Exhibit 4.3


 


EXECUTION COPY


 




 





 


CREDIT
AGREEMENT


 


Dated as of
November 20, 2007


among


REABLE
THERAPEUTICS FINANCE LLC (to be renamed DJO FINANCE LLC),


as Borrower,


 


REABLE
THERAPEUTICS HOLDINGS LLC (to be renamed DJO HOLDINGS LLC),

as Holdings,


 


CREDIT SUISSE,


as
Administrative Agent, Collateral Agent, Swing Line Lender and L/C Issuer,


 


THE OTHER
LENDERS PARTY HERETO,


 






 


BANC OF
AMERICA SECURITIES LLC and


THE BANK OF
NOVA SCOTIA,


as Co-Syndication Agents,


 


BANK OF THE WEST,


as Documentation Agent,


and


CREDIT SUISSE
SECURITIES (USA) LLC and

BANC OF AMERICA SECURITIES LLC,


 


as Lead
Arrangers and Book Runners


 




 





 


[CS&M 5865-581]


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I

  
	
   

  	
   

  
	
  Definitions
  and Accounting Terms

  
	
   

  	
   

  
	
  SECTION
  1.01. Defined Terms

  	
  1

  
	
  SECTION
  1.02. Other Interpretive Provisions

  	
  50

  
	
  SECTION
  1.03. Accounting Terms

  	
  51

  
	
  SECTION
  1.04. Rounding

  	
  51

  
	
  SECTION
  1.05. References to Agreements, Laws, Etc

  	
  51

  
	
  SECTION
  1.06. Times of Day

  	
  52

  
	
  SECTION
  1.07. Timing of Payment of Performance

  	
  52

  
	
  SECTION
  1.08. Currency Equivalents Generally

  	
  52

  
	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  
	
  The
  Commitments and Credit Extensions

  
	
   

  	
   

  
	
  SECTION
  2.01. The Loans

  	
  52

  
	
  SECTION
  2.02. Borrowings, Conversions and Continuations of Loans

  	
  53

  
	
  SECTION
  2.03. Letters of Credit

  	
  55

  
	
  SECTION
  2.04. Swing Line Loans

  	
  65

  
	
  SECTION 2.05.
  Prepayments

  	
  67

  
	
  SECTION
  2.06. Termination or Reduction of Commitments

  	
  72

  
	
  SECTION
  2.07. Repayment of Loans

  	
  73

  
	
  SECTION
  2.08. Interest

  	
  73

  
	
  SECTION
  2.09. Fees

  	
  74

  
	
  SECTION
  2.10. Computation of Interest and Fees

  	
  74

  
	
  SECTION
  2.11. Evidence of Indebtedness

  	
  75

  
	
  SECTION
  2.12. Payments Generally

  	
  76

  
	
  SECTION
  2.13. Sharing of Payments

  	
  78

  
	
  SECTION
  2.14. Incremental Credit Extensions

  	
  78

  
	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  
	
  Taxes,
  Increased Costs Protection and Illegality

  
	
   

  	
   

  
	
  SECTION
  3.01. Taxes

  	
  81

  
	
  SECTION
  3.02. Illegality

  	
  83

  
	
  SECTION
  3.03. Inability to Determine Rates

  	
  83

  
	
  SECTION
  3.04. Increased Cost and Reduced Return; Capital Adequacy; Reserves on
  Eurodollar Rate Loans

  	
  84

  
	
  SECTION
  3.05. Funding Losses

  	
  85

  
	
  SECTION
  3.06. Matters Applicable to All Requests for Compensation

  	
  86

  



 


i

















 


	
  SECTION
  3.07. Replacement of Lenders under Certain Circumstances

  	
  87

  
	
  SECTION
  3.08. Survival

  	
  88

  
	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  	
   

  
	
  Conditions
  Precedent to Credit Extensions

  
	
   

  	
   

  
	
  SECTION
  4.01. Conditions of Initial Credit Extension

  	
  89

  
	
  SECTION
  4.02. Conditions to All Credit Extensions

  	
  91

  
	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  
	
  Representations
  and Warranties

  
	
   

  	
   

  
	
  SECTION
  5.01. Existence, Qualification and Power; Compliance with Laws

  	
  92

  
	
  SECTION
  5.02. Authorization; No Contravention

  	
  93

  
	
  SECTION
  5.03. Governmental Authorization; Other Consents

  	
  93

  
	
  SECTION
  5.04. Binding Effect

  	
  93

  
	
  SECTION
  5.05. Financial Statements; No Material Adverse Effect

  	
  93

  
	
  SECTION
  5.06. Litigation

  	
  95

  
	
  SECTION
  5.07. No Default

  	
  95

  
	
  SECTION
  5.08. Ownership of Property; Liens

  	
  95

  
	
  SECTION
  5.09. Environmental Compliance

  	
  95

  
	
  SECTION
  5.10. Taxes

  	
  96

  
	
  SECTION
  5.11. ERISA Compliance

  	
  96

  
	
  SECTION
  5.12. Subsidiaries; Equity Interests

  	
  97

  
	
  SECTION
  5.13. Margin Regulations; Investment Company Act

  	
  97

  
	
  SECTION
  5.14. Disclosure

  	
  97

  
	
  SECTION
  5.15. Solvency

  	
  98

  
	
  SECTION
  5.16. Subordination of Junior Financing

  	
  98

  
	
  SECTION
  5.17. Labor Matters

  	
  98

  
	
  SECTION
  5.18. Food and Drug

  	
  98

  
	
  SECTION
  5.19. Clinical Trials

  	
  98

  
	
  SECTION
  5.20. State Food and Drug Laws

  	
  98

  
	
  SECTION
  5.21. HIPAA

  	
  99

  
	
  SECTION
  5.22. Medicare, Medicaid and Fraud and Abuse

  	
  99

  
	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  
	
  Affirmative
  Covenants

  
	
   

  	
   

  
	
  SECTION
  6.01. Financial Statements

  	
  100

  
	
  SECTION
  6.02. Certificates; Other Information

  	
  101

  
	
  SECTION
  6.03. Notices

  	
  103

  
	
  SECTION
  6.04. Payment of Obligations

  	
  104

  
	
  SECTION
  6.05. Preservation of Existence, Etc

  	
  104

  
	
  SECTION
  6.06. Maintenance of Properties

  	
  104

  



 


ii

















 


	
  SECTION
  6.07. Maintenance of Insurance

  	
  104

  
	
  SECTION
  6.08. Compliance with Laws

  	
  104

  
	
  SECTION
  6.09. Books and Records

  	
  104

  
	
  SECTION
  6.10. Inspection Rights

  	
  105

  
	
  SECTION
  6.11. Covenant to Guarantee Obligations and Give Security

  	
  105

  
	
  SECTION
  6.12. Compliance with Environmental Laws

  	
  107

  
	
  SECTION
  6.13. Further Assurances

  	
  107

  
	
  SECTION
  6.14. Designation of Subsidiaries

  	
  108

  
	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  
	
  Negative
  Covenants

  
	
   

  	
   

  
	
  SECTION
  7.01. Liens

  	
  109

  
	
  SECTION
  7.02. Investments

  	
  113

  
	
  SECTION
  7.03. Indebtedness

  	
  117

  
	
  SECTION
  7.04. Fundamental Changes

  	
  121

  
	
  SECTION
  7.05. Dispositions

  	
  122

  
	
  SECTION
  7.06. Restricted Payments

  	
  124

  
	
  SECTION
  7.07. Change in Nature of Business

  	
  127

  
	
  SECTION
  7.08. Transactions with Affiliates

  	
  127

  
	
  SECTION
  7.09. Burdensome Agreements

  	
  128

  
	
  SECTION
  7.10. Use of Proceeds

  	
  129

  
	
  SECTION
  7.11. Financial Covenant

  	
  129

  
	
  SECTION
  7.12. Accounting Changes

  	
  130

  
	
  SECTION
  7.13. Prepayments, Etc. of Indebtedness

  	
  130

  
	
  SECTION
  7.14. Equity Interests of the Company and Restricted Subsidiaries

  	
  131

  
	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  	
   

  
	
  Events of
  Default and Remedies

  
	
   

  	
   

  
	
  SECTION
  8.01. Events of Default

  	
  131

  
	
  SECTION
  8.02. Remedies Upon Event of Default

  	
  133

  
	
  SECTION
  8.03. Exclusion of Immaterial Subsidiaries

  	
  134

  
	
  SECTION
  8.04. Application of Funds

  	
  134

  
	
  SECTION
  8.05. Company’s Right to Cure

  	
  135

  
	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  	
   

  
	
  Administrative
  Agent and Other Agents

  
	
   

  	
   

  
	
  SECTION
  9.01. Appointment and Authorization of Agents

  	
  136

  
	
  SECTION
  9.02. Delegation of Duties

  	
  137

  
	
  SECTION
  9.03. Liability of Agents

  	
  137

  
	
  SECTION
  9.04. Reliance by Agents

  	
  138

  
	
  SECTION
  9.05. Notice of Default

  	
  138

  



 


iii

















 


	
  SECTION
  9.06. Credit Decision; Disclosure of Information by Agents

  	
  138

  
	
  SECTION 9.07.
  Indemnification of Agents

  	
  139

  
	
  SECTION
  9.08. Agents in their Individual Capacities

  	
  140

  
	
  SECTION
  9.09. Successor Agents

  	
  140

  
	
  SECTION
  9.10. Administrative Agent May File Proofs of Claim

  	
  141

  
	
  SECTION
  9.11. Collateral and Guaranty Matters

  	
  141

  
	
  SECTION 9.12.
  Other Agents; Arrangers and Managers

  	
  142

  
	
  SECTION
  9.13. Appointment of Supplemental Administrative Agents

  	
  143

  
	
   

  	
   

  
	
  ARTICLE X

  
	
   

  	
   

  
	
  Miscellaneous

  
	
   

  	
   

  
	
  SECTION
  10.01. Amendments, Etc

  	
  144

  
	
  SECTION
  10.02. Notices and Other Communications; Facsimile Copies

  	
  146

  
	
  SECTION
  10.03. No Waiver; Cumulative Remedies

  	
  147

  
	
  SECTION
  10.04. Attorney Costs, Expenses and Taxes

  	
  148

  
	
  SECTION
  10.05. Indemnification by the Company

  	
  148

  
	
  SECTION
  10.06. Payments Set Aside

  	
  149

  
	
  SECTION
  10.07. Successors and Assigns

  	
  149

  
	
  SECTION
  10.08. Confidentiality

  	
  154

  
	
  SECTION
  10.09. Setoff

  	
  155

  
	
  SECTION
  10.10. Interest Rate Limitation

  	
  155

  
	
  SECTION
  10.11. Counterparts

  	
  156

  
	
  SECTION
  10.12. Integration

  	
  156

  
	
  SECTION
  10.13. Survival of Representations and Warranties

  	
  156

  
	
  SECTION
  10.14. Severability

  	
  156

  
	
  SECTION
  10.15. Tax Forms

  	
  157

  
	
  SECTION
  10.16. No Advisory or Fiduciary Responsibility

  	
  159

  
	
  SECTION
  10.17. GOVERNING LAW

  	
  159

  
	
  SECTION
  10.18. WAIVER OF RIGHT TO TRIAL BY JURY

  	
  160

  
	
  SECTION
  10.19. Binding Effect

  	
  160

  
	
  SECTION
  10.20. Electronic Execution of Assignments

  	
  160

  
	
  SECTION
  10.21. Effect of Certain Inaccuracies

  	
  160

  
	
  SECTION
  10.22. USA PATRIOT Act

  	
  161

  
	
  SECTION
  10.23. LEGEND

  	
  161

  



 


	
  SCHEDULES

  
	
   

  	
   

  
	
  1

  	
  Guarantors

  
	
  1.01A

  	
  Unrestricted
  Subsidiaries

  
	
  1.01B

  	
  Mortgaged
  Properties

  
	
  1.01C

  	
  Excluded
  Subsidiaries

  
	
  1.01D

  	
  Foreign Subsidiaries

  
	
  1.01E

  	
  Existing
  Letters of Credit

  
	
  2.01

  	
  Commitments

  



 


iv

















 


	
  5.08

  	
  Real
  Property

  
	
  5.09

  	
  Environmental
  Matters

  
	
  5.10

  	
  Taxes

  
	
  5.11

  	
  ERISA
  Compliance

  
	
  5.12

  	
  Subsidiaries
  and Other Equity Investments

  
	
  7.01(b)

  	
  Existing
  Liens

  
	
  7.02(f)

  	
  Existing
  Investments

  
	
  7.03(b)

  	
  Existing
  Indebtedness

  
	
  7.05(l)

  	
  Dispositions

  
	
  7.08

  	
  Transactions
  with Affiliates

  
	
  7.09

  	
  Existing
  Restrictions

  
	
  10.02

  	
  Administrative
  Agent’s Office, Certain Addresses for Notices

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Form of

  	
   

  
	
  A

  	
  Loan Notice

  
	
  B

  	
  Swing Line
  Loan Notice

  
	
  C-1

  	
  Term Note

  
	
  C-2

  	
  Revolving
  Credit Note

  
	
  D

  	
  Compliance
  Certificate

  
	
  E

  	
  Assignment
  and Assumption

  
	
  F

  	
  Guaranty

  
	
  G-1

  	
  Security
  Agreement

  
	
  G-2

  	
  Intellectual
  Property Security Agreement

  
	
  H

  	
  Deed of
  Trust

  
	
  I

  	
  Opinion
  Matters — Counsel to Loan Parties

  
	
  J

  	
  Administrative
  Questionnaire

  



 


v

















 


CREDIT AGREEMENT


 


This CREDIT
AGREEMENT (“Agreement”) dated as
of November 20, 2007, among REABLE THERAPEUTICS FINANCE LLC (to be renamed DJO
Finance LLC), a Delaware limited liability company, (the “Company”), REABLE THERAPEUTICS HOLDINGS LLC
(to be renamed DJO Holdings LLC), a Delaware limited liability company (“Holdings”), CREDIT SUISSE, as
Administrative Agent, Collateral Agent, Swing Line Lender and an L/C Issuer and
each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”).


