with respect to this Agreement or the other Credit Documents or the
transactions contemplated hereby and thereby; it being understood and agreed, however,
that the Lead Arranger shall be entitled to all indemnification and
reimbursement rights in favor of the Administrative Agent as provided for under
Sections 12.06 and 13.01. Without limitation of the foregoing, the Lead
Arranger shall


 


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not,
solely by reason of this Agreement or any other Credit Documents, have any
fiduciary relationship in respect of any Lender or any other Person.


 


12.03.                  Non-Reliance
on the Administrative Agent. Independently and without reliance upon the
Administrative Agent, each Lender and the holder of each Note, to the extent it
deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of Holdings
and its Subsidiaries in connection with the making and the continuance of the
Loans and the taking or not taking of any action in connection herewith and (ii) its
own appraisal of the creditworthiness of Holdings and its Subsidiaries and,
except as expressly provided in this Agreement, the Administrative Agent shall
not have any duty or responsibility, either initially or on a continuing basis,
to provide any Lender or the holder of any Note with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter. The Administrative
Agent shall not be responsible to any Lender or the holder of any Note for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of this Agreement or any
other Credit Document or the financial condition of Holdings or any of its
Subsidiaries or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any other Credit Document, or the financial condition of Holdings
or any of its Subsidiaries or the existence or possible existence of any
Default or Event of Default.


 


12.04.                  Certain
Rights of the Administrative Agent. If the Administrative Agent requests
instructions from the Required Lenders with respect to any act or action
(including failure to act) in connection with this Agreement or any other
Credit Document, the Administrative Agent shall be entitled to refrain from
such act or taking such action unless and until the Administrative Agent shall
have received instructions from the Required Lenders; and the Administrative
Agent shall not incur liability to any Lender by reason of so refraining.
Without limiting the foregoing, neither any Lender nor the holder of any Note
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting hereunder
or under any other Credit Document in accordance with the instructions of the
Required Lenders.


 


12.05.                  Reliance.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement,
certificate, telex, teletype or telecopier message, cablegram, radiogram, order
or other document or telephone message signed, sent or made by any Person that
the Administrative Agent believed to be the proper Person, and, with respect to
all legal matters pertaining to this Agreement and any other Credit Document
and its duties hereunder and thereunder, upon advice of counsel selected by the
Administrative Agent.


 


12.06.                  Indemnification.
To the extent the Administrative Agent (or any affiliate thereof) is not
reimbursed and indemnified by the Borrower, the Lenders will reimburse and
indemnify the Administrative Agent (and any affiliate thereof) in proportion to
their respective “percentage” as used in determining the Required Lenders
(determined as if there were no Defaulting Lenders) for and against any and all
liabilities, obligations, losses, damages,


 


106

















 


penalties,
claims, actions, judgments, costs, expenses or disbursements of whatsoever kind
or nature which may be imposed on, asserted against or incurred by the
Administrative Agent (or any affiliate thereof) in performing its duties
hereunder or under any other Credit Document or in any way relating to or
arising out of this Agreement or any other Credit Document; provided
that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent’s (or
such affiliate’s) gross negligence or willful misconduct (as determined by a
court of competent jurisdiction in a final and non-appealable decision).


 


12.07.                  The
Administrative Agent in its Individual Capacity. With respect to its
obligation to make Loans, or issue or participate in Letters of Credit, under
this Agreement, the Administrative Agent shall have the rights and powers
specified herein for a “Lender” and may exercise the same rights
and powers as though it were not performing the duties specified herein; and
the term “Lender,” “Required Lenders,” “Majority Lenders,”
“holders of Notes” or any similar terms shall, unless the context
clearly indicates otherwise, include the Administrative Agent in its respective
individual capacities. The Administrative Agent and its affiliates may accept
deposits from, lend money to, and generally engage in any kind of banking,
investment banking, trust or other business with, or provide debt financing,
equity capital or other services (including financial advisory services) to any
Credit Party or any Affiliate of any Credit Party (or any Person engaged in a
similar business with any Credit Party or any Affiliate thereof) as if they
were not performing the duties specified herein, and may accept fees and
other consideration from any Credit Party or any Affiliate of any Credit Party
for services in connection with this Agreement and otherwise without having to
account for the same to the Lenders.


 


12.08.                  Holders.
The Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes hereof unless and until a written notice of the
assignment, transfer or endorsement thereof, as the case may be, shall
have been filed with the Administrative Agent. Any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee, assignee or endorsee, as the case may be,
of such Note or of any Note or Notes issued in exchange therefor.


 


12.09.                  Resignation
by the Administrative Agent. (a) The Administrative Agent may resign
from the performance of all its respective functions and duties hereunder
and/or under the other Credit Documents at any time by giving 20 Business Days’
prior written notice to the Lenders and, unless a Default or an Event of
Default under Section 11.05 then exists, the Borrower. Any such resignation
by an Administrative Agent hereunder also constitute its (and its applicable
Affiliate’s) resignation as an Issuing Lender and/or the Swingline Lender, as
the case may be, in which case the resigning Administrative Agent (and its
applicable Affiliate) (x) shall not be required to issue any further Letters of
Credit or make any additional Swingline Loans hereunder and (y) shall maintain
all of its rights as Issuing Lender or Swingline Lender, as the case may be,
with respect to any Letters of Credit issued by it, or Swingline Loans made by
it, prior to the date of such resignation. Such resignation shall take effect
upon the appointment of a successor Administrative Agent pursuant to clauses (b) and
(c) below or as otherwise provided below.


 


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(b) Upon any
such notice of resignation by the Administrative Agent, the Required Lenders
shall appoint a successor Administrative Agent hereunder or thereunder who
shall be a commercial bank or trust company reasonably acceptable to the
Borrower, which acceptance shall not be unreasonably withheld or delayed (provided
that the Borrower’s approval shall not be required if a Specified Default or an
Event of Default then exists).


 


(c) If a
successor Administrative Agent shall not have been so appointed within such 20
Business Day period, the Administrative Agent, with the consent of the Borrower
(which consent shall not be unreasonably withheld or delayed, provided that the
Borrower’s consent shall not be required if a Default or an Event of Default
then exists), shall then appoint a successor Administrative Agent who shall
serve as Administrative Agent hereunder or thereunder until such time, if any,
as the Required Lenders appoint a successor Administrative Agent as provided
above.


 


(d) If no
successor Administrative Agent has been appointed pursuant to clause (b) or (c)
above by the 25th Business Day after the date such notice of resignation was
given by the Administrative Agent, the Administrative Agent’s resignation shall
become effective and the Required Lenders shall thereafter perform all the
duties of the Administrative Agent hereunder and/or under any other Credit
Document until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided above.


 


(e) Upon a
resignation of the Administrative Agent pursuant to this Section 12.09, the
Administrative Agent shall remain indemnified to the extent provided in this
Agreement and the other Credit Documents and the provisions of this Section 12
(and the analogous provisions of the other Credit Documents) shall continue in
effect for the benefit of the Administrative Agent for all of its actions and
inactions while serving as the Administrative Agent.


 


12.10.      Collateral Matters. (a)  Each Lender authorizes and directs the
Collateral Agent to enter into the Security Documents for the benefit of the
Lenders and the other Secured Creditors. Each Lender hereby agrees, and each
holder of any Note by the acceptance thereof will be deemed to agree, that,
except as otherwise set forth herein, any action taken by the Required Lenders
in accordance with the provisions of this Agreement or the Security Documents,
and the exercise by the Required Lenders of the powers set forth herein or
therein, together with such other powers as are reasonably incidental thereto,
shall be authorized and binding upon all of the Lenders. The Collateral Agent
is hereby authorized on behalf of all of the Lenders, without the necessity of
any notice to or further consent from any Lender, from time to time prior to an
Event of Default, to take any action with respect to any Collateral or Security
Documents which may be necessary to perfect and maintain perfected the security
interest in and liens upon the Collateral granted pursuant to the Security
Documents.


 


(b) The
Lenders hereby authorize the Collateral Agent, at its option and in its
discretion, to release any Lien granted to or held by the Collateral Agent upon
any Collateral (i) upon termination of the Commitments and payment and
satisfaction of all of the Obligations at any time arising under or in respect
of this Agreement or the Credit Documents or the transactions contemplated
hereby or thereby, (ii) constituting property being sold or otherwise disposed
of (to Persons other than Holdings and its Subsidiaries) upon the sale or other


 


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disposition
thereof in compliance with Section 10.02, (iii) if approved, authorized or
ratified in writing by the Required Lenders (or all of the Lenders hereunder,
to the extent required by Section 13.12) or (iv) as otherwise may be expressly
provided in the relevant Security Documents. Upon request by the Administrative
Agent at any time, the Lenders will confirm in writing the Collateral Agent’s
authority to release particular types or items of Collateral pursuant to this
Section 12.10.


 


(c) The
Collateral Agent shall have no obligation whatsoever to the Lenders or to any
other Person to assure that the Collateral exists or is owned by any Credit
Party or is cared for, protected or insured or that the Liens granted to the
Collateral Agent herein or pursuant hereto have been properly or sufficiently
or lawfully created, perfected, protected or enforced or are entitled to any
particular priority, or to exercise or to continue exercising at all or in any
manner or under any duty of care, disclosure or fidelity any of the rights,
authorities and powers granted or available to the Collateral Agent in this
Section 12.10 or in any of the Security Documents, it being understood and
agreed that in respect of the Collateral, or any act, omission or event related
thereto, the Collateral Agent may act in any manner it may deem appropriate, in
its sole discretion, given the Collateral Agent’s own interest in the
Collateral as one of the Lenders and that the Collateral Agent shall have no
duty or liability whatsoever to the Lenders, except for its gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision).