 


Pursuant to
the Merger Agreement (as this and other capitalized terms used in these
preliminary statements are defined in Section 1.01 below), Reaction
Acquisition Merger Sub, Inc., a Delaware corporation (“Merger Sub”) shall be merged with and into DJO Incorporated, a Delaware
corporation (“Target”), with the Target
continuing as the surviving corporation, becoming a wholly owned subsidiary of
the Company and to be renamed DJO Opco Holdings, Inc. (the “Merger”).


 


The Company
has requested that simultaneously with the consummation of the Merger, the
Lenders extend credit to the Company in the form of (i) Term Loans in an
initial aggregate amount of $1,065,000,000 (which is to be funded at a 1.0%
discount) and (ii) a Revolving Credit Facility in an initial aggregate
amount of $100,000,000. The Revolving Credit Facility will include a sub-limit
for the making of one or more Swing Line Loans and for the issuance of one or
more Letters of Credit from time to time.


 


The proceeds
of the Term Loans in an aggregate discounted funded amount of $1,054,350,000,
together with (i) the proceeds of the issuance of the New Notes, (ii) the
proceeds of the Equity Contribution and (iii) cash on hand at the Company,
will be used to finance the Debt Prepayment, the payment of the Merger
Consideration, the payment of the Transaction Expenses and the funding of the
Post-Closing Integration Amount. The proceeds of Revolving Credit Loans
incurred on or after the Closing Date will be used for working capital and
other general corporate purposes of the Company and its Subsidiaries, including
the financing of Permitted Acquisitions. Swing Line Loans and Letters of Credit
will be used for general corporate purposes of the Company and its
Subsidiaries.


 


The applicable
Lenders have indicated their willingness to lend, and the L/C Issuers have
indicated their willingness to issue Letters of Credit, in each case, on the
terms and subject to the conditions set forth herein.


 


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


 


ARTICLE I


 


Definitions and Accounting Terms


 


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


 

















 


“Acquired
EBITDA” means, with respect to any Acquired Entity or Business or
any Converted Restricted Subsidiary for any period, the amount for such period
of Consolidated EBITDA of such Acquired Entity or Business or such Converted
Restricted Subsidiary (determined as if references to the Company and the
Restricted Subsidiaries in the definition of Consolidated EBITDA were
references to such Acquired Entity or Business and its Subsidiaries or to such
Converted Restricted Subsidiary and its Subsidiaries), all as determined on a
consolidated basis for such Acquired Entity or Business.


 


“Acquired
Entity or Business” has the meaning set forth in the definition of
the term “Consolidated EBITDA”.


 


“Act”
has the meaning set forth in Section 10.21.


 


“Additional
Lender” has the meaning set forth in Section 2.14(a).


 


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


 


“Administrative
Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02 or such other address
or account as the Administrative Agent may from time to time notify the Company
and the Lenders.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in the form of
Exhibit J or such other form as may be supplied from time to time by the
Administrative Agent.


 


“Affiliate”
means, with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified. “Control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. “Controlling” and “Controlled” have
meanings correlative thereto.


 


“Agent-Related
Persons” means the Agents, together with their respective
Affiliates, and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.


 


“Agents”
means, collectively, the Administrative Agent, the Collateral Agent and the
Supplemental Administrative Agents (if any).


 


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


 


“Agreement”
has the meaning set forth in the introductory paragraph hereof.


 


2

















 


“Applicable
Rate” means a percentage per annum equal to (a) until delivery
of financial statements for the first full fiscal quarter commencing on or
after the Closing Date pursuant to Section 6.01, (i) for Eurodollar
Rate Loans that are Revolving Credit Loans, 3.00%, (ii) for Base Rate
Loans that are Revolving Credit Loans, 2.00%, (iii) for Letter of Credit
fees, 3.00% less the fronting fee payable in respect of the applicable Letter
of Credit, (iv) for commitment fees, 0.50%, (v) for Eurodollar Rate
Loans that are Term Loans, 3.00% and (vi) for Base Rate Loans that are Term
Loans, 2.00% and (b) thereafter, the following percentages per annum (or, in
the case of any Letter of Credit fee, at the following percentages per annum
less the fronting fee payable in respect of the applicable Letter of Credit),
based upon the Total Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to
Section 6.02(b); provided that,
upon the satisfaction of the Specified Ratings Condition (as evidenced by a certificate
of a Responsible Officer of the Company delivered to the Administrative Agent)
and for so long as the Specified Ratings Condition shall remain satisfied,
Pricing Level 2, as set forth in the following table, shall apply at any time
when Pricing Level 1, as set forth in the following table, would otherwise
apply based upon the Total Leverage Ratio as of such date:


 


	
  Applicable Rate

  	
   

  
	
  Pricing 

  Level

  	
   

  	
  Total Leverage Ratio

  	
   

  	
  Eurodollar 

  Rate for 

  Revolving 

  Credit Loans 

  and Letter of 

  Credit Fees

  	
   

  	
  Base Rate for 

  Revolving 

  Credit Loans

  	
   

  	
  Commitment 

  Fee Rate

  	
   

  	
  Eurodollar 

  Rate for 

  Term Loans

  	
   

  	
  Base Rate for 

  Term Loans

  	
   

  
	
  1

  	
   

  	
  >
  5.0:1.0

  	
   

  	
  3.00%

  	
   

  	
  2.00%

  	
   

  	
  0.50%

  	
   

  	
  3.00%

  	
   

  	
  2.00%

  	
   

  
	
  2

  	
   

  	
  < 5.0:1.0
  but > 4.0:1.0

  	
   

  	
  2.75%

  	
   

  	
  1.75%

  	
   

  	
  0.375%

  	
   

  	
  2.75%

  	
   

  	
  1.75%

  	
   

  
	
  3

  	
   

  	
  < 4.0:1.0

  	
   

  	
  2.50%

  	
   

  	
  1.50%

  	
   

  	
  0.375%

  	
   

  	
  2.75%

  	
   

  	
  1.75%

  	
   

  



 


Any increase
or decrease in the Applicable Rate resulting from a change in the Total
Leverage Ratio shall become effective as of the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to
Section 6.02(b); provided
that at the option of the Required Lenders, the highest Pricing Level shall
apply (x) as of the first Business Day after the date on which a Compliance
Certificate was required to have been delivered but was not delivered, and
shall continue to so apply to and including the date on which such Compliance
Certificate is so delivered (and thereafter the Pricing Level otherwise
determined in accordance with this definition shall apply) and (y) as of the
first Business Day after an Event of Default under Section 8.01(a) shall
have occurred and be continuing, and shall continue to so apply to but
excluding the date on which such Event of Default is cured or waived (and
thereafter the Pricing Level otherwise determined in accordance with this
definition shall apply). Notwithstanding anything in this Agreement to the
contrary, the Specified Ratings Condition shall in no event be considered to be
or remain satisfied after an Event of Default shall have occurred and be
continuing. If the rating system of Moody’s or S&P shall change, or if
either such rating agency shall cease to be in the business of rating corporate
debt obligations, the Company and the Lenders shall negotiate in good faith to
amend the definition of the term


 


3

















 


“Specified
Ratings Condition” to reflect such changed rating system, or the unavailability
of ratings from such rating agency and, pending the effectiveness of any such
amendment, the Applicable Rate shall be determined without regard to whether or
not the Specified Ratings Condition shall have been satisfied.


 


“Appropriate
Lender” means, at any time, (a) with respect to Loans of any
Class, the Lenders of such Class, (b) with respect to Letters of Credit,
(i) the relevant L/C Issuer and (ii) the Revolving Credit Lenders and
(c) with respect to the Swing Line Facility, (i) the Swing Line
Lender and (ii) if any Swing Line Loans are outstanding pursuant to
Section 2.04(a), the Revolving Credit Lenders.


 


“Approved
Bank” has the meaning specified in clause (c) of the definition
of “Cash Equivalents”.


 


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


 


“Arrangers”
means Credit Suisse Securities (USA) LLC and Banc of America Securities LLC,
each in its capacity as a lead arranger and book runner.


 


“Assignees”
has the meaning set forth in Section 10.07(b).


 


“Assignment
and Assumption” means an Assignment and Assumption substantially in
the form of Exhibit E.


 


“Attorney
Costs” means and includes all reasonable fees, expenses and
disbursements of any law firm or other external legal counsel.


 


“Attributable
Indebtedness” means, on any date, in respect of any Capitalized
Lease of any Person, the capitalized amount thereof that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP.


 


“Audited
Financial Statements” means the audited consolidated balance sheets
of each of the Company and its consolidated subsidiaries and the Target and its
consolidated Subsidiaries as of each of December 31, 2006, 2005 and 2004, and
the related audited consolidated statements of operations, stockholders’ equity
and cash flows for each of the Company and its consolidated subsidiaries and
the Target and its consolidated Subsidiaries for the fiscal years ended
December 31, 2006, 2005 and 2004, respectively.


 


“Auto-Renewal
Letter of Credit” has the meaning set forth in
Section 2.03(b)(iii).


 


“Available Amount”
means, at any time (the “Reference Date”),
an amount equal to the sum of (a) the greater of (i) Cumulative Excess
Cash Flow that is Not Otherwise Applied and (ii) the 50% of Consolidated Net
Income for the Available Amount Reference Period (or in the case such
Consolidated Net Income for such period


 


4

















 


is a deficit, minus 100% of such deficit); plus (b) to the
extent not (i) already included in the calculation of Consolidated Net Income
of the Company and the Restricted Subsidiaries or (ii) already reflected as a
return of capital or deemed reduction in the amount of such Investment pursuant
to clause (e) below, the aggregate amount of all cash dividends and other cash
distributions received by the Company or any Restricted Subsidiary from any
Minority Investments or Unrestricted Subsidiaries (to the extent such
Unrestricted Subsidiary was created after the Closing Date or designated as an
Unrestricted Subsidiary after the Closing Date in accordance with the terms of
this Agreement) during the period from and including the Business Day
immediately following the Closing Date through and including the Reference
Date; plus (c) to the extent not (i) already included in the calculation
of Consolidated Net Income of the Company and the Restricted Subsidiaries or
(ii) already reflected as a return of capital or deemed reduction in the amount
of such Investment pursuant to clause (e) below, the aggregate amount of all
cash repayments of principal received by the Company or any Restricted
Subsidiary from any Minority Investment or Unrestricted Subsidiary during the
period from and including the Business Day immediately following the Closing
Date through and including the Reference Date in respect of loans or advances
made by the Company or any Restricted Subsidiary to such Minority Investments
or Unrestricted Subsidiaries (to the extent such loans or advances were made
after the Closing Date in accordance with the terms of this Agreement); plus
(d) to the extent not (i) already included in the calculation of Consolidated
Net Income of the Company and the Restricted Subsidiaries, (ii) already
reflected as a return of capital or deemed reduction in the amount of such
Investment pursuant to clause (e) below, or (iii) are used to prepay Term Loans
in accordance with Section 2.05(b)(ii), the aggregate amount of all Net Cash
Proceeds received by the Company or any Restricted Subsidiary in connection
with the sale, transfer or other disposition of its ownership interest in any
Minority Investment or Unrestricted Subsidiary (to the extent such Unrestricted
Subsidiary was created after the Closing Date or designated as an Unrestricted
Subsidiary after the Closing Date in accordance with the terms of this
Agreement) during the period from and including the Business Day immediately
following the Closing Date through and including the Reference Date; minus
(e) the aggregate amount of any Investments made pursuant to clause (ii) of the
second proviso to Section 7.02(c)(ii)(A), clause (ii) of the proviso to
7.02(i)(B) or clause (ii) of the proviso to 7.02(n) (net of any return of
capital in respect of such Investment or deemed reduction in the amount of such
Investment including, without limitation, upon the re-designation of any
Unrestricted Subsidiary as a Restricted Subsidiary or the Disposition of any
such Investment), any Restricted Payment made pursuant to Section 7.06(h)(iii)
or any payment made pursuant to Section 7.13(a)(iv)(2)(iii) during the
period commencing on the Closing Date and ending on prior to the Reference Date
(and, for purposes of this clause (e), without taking account of the intended
usage of the Available Amount on such Reference Date).