 


12.11.      Delivery of Information. The
Administrative Agent shall not be required to deliver to any Lender originals
or copies of any documents, instruments, notices, communications or other
information received by the Administrative Agent from any Credit Party, any Subsidiary,
the Required Lenders, any Lender or any other Person under or in connection
with this Agreement or any other Credit Document except (i) as specifically
provided in this Agreement or any other Credit Document and (ii) as
specifically requested from time to time in writing by any Lender with respect
to a specific document, instrument, notice or other written communication
received by and in the possession of the Administrative Agent at the time of
receipt of such request and then only in accordance with such specific request.


 


SECTION 13. Miscellaneous.


 


13.01.      Payment of Expenses, etc. The
Borrower hereby agrees to:  (i) pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and disbursements of White
& Case LLP) in connection with the preparation, execution, delivery and
administration of this Agreement and the other Credit Documents and the
documents and instruments referred to herein and therein and any amendment, waiver
or consent relating hereto or thereto, of the Administrative Agent and its
Affiliates in connection with its or their syndication efforts with respect to
this Agreement and of the Administrative Agent and, after the occurrence of an
Event of Default, each of the Issuing Lenders and Lenders in connection with
the enforcement of this Agreement and the other Credit Documents and the
documents and instruments referred to herein and therein or in connection with
any refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a “work-out” or pursuant to any insolvency or
bankruptcy proceedings (including, in each case without limitation, the
reasonable fees and disbursements of counsel and consultants for the
Administrative Agent and, after the occurrence of an Event of Default,


 


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counsel for
each of the Issuing Lenders and Lenders); (ii) pay and hold the Administrative
Agent, each of the Issuing Lenders and each of the Lenders harmless from and
against any and all present and future stamp, excise and other similar
documentary taxes with respect to the foregoing matters and save the
Administrative Agent, each of the Issuing Lenders and each of the Lenders
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission (other than to the extent attributable to the
Administrative Agent, such Issuing Lender or such Lender) to pay such taxes;
and (iii) indemnify the Administrative Agent, each Issuing Lender and each
Lender, and each of their respective officers, directors, employees,
representatives, agents, affiliates, trustees and investment advisors from and
hold each of them harmless against any and all liabilities, obligations (including
removal or remedial actions), losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses and disbursements (including reasonable
attorneys’ and consultants’ fees and disbursements) incurred by, imposed on or
assessed against any of them as a result of, or arising out of, or in any way
related to, or by reason of, (a) any investigation, litigation or other
proceeding (whether or not the Administrative Agent, any Issuing Lender or any
Lender is a party thereto and whether or not such investigation, litigation or
other proceeding is brought by or on behalf of any Credit Party) related to the
entering into and/or performance of this Agreement or any other Credit Document
or the use of any Letter of Credit or the proceeds of any Loans hereunder or
the consummation of the Transaction or any other transactions contemplated
herein or in any other Credit Document or the exercise of any of their rights
or remedies provided herein or in the other Credit Documents, or (b) the actual
or alleged presence of Hazardous Materials in the air, surface water or
groundwater or on the surface or subsurface of any Real Property at any time
owned, leased or operated by Holdings or any of its Subsidiaries, the
generation, storage, transportation, handling or disposal of Hazardous
Materials by Holdings or any of its Subsidiaries at any location, whether or
not owned, leased or operated by Holdings or any of its Subsidiaries, the
noncompliance by Holdings or any of its Subsidiaries with any Environmental Law
(including applicable permits thereunder) applicable to any Real Property, or
any Environmental Claim asserted against Holdings, any of its Subsidiaries or
any Real Property at any time owned, leased or operated by Holdings or any of
its Subsidiaries, including, in each case, without limitation, the reasonable
fees and disbursements of counsel and other consultants incurred in connection
with any such investigation, litigation or other proceeding (but excluding any
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified (as determined by a court of competent jurisdiction in a final and
non-appealable decision)). To the extent that the undertaking to indemnify, pay
or hold harmless the Administrative Agent, any Issuing Lender or any Lender set
forth in the preceding sentence may be unenforceable because it is violative of
any law or public policy, the Borrower shall make the maximum contribution to
the payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law.


 


13.02.      Right of Setoff. In addition to any
rights now or hereafter granted under applicable law or otherwise, and not by
way of limitation of any such rights, upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent, each Issuing
Lender and each Lender is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to any Credit
Party or to any other Person, any such notice being hereby expressly waived, to
set off and to appropriate and apply any and all deposits (general or special)
and any other Indebtedness at any time held or owing by the Administrative
Agent, such Issuing Lender or such Lender (including, without limitation, by


 


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branches and
agencies of the Administrative Agent, such Issuing Lender or such Lender
wherever located) to or for the credit or the account of Holdings or any of its
Subsidiaries against and on account of the Obligations and liabilities of the
Credit Parties to the Administrative Agent, such Issuing Lender or such Lender
under this Agreement or under any of the other Credit Documents, including,
without limitation, all interests in Obligations purchased by such Lender
pursuant to Section 13.06(b), and all other claims of any nature or description
arising out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not the Administrative Agent, such Issuing Lender or
such Lender shall have made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.


 


13.03.      Notices. Except as otherwise expressly
provided herein, all notices and other communications provided for hereunder
shall be in writing (including telegraphic, telex, telecopier or cable
communication) and mailed, telegraphed, telexed, telecopied, cabled or
delivered:  if to any Credit Party, at
the address specified opposite its signature below or in the other relevant
Credit Documents; if to any Lender, at its address specified on Schedule II;
and if to the Administrative Agent, at the Notice Office; or, as to any Credit
Party or the Administrative Agent, at such other address as shall be designated
by such party in a written notice to the other parties hereto and, as to each
Lender, at such other address as shall be designated by such Lender in a
written notice to the Borrower and the Administrative Agent. All such notices
and communications shall, when mailed, telegraphed, telexed, telecopied, or
cabled or sent by overnight courier, be effective when deposited in the mails,
delivered to the telegraph company, cable company or overnight courier, as the
case may be, or sent by telex or telecopier, except that notices and
communications to the Administrative Agent and the Borrower shall not be
effective until received by the Administrative Agent or the Borrower, as the
case may be.


 


13.04.      Benefit of Agreement; Assignments;
Participations. (a)  This Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto; provided, however,
neither Holdings nor the Borrower may assign or transfer any of its rights,
obligations or interest hereunder without the prior written consent of all of
the Lenders and, provided further, (x) that, although any Lender may
transfer, assign or grant participations in its rights hereunder, such Lender
shall remain a “Lender” for all purposes hereunder (and may not transfer
or assign all or any portion of its Commitments or Loans hereunder except as
provided in Sections 2.13 and 13.04(b)) and the transferee, assignee or
participant, as the case may be, shall not constitute a “Lender” hereunder and
(y) that no Lender shall transfer or grant any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver would (i) extend the final scheduled maturity of any Loan, Note or
Letter of Credit (unless such Letter of Credit is not extended beyond the
Revolving Loan Maturity Date) in which such participant is participating, or
reduce the rate or extend the time of payment of interest or Fees thereon
(except in connection with a waiver of applicability of any post-default
increase in interest rates) or reduce the principal amount thereof (it being
understood that any amendment or modification to the financial definitions in
this Agreement or to Section 13.07(a) shall not constitute a reduction in the
rate of interest or Fees payable hereunder), or increase the amount of the
participant’s participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Total Commitment shall not constitute a change in the terms of
such


 


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participation,
and that an increase in any Commitment (or the available portion thereof) or
Loan shall be permitted without the consent of any participant if the
participant’s participation is not increased as a result thereof), (ii) consent
to the assignment or transfer by Holdings or the Borrower of any of its rights
and obligations under this Agreement or (iii) release all or substantially all
of the Collateral under all of the Security Documents (except as expressly
provided in the Credit Documents) supporting the Loans or Letters of Credit
hereunder in which such participant is participating. In the case of any such
participation, the participant shall not have any rights under this Agreement
or any of the other Credit Documents (the participant’s rights against such Lender
in respect of such participation to be those set forth in the agreement
executed by such Lender in favor of the participant relating thereto) and all
amounts payable by the Borrower hereunder shall be determined as if such Lender
had not sold such participation.