 


“Available Amount Reference
Period” means, with respect to any Reference Date, the period
commencing at the beginning of the fiscal quarter in which the Closing Date
occurs and ending on the last day of the most recent fiscal quarter or fiscal
year, as applicable, for which financial statements required to be delivered
pursuant to Section 6.01(a) or Section 6.01(b), and the related Compliance
Certificate required to


 


5

















 


be delivered pursuant to Section 6.02(a), have been received by
the Administrative Agent.


 


“Base Rate” means,
for any day, a rate per annum equal to the greater of (a) the Prime Rate
in effect on such day and (b) the Federal Funds Rate in effect on such day plus
1/2 of 1%. If the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms of the definition thereof, the Base Rate shall be
determined without regard to clause (b) of the preceding sentence until
the circumstances giving rise to such inability no longer exist. Any change in the
Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be
effective on the effective date of such change in the Prime Rate or the Federal
Funds Rate, as the case may be.


 


“Base Rate
Loan” means a Loan that bears interest based on the Base Rate.


 


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


 


“Borrower”
means the Company.


 


“Borrowing”
means a Revolving Credit Borrowing, a Swing Line Borrowing or a Term Borrowing,
as the context may require.


 


“Business
Day” means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent’s Office is located
and, if such day relates to any Eurodollar Rate Loan, any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.


 


“Capital
Expenditures” means, for any period, the aggregate of (a) all
expenditures (whether paid in cash or accrued as liabilities) by the Company
and the Restricted Subsidiaries during such period that, in conformity with
GAAP, are or are required to be included as additions during such period to
property, plant or equipment reflected in the consolidated balance sheet of the
Company and the Restricted Subsidiaries and (b) all Capitalized Lease
Obligations incurred by the Company and the Restricted Subsidiaries during such
period and recorded on the balance sheet as such in accordance with GAAP; provided that the term “Capital
Expenditures” shall not include (i) expenditures made in connection with
the replacement, substitution, restoration or repair of assets to the extent
financed with (x) insurance proceeds paid on account of the loss of or damage
to the assets being replaced, restored or repaired or (y) awards of
compensation arising from the taking by eminent domain or condemnation of the
assets being replaced, (ii) the purchase price of equipment that is
purchased simultaneously with the trade-in of existing equipment to the extent
that the gross amount of such purchase price is reduced by the credit granted
by the seller of such equipment for the equipment


 


6

















 


being traded in at such time, (iii) the purchase of plant,
property or equipment to the extent financed with the proceeds of Dispositions
that are not required to be applied to prepay Term Loans pursuant to
Section 2.05(b)(ii), (iv) expenditures that constitute any part of
Consolidated Lease Expense, (v) expenditures that are accounted for as
capital expenditures by the Company or any Restricted Subsidiary and that
actually are paid for by a Person other than the Company or any Restricted
Subsidiary and for which neither the Company nor any Restricted Subsidiary has
provided or is required to provide or incur, directly or indirectly, any
consideration or obligation to such Person or any other Person (whether before,
during or after such period), (vi) the book value of any asset owned by
the Company or any Restricted Subsidiary prior to or during such period to the
extent that such book value is included as a capital expenditure during such
period as a result of such Person reusing or beginning to reuse such asset
during such period without a corresponding expenditure actually having been
made in such period; provided
that (x) any expenditure necessary in order to permit such asset to be
reused shall be included as a Capital Expenditure during the period in which
such expenditure actually is made and (y) such book value shall have been
included in Capital Expenditures when such asset was originally acquired, or
(vii) expenditures that constitute Permitted Acquisitions and expenditures made
in connection with the Transaction.


 


“Capitalized
Leases” means, as applied to any Person, all leases of property that
have been or should be, in accordance with GAAP, recorded as capitalized leases
on the balance sheet (excluding the footnotes thereto).


 


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


 


“Cash
Collateral Account” means a blocked account at a commercial bank
specified by the Administrative Agent in the name of the Administrative Agent
and under the sole dominion and control of the Administrative Agent, and
otherwise established in a manner satisfactory to the Administrative Agent.


 


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


 


“Cash
Equivalents” means any of the following types of Investments, to the
extent owned by the Company or any Restricted Subsidiary:


 


(a) Dollars,
Euros or, in the case of any Foreign Subsidiary, such local currencies held by
it from time to time in the ordinary course of business;


 


(b) readily
marketable obligations issued or directly and fully guaranteed or insured by
the government or any agency or instrumentality of (i) the
United States or (ii) any member nation of the European Union, having
average maturities of not more than 12 months from the date of acquisition
thereof; provided that the full
faith and credit of the United States or a member nation of the European
Union is pledged in support thereof;


 


(c) time
deposits with, or insured certificates of deposit or bankers’ acceptances of,
any commercial bank that (i)  is a Lender or (ii) (A) is
organized under the Laws of the United States, any state thereof, the
District of Columbia or


 


7

















 


any member nation of the Organization for
Economic Cooperation and Development or is the principal banking Subsidiary of
a bank holding company organized under the Laws of the United States, any
state thereof, the District of Columbia or any member nation of the
Organization for Economic Cooperation and Development, and is a member of the
Federal Reserve System, and (B) has combined capital and surplus of at
least $250,000,000 (any such bank in the foregoing clauses (i) or
(ii) being an “Approved Bank”),
in each case with average maturities of not more than 12 months from the date
of acquisition thereof;


 


(d) commercial
paper and variable or fixed rate notes issued by an Approved Bank (or by the
parent company thereof) or any variable or fixed rate note issued by, or
guaranteed by, a corporation rated A-2 (or the equivalent thereof) or better by
S&P or P-2 (or the equivalent thereof) or better by Moody’s, in each case
with average maturities of not more than 12 months from the date of acquisition
thereof;


 


(e) repurchase
agreements entered into by any Person with a bank or trust company (including
any of the Lenders) or recognized securities dealer, in each case, having
capital and surplus in excess of $250,000,000 for direct obligations issued by
or fully guaranteed or insured by the government or any agency or
instrumentality of (i) the United States or (ii) any member
nation of the European Union, in which such Person shall have a perfected first
priority security interest (subject to no other Liens) and having, on the date
of purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations;


 


(f) securities
with average maturities of 12 months or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the
United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government having an
investment grade rating from either S&P or Moody’s (or the equivalent
thereof);


 


(g)
Investments with average maturities of 12 months or less from the date of
acquisition in money market funds rated AAA- (or the equivalent thereof) or
better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s;


 


(h)
instruments equivalent to those referred to in clauses (a) through (g) above
denominated in Euros or any other foreign currency comparable in credit quality
and tenor to those referred to above and customarily used by corporations for
cash management purposes in any jurisdiction outside the United States to
the extent reasonably required in connection with any business conducted by any
Restricted Subsidiary organized in such jurisdiction; and


 


(i)
Investments, classified in accordance with GAAP as current assets of the
Company or any Restricted Subsidiary, in money market investment programs which
are registered under the Investment Company Act of 1940 or which are administered
by financial institutions having capital of at least $250,000,000, and,


 


8

















 


in either case, the portfolios of which are
limited such that substantially all of such investments are of the character,
quality and maturity described in clauses (a) through (h) of this definition.


 


“Cash Management Bank” means any Person that
is an Agent, a Lender or an Affiliate of an Agent or a Lender at the time it
provides any Cash Management Services.


 


“Cash
Management Obligations” means obligations owed by the Company or any
Restricted Subsidiary to any Agent, Lender or any Affiliate of an Agent or a
Lender in respect of any Cash Management Services, including overdraft and
related liabilities arising therefrom.


 


“Cash Management
Services” means treasury, depository and cash management services
(including in respect of liabilities arising from purchase cards, travel and
entertainment cards or other card services) or any automated clearing house
transfers of funds.


 


“Casualty
Event” means any event that gives rise to the receipt by the Company
or any Restricted Subsidiary of any insurance proceeds or condemnation awards
in respect of any equipment, fixed assets or real property (including any
improvements thereon) to replace or repair such equipment, fixed assets or real
property.


 


“CERCLA”
means the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as subsequently amended.


 


“CERCLIS”
means the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the U.S. Environmental Protection Agency.


 


“Change of
Control” means the earliest to occur of (a) the Permitted
Holders ceasing to have the power, directly or indirectly, to vote or direct
the voting of securities having a majority of the ordinary voting power for the
election of directors of Holdings; provided
that the occurrence of the foregoing event shall not be deemed a Change of
Control if,


 


(i) any time
prior to the consummation of a Qualifying IPO, and for any reason whatsoever,
(A) the Permitted Holders otherwise have the right, directly or
indirectly, to designate (and do so designate) a majority of the board of
directors of Holdings at such time or (B) the Permitted Holders own,
directly or indirectly, of record and beneficially, a majority of the
outstanding voting Equity Interests of Holdings, or


 


(ii) at any
time after the consummation of a Qualifying IPO, and for any reason whatsoever,
(A) no “person” or “group” (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act, but excluding any employee benefit plan of such
person or group and its Subsidiaries, and any Person acting in its capacity as
trustee, agent or other fiduciary or


 


9

















 


administrator of any such plan), excluding
the Permitted Holders, shall become the “beneficial owner” (as defined in Rules
13(d)-3 and 13(d)-5 under such Act), directly or indirectly, of more than the
greater of (x) thirty-five percent (35%) of the then outstanding voting Equity
Interests of Holdings and (y) the percentage of the then outstanding voting
stock of Holdings owned, directly or indirectly, beneficially by the Permitted
Holders, and (B) during each period of twelve (12) consecutive months, the
board of directors of Holdings shall consist of a majority of the Continuing
Directors; or


 


(b) any “Change
of Control” (or any comparable term) in any document pertaining to the New
Notes, the Existing Notes or any Junior Financing with an aggregate outstanding
principal amount in excess of the Threshold Amount; or


 


(c) at any
time prior to a Qualifying IPO of the Company, the Company ceasing to be a
directly or indirectly wholly owned Subsidiary of (i) Holdings or
(ii) if any Intermediate Holding Company is formed, the Intermediate
Holding company that is the direct parent of the Company.


 


“Class”
(a) when used with respect to Lenders, refers to whether such Lenders are
Revolving Credit Lenders or Term Lenders, (b) when used with respect to
Commitments, refers to whether such Commitments are Revolving Credit
Commitments or Term Commitments and (c) when used with respect to Loans or
a Borrowing, refers to whether such Loans, or the Loans comprising such
Borrowing, are Revolving Credit Loans or Term Loans.


 


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


 


“Code”
means the U.S. Internal Revenue Code of 1986, as amended, and rules and
regulations related thereto.


 


“Collateral”
means all the “Collateral” as defined in any Collateral Document and shall
include the Mortgaged Properties.


 


“Collateral
Agent” means Credit Suisse, in its capacity as collateral agent
under any of the Loan Documents, or any successor collateral agent.