 


(b)
Notwithstanding the foregoing, any Lender (or any Lender together with one or
more other Lenders) may (x) assign all or a portion of its Commitments and
related outstanding Obligations (or, if the Commitments with respect to the
relevant Tranche have terminated, outstanding Obligations) hereunder to (i)(A)
its parent company and/or any affiliate of such Lender which is at least 50%
owned by such Lender or its parent company or (B) to one or more other Lenders
or any affiliate of any such other Lender which is at least 50% owned by such
other Lender or its parent company (provided that any fund that invests
in loans and is managed or advised by the same investment advisor of another
fund which is a Lender (or by an Affiliate of such investment advisor) shall be
treated as an affiliate of such other Lender for the purposes of this
sub-clause (x)(i)(B)), or (ii) in the case of any Lender that is a fund that
invests in loans, any other fund that invests in loans and is managed or
advised by the same investment advisor of any Lender or by an Affiliate of such
investment advisor or (y) assign all, or if less than all, a portion equal to
at least $1,000,000 in the aggregate for the assigning Lender or assigning
Lenders, of such Commitments and related outstanding Obligations (or, if the
Commitments with respect to the relevant Tranche have terminated, outstanding
Obligations) hereunder to one or more Eligible Transferees (treating any fund
that invests in loans and any other fund that invests in loans and is managed
or advised by the same investment advisor of such fund or by an Affiliate of
such investment advisor as a single Eligible Transferee), each of which
assignees shall become a party to this Agreement as a Lender by execution of an
Assignment and Assumption Agreement, provided that (i) at such time,
Schedule I shall be deemed modified to reflect the Commitments and/or
outstanding Loans, as the case may be, of such new Lender and of the existing
Lenders, (ii) upon the surrender of the relevant Notes by the assigning Lender
(or, upon such assigning Lender’s indemnifying the Borrower for any lost Note
pursuant to a customary indemnification agreement) new Notes will be issued, at
the Borrower’s expense, to such new Lender and to the assigning Lender upon the
request of such new Lender or assigning Lender, such new Notes to be in
conformity with the requirements of Section 2.05 (with appropriate
modifications) to the extent needed to reflect the revised Commitments and/or
outstanding Loans, as the case may be, (iii) the consent of the Administrative
Agent and, so long as (A) no Event of Default exists and (B) the Syndication
Date has occurred (or, if earlier, 90 days has passed following the Initial
Borrowing Date), the Borrower shall be required in connection with any such
assignment pursuant to clause (y) above (each of which consents shall not be
unreasonably withheld or delayed), (iv) the Administrative Agent shall receive
at the time of each such assignment, from the assigning or assignee Lender, the
payment of a non-refundable assignment fee of $3,500, and (v) no such transfer
or assignment will be effective until recorded by the Administrative Agent on
the Register pursuant to Section 13.15. To the extent of any


 


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assignment
pursuant to this Section 13.04(b), the assigning Lender shall be relieved of
its obligations hereunder with respect to its assigned Commitments and
outstanding Loans. At the time of each assignment pursuant to this Section 13.04(b)
to a Person which is not already a Lender hereunder and which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) for
Federal income tax purposes, the respective assignee Lender shall, to the
extent legally entitled to do so, provide to the Borrower the appropriate
Internal Revenue Service Forms (and, if applicable, a Section 5.04(b)(ii)
Certificate) described in Section 5.04(b). To the extent that an assignment of
all or any portion of a Lender’s Commitments and related outstanding
Obligations pursuant to Section 2.13 or this Section 13.04(b) would, at the
time of such assignment, result in increased costs under Section 2.10, 3.06 or
5.04 from those being charged by the respective assigning Lender prior to such
assignment, then the Borrower shall not be obligated to pay such increased
costs (although the Borrower, in accordance with and pursuant to the other
provisions of this Agreement, shall be obligated to pay any other increased
costs of the type described above resulting from changes after the date of the
respective assignment).


 


(c) Nothing in
this Agreement shall prevent or prohibit any Lender from pledging its Loans and
Notes hereunder to a Federal Reserve Bank in support of borrowings made by such
Lender from such Federal Reserve Bank and, with prior notification to the
Administrative Agent (but without the consent of the Administrative Agent or
the Borrower), any Lender which is a fund may pledge all or any portion of its
Loans and Notes to its trustee or to a collateral agent providing credit or
credit support to such Lender in support of its obligations to such trustee,
such collateral agent or a holder of such obligations, as the case may be. No
pledge pursuant to this clause (c) shall release the transferor Lender from any
of its obligations hereunder.


 


13.05.      No Waiver; Remedies Cumulative. No
failure or delay on the part of the Administrative Agent, the Collateral Agent,
any Issuing Lender or any Lender in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
the Borrower or any other Credit Party and the Administrative Agent, the
Collateral Agent, any Issuing Lender or any Lender shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights, powers and remedies herein or in any other
Credit Document expressly provided are cumulative and not exclusive of any
rights, powers or remedies which the Administrative Agent, the Collateral
Agent, any Issuing Lender or any Lender would otherwise have. No notice to or
demand on any Credit Party in any case shall entitle any Credit Party to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Administrative Agent, the Collateral
Agent, any Issuing Lender or any Lender to any other or further action in any
circumstances without notice or demand.


 


13.06.      Payments Pro Rata. (a)  Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, the Administrative Agent shall distribute such payment to the
Lenders entitled thereto (other than any Lender that has consented in writing
to waive its pro  rata share of any such payment) pro  rata
based upon their respective shares, if any, of the Obligations with respect to
which such payment was received.


 


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(b) Each of
the Lenders agrees that, if it should receive any amount hereunder (whether by
voluntary payment, by realization upon security, by the exercise of the right
of setoff or banker’s lien, by counterclaim or cross action, by the enforcement
of any right under the Credit Documents, or otherwise), which is applicable to
the payment of the principal of, or interest on, the Loans, Unpaid Drawings,
Commitment Commission or Letter of Credit Fees, of a sum which with respect to
the related sum or sums received by other Lenders is in a greater proportion
than the total of such Obligation then owed and due to such Lender bears to the
total of such Obligation then owed and due to all of the Lenders immediately
prior to such receipt, then such Lender receiving such excess payment shall
purchase for cash without recourse or warranty from the other Lenders an
interest in the Obligations of the respective Credit Party to such Lenders in
such amount as shall result in a proportional participation by all the Lenders
in such amount; provided that if all or any portion of such excess
amount is thereafter recovered from such Lenders, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.


 


(c)
Notwithstanding anything to the contrary contained herein, the provisions of
preceding Sections 13.06(a) and (b) shall be subject to the express provisions
of this Agreement which require, or permit, differing payments to be made to
Non-Defaulting Lenders as opposed to Defaulting Lenders.


 


13.07.      Calculations; Computations. (a)  The financial statements to be furnished to
the Lenders pursuant hereto shall be made and prepared in accordance with GAAP
consistently applied throughout the periods involved (except as set forth in
the notes thereto or as otherwise disclosed in writing by Holdings to the
Lenders); provided that, (i) except as otherwise specifically provided
herein, all computations of Excess Cash Flow, and all computations and all
definitions (including accounting terms) used in determining compliance with
Sections 9.15 and 10.07 shall utilize GAAP and policies in conformity with
those used to prepare the audited financial statements of TPI referred to in
Section 8.05(a) for the fiscal year of TPI ended on December 31, 2006 and (ii)
to the extent expressly provided herein, certain calculations shall be made on
a Pro  Forma Basis.


 


(b) All
computations of (i) interest on Base Rate Loans determined by reference to the
Federal Funds Rate and on Eurodollar Loans, Commitment Commission and other
Fees hereunder shall be made on the basis of a year of 360 days for the actual
number of days (including the first day but excluding the last day; except that
in the case of Letter of Credit Fees and Facing Fees, the last day shall be
included) occurring in the period for which such interest, Commitment
Commission or other Fees are payable, and (ii) all computations of interest on
Base Rate Loans determined by reference to the Prime Lending Rate shall be made
on the basis of a year of 365/366 days (as applicable) for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest is payable.


 


13.08.      GOVERNING LAW; SUBMISSION TO
JURISDICTION; VENUE; WAIVER OF JURY TRIAL. (a)  THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL,
EXCEPT AS OTHERWISE PROVIDED IN ANY MORTGAGE, BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF


 


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LAWS
PRINCIPLES. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE
WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, EACH OF HOLDINGS AND THE BORROWER
HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF HOLDINGS
AND THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH
COURTS LACK PERSONAL JURISDICTION OVER HOLDINGS OR THE BORROWER, AND AGREES NOT
TO PLEAD OR CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFOREMENTIONED
COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER HOLDINGS OR THE
BORROWER. EACH OF HOLDINGS AND THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO HOLDINGS OR THE BORROWER AT ITS ADDRESS SET FORTH OPPOSITE
ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
MAILING. EACH OF HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES
NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER
ANY OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT,
ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST HOLDINGS
OR THE BORROWER IN ANY OTHER JURISDICTION.


 


(b) EACH OF
HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND
HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH
COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.


 


(c) EACH OF
THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.


 


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13.09.      Counterparts. This Agreement may be
executed in any number of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall be
lodged with the Borrower and the Administrative Agent.


 


13.10.      Effectiveness. This Agreement shall
become effective on the date (the “Effective Date”) on which the
Holdings, Borrower, the Administrative Agent and each of the Lenders shall have
signed a counterpart hereof (whether the same or different counterparts) and
shall have delivered the same to the Administrative Agent at the Notice Office
or, in the case of the Lenders, shall have given to the Administrative Agent
telephonic (confirmed in writing), written or telex notice (actually received)
at such office that the same has been signed and mailed to it. The
Administrative Agent will give Holdings, the Borrower and each Lender prompt
written notice of the occurrence of the Effective Date.


 


13.11.      Headings Descriptive. The headings
of the several sections and subsections of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement.