 


“Collateral
and Guarantee Requirement” means, at any time, the requirement that:


 


(a) the
Administrative Agent shall have received each Collateral Document required to
be delivered on the Closing Date pursuant to Section 4.01(a)(ii) or
pursuant to Section 6.11 at such time, duly executed by each Loan Party
party thereto;


 


(b) all
Obligations shall have been unconditionally guaranteed (the “Guarantees”) by Holdings (in the absence of any Intermediate
Holding


 


10

















 


Company) or any Intermediate Holding Company
and each Restricted Subsidiary that is a Domestic Subsidiary and not an
Excluded Subsidiary, including those that are listed on Schedule 1 hereto
(each, a “Guarantor” and
collectively, the “Guarantors”);


 


(c) the
Obligations and the Guarantees shall have been secured by a first-priority
security interest in (i) all the Equity Interests of the Company and
(ii) all Equity Interests (other than Equity Interests of Unrestricted
Subsidiaries and any Equity Interest of any Restricted Subsidiary pledged to
secure Indebtedness permitted under Section 7.03(g)) of each wholly owned
Material Subsidiary directly owned by the Company or any Guarantor; provided that pledges of Equity Interests
of each Foreign Subsidiary that is a Material Subsidiary shall be limited to
65% of the issued and outstanding voting Equity Interests (and 100% of the
issued and outstanding non-voting Equity Interests, if any) of each
wholly-owned Foreign Subsidiary that is a Material Subsidiary and that is
directly owned by the Company or any Domestic Subsidiary of the Company that is
a Guarantor;


 


(d) except to
the extent otherwise permitted hereunder or under any Collateral Document, the
Obligations and the Guarantees shall have been secured by a perfected security
interest (other than in the case of mortgages, to the extent such security
interest may be perfected by delivery of certificated securities, filing UCC
financing statements or making any necessary filings with the United States
Patent and Trademark Office or United States Copyright Office) in, and
mortgages on, substantially all tangible and intangible assets of Holdings, the
Company and each other Guarantor (including accounts (other than deposit
accounts or other bank or securities accounts), accounts receivable, inventory,
equipment, investment property, intercompany notes, contract rights,
intellectual property, other general intangibles, owned (but not leased) real
property and proceeds of the foregoing), in each case, with the priority required
by the Collateral Documents; provided
that security interests in real property shall be limited to the Mortgaged
Properties;


 


(e) none of
the Collateral shall be subject to any Liens other than Liens permitted by
Section 7.01; and


 


(f) the
Collateral Agent shall have received (i) counterparts of a Mortgage, with
respect to each owned property described on Schedule 1.01B hereto or
required to be delivered pursuant to Section 6.11 (the “Mortgaged Properties”) duly executed and
delivered by the record owner of such property, (ii) a policy or policies
of title insurance issued (or binding commitments to issue) by a nationally
recognized title insurance company insuring the Lien of each such Mortgage as a
valid Lien on the property described therein, free of any other Liens except as
expressly permitted by Section 7.01, together with such endorsements,
coinsurance and reinsurance as the Administrative Agent may reasonably request,
and (iii) to the extent such items are in the possession of, or under the
control of, the Company, such existing surveys, existing abstracts,


 


11

















 


existing appraisals, legal opinions and other
documents as the Administrative Agent may reasonably request with respect to
any such Mortgaged Property.


 


The foregoing
definition shall not require the creation or perfection of pledges of or
security interests in, or the obtaining of title insurance or surveys with
respect to, particular assets if and for so long as, in the reasonable judgment
of the Administrative Agent and the Company, the cost of creating or perfecting
such pledges or security interests in such assets or obtaining title insurance
or surveys in respect of such assets shall be excessive in view of the benefits
to be obtained by the Lenders therefrom. The Administrative Agent may grant
extensions of time for the perfection of security interests in or the obtaining
of title insurance and/or surveys with respect to particular assets (including
extensions beyond the Closing Date for the perfection of security interests in
the assets of the Loan Parties on such date) where it reasonably determines, in
consultation with the Company, that perfection cannot be accomplished without
undue effort or expense by the time or times at which it would otherwise be
required by this Agreement or the Collateral Documents.


 


Notwithstanding
the foregoing provisions of this definition or anything in this Agreement or
any other Loan Document to the contrary, (a) with respect to leases of
real property entered into by the Company or any other Guarantor, such Person
shall not be required to take any action with respect to the creation or
perfection of security interests with respect to such leases, (b) Liens
required to be granted from time to time pursuant to the Collateral and
Guarantee requirement shall be subject to exceptions and limitations set forth
in the Collateral Documents as in effect on the Closing Date and, to the extent
appropriate in the applicable jurisdiction, as agreed between the Administrative
Agent and the Company and (c) the Collateral and Guarantee Requirement
shall not apply to any of the following assets: 
(i) any fee-owned real property with a book value not in excess of
$5,000,000 and any leasehold interests in real property, (ii) motor
vehicles and other assets subject to certificates of title, letter of credit
rights and commercial tort claims with a book value not in excess of
$5,000,000, (iii) assets in respect of which a pledge thereof or the
granting of a security interest therein is prohibited by applicable Law or by
agreements containing anti-assignment clauses not overridden by Uniform
Commercial Code or other applicable Law and (iv) assets (including deposit
and securities accounts) specifically requiring perfection through control
agreements.


 


“Collateral
Documents” means, collectively, the Security Agreement, the
Intellectual Property Security Agreement, the Mortgages, each of the mortgages,
Security Agreement Supplements, IP Security Agreement Supplements, security
agreements, pledge agreements or other similar agreements delivered to the
Administrative Agent and the Secured Parties pursuant to Section 6.11 or
Section 6.13, and each of the other agreements, instruments or documents
that creates or purports to create a Lien in favor of the Collateral Agent for
the benefit of the Secured Parties.


 


“Commitment”
means a Term Commitment or a Revolving Credit Commitment, as the context may
require.


 


12
















 


“Company”
has the meaning set forth in the introductory paragraph to this Agreement.


 


“Compensation
Period” has the meaning specified in Section 2.12(c)(ii).


 


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


 


“Consolidated
EBITDA” means, for any period, the Consolidated Net Income for such
period, plus:


 


(a) without
duplication and to the extent already deducted (and not added back) in arriving
at such Consolidated Net Income,
the sum of the following amounts for such period:


 


(i) total
interest expense and, to the extent not reflected in such total interest
expense, any losses on hedging obligations or other derivative instruments
entered into for the purpose of hedging interest rate risk, net of interest
income and gains on such hedging obligations, and costs of surety bonds in
connection with financing activities,


 


(ii) provision
for federal, state, local, foreign and provincial taxes based on income,
profits or capital of the Company and the Restricted Subsidiaries, including
franchise, gross receipts and similar taxes and any withholding taxes paid or
accrued during such period,


 


(iii)
depreciation and amortization (including amortization of deferred financing
fees),


 


(iv) Non-Cash
Charges,


 


(v)
extraordinary losses and unusual or non-recurring charges (including any
unusual or non-recurring operating expenses attributable to the implementation
of cost savings initiatives or any extraordinary losses and unusual or
non-recurring charges or expenses attributable to legal and judgment
settlements), severance, relocation costs, and curtailments or modifications to
pension and post-retirement employee benefit plans,


 


(vi)
restructuring charges, accruals or reserves (including restructuring costs
related to acquisitions prior to or on or after the date hereof and to
closure/consolidation of facilities),


 


(vii) any
deductions attributable to minority interests,


 


(viii) the
amount of (A) management and monitoring fees and related expenses paid to
the Sponsor pursuant to the Sponsor Management Agreement dated as of the
Closing Date, and (B) other consulting and


 


13

















 


advisory fees and related expenses paid to
the Sponsor to the extent permitted hereunder,


 


(ix) any costs
or expenses incurred by the Company or a Restricted Subsidiary pursuant to any
management equity plan or stock option plan or 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 contributions to the
capital of the Company or net cash proceeds of an issuance of Equity Interests
of the Company (other than Disqualified Equity Interests),


 


(x) an amount
not to exceed $10,000,000 for retention incentive compensation paid or payable
to executive officers of the Company (or any direct or indirect parent thereof)
on or prior to December 31, 2008;


 


(xi) the
amount of net cost savings projected by the Company in good faith to be
realized as a result of specified actions taken or expected to be taken during
or prior to such period (which cost savings shall be added to Consolidated
EBITDA until fully realized and calculated on a pro forma basis as though such
cost savings had been realized on the first day of such period), net of the
amount of actual benefits realized during such period from such actions; provided that (A) such cost savings
are reasonably identifiable and factually supportable, (B) such actions
were begun to have been taken or expected to have been begun to be taken prior
to the date that is eighteen months after the Closing Date; provided that with respect to any action
expected to have begun to be taken, the underlying action shall actually have
begun to be taken prior to the date on which a Compliance Certificate shall be
required to be delivered pursuant to Section 6.02(b) for the fiscal
quarter in which the relevant cost savings shall have been added back pursuant
to this clause (xi), (C) no cost savings shall be added pursuant to this
clause (xi) to the extent duplicative of any expenses or charges relating
to such cost savings that are included in clause (vi) above with respect
to such period, (D) the aggregate amount of cost savings that are added
back pursuant to this clause (xi) shall include only those cost savings
expected to be realized within twelve months of taking such action and (E) the
aggregate amount of cost savings added back pursuant to this clause (xi) shall
not exceed (I) in any four consecutive fiscal quarter period ending on or prior
to September 30, 2008, the sum of (x) $50,600,000 of cost savings relating to
the categories identified in the materials furnished to the Lenders in
connection with the syndication of the Facilities (such cost savings, the “Specified Cost Savings”) and (y) $10,000,000 of additional
cost savings to the extent such cost savings are projected to be realized as a
result of actions actually taken during or prior to such period, (II) in any
four consecutive fiscal quarter period ending after September 30, 2008 and on
or prior to September 30, 2009, the sum of (x) $50,600,000 of Specified Cost


 


14

















 


Savings and (y) $10,00,000 of additional cost
savings and (III)  in any four
consecutive fiscal quarter period ending thereafter,  $10,000,000.


 


less


 


(b) without
duplication and to the extent included in arriving at such Consolidated Net
Income, the sum of the following amounts for such period:


 


(i)
extraordinary gains and unusual or non-recurring gains,


 


(ii) non-cash
gains (excluding any non-cash gain to the extent it represents the reversal of
an accrual or reserve for a potential cash item that reduced Consolidated
EBITDA in any prior period),


 


(iii) gains on
asset sales (other than asset sales in the ordinary course of business),


 


(iv) any net
after-tax income from the early extinguishment of Indebtedness or hedging
obligations or other derivative instruments, and


 


(v) all gains
from investments recorded using the equity method,


 


in each case, as determined on a consolidated
basis for the Company and the Restricted Subsidiaries in accordance with GAAP;


 


provided that, to the extent included in
Consolidated Net Income,


 


(i) there
shall be excluded in determining Consolidated EBITDA currency translation gains
and losses related to currency remeasurements of Indebtedness (including the
net loss or gain resulting from hedging agreements for currency exchange risk),


 


(ii) there
shall be excluded in determining Consolidated EBITDA for any period any
adjustments resulting from the application of Statement of Financial Accounting
Standards No. 133, and


 


(c) there shall be
included in determining Consolidated EBITDA for any period, without
duplication, (A) the Acquired EBITDA of any Person, property, business or
asset acquired by the Company or any Restricted Subsidiary during such period
(but not the Acquired EBITDA of any related Person, property, business or
assets to the extent not so acquired), to the extent not subsequently sold,
transferred or otherwise disposed by the Company or such Restricted Subsidiary
(each such Person, property, business or asset acquired and not subsequently so
disposed of, including pursuant to the Transaction, an “Acquired Entity or Business”) and the Acquired EBITDA of any Unrestricted
Subsidiary that is converted into a Restricted Subsidiary during such period
(each, a “Converted Restricted Subsidiary”),
based on the actual Acquired EBITDA of


 


15

















 


such Acquired Entity or Business or such Converted Restricted
Subsidiary, as applicable, for such period (including the portion thereof
occurring prior to such acquisition or conversion) and (B) for the
purposes of determining the Senior Secured Leverage Ratio, the Total Leverage
Ratio and/or Interest Coverage Ratio, an adjustment in respect of each Acquired
Entity or Business or of each Converted Restricted Subsidiary equal to the
amount of the Pro Forma Adjustment with respect to such Acquired Entity or
Business or of such Converted Restricted Subsidiary for such period (including
the portion thereof occurring prior to such acquisition or conversion) as
specified in a certificate executed by a Responsible Officer and delivered to
the Administrative Agent and


 


(d) for purposes of
determining the Senior Secured Leverage Ratio, the Total Leverage Ratio and the
Interest Coverage Ratio only, there shall be excluded in determining
Consolidated EBITDA for any period the Disposed EBITDA of any Person, property,
business, product, product line or asset sold, transferred or otherwise
disposed of, closed or classified as discontinued operations by the Company or
any Restricted Subsidiary during such period (each such Person, property,
business or asset so sold or disposed of, a “Sold
Entity or Business”), based on the actual Disposed EBITDA of such
Sold Entity or Business for such period (including the portion thereof
occurring prior to such sale, transfer or disposition).