 


13.12.      Amendment or Waiver; etc. (a)  Neither this Agreement nor any other Credit
Document nor any terms hereof or thereof may be changed, waived, discharged or
terminated unless such change, waiver, discharge or termination is in writing
signed by the respective Credit Parties party hereto or thereto and the
Required Lenders (although additional parties may be added to (and annexes may
be modified to reflect such additions), and Subsidiaries of the Borrower may be
released from, the Subsidiaries Guaranty and the Security Documents in
accordance with the provisions hereof and thereof without the consent of the
other Credit Parties party thereto or the Required Lenders), provided that no
such change, waiver, discharge or termination shall, without the consent of each
Lender (other than a Defaulting Lender) (with Obligations being directly
affected in the case of following clause (i)), (i) extend the final scheduled
maturity of any Loan or Note or extend the stated expiration date of any Letter
of Credit beyond the Revolving Loan Maturity Date, or reduce the rate or extend
the time of payment of interest or Fees thereon (except in connection with the
waiver of applicability of any post-default increase in interest rates), or
reduce the principal amount thereof (it being understood that any amendment or
modification to the financial definitions in this Agreement or to Section
13.07(a) shall not constitute a reduction in the rate of interest or Fees for
the purposes of this clause (i)), (ii) release all or substantially all of the
Collateral (except as expressly provided in the Credit Documents) under all the
Security Documents, (iii) amend, modify or waive any provision of this Section
13.12(a) (except for technical amendments with respect to additional extensions
of credit pursuant to this Agreement which afford the protections to such
additional extensions of credit of the type provided to the Term Loans and the
Revolving Loan Commitments on the Effective Date), (iv) reduce the percentage
specified in the definition of Required Lenders (it being understood that, with
the consent of the Required Lenders, additional extensions of credit pursuant
to this Agreement may be included in the determination of the Required Lenders
on substantially the same basis as the extensions of Term Loans and Revolving
Loan Commitments are included on the Effective Date) or (v) consent to the assignment or transfer
by Holdings or the Borrower of any of its rights and obligations under this
Agreement; provided further, that no such change, waiver, discharge or
termination shall (1)


 


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increase the
Commitments of any Lender over the amount thereof then in effect without the
consent of such Lender (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default or of a
mandatory reduction in the Total Commitment shall not constitute an increase of
the Commitment of any Lender, and that an increase in the available portion of
any Commitment of any Lender shall not constitute an increase of the Commitment
of such Lender), (2) except in cases where additional extensions of term loans
and/or revolving loans are being afforded substantially the same treatment
afforded to the Term Loans and Revolving Loans pursuant to this Agreement as
originally in effect, (x) without the consent of the Majority Lenders of each
Tranche which is being allocated a lesser prepayment, repayment or commitment
reduction as a result of the actions described below in this sub-clause (x),
alter the required application of any prepayments or repayments (or commitment
reduction), as between the various Tranches, pursuant to Section 5.01(a) or
5.02 (excluding Section 5.02(b)) (although the Required Lenders may waive, in
whole or in part, any such prepayment, repayment or commitment reduction, so
long as the application, as amongst the various Tranches, of any such
prepayment, repayment or commitment reduction which is still required to be
made is not altered) or (y) without the consent of the Majority Lenders of each
Tranche which is adversely affected by such amendment, amend the definition of
Majority Lenders (it being understood that with the consent of the Required
Lenders, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Majority Lenders on substantially the same
basis as the extensions of Term Loans and Revolving Loan Commitments are
included on the Effective Date), (3) without the consent of each Issuing
Lender, amend, modify or waive any provision of Section 3 or alter its rights
or obligations with respect to Letters of Credit, (4) without the consent of
the Swingline Lender, alter the Swingline Lender’s rights or obligations with
respect to Swingline Loans, (5) without the consent of the Administrative
Agent, amend, modify or waive any provision of Section 12 or any other
provision as same relates to the rights or obligations of the Administrative
Agent, (6) without the consent of Collateral Agent, amend, modify or waive any
provision relating to the rights or obligations of the Collateral Agent, or (7)
without the consent of the Majority Lenders under the affected Tranche of Term
Loans, reduce the amount of, or extend the date of, any Scheduled Term Loan
Repayment in respect of such Tranche of Term Loans.


 


(b) If, in
connection with any proposed change, waiver, discharge or termination of or to
any of the provisions of this Agreement as contemplated by clauses (i) through
(v), inclusive, of the first proviso to Section 13.12(a), the consent of the
Required Lenders is obtained but the consent of one or more of such other
Lenders whose consent is required is not obtained, then the Borrower shall have
the right, so long as all non-consenting Lenders whose individual consent is required
are treated as described in either clause (A) or (B) below, to either (A)
replace each such non-consenting Lender or Lenders (or, at the option of the
Borrower, if the respective Lender’s consent is required with respect to less
than all Tranches of Loans (or related Commitments), to replace only the
Commitments and/or Loans of the respective non-consenting Lender which gave
rise to the need to obtain such Lender’s individual consent) with one or more
Replacement Lenders pursuant to Section 2.13 so long as at the time of such
replacement, each such Replacement Lender consents to the proposed change,
waiver, discharge or termination or (B) terminate such non-consenting Lender’s
Revolving Loan Commitment (if such Lender’s consent is required as a result of
its Revolving Loan Commitment) and/or its Term Loan Commitment (if such
Lender’s consent is required as a result of its Term Loan Commitment) and/or
repay each Tranche of outstanding Loans of such Lender which gave rise to the
need to


 


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obtain such
Lender’s consent and/or cash collateralize its applicable RL Percentage of the
Letter of Credit of Outstandings, in accordance with Sections 4.02(b) and/or
5.01(b), provided that, unless the Commitments which are terminated and
Loans which are repaid pursuant to preceding clause (B) are immediately
replaced in full at such time through the addition of new Lenders or the
increase of the Commitments and/or outstanding Loans of existing Lenders (who
in each case must specifically consent thereto), then in the case of any action
pursuant to preceding clause (B), the Required Lenders (determined after giving
effect to the proposed action) shall specifically consent thereto, provided
further, that the Borrower shall not have the right to replace a Lender,
terminate its Commitment or repay its Loans solely as a result of the exercise
of such Lender’s rights (and the withholding of any required consent by such
Lender) pursuant to the second proviso to Section 13.12(a).


 


(c)
Notwithstanding anything to the contrary contained in clause (a) above of this
Section 13.12, the Borrower, the Administrative Agent and each Incremental Term
Loan Lender may, in accordance with the provisions of Section 2.14, enter into
an Incremental Term Loan Commitment Agreement, provided that after the
execution and delivery by the Borrower, the Administrative Agent and each such
Incremental Term Loan Lender of such Incremental Term Loan Commitment
Agreement, such Incremental Term Loan Commitment Agreement may thereafter only
be modified in accordance with the requirements of clause (a) above of this
Section 13.12.


 


13.13.      Survival. All indemnities set forth
herein including, without limitation, in Sections 2.10, 2.11, 3.06, 5.04, 12.06
and 13.01 shall survive the execution, delivery and termination of this
Agreement and the Notes and the making and repayment of the Obligations.


 


13.14.      Domicile of Loans. Each Lender may
transfer and carry its Loans at, to or for the account of any office,
Subsidiary or Affiliate of such Lender. Notwithstanding anything to the
contrary contained herein, to the extent that a transfer of Loans pursuant to
this Section 13.14 would, at the time of such transfer, result in increased
costs under Section 2.10, 2.11, 3.06 or 5.04 from those being charged by the
respective Lender prior to such transfer, then the Borrower shall not be
obligated to pay such increased costs (although the Borrower shall be obligated
to pay any other increased costs of the type described above resulting from
changes after the date of the respective transfer).


 


13.15.      Register. The Borrower hereby
designates the Administrative Agent to serve as its agent, solely for purposes
of this Section 13.15, to maintain a register (the “Register”) on which it will
record the Commitments from time to time of each of the Lenders, the Loans made
by each of the Lenders and each repayment in respect of the principal amount of
the Loans of each Lender. Failure to make any such recordation, or any error in
such recordation, shall not affect the Borrower’s obligations in respect of
such Loans. With respect to any Lender, the transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Commitments and Loans and prior to such recordation all
amounts owing to the transferor with respect to such Commitments and Loans
shall remain owing to the transferor. The registration of assignment or
transfer of all or part of any Commitments and Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the


 


118

















 


Administrative
Agent of a properly executed and delivered Assignment and Assumption Agreement
pursuant to Section 13.04(b). Coincident with the delivery of such an
Assignment and Assumption Agreement to the Administrative Agent for acceptance
and registration of assignment or transfer of all or part of a Loan, or as soon
thereafter as practicable, the assigning or transferor Lender shall surrender
the Note (if any) evidencing such Loan, and thereupon one or more new Notes in
the same aggregate principal amount shall be issued to the assigning or
transferor Lender and/or the new Lender at the request of any such Lender. The
Borrower agrees to indemnify the Administrative Agent from and against any and
all losses, claims, damages and liabilities of whatsoever nature which may be
imposed on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 13.15.


 


13.16.      Confidentiality. (a)  Subject to the provisions of clause (b) of
this Section 13.16, each Lender agrees to keep information obtained by it
pursuant hereto and the other Credit Documents and identified by Holdings or
the Borrower as confidential in writing at the time of delivery confidential in
accordance with such Lender’s customary practices and agrees that it will only
use such information in connection with the transactions contemplated by this
Agreement and not disclose any of such information other than (i) to such
Lender’s employees, representatives, directors, attorneys, auditors, agents,
professional advisors, trustees or affiliates who are advised of the
confidential nature of such information, (ii) to the extent such information
presently is or hereafter becomes available to such Lender on a
non-confidential basis from any source or such information that is in the
public domain at the time of disclosure, (iii) to the extent disclosure is
required by law (including applicable securities laws), regulation, subpoena or
judicial order or process (provided that notice of such requirement or order
shall be promptly furnished to Holdings and the Borrower unless such notice is
legally prohibited) or requested or required by bank, securities, insurance or
investment company regulations or auditors or any administrative body or
commission to whose jurisdiction such Lender may be subject, (iv) to any rating
agency to the extent required in connection with any rating to be assigned to
such Lender, (v) to the Administrative Agent or the Collateral Agent, (vi) to
any pledgee referred to in Section 13.04(c) or any prospective or actual
transferee or participant in connection with any contemplated transfer or
participation of any of the Loans, Notes or Commitments or any interest therein
by such Lender, or to any direct or indirect contractual counterparties in swap
agreements or to the professional advisors of such swap counterparties, who
agree to be bound by the provisions of this Section 13.16, (vii) in connection
with any litigation between any Credit Party and any Lender with respect to the
Loans or this Agreement and the other Credit Documents or (viii) with Holdings’
or the Borrower’s prior written consent. The agreements in this Section 13.16
shall survive repayment of the Loans and all other amounts payable hereunder.


 


(b) Each of
Holdings and the Borrower hereby acknowledges and agrees that each Lender may
share with any of its affiliates, and such affiliates may share with such
Lender, any information related to Holdings or any of its Subsidiaries
(including, without limitation, any nonpublic customer information regarding
the creditworthiness of Holdings and its Subsidiaries), provided such Persons
shall be subject to the provisions of this Section 13.16 to the same extent as
such Lender.


 


13.17.      Special Provisions Regarding Pledges of
Equity Interests in, and Promissory Notes Owed by, Persons Not Organized in the
United States. The parties hereto acknowledge and agree that the provisions
of the various Security Documents executed and


 


119

















 


delivered by
the Credit Parties require that, among other things, all promissory notes
executed by, and capital stock and other Equity Interests in, various Persons
owned by the respective Credit Party be pledged, and delivered for pledge,
pursuant to the Security Documents. The parties hereto further acknowledge and
agree that each Credit Party shall be required to take all actions under the
laws of the jurisdiction in which such Credit Party is organized to create and
perfect all security interests granted pursuant to the various Security
Documents and to take all actions under the laws of the United States, any
State thereof or the District of Columbia to perfect the security interests in
the capital stock and other Equity Interests of, and promissory notes issued
by, any Person organized under the laws of said jurisdictions (in each case, to
the extent said capital stock, other Equity Interests or promissory notes are
owned by any Credit Party). Except as provided in the immediately preceding
sentence, to the extent any Security Document requires or provides for the
pledge of promissory notes issued by, or capital stock or other Equity
Interests in, any Person organized under the laws of a jurisdiction other than
those specified in the immediately preceding sentence, it is acknowledged that,
as of the Initial Borrowing Date, no actions have been required to be taken to
perfect, under local law of the jurisdiction of the Person who issued the
respective promissory notes or whose capital stock or other Equity Interests
are pledged, under the Security Documents. The Borrower hereby agrees that,
following any reasonable request by the Administrative Agent or the Required
Lenders to do so, the Borrower will, and will cause its Subsidiaries to, take
such actions under the local law of any jurisdiction with respect to which such
actions have not already been taken as are determined by the Administrative
Agent or the Required Lenders to be necessary or desirable in order to fully
perfect, preserve or protect the security interests granted pursuant to the
various Security Documents under the laws of such jurisdictions. If requested
to do so pursuant to this Section 13.17, all such actions shall be taken in
accordance with the provisions of this Section 13.17 and Section 9.12 and
within the time periods set forth therein. All conditions and representations
contained in this Agreement and the other Credit Documents shall be deemed
modified to the extent necessary to effect the foregoing and so that same are
not violated by reason of the failure to take actions under local law (but only
with respect to capital stock of, other Equity Interests in, and promissory
notes issued by, Persons organized under laws of jurisdictions other than the
United States, any State thereof or the District of Columbia) not required to
be taken in accordance with the provisions of this Section 13.17, provided that
to the extent any representation or warranty would not be true because the
foregoing actions were not taken, the respective representation of warranties
shall be required to be true and correct in all material respects at such time
as the respective action is required to be taken in accordance with the
foregoing provisions of Section 9.12 and this Section 13.17.


 


13.18.      The Patriot Act. Each Lender
subject to the USA PATRIOT ACT (Title 111 of Pub. L. 107-56 (signed into law
October 26, 2001)) (the “Patriot Act”) hereby notifies Holdings and the
Borrower that pursuant to the requirements of the Patriot Act, it is required
to obtain, verify and record information that identifies Holdings, the Borrower
and the other Credit Parties and other information that will allow such Lender
to identify Holdings, the Borrower and the other Credit Parties in accordance
with the Patriot Act.


 


SECTION 14. Holdings Guaranty.


 


14.01.      Guaranty. In order to induce the
Administrative Agent, the Collateral Agent, the Issuing Lenders and the Lenders
to enter into this Agreement and to extend credit


 


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hereunder, and
to induce the other Guaranteed Creditors to enter into Interest Rate Protection
Agreements and Other Hedging Agreements and in recognition of the direct
benefits to be received by Holdings from the proceeds of the Loans, the
issuance of the Letters of Credit and the entering into of such Interest Rate
Protection Agreements and Other Hedging Agreements, Holdings hereby agrees with
the Guaranteed Creditors as follows: 
Holdings hereby unconditionally and irrevocably guarantees as primary
obligor and not merely as surety the full and prompt payment when due, whether
upon maturity, acceleration or otherwise, of any and all of the Guaranteed
Obligations of the Borrower and each other Guaranteed Party to the Guaranteed
Creditors. If any or all of the Guaranteed Obligations of the Borrower or any
other Guaranteed Party to the Guaranteed Creditors becomes due and payable
hereunder, Holdings, unconditionally and irrevocably, promises to pay such
indebtedness to the Administrative Agent and/or the other Guaranteed Creditors,
or order, on demand, together with any and all expenses which may be incurred
by the Administrative Agent and the other Guaranteed Creditors in collecting
any of the Guaranteed Obligations. If claim is ever made upon any Guaranteed
Creditor for repayment or recovery of any amount or amounts received in payment
or on account of any of the Guaranteed Obligations and any of the aforesaid
payees repays all or part of said amount by reason of (i) any judgment, decree
or order of any court or administrative body having jurisdiction over such
payee or any of its property or (ii) any settlement or compromise of any such
claim effected by such payee with any such claimant (including such Guaranteed
Party), then and in such event Holdings agrees that any such judgment, decree,
order, settlement or compromise shall be binding upon Holdings, notwithstanding
any revocation of this Holdings Guaranty or other instrument evidencing any
liability of any Guaranteed Party, and Holdings shall be and remain liable to
the aforesaid payees hereunder for the amount so repaid or recovered to the
same extent as if such amount had never originally been received by any such
payee.


 


14.02.      Bankruptcy. Additionally, Holdings
unconditionally and irrevocably guarantees the payment of any and all of the
Guaranteed Obligations to the Guaranteed Creditors whether or not due or
payable by any Guaranteed Party upon the occurrence of any of the events
specified in Section 11.05, and irrevocably and unconditionally promises to pay
such indebtedness to the Guaranteed Creditors, or order, on demand, in lawful
money of the United States.


 


14.03.      Nature of Liability. The liability
of Holdings hereunder is primary, absolute and unconditional, exclusive and
independent of any security for or other guaranty of the Guaranteed
Obligations, whether executed by any other guarantor or by any other party, and
the liability of Holdings hereunder shall not be affected or impaired by (a)
any direction as to application of payment by any Guaranteed Party or by any
other party, or (b) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Guaranteed
Obligations, or (c) any payment on or in reduction of any such other guaranty
or undertaking, or (d) any dissolution, termination or increase, decrease or
change in personnel by any Guaranteed Party, or (e) any payment made to any
Guaranteed Creditor on the Guaranteed Obligations which any such Guaranteed
Creditor repays to any Guaranteed Party pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and Holdings waives any right to the deferral or modification of
its obligations hereunder by reason of any such proceeding, or (f) any action
or inaction by the


 


121

















 


Guaranteed
Creditors as contemplated in Section 14.05, or (g) any invalidity, irregularity
or enforceability of all or any part of the Guaranteed Obligations or of any
security therefor.


 


14.04.      Independent Obligation. The
obligations of Holdings hereunder are independent of the obligations of any
other guarantor of the Guaranteed Obligations, any other party or any
Guaranteed Party, and a separate action or actions may be brought and prosecuted
against Holdings whether or not action is brought against any other guarantor
of the Guaranteed Obligations, any other party or any Guaranteed Party and
whether or not any other guarantor of the Guaranteed Obligations, any other
party or any Guaranteed Party be joined in any such action or actions. Holdings
waives, to the fullest extent permitted by law, the benefit of any statute of
limitations affecting its liability hereunder or the enforcement thereof. Any
payment by any Guaranteed Party or other circumstance which operates to toll
any statute of limitations as to such Guaranteed Party shall operate to toll
the statute of limitations as to Holdings.