 


For the
purpose of the definition of Consolidated EBITDA, “Non-Cash Charges” means (a) losses on asset sales,
disposals or abandonments, (b) any impairment charge or asset write-off related
to intangible assets, long-lived assets, and investments in debt and equity
securities pursuant to GAAP, (c) all losses from investments recorded
using the equity method, (d) stock-based awards compensation expense, and
(e) other non-cash charges (provided
that if any non-cash charges referred to in this clause (e) represent an
accrual or reserve for potential cash items in any future period, the cash
payment in respect thereof in such future period shall be subtracted from
Consolidated EBITDA to such extent, and excluding amortization of a prepaid
cash item that was paid in a prior period).


 


“Consolidated
Interest Expense” means, for any period, the sum of (i) the cash
interest expense (including that attributable to Capitalized Lease
Obligations), net of cash interest income, of the Company and the Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP, with
respect to all outstanding Indebtedness of the Company and the Restricted
Subsidiaries, including all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers’ acceptance financing and
net costs under hedging agreements, (ii) any cash payments made during
such period in respect of obligations referred to in clause (b) below
relating to Funded Debt that were amortized or accrued in a previous period
(other than any such obligations resulting from the discounting of Indebtedness
in connection with the application of purchase accounting in connection with
the Transaction or any Permitted Acquisition), and (iii) the aggregate amount
of all Restricted Payments made during such period pursuant to Section 7.06(i)
(net of cash interest income of Holdings, to the extent such cash has been
contributed to the Company), but excluding, however, (a) amortization of
deferred financing costs debt issuance costs, commissions, fees and


 


16

















 


expenses and any other amounts of non-cash interest, (b) the
accretion or accrual of discounted liabilities during such period,
(c) non-cash interest expense attributable to the movement of the
mark-to-market valuation of obligations under hedging agreements or other derivative
instruments pursuant to Statement of Financial Accounting Standards No. 133,
(d) any one-time cash costs associated with breakage in respect of hedging
agreements for interest rates, and (e) all non-recurring cash interest
expense consisting of liquidated damages for failure to timely comply with
registration rights obligations and financing fees, all as calculated on a
consolidated basis in accordance with GAAP.


 


For purposes of this definition, interest on
a Capitalized Lease shall be deemed to accrue at an interest rate reasonably
determined by the Company to be the rate of interest implicit in such
Capitalized Lease in accordance with GAAP.


 


“Consolidated
Lease Expense” means, for any period, all rental expenses of the
Company and the Restricted Subsidiaries during such period under operating
leases for real or personal property (including in connection with
sale-leaseback transactions permitted by Section 7.05(f)), excluding real
estate taxes, insurance costs and common area maintenance charges and net of
sublease income, other than (a) obligations under vehicle leases entered
into in the ordinary course of business, (b) all such rental expenses
associated with assets acquired pursuant to the Transaction and pursuant to a
Permitted Acquisition to the extent such rental expenses relate to operating
leases in effect at the time of (and immediately prior to) such acquisition and
related to periods prior to such acquisition and (c) all Capitalized Lease
Obligations, all as determined on a consolidated basis in accordance with GAAP.


 


“Consolidated
Net Income” means, for any period, the net income (loss) of the
Company and the Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, excluding, without duplication,
(a) extraordinary items for such period, (b) the cumulative effect of a
change in accounting principles during such period to the extent included in
Consolidated Net Income, (c) Transaction Expenses, (d) any fees,
expenses, (including pre-transaction payments or other compensation made to
employees of an acquired business) incurred during such period, or any
amortization thereof for such period, in connection with any acquisition,
investment, asset disposition, issuance or repayment of debt, issuance of
equity securities, refinancing transaction or amendment or other modification
of any debt instrument (in each case, including, without limitation, any such
transaction consummated prior to the Closing Date, on or after the Closing Date
and any such transaction undertaken but not completed) and any charges or
non-recurring merger costs incurred during such period as a result of any such
transaction, (e) any income (loss) for such period attributable to the
early extinguishment of Indebtedness, hedging agreements or other derivative
transactions and (f) accruals and reserves that are recorded within twelve
months after the closing date of any acquisition (including the Transaction)
that are so required to be recorded as a result of the transaction in
accordance with GAAP.  There shall be
excluded from Consolidated Net Income for any period the purchase accounting
effects of adjustments to property and equipment, software, inventory,
in-process research and development, and other intangible assets and deferred
revenue in component amounts required or permitted by GAAP and related
authoritative


 


17

















 


pronouncements (including the effects of such adjustments pushed down
to the Company and the Restricted Subsidiaries), as a result of the
Transaction, any acquisition consummated prior to the Closing Date, any
Permitted Acquisitions, or the amortization or write-off of any amounts
thereof.


 


“Consolidated Senior
Secured Debt” means, as of any date of determination, (a) the
aggregate principal amount of Indebtedness of the Company and the Restricted
Subsidiaries outstanding on such date, determined on a consolidated basis in
accordance with GAAP (but excluding the effects of any discounting of
Indebtedness resulting from the application of purchase accounting in
connection with the Transaction or any Permitted Acquisition), consisting of
(i) Loans and Unreimbursed Amounts hereunder, (ii) any Indebtedness
incurred pursuant to Section 7.03(e) and secured pursuant to Section 7.01(i)
and (iii) any other Indebtedness for borrowed money or debt obligations
evidenced by promissory notes or similar instruments that are secured by a
Lien, minus (b) the excess of (but in any event not less than zero) the
aggregate amount of all cash and Cash Equivalents (in each case, free and clear
of all Liens, other than nonconsensual Liens permitted by Section 7.01 and
Liens permitted by Section 7.01(r) and clauses (i) and (ii) of Section 7.01(s))
included, but not listed as restricted cash, in the consolidated balance sheet
of the Company and the Restricted Subsidiaries over the Integration Reserve
Amount as of such date; provided that
Consolidated Senior Secured Debt shall not include obligations under Swap
Contracts entered into in the ordinary course of business and not for
speculative purposes.


 


“Consolidated
Total Debt” means, as of any date of determination, (a) the
aggregate principal amount of indebtedness of the Company and the Restricted
Subsidiaries outstanding on such date, determined on a consolidated basis in
accordance with GAAP (but excluding the effects of any discounting of
indebtedness resulting from the application of purchase accounting in
connection with the Transaction or any Permitted Acquisition), consisting of
indebtedness for borrowed money, Capitalized Lease Obligations and debt
obligations evidenced by promissory notes or similar instruments, minus  (b) the excess of (but in any event not less
than zero) the aggregate amount of all cash and Cash Equivalents (in each case,
free and clear of all Liens, other than nonconsensual Liens permitted by
Section 7.01 and Liens permitted by Section 7.01(a),
Section 7.01(r) and clauses (i) and (ii) of Section 7.01(s))
included, but not listed as restricted cash, in the consolidated balance sheet
of the Company and the Restricted Subsidiaries over the Integration Reserve
Amount as of such date; provided that
Consolidated Total Debt shall not include (i) any Letters of Credit,
except to the extent of Unreimbursed Amounts thereunder and
(ii) obligations under Swap Contracts entered into in the ordinary course
of business and not for speculative purposes.


 


“Consolidated
Working Capital” means, at any date, the excess of (a) the sum
of all amounts (other than cash and Cash Equivalents) that would, in conformity
with GAAP, be set forth opposite the caption “total current assets” (or any
like caption) on a consolidated balance sheet of the Company and the Restricted
Subsidiaries at such date over (b) the sum of all amounts that would, in
conformity with GAAP, be set forth opposite the caption “total current
liabilities” (or any like caption) on a consolidated balance sheet of the
Company and the Restricted Subsidiaries on such


 


18

















 


date, including deferred revenue but excluding, without duplication,
(i) the current portion of any Funded Debt, (ii) all Indebtedness
consisting of Loans and obligations in respect of Letters of Credit to the
extent otherwise included therein, (iii) the current portion of interest
and (iv) the current portion of current and deferred income taxes.


 


“Continuing
Directors” means the directors of Holdings on the Closing Date, as
elected or appointed after giving effect to the Merger and the other
transactions contemplated hereby, and each other director, if, in each case,
such other directors’ nomination for election to the board of directors of
Holdings (or any direct or indirect parent of the Company after a Qualifying
IPO of such direct or indirect parent) is recommended by a majority of the then
Continuing Directors or such other director receives the vote of the Permitted
Holders in his or her election by the stockholders of Holdings (or any direct
or indirect parent of the Company after a Qualifying IPO of such direct or
indirect parent).


 


“Contract
Consideration” has the meaning set forth in the definition of “Excess
Cash Flow”.


 


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


 


“Control”
has the meaning specified in the definition of “Affiliate.”


 


“Converted
Restricted Subsidiary” has the meaning set forth in the definition
of a “Consolidated EBITDA”.


 


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


 


“Cumulative
Excess Cash Flow” means the sum of Excess Cash Flow (but not less
than zero for any period) for the fiscal year ending on December 31, 2008 and
Excess Cash Flow for each succeeding and completed fiscal year (it being
understood that no Excess Cash Flow generated during any period shall be deemed
to be Cumulative Excess Cash Flow until the financial statements for such
period are delivered pursuant to Section 6.01(a) and the related Compliance
Certificate is delivered pursuant to Section 6.02(b)).


 


“Debt
Issuance” means the issuance by any Person and its Subsidiaries of
any Indebtedness for borrowed money.


 


“Debt
Prepayment” means the prepayment by the Company or one of its
Subsidiaries on the Closing Date of any Indebtedness outstanding under each of
the Existing Credit Agreements.


 


“Debtor
Relief Laws” means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar 


 


19

















 


debtor relief Laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.


 


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


 


“Default
Rate” means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate, if any, applicable to Base Rate Loans plus
(c) 2.0% per annum; provided
that with respect to a Eurodollar Rate Loan or a Letter of Credit fee, the
Default Rate shall be an interest rate equal to the interest rate (including
any Applicable Rate) otherwise applicable to such Loan or Letter of Credit, as
the case may be, plus 2.0% per annum, in each case, to the fullest extent
permitted by applicable Laws.


 


“Defaulting
Lender” means any Lender that (a) has failed to fund any
portion of the Term Loans, Revolving Credit Loans, participations in L/C
Obligations or participations in Swing Line Loans required to be funded by it
hereunder within one (1) Business Day of the date required to be funded by it
hereunder, unless the subject of a good faith dispute or subsequently cured,
(b) has otherwise failed to pay over to the Administrative Agent or any other
Lender any other amount required to be paid by it hereunder within one (1)
Business Day of the date when due, unless the subject of a good faith dispute
or subsequently cured, or (c) has been deemed insolvent or become the
subject of a bankruptcy or insolvency proceeding.


 


“Designated
Non-Cash Consideration” means the fair market value of non-cash
consideration received by the Company or a Restricted Subsidiary in connection
with a Disposition pursuant to Section 7.05(k) that is designated as
Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer,
setting forth the basis of such valuation (which amount will be reduced by the
fair market value of the portion of the non-cash consideration converted to
cash or Cash Equivalents within 180 days following the consummation of the
applicable Disposition).


 


“Disposed
EBITDA” means, with respect to any Sold Entity or Business for any
period, the amount for such period of Consolidated EBITDA of such Sold Entity
or Business (determined as if references to the Company and the Restricted
Subsidiaries in the definition of Consolidated EBITDA (and in the component
definitions used therein) were references to such Sold Entity or Business and
its Subsidiaries), all as determined on a consolidated basis for such Sold
Entity or Business.


 


“Disposition”
or “Dispose” means the sale,
transfer, license, lease or other disposition (including any sale and leaseback
transaction) of any property or the sale or disposition of Equity Interests by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith; provided
that “disposition” and “dispose” shall not be deemed to include any issuance by
the Company of any of its Equity Interests to another Person.