 


14.05.      Authorization. Holdings authorizes
the Guaranteed Creditors without notice or demand (except as shall be required
by applicable statute and cannot be waived), and without affecting or impairing
its liability hereunder, from time to time to:


 


(a)           change the manner,
place or terms of payment of, and/or change or extend the time of payment of,
renew, increase, accelerate or alter, any of the Guaranteed Obligations
(including any increase or decrease in the principal amount thereof or the rate
of interest or fees thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and this Holdings Guaranty shall
apply to the Guaranteed Obligations as so changed, extended, renewed or
altered;


 


(b)           take and hold
security for the payment of the Guaranteed Obligations and sell, exchange,
release, impair, surrender, realize upon or otherwise deal with in any manner
and in any order any property by whomsoever at any time pledged or mortgaged to
secure, or howsoever securing, the Guaranteed Obligations or any liabilities
(including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and/or any offset thereagainst;


 


(c)           exercise or refrain
from exercising any rights against any Guaranteed Party, any other Credit Party
or others or otherwise act or refrain from acting;


 


(d)           release or
substitute any one or more endorsers, guarantors, any Guaranteed Party, other
Credit Parties or other obligors;


 


(e)           settle or compromise
any of the Guaranteed Obligations, any security therefor or any liability
(including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and may subordinate the payment of all or any part thereof
to the payment of any liability (whether due or not) of any Guaranteed Party to
its creditors other than the Guaranteed Creditors;


 


(f)            apply any sums by whomsoever
paid or howsoever realized to any liability or liabilities of any Guaranteed to
the Guaranteed Creditors regardless of what liability or liabilities of any
Guaranteed Party remain unpaid;


 


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(g)           consent to or waive
any breach of, or any act, omission or default under, this Agreement, any other
Credit Document, any Interest Rate Protection Agreement or any Other Hedging
Agreement or any of the instruments or agreements referred to herein or therein,
or otherwise amend, modify or supplement this Agreement, any other Credit
Document, any Interest Rate Protection Agreement or any Other Hedging Agreement
or any of such other instruments or agreements; and/or


 


(h)           take any other
action which would, under otherwise applicable principles of common law, give
rise to a legal or equitable discharge of Holdings from its liabilities under
this Holdings Guaranty.


 


14.06.      Reliance. It is not necessary for
any Guaranteed Creditor to inquire into the capacity or powers of Holdings or
any of its Subsidiaries or the officers, directors, partners or agents acting
or purporting to act on their behalf, and any Guaranteed Obligations made or
created in reliance upon the professed exercise of such powers shall be guaranteed
hereunder.


 


14.07.      Subordination. Any indebtedness of
any Guaranteed Party now or hereafter owing to Holdings is hereby subordinated
to the Guaranteed Obligations owing to the Guaranteed Creditors; and if the
Administrative Agent so requests at a time when an Event of Default exists, all
such indebtedness of such Guaranteed Party to Holdings shall be collected,
enforced and received by Holdings for the benefit of the Guaranteed Creditors
and be paid over to the Administrative Agent on behalf of the Guaranteed
Creditors on account of the Guaranteed Obligations to the Guaranteed Creditors,
but without affecting or impairing in any manner the liability of Holdings
under the other provisions of this Holdings Guaranty. Prior to the transfer by
Holdings of any note or negotiable instrument evidencing any such indebtedness
of any Guaranteed Party to Holdings, Holdings shall mark such note or
negotiable instrument with a legend that the same is subject to this
subordination. Without limiting the generality of the foregoing, Holdings
hereby agrees with the Guaranteed Creditors that it will not exercise any right
of subrogation which it may at any time otherwise have as a result of this
Holdings Guaranty (whether contractual, under Section 509 of the Bankruptcy
Code or otherwise) until all Guaranteed Obligations have been irrevocably paid
in full in cash.


 


14.08.      Waiver. (a)  Holdings waives any right (except as shall be
required by applicable statute and cannot be waived) to require any Guaranteed
Creditor to (i) proceed against any Guaranteed Party, any other guarantor of
the Guaranteed Obligations or any other party, (ii) proceed against or exhaust
any security held from any Guaranteed Party, any other guarantor of the
Guaranteed Obligations or any other party or (iii) pursue any other remedy in
any Guaranteed Creditor’s power whatsoever. Holdings waives any defense based
on or arising out of any defense of any Guaranteed Party, any other guarantor
of the Guaranteed Obligations or any other party, other than payment in cash of
the Guaranteed Obligations to the extent of such payment, based on or arising
out of the disability of such Guaranteed Party, Holdings, any other guarantor
of the Guaranteed Obligations or any other party, or the validity, legality or
unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of such Guaranteed
Party other than payment in cash of the Guaranteed Obligations to the extent of
such payment. The Guaranteed Creditors may, at their election, foreclose on any
security held by the Administrative Agent, the Collateral Agent or any other
Guaranteed Creditor by one or more judicial or nonjudicial sales, whether or
not


 


123

















 


every aspect
of any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy the
Guaranteed Creditors may have against any Guaranteed Party or any other party,
or any security, without affecting or impairing in any way the liability of
Holdings hereunder except to the extent the Guaranteed Obligations have been
paid in cash. Holdings waives any defense arising out of any such election by
the Guaranteed Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy
of Holdings against any Guaranteed Party or any other party or any security.


 


(b) Holdings
waives all presentments, demands for performance, protests and notices,
including without limitation notices of nonperformance, notices of protest,
notices of dishonor, notices of acceptance of this Holdings Guaranty, and
notices of the existence, creation or incurring of new or additional Guaranteed
Obligations. Holdings assumes all responsibility for being and keeping itself
informed of the each Guaranteed Party’s financial condition and assets, and of
all other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which Holdings
assumes and incurs hereunder, and agrees that neither the Administrative Agent
nor any of the other Guaranteed Creditors shall have any duty to advise
Holdings of information known to them regarding such circumstances or risks.


 


(c) Until such
time as the Guaranteed Obligations have been paid in full in cash, Holdings
hereby waives all rights of subrogation which it may at any time otherwise have
as a result of this Holdings Guaranty (whether contractual, under Section 509
of the Bankruptcy Code, or otherwise) to the claims of the Guaranteed Creditors
against any Guaranteed Party or any other guarantor of the Guaranteed
Obligations and all contractual, statutory or common law rights of
reimbursement, contribution or indemnity from any Guaranteed Party or any other
guarantor which it may at any time otherwise have as a result of this Holdings
Guaranty.


 


(d) Holdings
hereby acknowledges and affirms that it understands that to the extent the
Guaranteed Obligations are secured by Real Property located in California,
Holdings shall be liable for the full amount of the liability hereunder
notwithstanding the foreclosure on such Real Property by trustee sale or any
other reason impairing Holdings’ or any Guaranteed Creditor’s right to proceed
against any Guaranteed Party or any other guarantor of the Guaranteed
Obligations. In accordance with Section 2856 of the California Code of Civil
Procedure, Holdings hereby waives until such time as the Guaranteed Obligations
have been paid in full in cash:


 


(i)            all rights of
subrogation, reimbursement, indemnification, and contribution and any other
rights and defenses that are or may become available to Holdings by reason of
Sections 2787 to 2855, inclusive, 2899 and 3433 of the California Code of Civil
Procedure;


 


(ii)           all rights and
defenses that Holdings may have because the Guaranteed Obligations are secured
by Real Property located in California, meaning, among other things, that:  (A) the Guaranteed Creditors may collect from
Holdings without first foreclosing on any real or personal property collateral
pledged by any Guaranteed Party or any other Credit Party, and (B) if the
Guaranteed Creditors foreclose on any Real


 


124

















 


Property collateral
pledged by any Guaranteed Party or any other Credit Party, (1) the amount of
the Guaranteed Obligations may be reduced only by the price for which that
collateral is sold at the foreclosure sale, even if the collateral is worth
more than the sale price, and (2) the Guaranteed Creditors may collect from
Holdings even if the Guaranteed Creditors, by foreclosing on the Real Property
collateral, have destroyed any right Holdings may have to collect from any
Guaranteed Party, it being understood that this is an unconditional and
irrevocable waiver of any rights and defenses Holdings may have because the
Guaranteed Obligations are secured by Real Property (including, without
limitation, any rights or defenses based upon Sections 580a, 580d or 726 of the
California Code of Civil Procedure); and


 


(iii) all rights and defenses arising out of an election of remedies by
the Guaranteed Creditors, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for the Guaranteed Obligations,
has destroyed Holdings’ rights of subrogation and reimbursement against any
Guaranteed Party by the operation of Section 580d of the California Code of
Civil Procedure or otherwise.


 


(e)           Holdings warrants and agrees that
each of the waivers set forth above is made with full knowledge of its
significance and consequences and that if any of such waivers are determined to
be contrary to any applicable law of public policy, such waivers shall be
effective only to the maximum extent permitted by law.


 


14.09.      Payments. All payments made by
Holdings pursuant to this Section 14 shall be made in Dollars and will be made
without setoff, counterclaim or other defense, and shall be subject to the
provisions of Sections 5.03 and 5.04.


 


14.10.      Maximum Liability. It is the desire
and intent of Holdings and the Guaranteed Creditors that this Holdings Guaranty
shall be enforced against Holdings to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is sought.
If, however, and to the extent that, the obligations of Holdings under this
Holdings Guaranty shall be adjudicated to be invalid or unenforceable for any
reason (including, without limitation, because of any applicable state or
federal law relating to fraudulent conveyances or transfers), then the amount
of Holdings’ obligations under this Holdings Guaranty shall be deemed to be
reduced and Holdings shall pay the maximum amount of the Guaranteed Obligations
which would be permissible under applicable law.


 


*     *     *


 


125

















 


IN WITNESS
WHEREOF, the parties hereto have caused their duly authorized officers to
execute and deliver this Agreement as of the date first above written.


 


 


	
  Address:

  	
   

  
	
   

  	
   

  
	
  International
  Advisory Holdings Corp.

  	
  INTERNATIONAL
  ADVISORY HOLDINGS

  
	
  Four
  Stamford Plaza

  	
  CORP.

  
	
  107 Elm
  Street

  	
   

  
	
  Stamford,
  Connecticut 06902

  	
   

  
	
  Attention:
  Frank Martell

  	
  By:

  	
   /s/
  Frank Martell

  
	
  Telephone
  No.: (203) 517-3100

  	
   

  	
  Title:  President,
  CFO and Treasurer

  
	
  Fax No.:
  (203) 517-3199

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  International
  Consulting Acquisition Corp.

  	
  INTERNATIONAL
  CONSULTING

  
	
  Four
  Stamford Plaza

  	
  ACQUISITION
  CORP.

  
	
  107 Elm
  Street

  	
   

  
	
  Stamford,
  Connecticut 06902

  	
   

  
	
  Attention:
  Frank Martell

  	
  By:

  	
   /s/
  Frank Martell

  
	
  Telephone
  No.: (203) 517-3100

  	
   

  	
  Title:  President,
  CFO and Treasurer

  
	
  Fax No.:
  (203) 517-3199

  	
   

  



 

















 


	
   

  	
  DEUTSCHE
  BANK TRUST COMPANY

  
	
   

  	
  AMERICAS,

  
	
   

  	
  Individually, as Issuing Lender and as

  
	
   

  	
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Erin Morrissey

  
	
   

  	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Susan
  LeFevre

  
	
   

  	
   

  	
  Title:  Director

  



 
















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  Definitions
  and Accounting Terms

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  1.01.

  	
  Defined
  Terms

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  Amount and
  Terms of Credit

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  2.01.

  	
  The
  Commitments

  	
   

  	
  31

  
	
  2.02.

  	
  Minimum
  Amount of Each Borrowing

  	
   

  	
  33

  
	
  2.03.

  	
  Notice of
  Borrowing

  	
   

  	
  33

  
	
  2.04.

  	
  Disbursement
  of Funds

  	
   

  	
  35

  
	
  2.05.

  	
  Notes

  	
   

  	
  35

  
	
  2.06.

  	
  Conversions

  	
   

  	
  37

  
	
  2.07.

  	
  Pro Rata
  Borrowings

  	
   

  	
  38

  
	
  2.08.

  	
  Interest

  	
   

  	
  38

  
	
  2.09.

  	
  Interest
  Periods

  	
   

  	
  39

  
	
  2.10.

  	
  Increased
  Costs, Illegality, etc

  	
   

  	
  40

  
	
  2.11.

  	
  Compensation

  	
   

  	
  42

  
	
  2.12.

  	
  Change of
  Lending Office

  	
   

  	
  42

  
	
  2.13.

  	
  Replacement
  of Lenders

  	
   

  	
  42

  
	
  2.14.

  	
  Incremental
  Term Loan Commitments

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  Letters of
  Credit

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  3.01.

  	
  Letters of
  Credit

  	
   

  	
  47

  
	
  3.02.

  	
  Maximum
  Letter of Credit Outstandings; Final Maturities

  	
   

  	
  47

  
	
  3.03.

  	
  Letter of
  Credit Requests; Minimum Stated Amount

  	
   

  	
  48

  
	
  3.04.

  	
  Letter of
  Credit Participations

  	
   

  	
  49

  
	
  3.05.

  	
  Agreement to
  Repay Letter of Credit Drawings

  	
   

  	
  50

  
	
  3.06.

  	
  Increased
  Costs

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  Commitment
  Commission; Fees; Reductions of Commitment

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  4.01.

  	
  Fees

  	
   

  	
  52

  
	
  4.02.

  	
  Voluntary
  Termination of Unutilized Commitments

  	
   

  	
  53

  
	
  4.03.

  	
  Mandatory
  Reduction of Commitments

  	
   

  	
  54

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  Prepayments;
  Payments; Taxes

  	
   

  	
  54

  
	
   

  	
   

  	
   

  	
   

  
	
  5.01.

  	
  Voluntary
  Prepayments

  	
   

  	
  54

  
	
  5.02.

  	
  Mandatory
  Repayments

  	
   

  	
  56

  
	
  5.03.

  	
  Method and
  Place of Payment

  	
   

  	
  60

  
	
  5.04.

  	
  Net Payments

  	
   

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  Conditions
  Precedent to Credit Events on the Initial Borrowing Date

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  6.01.

  	
  Effective
  Date; Notes

  	
   

  	
  62

  



 

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  6.02.

  	
  Officer’s
  Certificate

  	
   

  	
  62

  
	
  6.03.

  	
  Opinions of
  Counsel

  	
   

  	
  62

  
	
  6.04.

  	
  Company Documents;
  Proceedings; etc

  	
   

  	
  63

  
	
  6.05.

  	
  Shareholders’
  Agreements; Management Agreements; Tax Sharing Agreements; Existing
  Indebtedness Agreements

  	
   

  	
  63

  
	
  6.06.

  	
  Consummation
  of the Transaction; etc

  	
   

  	
  63

  
	
  6.07.

  	
  Adverse
  Change, Approvals

  	
   

  	
  64

  
	
  6.08.

  	
  Patriot Act

  	
   

  	
  64

  
	
  6.09.

  	
  Financial
  Statements; Pro Forma Financial Statements; Projections

  	
   

  	
  64

  
	
  6.10.

  	
  Subsidiaries
  Guaranty

  	
   

  	
  64

  
	
  6.11.

  	
  Pledge
  Agreement

  	
   

  	
  64

  
	
  6.12.

  	
  Security
  Agreement

  	
   

  	
  65

  
	
  6.13.

  	
  Solvency
  Certificate; Insurance Certificates

  	
   

  	
  65

  
	
  6.14.

  	
  Fees, etc

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  Conditions
  Precedent to All Credit Events

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  7.01.

  	
  No Default;
  Representations and Warranties

  	
   

  	
  66

  
	
  7.02.

  	
  Notice of
  Borrowing; Letter of Credit Request

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  Representations,
  Warranties and Agreements

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  8.01.

  	
  Company
  Status

  	
   

  	
  67

  
	
  8.02.

  	
  Power and
  Authority

  	
   

  	
  67

  
	
  8.03.

  	
  No Violation

  	
   

  	
  67

  
	
  8.04.

  	
  Approvals

  	
   

  	
  68

  
	
  8.05.

  	
  Financial
  Statements; Financial Condition Undisclosed Liabilities; Projections

  	
   

  	
  68

  
	
  8.06.

  	
  Litigation

  	
   

  	
  70

  
	
  8.07.

  	
  True and
  Complete Disclosure

  	
   

  	
  70

  
	
  8.08.

  	
  Use of
  Proceeds; Margin Regulations

  	
   

  	
  70

  
	
  8.09.

  	
  Tax Returns
  and Payments

  	
   

  	
  70

  
	
  8.10.

  	
  Compliance
  with ERISA

  	
   

  	
  71

  
	
  8.11.

  	
  Security
  Documents

  	
   

  	
  72

  
	
  8.12.

  	
  Properties

  	
   

  	
  73

  
	
  8.13.

  	
  Capitalization

  	
   

  	
  73

  
	
  8.14.

  	
  Subsidiaries

  	
   

  	
  74

  
	
  8.15.

  	
  Compliance
  with Statutes, etc

  	
   

  	
  74

  
	
  8.16.

  	
  Investment Company
  Act

  	
   

  	
  74

  
	
  8.17.

  	
  Environmental
  Matters

  	
   

  	
  74

  
	
  8.18.

  	
  Employment
  and Labor Relations

  	
   

  	
  75

  
	
  8.19.

  	
  Intellectual
  Property, etc

  	
   

  	
  75

  
	
  8.20.

  	
  Indebtedness

  	
   

  	
  75

  
	
  8.21.

  	
  Insurance

  	
   

  	
  76

  
	
  8.22.

  	
  Representations
  and Warranties in Acquisition Documents

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  Affirmative
  Covenants

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  
	
  9.01.

  	
  Information
  Covenants

  	
   

  	
  76

  



 


 


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  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  9.02.

  	
  Books,
  Records and Inspections

  	
   

  	
  79

  
	
  9.03.

  	
  Maintenance
  of Property; Insurance

  	
   

  	
  80

  
	
  9.04.

  	
  Existence;
  Franchises

  	
   

  	
  80

  
	
  9.05.

  	
  Compliance
  with Statutes, etc

  	
   

  	
  80

  
	
  9.06.

  	
  Compliance
  with Environmental Laws

  	
   

  	
  81

  
	
  9.07.

  	
  ERISA

  	
   

  	
  81

  
	
  9.08.

  	
  End of
  Fiscal Years; Fiscal Quarters

  	
   

  	
  83

  
	
  9.09.

  	
  Performance
  of Obligations

  	
   

  	
  83

  
	
  9.10.

  	
  Payment of
  Taxes

  	
   

  	
  83

  
	
  9.11.

  	
  Use of
  Proceeds

  	
   

  	
  83

  
	
  9.12.

  	
  Additional
  Security; Further Assurances; etc

  	
   

  	
  83

  
	
  9.13.

  	
  Ownership of
  Subsidiaries; etc

  	
   

  	
  84

  
	
  9.14.