 


20

















 


“Disqualified
Equity Interests” means any Equity Interest which, by its terms (or
by the terms of any security or other Equity Interests into which it is
convertible or for which it is exchangeable), or upon the happening of any
event or condition (a) matures or is mandatorily redeemable (other than
solely for Qualified Equity Interests and other than as a result of a change of
control or asset sale event), pursuant to a sinking fund obligation or
otherwise (except as a result of a change of control or asset sale so long as
any rights of the holders thereof upon the occurrence of a change of control or
asset sale event shall be subject to the prior repayment in full of the Loans
and all other Obligations that are accrued and payable and the termination of
the Commitments), (b) is redeemable at the option of the holder thereof (other
than solely for Qualified Equity Interests and other than as a result of a
change of control or asset sale so long as any rights of the holders thereof
upon the occurrence of a change of control or asset sale event shall be subject
to the prior repayment in full of the Loans and all other Obligations that are
accrued and payable and the termination of the Commitments), in whole or in part,
(c) provides for the scheduled payments of dividends in cash, or
(d) is or becomes convertible into or exchangeable for Indebtedness or any
other Equity Interests that would constitute Disqualified Equity Interests, in
each case, prior to the date that is ninety-one (91) days after the Maturity
Date of the Term Loans.


 


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


 


“Domestic
Subsidiary” means any Subsidiary that is organized under the Laws of
the United States, any state thereof or the District of Columbia.


 


“Eligible
Assignee” means any Assignee that is a Person (but not any natural
person) and an “accredited investor” (as defined in Regulation D under the
Securities Act of 1933, as amended) permitted by and consented to in accordance
with Section 10.07(b).


 


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


 


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


 


“Environmental
Liability” means any liability, contingent or otherwise (including
any liability for damages, costs of environmental remediation, fines, penalties
or indemnities), of the Company, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials,
(c) exposure to any Hazardous Materials, (d) the


 


21

















 


release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.


 


“Environmental
Permit” means any permit, approval, identification number, license
or other authorization required under any Environmental Law.


 


“Equity
Contribution” means, collectively, the contribution, directly or
indirectly, by the Equity Investors of an aggregate amount of cash, together
with existing equity already contributed by the Equity Investors in the Parent
prior to the Closing Date, that collectively represents not less than 25% of
the aggregate pro forma capitalization of the Parent on the Closing Date to the
Parent or one or more direct or indirect holding company parents of the Parent,
and (b) the further contribution through the Company to the Merger Sub of any
portion of such new cash contribution proceeds not directly received by the
Company or used by the Parent or such parent to finance the Merger Costs (it
being understood that portions of the new cash contribution from the Company to
the Merger Sub may be made in the form of subordinated debt in return for an
intercompany note issued to the Company by the surviving company of the
Merger).


 


“Equity
Interests” means, with respect to any Person, all of the shares,
interests, rights, participations or other equivalents (however designated) of
capital stock of (or other ownership or profit interests or units in) such
Person and all of the warrants, options or other rights for the purchase,
acquisition or exchange from such Person of any of the foregoing (including
through convertible securities).


 


“Equity
Investors” means the Sponsor and the Management Stockholders.


 


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


 


“ERISA
Affiliate” means any trade or business (whether or not incorporated)
that is under common control with any Loan Party within the meaning of
Section 414 of the Code or Section 4001 of ERISA.


 


“ERISA
Event” means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under
Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any
Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification
that a Multiemployer Plan is in reorganization; (d) the filing of a notice
of intent to terminate, the treatment of a Plan amendment as a termination
under Sections 4041 or 4041A of ERISA, or the commencement of proceedings
by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an
event or condition which constitutes grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or


 


22

















 


(f) the imposition of any liability under Title IV of ERISA, other
than for PBGC premiums due but not delinquent under Section 4007 of ERISA,
upon any Loan Party or any ERISA Affiliate.


 


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


 


“Eurodollar
Rate” means, for any Interest Period with respect to any Eurodollar
Rate Loan, an interest rate per annum equal to the product of (a) the LIBO
Rate in effect for such Interest Period and (b) Statutory Reserves.


 


“Eurodollar
Rate Loan” means a Loan that bears interest at a rate based on the
Eurodollar Rate.


 


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


 


“Excess
Cash Flow” means, for any period, an amount equal to the excess of:


 


(a) the sum,
without duplication, of:


 


(i)
Consolidated Net Income for such period,


 


(ii) an amount
equal to the amount of all non-cash charges to the extent deducted in arriving
at such Consolidated Net Income,


 


(iii)
decreases in Consolidated Working Capital and long-term account receivables and
increases in the long-term portion of deferred revenue for such period (other
than any such decreases or increases arising from acquisitions or dispositions
of property by the Company and the Restricted Subsidiaries completed during
such period), and


 


(iv) an amount equal to the aggregate net non-cash loss
on dispositions of property by the Company and the Restricted Subsidiaries
during such period (other than dispositions of property in the ordinary course
of business) to the extent deducted in arriving at such Consolidated Net
Income; 
over


 


(b) the sum,
without duplication, of:


 


(i) an amount
equal to the amount of all non-cash credits included in arriving at such
Consolidated Net Income and cash charges included in clauses (a) through
(f) of the definition of Consolidated Net Income,


 


(ii) without
duplication of amounts deducted pursuant to clause (xi) below in prior fiscal
years, the amount of Capital Expenditures made in cash or accrued during such
period, except to the extent that such Capital


 


23

















 


Expenditures were financed with the proceeds
of Indebtedness of the Company or the Restricted Subsidiaries,


 


(iii) the
aggregate amount of all principal payments of Indebtedness of the Company and
the Restricted Subsidiaries (including (A) the principal component of
payments in respect of Capitalized Lease Obligations and (B) the amount of
any mandatory prepayment of Term Loans pursuant to Section 2.05(b)(ii) to
the extent required due to a disposition of property that resulted in an
increase to Consolidated Net Income and not in excess of the amount of such
increase but excluding (X) all other prepayments of Term Loans and (Y) all
prepayments of Revolving Credit Loans and Swing Line Loans) made during such
period (other than in respect of any revolving credit facility to the extent
there is not an equivalent permanent reduction in commitments thereunder),
except to the extent financed with the proceeds of other Indebtedness of the
Company or the Restricted Subsidiaries,


 


(iv) an amount
equal to the aggregate net non-cash gain on dispositions of property by the
Company and the Restricted Subsidiaries during such period (other than
dispositions of property in the ordinary course of business) to the extent
included in arriving at such Consolidated Net Income,


 


(v) increases
in Consolidated Working Capital and long-term account receivables and decreases
in long-term portion of deferred revenue for such period (other than any such
increases arising from acquisitions or dispositions of property by the Company
and the Restricted Subsidiaries during such period),


 


(vi) cash
payments by the Company and the Restricted Subsidiaries during such period in
respect of long-term liabilities of the Company and the Restricted Subsidiaries
other than Indebtedness,


 


(vii) without
duplication of amounts deducted pursuant to clause (xi) below in prior fiscal
years, the amount of Investments and acquisitions made during such period to
the extent that such Investments and acquisitions were financed with internally
generated cash flow of the Company and the Restricted Subsidiaries,


 


(viii) the
amount of Restricted Payments paid during such period to the extent such
Restricted Payments were financed with internally generated cash flow of the
Company and the Restricted Subsidiaries,


 


(ix) the
aggregate amount of expenditures actually made by the Company and the Restricted
Subsidiaries in cash during such period (including expenditures for the payment
of financing fees) to the extent that such expenditures are not expensed during
such period,


 


24

















 


(x) the
aggregate amount of any premium, make-whole or penalty payments actually paid
in cash by the Company and the Restricted Subsidiaries during such period that
are required to be made in connection with any prepayment of Indebtedness,


 


(xi) without
duplication of amounts deducted from Excess Cash Flow in prior periods, the
aggregate consideration required to be paid in cash by the Company or any of
the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior
to or during such period relating to Permitted Acquisitions or Capital
Expenditures to be consummated or made during the period of four consecutive
fiscal quarters of the Company following the end of such period; provided that to the extent the aggregate
amount of internally generated cash actually utilized to finance such Permitted
Acquisitions or Capital Expenditures during such period of four consecutive
fiscal quarters is less than the Contract Consideration, the amount of such
shortfall shall be added to the calculation of Excess Cash Flow at the end of
such period of four consecutive fiscal quarters, and


 


(xii) the
amount of cash taxes or tax distributions paid in such period to the extent
they exceed the amount of tax expense deducted in determining Consolidated Net Income
for such period.


 


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


 


“Exchange Rate” means on any day with respect to any currency
other than Dollars, the rate at which such currency may be exchanged into
Dollars, as set forth at approximately 11:00 a.m. (London time) on such day on
the Reuters World Currency Page for such currency; in the event that such rate
does not appear on any Reuters World Currency Page, the Exchange Rate shall be
determined by reference to such other publicly available service for displaying
exchange rates as may be agreed upon by the Administrative Agent and the
Company, or, in the absence of such agreement, such Exchange Rate shall instead
be the arithmetic average of the spot rates of exchange of the Administrative
Agent in the market where its foreign currency exchange operations in respect
of such currency are then being conducted, at or about 10:00 a.m.
(New York City time) on such date for the purchase of Dollars for delivery
two Business Days later.


 


“Excluded
Subsidiary” means (a) any Subsidiary that is not a wholly owned
Subsidiary, (b) each Subsidiary listed on Schedule 1.01C hereto,
(c) any Subsidiary that is prohibited by applicable Law from guaranteeing
the Obligations, (d) any Domestic Subsidiary that is a Subsidiary of a
Foreign Subsidiary, (e) any Restricted Subsidiary acquired pursuant to a
Permitted Acquisition financed with secured Indebtedness incurred pursuant to
Section 7.03(g) and each Restricted Subsidiary thereof that guarantees
such Indebtedness; provided that
each such Restricted Subsidiary shall cease to be an Excluded Subsidiary under
this clause (e) if such secured Indebtedness is repaid or becomes
unsecured or if such Restricted Subsidiary ceases to guarantee such secured
Indebtedness, as applicable, (f) any Subsidiary that is not a Material
Subsidiary,


 


25

















 


(g) any other Subsidiary with respect to which, in the reasonable
judgment of the Administrative Agent (confirmed in writing by notice to the
Company), the cost or other consequences (including any adverse tax
consequences) of providing a Guarantee shall be excessive in view of the
benefits to be obtained by the Secured Parties therefrom, (h) any Subsidiary
with respect to which providing a guarantee would cause an investment in United
States property under Section 956 of the Code, (i) each Unrestricted
Subsidiary and (j) each Foreign Subsidiary.


 


“Existing
Company Credit Agreement” means the Credit Agreement dated as of
November 3, 2006, among the Company, Holdings, Bank of America, N.A., as
administrative agent, swing line lender and letter of credit issuer, the
lenders party thereto, and the other parties thereto.


 


“Existing
Credit Agreements” means, collectively, the Existing Target Credit
Agreement and the Existing Company Credit Agreement.


 


“Existing Letters of Credit”
means the letters of credit outstanding on the Closing Date and set forth on
Schedule 1.01E.


 


“Existing
Notes” means the $200,000,000 in aggregate principal amount of the
Company’s 11.75% senior subordinated notes due 2014.


 


“Existing
Notes Documentation” means the Existing Notes, the Existing Notes
Indenture and all other documents executed and delivered with respect to the
Existing Notes.


 


“Existing
Notes Indenture” means the Indenture for the Existing Notes, dated
as of November 3, 2006.


 


“Existing
Target Credit Agreement” means the Credit Agreement dated as of
April 7, 2006, among DJ Orthopedics, LLC, DJ Orthopedics Inc., Wachovia Bank,
National Association, as administrative agent and the lenders and other parties
party thereto.


 


“Facility”
means the Term Loans, the Revolving Credit Facility, the Swing Line Sublimit or
the Letter of Credit Sublimit, as the context may require.


 


“Federal Funds Rate”
means, for any day, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for the day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.


 


“Fee Letter” means
the Administrative Agent Fee Letter dated November 20, 2007 between the Company
and the Administrative Agent.


 


26

















 


“Foreign Casualty Event” has the meaning specified in
Section 2.05(b).


 


“Foreign Disposition” has the meaning specified in
Section 2.05(b).


 


“Foreign
Lender” has the meaning specified in Section 10.15(a)(i).


 


“Foreign
Subsidiary” means any direct or indirect Restricted Subsidiary of
the Company which (a) is not a Domestic Subsidiary or (b) is set
forth on Schedule 1.01D.


 


“Foreign Subsidiary Total
Assets” means the total assets of the Foreign Subsidiaries, as
determined in accordance with GAAP in good faith by a Responsible Officer,
without intercompany eliminations.


 


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


 


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


 


“Funded
Debt” means all indebtedness of any Person for borrowed money that
matures more than one year from the date of its creation or matures within one
year from such date that is renewable or extendable, at the option of such
Person, to a date more than one year from such date or arises under a revolving
credit or similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year from such date, including
Indebtedness in respect of the Loans.


 


“GAAP”
means generally accepted accounting principles in the United States of
America, as in effect from time to time;
provided, however, that if the Company notifies the Administrative
Agent that the Company requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the Closing Date in GAAP or
in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Company that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.


 


“Governmental
Authority” means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.


 


“Granting
Lender” has the meaning specified in Section 10.07(i).


 


27

















 


“Guarantees” has the meaning specified in the definition of “Collateral
and Guarantee Requirement”.


 


“Guarantee
Obligations” means,
as to any Person, without duplication, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other monetary obligation payable by another
Person (the “primary obligor”) in any manner, whether directly or indirectly,
and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other monetary obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other monetary obligation of the ability of the
primary obligor to make payment of such Indebtedness or other monetary
obligation, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other monetary obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other monetary obligation of the ability of the primary obligor
to make payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Indebtedness or other monetary obligation of any other
Person, whether or not such Indebtedness or other monetary obligation is
assumed by such Person (or any right, contingent or otherwise, of any holder of
such Indebtedness to obtain any such Lien);
provided that the term “Guarantee Obligation” shall not include
endorsements for collection or deposit, in either case in the ordinary course
of business, or customary and reasonable indemnity obligations in effect on the
Closing Date or entered into in connection with any acquisition or Disposition
of assets permitted under this Agreement (other than such obligations with
respect to Indebtedness).  The amount of
any Guarantee Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
as determined by the guaranteeing Person in good faith.


 


“Guarantors”
has the meaning set forth in the definition of “Collateral and Guarantee
Requirement”.


 


“Guaranty”
means, collectively, (a) the Guaranty made by the Guarantors in favor of
the Collateral Agent on behalf of the Secured Parties, substantially in the
form of Exhibit F and (b) each other guaranty and guaranty supplement
delivered pursuant to Section 6.11.


 


“Hazardous
Materials” means all explosive or radioactive substances or wastes
and all hazardous or toxic substances, wastes or pollutants, including
petroleum or petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all
other substances or wastes of any nature regulated pursuant to any
Environmental Law.


 


28

















 


“Hedge Bank”
means any Person that is an Agent, a Lender or an Affiliate of an Agent or a
Lender at the time it enters into a Secured Hedge Agreement, in its capacity as
a party thereto.


 


“Holdings”
has the meaning set forth in the introductory paragraph to this Agreement.


 


“Honor Date”
has the meaning specified in Section 2.03(c)(i).


 


“Incremental
Amendment” has the meaning set forth in Section 2.14(a).


 


“Incremental
Facility Closing Date” has the meaning set forth in
Section 2.14(a).


 


“Incremental
Term Loans” has the meaning set forth in Section 2.14(a).


 


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


 


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


 


(b) the
maximum amount (after giving effect to any prior drawings or reductions which
may have been reimbursed) of all letters of credit (including standby and
commercial), bankers’ acceptances, bank guaranties, surety bonds, performance
bonds and similar instruments issued or created by or for the account of such
Person;


 


(c) net
obligations of such Person under any Swap Contract;


 


(d) all
obligations of such Person to pay 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);


 


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


 


(f) all
Attributable Indebtedness;


 


(g) all
obligations of such Person in respect of Disqualified Equity Interests; and


 


29

















 


(h) all Guarantee
Obligations of such Person in respect of any of the foregoing.


 


For all
purposes hereof, the Indebtedness of any Person shall (A) include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, except to the extent such Person’s
liability for such Indebtedness is otherwise expressly limited and only to the
extent such Indebtedness would be included in the calculation of Consolidated
Total Debt or Consolidated Senior Secured Debt and (B) in the case of the
Company and its Subsidiaries, exclude all intercompany Indebtedness having a
term not exceeding 364 days (inclusive of any roll-over or extensions of terms)
and made in the ordinary course of business consistent with past practice.  The amount of any net obligation under any
hedging agreement on any date shall be deemed to be the Swap Termination Value
thereof as of such date.  The amount of
Indebtedness of any Person for purposes of clause (e) shall be deemed to
be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness
and (ii) the fair market value of the property encumbered thereby as
determined by such Person in good faith.


 


“Indemnified
Liabilities” has the meaning set forth in Section 10.05.


 


“Indemnitees”
has the meaning set forth in Section 10.05.


 


“Information”
has the meaning specified in Section 10.08.


 


“Integration Reserve Amount”
means, for the period prior to the time the Company first delivers a Compliance
Certificate to the Administrative Agent pursuant to Section 6.02(b), 100% of
the Post-Closing Integration Amount (but in any event not in excess of
$33,000,000), and on the last day of each fiscal quarter of the Company ending
thereafter, the amount of the Post-Closing Integration Amount on such date not
expended by the Company in connection with the Specified Post-Closing
Integration Costs and set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 6.02(b) (but in
any event not in excess of $33,000,000).


 


“Intellectual
Property Security Agreement” means, collectively, the Intellectual
Property Security Agreement, executed by the Loan Parties substantially in the
form of Exhibit G-2, together with each other intellectual property
security agreement executed and delivered pursuant to Section 6.11.


 


“Interest
Coverage Ratio” means, with respect to the Company and the
Restricted Subsidiaries on a consolidated basis, as of the end of any fiscal
quarter of the Company for the Test Period ending on such date, the ratio of
(a) Consolidated EBITDA to (b) Consolidated Interest Expense.


 


“Interest
Payment Date” means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date of the Facility under which such Loan was made; provided that if any Interest Period for
a Eurodollar Rate Loan exceeds three months, the respective dates that fall


 


30

















 


every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate Loan
(including a Swing Line Loan), the last Business Day of each March, June,
September and December and the Maturity Date of the Facility under which such
Loan was made.


 


“Interest
Period” means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to
or continued as a Eurodollar Rate Loan and ending on the date one, two, three
or six months thereafter, or to the extent available to each Lender of such
Eurodollar Rate Loan, nine or twelve months or less than one month thereafter,
as selected by the Company in its Loan Notice;
provided that:


 


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


 


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


 


(c) no
Interest Period shall extend beyond the Maturity Date of the Facility under
which such Loan was made.


 


“Intermediate Holding
Company” means any Subsidiary of Holdings that directly owns 100% of
the issued and outstanding Equity Interests of the Company.


 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
Equity Interests or debt or other securities of another Person, (b) a
loan, advance or capital contribution to, Guarantee Obligation or assumption of
Indebtedness of, or purchase or other acquisition of any other debt or equity
participation or interest in, another Person, including any partnership or
joint venture interest in such other Person (excluding, in the case of the
Company and its Subsidiaries, intercompany loans, advances, or Indebtedness
having a term not exceeding 364 days (inclusive of any roll-over or extensions
of terms) and made in the ordinary course of business consistent with past
practice) or (c) the purchase or other acquisition (in one transaction or
a series of transactions) of all or substantially all of the property and
assets or business of another Person or assets constituting a business unit,
line of business or division of such Person. 
For purposes of covenant compliance, the amount of any Investment shall
be the amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment. 
For the avoidance of doubt, it is understood that the following shall
not constitute “Investments” hereunder: 
(a) acquisitions of equipment to be used in the business of the
Company or any of its Subsidiaries, so long as the acquisition costs thereof
constitute Capital Expenditures permitted hereunder and (b) acquisitions
of inventory in the ordinary course of business of the Company and its
Subsidiaries.


 


31

















 


“IP
Security Agreement Supplement” has the meaning specified in the
Intellectual Property Security Agreement.


 


“IRS”
means the United States Internal Revenue Service.


 


“Junior
Financing” has the meaning specified in Section 7.13(a).


 


“Junior
Financing Documentation” means any documentation governing any
Junior Financing.


 


“Laws”
means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.


 


“L/C
Advance” means, with respect to each Revolving Credit Lender, such
Lender’s funding of its participation in any L/C Borrowing in accordance with
its Pro Rata Share.


 


“L/C
Borrowing” means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Revolving Credit Borrowing.


 


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


 


“L/C
Disbursement” means a payment or disbursement made by an L/C Issuer
pursuant to a Letter of Credit.


 


“L/C Issuer”
means Credit Suisse, the issuers of the Existing Letters of Credit and any
other Lender that becomes an L/C Issuer in accordance with Section 2.03(l)
or 10.07(k) in its capacity as an issuer of Letters of Credit hereunder, or any
successor issuer of Letters of Credit hereunder.


 


“L/C
Obligations” means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.


 


“Lender”
has the meaning specified in the introductory paragraph to this Agreement and,
as the context requires, includes an L/C Issuer and the Swing Line Lender, and
their respective successors and assigns as permitted hereunder, each of which
is referred to herein as a “Lender.”


 


32
















 


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


 


“Letter of
Credit” means any Existing Letter of Credit or any letter of credit
issued hereunder. A Letter of Credit may be a commercial letter of credit or a
standby letter of credit.


 


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


 


“Letter of
Credit Expiration Date” means the day that is five (5) Business Days
prior to the scheduled Maturity Date then in effect for the Revolving Credit
Facility (or, if such day is not a Business Day, the next preceding Business
Day).


 


“Letter of
Credit Sublimit” means an amount equal to the lesser of
(a) $50,000,000 and (b) the aggregate amount of the Revolving Credit
Commitments. The Letter of Credit Sublimit is part of, and not in addition to,
the Revolving Credit Facility.


 


“LIBO Rate”
means, for any Interest Period with respect to any Eurodollar Rate Loan, the
rate per annum determined by the Administrative Agent at approximately 11:00
a.m. (London time) on the date that is two Business Days prior to the
commencement of such Interest Period by reference to the British Bankers’
Association Interest Settlement Rates for deposits in dollars (as set forth by
any service selected by the Administrative Agent that has been nominated by the
British Bankers’ Association as an authorized information vendor for the
purpose of displaying such rates) for a period equal to such Interest Period; provided that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the “Eurodollar
Rate” shall be the interest rate per annum determined by the Administrative
Agent to be the average of the rates per annum at which deposits in dollars are
offered for such relevant Interest Period to major banks in the London
interbank market in London, England by the Administrative Agent at
approximately 11:00 a.m. (London time) on the date that is two Business Days
prior to the beginning of such Interest Period.


 


“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or
other security interest or preferential arrangement of any kind or nature
whatsoever (including any conditional sale or other title retention agreement,
any easement, right of way or other encumbrance on title to real property, and
any Capitalized Lease having substantially the same economic effect as any of
the foregoing).


 


“Loan”
means an extension of credit by a Lender to the Company under Article II in the
form of a Term Loan, a Revolving Credit Loan or a Swing Line Loan.


 


33

















 


“Loan
Documents” means, collectively, (i) this Agreement, (ii) the
Notes, (iii) the Guaranty, (iv) the Collateral Documents,
(v) the Fee Letter, and (vi) each Letter of Credit Application.


 


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


 


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


 


“Management
Stockholders” means the members of management of Parent, Holdings,
the Company or its Subsidiaries who are investors or option holders in Holdings
or any direct or indirect parent thereof (including Parent).


 


“Master
Agreement” has the meaning specified in the definition of “Swap
Contract.”


 


“Material
Adverse Effect” means (a) a material adverse effect on the
business, operations, assets, liabilities (actual or contingent) or financial
condition of the Company and its Subsidiaries, taken as a whole, (b) a
material adverse effect on the ability of the Company or the Loan Parties
(taken as a whole) to perform their respective payment obligations under any
Loan Document to which the Company or any of the Loan Parties is a party or
(c) a material adverse effect on the rights and remedies of the Lenders
under any Loan Document.