  	
  Interest
  Rate Protection

  	
   

  	
  84

  
	
  9.15.

  	
  Permitted
  Acquisitions

  	
   

  	
  85

  
	
  9.16.

  	
  Foreign
  Subsidiaries Security

  	
   

  	
  86

  
	
  9.17.

  	
  Contributions

  	
   

  	
  86

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10. 

  	
  Negative
  Covenants

  	
   

  	
  86

  
	
   

  	
   

  	
   

  	
   

  
	
  10.01.

  	
  Liens

  	
   

  	
  86

  
	
  10.02.

  	
  Consolidation,
  Merger, Purchase or Sale of Assets, etc

  	
   

  	
  89

  
	
  10.03.

  	
  Dividends

  	
   

  	
  92

  
	
  10.04.

  	
  Indebtedness

  	
   

  	
  93

  
	
  10.05.

  	
  Advances,
  Investments and Loans

  	
   

  	
  95

  
	
  10.06.

  	
  Transactions
  with Affiliates

  	
   

  	
  97

  
	
  10.07.

  	
  Total
  Leverage Ratio

  	
   

  	
  98

  
	
  10.08.

  	
  Limitation
  on Certain Restrictions on Subsidiaries

  	
   

  	
  99

  
	
  10.09.

  	
  Limitation
  on Issuance of Equity Interests

  	
   

  	
  99

  
	
  10.10.

  	
  Business

  	
   

  	
  100

  
	
  10.11.

  	
  Modifications
  of Certificate of Incorporation, By-Laws, Indebtedness and Certain Other
  Agreements, etc

  	
   

  	
  100

  
	
  10.12.

  	
  Limitation
  on Creation of Subsidiaries

  	
   

  	
  101

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11. 

  	
  Events of
  Default

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
  11.01.

  	
  Payments

  	
   

  	
  102

  
	
  11.02.

  	
  Representations,
  etc

  	
   

  	
  102

  
	
  11.03.

  	
  Covenants

  	
   

  	
  102

  
	
  11.04.

  	
  Default
  Under Other Agreements

  	
   

  	
  102

  
	
  11.05.

  	
  Bankruptcy,
  etc

  	
   

  	
  102

  
	
  11.06.

  	
  ERISA

  	
   

  	
  103

  
	
  11.07.

  	
  Security
  Documents

  	
   

  	
  103

  
	
  11.08.

  	
  Guaranties

  	
   

  	
  104

  
	
  11.09.

  	
  Judgments

  	
   

  	
  104

  
	
  11.10.

  	
  Change of
  Control

  	
   

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12. 

  	
  The
  Administrative Agent

  	
   

  	
  105

  
	
   

  	
   

  	
   

  	
   

  
	
  12.01.

  	
  Appointment

  	
   

  	
  105

  



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  12.02. 

  	
  Nature of
  Duties

  	
   

  	
  105

  
	
  12.03. 

  	
  Non-Reliance
  on the Administrative Agent

  	
   

  	
  106

  
	
  12.04. 

  	
  Certain
  Rights of the Administrative Agent

  	
   

  	
  106

  
	
  12.05. 

  	
  Reliance

  	
   

  	
  106

  
	
  12.06. 

  	
  Indemnification

  	
   

  	
  106

  
	
  12.07. 

  	
  The
  Administrative Agent in its Individual Capacity

  	
   

  	
  107

  
	
  12.08. 

  	
  Holders

  	
   

  	
  107

  
	
  12.09. 

  	
  Resignation
  by the Administrative Agent

  	
   

  	
  107

  
	
  12.10. 

  	
  Collateral
  Matters

  	
   

  	
  108

  
	
  12.11. 

  	
  Delivery of
  Information

  	
   

  	
  109

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13. 

  	
  Miscellaneous

  	
   

  	
  109

  
	
   

  	
   

  	
   

  	
   

  
	
  13.01. 

  	
  Payment of
  Expenses, etc

  	
   

  	
  109

  
	
  13.02. 

  	
  Right of
  Setoff

  	
   

  	
  110

  
	
  13.03. 

  	
  Notices

  	
   

  	
  111

  
	
  13.04. 

  	
  Benefit of
  Agreement; Assignments; Participations

  	
   

  	
  111

  
	
  13.05. 

  	
  No Waiver;
  Remedies Cumulative

  	
   

  	
  113

  
	
  13.06. 

  	
  Payments Pro
  Rata

  	
   

  	
  113

  
	
  13.07. 

  	
  Calculations;
  Computations

  	
   

  	
  114

  
	
  13.08. 

  	
  GOVERNING LAW;
  SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL

  	
   

  	
  114

  
	
  13.09. 

  	
  Counterparts

  	
   

  	
  116

  
	
  13.10. 

  	
  Effectiveness

  	
   

  	
  116

  
	
  13.11. 

  	
  Headings
  Descriptive

  	
   

  	
  116

  
	
  13.12. 

  	
  Amendment or
  Waiver; etc

  	
   

  	
  116

  
	
  13.13. 

  	
  Survival

  	
   

  	
  118

  
	
  13.14. 

  	
  Domicile of
  Loans

  	
   

  	
  118

  
	
  13.15. 

  	
  Register

  	
   

  	
  118

  
	
  13.16. 

  	
  Confidentiality

  	
   

  	
  119

  
	
  13.17. 

  	
  Special
  Provisions Regarding Pledges of Equity Interests in, and Promissory Notes
  Owed by, Persons Not Organized in the United States

  	
   

  	
  119

  
	
  13.18. 

  	
  The Patriot
  Act

  	
   

  	
  120

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 14. 

  	
  Holdings
  Guaranty

  	
   

  	
  120

  
	
   

  	
   

  	
   

  	
   

  
	
  14.01. 

  	
  Guaranty

  	
   

  	
  120

  
	
  14.02. 

  	
  Bankruptcy

  	
   

  	
  121

  
	
  14.03. 

  	
  Nature of
  Liability

  	
   

  	
  121

  
	
  14.04. 

  	
  Independent
  Obligation

  	
   

  	
  122

  
	
  14.05. 

  	
  Authorization

  	
   

  	
  122

  
	
  14.06. 

  	
  Reliance

  	
   

  	
  123

  
	
  14.07. 

  	
  Subordination

  	
   

  	
  123

  
	
  14.08. 

  	
  Waiver

  	
   

  	
  123

  
	
  14.09. 

  	
  Payments

  	
   

  	
  125

  
	
  14.10. 

  	
  Maximum
  Liability

  	
   

  	
  125

  
	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULE I
  Commitments

  	
   

  	
   

  



 


ix

















 


	
  SCHEDULE II

  	
  Lender
  Addresses

  	
   

  	
   

  
	
  SCHEDULE III

  	
  Existing
  Investments

  	
   

  	
   

  
	
  SCHEDULE IV

  	
  Real
  Property

  	
   

  	
   

  
	
  SCHEDULE V

  	
  Subsidiaries

  	
   

  	
   

  
	
  SCHEDULE VI

  	
  Existing
  Indebtedness

  	
   

  	
   

  
	
  SCHEDULE VII

  	
  Insurance

  	
   

  	
   

  
	
  SCHEDULE
  VIII

  	
  Existing
  Liens

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT A-1

  	
  Form of
  Notice of Borrowing

  	
   

  	
   

  
	
  EXHIBIT A-2

  	
  Form of
  Notice of Conversion/Continuation

  	
   

  	
   

  
	
  EXHIBIT B-1

  	
  Form of
  Initial Term Note

  	
   

  	
   

  
	
  EXHIBIT B-2

  	
  Form of
  Revolving Note

  	
   

  	
   

  
	
  EXHIBIT B-3

  	
  Form of
  Incremental Term Note

  	
   

  	
   

  
	
  EXHIBIT B-4

  	
  Form of
  Swingline Note

  	
   

  	
   

  
	
  EXHIBIT C

  	
  Form of
  Letter of Credit Request

  	
   

  	
   

  
	
  EXHIBIT D

  	
  Form of
  Section 5.04(b)(ii) Certificate

  	
   

  	
   

  
	
  EXHIBIT E-1

  	
  Form of
  Opinion of Simpson Thacher & Bartlett LLP, special counsel to the Credit
  Parties

  	
   

  	
   

  
	
  EXHIBIT E-2

  	
  Form of
  Opinion of Andrews Kurth LLP, Texas counsel to the Credit Parties

  	
   

  	
   

  
	
  EXHIBIT F

  	
  Form of
  Officers’ Certificate

  	
   

  	
   

  
	
  EXHIBIT G

  	
  Form of
  Subsidiaries Guaranty

  	
   

  	
   

  
	
  EXHIBIT H

  	
  Form of
  Pledge Agreement

  	
   

  	
   

  
	
  EXHIBIT I

  	
  Form of
  Security Agreement

  	
   

  	
   

  
	
  EXHIBIT J

  	
  Form of
  Compliance Certificate

  	
   

  	
   

  
	
  EXHIBIT K

  	
  Form of
  Assignment and Assumption Agreement

  	
   

  	
   

  
	
  EXHIBIT L

  	
  Form of
  Intercompany Note

  	
   

  	
   

  
	
  EXHIBIT M

  	
  Form of
  Incremental Term Loan Commitment Agreement

  	
   

  	
   

  
	
  EXHIBIT N

  	
  Form of Solvency
  Certificate

  	
   

  	
   

  
	
  EXHIBIT O

  	
  Form of
  Shareholder Subordinated Note

  	
   

  	
   

  



 


x