 


“Material
Subsidiary” shall mean, at any date of determination, each
Restricted Subsidiary of the Company (a) whose total assets at the last
day of the Test Period ending on the last day of the most recent fiscal period
for which financial statements have been delivered pursuant to Section 6.01
were equal to or greater than 5% of the Total Assets of the Company and the
Restricted Subsidiaries at such date or (b) whose gross revenues for such
Test Period were equal to or greater than 5% of the consolidated gross revenues
of the Company and the Restricted Subsidiaries for such Test Period, in each
case determined in accordance with GAAP; provided that “Material
Subsidiary” shall also include any of the Company’s Restricted Subsidiaries
selected by the Company which is required to ensure that the Company and all
Material Subsidiaries combined have in the aggregate (i) total assets at the
last day of the most recent Test Period that were equal to or greater than 95% of
the Total Assets of the Company and the Restricted Subsidiaries at such date
and (ii) gross revenues for such Test Period that were equal to or greater
than 95% of the consolidated gross revenues of the Company and the Restricted
Subsidiaries for such Test Period, in each case determined in accordance with
GAAP.


 


“Maturity
Date” means (a) with respect to the Revolving Credit Facility,
the sixth anniversary of the Closing Date and (b) with respect to the Term
Loans, the date that is six years and six months from the Closing Date, provided that if either such day is


 


34

















 


not a Business Day, the Maturity Date shall be the Business Day
immediately preceding such day.


 


“Maximum
Rate” has the meaning specified in Section 10.10.


 


“Merger”
has the meaning set forth in the preliminary statements to this Agreement.


 


“Merger
Agreement” means the Agreement and Plan of Merger dated as of
July 15, 2007, among the Company, Merger Sub and the Target.


 


“Merger
Consideration” means the total funds required to consummate the
Merger.


 


“Merger
Costs” means collectively, the Merger Consideration, the Debt
Prepayment and the Transaction Expenses.


 


“Merger Sub”
means Reaction Acquisition Merger Sub, Inc., a Delaware corporation.


 


“Minority Investment” means any person (other than a
Subsidiary) in which the Company or any Restricted Subsidiary owns Equity
Interests (or other ownership or profit interests or units).


 


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


 


“Mortgage”
means, collectively, the deeds of trust, trust deeds and mortgages made by the
Loan Parties in favor or for the benefit of the Collateral Agent on behalf of
the Secured Parties substantially in the form of Exhibit H (with such
changes as may be customary to account for local Law matters), and any other
mortgages executed and delivered pursuant to Section 6.11.


 


“Mortgage
Policies” has the meaning specified in Section 6.13(b)(ii).


 


“Mortgaged
Properties” has the meaning specified in paragraph (f) of the
definition of Collateral and Guarantee Requirement.


 


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


 


“Net Cash Proceeds”
means:


 


(a) with
respect to the Disposition of any asset by the Company or any Restricted
Subsidiary or any Casualty Event, the excess, if any, of (i) the sum of cash
and Cash Equivalents received in connection with such Disposition or


 


35

















 


Casualty Event (including any cash or Cash
Equivalents received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received and, with
respect to any Casualty Event, any insurance proceeds or condemnation awards in
respect of such Casualty Event actually received by or paid to or for the account
of the Company or any Restricted Subsidiary) over (ii) the sum of
(A) the principal amount, premium or penalty, if any, interest and other
amounts on any Indebtedness that is secured by the asset subject to such
Disposition or Casualty Event and that is required to be repaid (and is timely
repaid) in connection with such Disposition or Casualty Event (other than
Indebtedness under the Loan Documents), (B) the out-of-pocket expenses
(including attorneys’ fees, investment banking fees, survey costs, title
insurance premiums, and related search and recording charges, transfer taxes,
deed or mortgage recording taxes, other customary expenses and brokerage,
consultant and other customary fees) actually incurred by the Company or such
Restricted Subsidiary in connection with such Disposition or Casualty Event,
(C) taxes paid or reasonably estimated to be actually payable in
connection therewith, and (D) any reserve for adjustment in respect of (x)
the sale price of such asset or assets established in accordance with GAAP and
(y) any liabilities associated with such asset or assets and retained by the
Company or any Restricted Subsidiary after such sale or other disposition
thereof, including pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with such transaction and it being understood that “Net
Cash Proceeds” shall include any cash or Cash Equivalents (i) received upon the
Disposition of any non-cash consideration received by the Company or any
Restricted Subsidiary in any such Disposition and (ii) upon the reversal
(without the satisfaction of any applicable liabilities in cash in a
corresponding amount) of any reserve described in clause (D) of the
preceding sentence or, if such liabilities have not been satisfied in cash and
such reserve is not reversed within three hundred and sixty-five (365) days
after such Disposition or Casualty Event, the amount of such reserve; provided that (x) no net cash proceeds
calculated in accordance with the foregoing realized in a single transaction or
series of related transactions shall constitute Net Cash Proceeds unless such
net cash proceeds shall exceed $10,000,000 and (y) no such net cash proceeds
shall constitute Net Cash Proceeds under this clause (a) in any fiscal
year until the aggregate amount of all such net cash proceeds in such fiscal
year shall exceed $25,000,000 (and thereafter only net cash proceeds in excess
of such amount shall constitute Net Cash Proceeds under this clause (a));
and


 


(b) with
respect to the incurrence or issuance of any Indebtedness by the Company or any
Restricted Subsidiary, the excess, if any, of (i) the sum of the cash received
in connection with such incurrence or issuance over (ii) the investment
banking fees, underwriting discounts, commissions, costs and other
out-of-pocket expenses and other customary expenses, incurred by the Company or
such Restricted Subsidiary in connection with such incurrence or issuance.


 


“New Notes”
means the Senior Unsecured Notes.


 


36

















 


“New Notes
Documentation” means the New Notes, and all documents executed and
delivered with respect to the New Notes, including the Senior Unsecured Notes
Indenture.


 


“Non-Cash
Charges” has the meaning set forth in the definition of the term “Consolidated
EBITDA”.


 


“Non-Consenting
Lender” has the meaning specified in Section 3.07(d).


 


“Nonrenewal
Notice Date” has the meaning specified in Section 2.03(b)(iii).


 


“Note”
means a Term Note or a Revolving Credit Note, as the context may require.


 


“Notice of
Intent to Cure” has the meaning specified in Section 6.02(b).


 


“Not
Otherwise Applied” means, with reference to any amount of net
proceeds of any transaction or event or of Excess Cash Flow or of the Available
Amount, that such amount (a) was not applied to prepay the Loans pursuant
to Section 2.05(b), and (b) has not previously been (and is not
simultaneously being) applied to anything other than that such particular use
or transaction.


 


“NPL”
means the National Priorities List under CERCLA.


 


“Obligations”
means all (x) advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party and its Subsidiaries arising under any Loan Document
or otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or its
Subsidiaries of any proceeding under any Debtor Relief Laws naming such Person
as the debtor in such proceeding, regardless of whether such interest and fees
are allowed claims in such proceeding, (y) obligations of any Loan Party and
its Subsidiaries arising under any Secured Hedge Agreement and (z) Cash
Management Obligations. Without limiting the generality of the foregoing, the
Obligations of the Loan Parties under the Loan Documents (and of their
Subsidiaries to the extent they have obligations under the Loan Documents)
include (a) the obligation (including guarantee obligations) to pay
principal, interest, Letter of Credit commissions, reimbursement obligations,
charges, expenses, fees, Attorney Costs, indemnities and other amounts payable
by any Loan Party or its Subsidiaries under any Loan Document and (b) the
obligation of any Loan Party or any of its Subsidiaries to reimburse any amount
in respect of any of the foregoing that any Lender, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party or such Subsidiary. Notwithstanding
the foregoing, (i) the obligations of the Company or any Subsidiary under any
Secured Hedge Agreement and the Cash Management Obligations shall be secured
and guaranteed pursuant to the Collateral Documents and the Guaranty only to
the extent that, and for so long as, the other Obligations are so secured and
guaranteed and (ii) any release of Collateral or Guarantors effected in
the manner


 


37

















 


permitted by this Agreement shall not require the consent of the
holders of obligations under the Secured Hedge Agreements or the holders of the
Cash Management Obligations.


 


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


 


“Other
Taxes” has the meaning specified in Section 3.01(b).


 


“Outstanding
Amount” means (a) with respect to the Term Loans, Revolving
Credit Loans and Swing Line Loans on any date, the outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments of
Term Loans, Revolving Credit Loans (including any refinancing of outstanding
unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving
Credit Borrowing) and Swing Line Loans, as the case may be, occurring on such
date; and (b) with respect to any L/C Obligations on any date, the
outstanding amount thereof on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes thereto as of such date,
including as a result of any reimbursements of outstanding unpaid drawings
under any Letters of Credit (including any refinancing of outstanding unpaid
drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit
Borrowing) or any reductions in the maximum amount available for drawing under
Letters of Credit taking effect on such date.


 


“Parent” means
ReAble Therapeutics, Inc. (to be renamed DJO Incorporated), a Delaware
corporation.


 


“Participant”
has the meaning specified in Section 10.07(f).


 


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


 


“PBGC”
means the Pension Benefit Guaranty Corporation.


 


“Pension
Plan” means any “employee pension benefit plan” (as such term is defined
in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by any Loan Party
or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate
contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five (5) plan years.


 


38

















 


“Permitted
Acquisition” has the meaning specified in Section 7.02(i).


 


“Permitted
Equity Issuance” means any sale or issuance of any Qualified Equity
Interests of Holdings (or any direct or indirect parent of Holdings) or any
Intermediate Holding Company or the Company to the extent permitted hereunder.


 


“Permitted
Holders” means the Equity Investors other than the Management
Stockholders to the extent that the amount of the outstanding voting stock of
Holdings (or any direct or indirect parent thereof) owned beneficially or of
record by such Management Stockholders in the aggregate at any time exceeds
fifteen percent (15%) of the total amount of the outstanding voting stock of
Holdings (or any direct or indirect parent thereof) at such time.


 


“Permitted
Holdings Debt” means unsecured Indebtedness of any direct or
indirect parent of the Company  (i) that
is not subject to any Guarantee by the Company or any Restricted Subsidiary,
(ii) that will not mature prior to the date that is ninety-one (91) days after
the Maturity Date of the Term Loans, (iii) that has no scheduled amortization
or payments of principal (it being understood that such Indebtedness may have
mandatory prepayment, repurchase or redemption provisions satisfying the
requirements of clause (v) hereof), (iv) that does not require any payments in
cash of interest or other amounts in respect of the principal thereof for at
least five years from the date of issuance or incurrence thereof, and (v) that
has mandatory prepayment, repurchase or redemption, covenant, default and
remedy provisions customary for senior discount notes of an issuer that is the
parent of a borrower under senior secured credit facilities, and in any event,
with respect to covenant, default and remedy provisions, no more restrictive than
those set forth in the Existing Notes Indenture as of the Closing Date, taken
as a whole (other than provisions customary for senior discount notes of a
holding company); provided that a certificate of a
Responsible Officer delivered to the Administrative Agent at least five
Business Days prior to the incurrence of such Indebtedness, together with a
reasonably detailed description of the material terms and conditions of such
Indebtedness or drafts of the documentation relating thereto, stating that the
Company has determined in good faith that such terms and conditions satisfy the
foregoing requirement shall be conclusive evidence that such terms and
conditions satisfy the foregoing requirement unless the Administrative Agent
notifies the Company within such five Business Day period that it disagrees
with such determination (including a reasonable description of the basis upon
which it disagrees).


 


“Permitted
Refinancing” means, with respect to any Person, any modification,
refinancing, refunding, renewal or extension of any Indebtedness of such
Person; provided that
(a) the principal amount (or accreted value, if applicable) thereof does
not exceed the principal amount (or accreted value, if applicable) of the
Indebtedness so modified, refinanced, refunded, renewed or extended except by
an amount equal to unpaid accrued interest and premium thereon plus other
reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such modification, refinancing, refunding, renewal or extension
and by an amount equal to any existing commitments unutilized thereunder,
(b) other than with respect to a Permitted Refinancing in respect of
Indebtedness permitted pursuant to Section 7.03(e), such


 


39

















 


modification, refinancing, refunding, renewal or extension has a final
maturity date equal to or later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being modified, refinanced, refunded,
renewed or extended, (c) other than with respect to a Permitted
Refinancing in respect of Indebtedness permitted pursuant to
Section 7.03(e), at the time thereof, no Event of Default shall have
occurred and be continuing, and (d) if such Indebtedness being modified,
refinanced, refunded, renewed or extended is Indebtedness permitted pursuant to
Section 7.03(b), 7.03(u) or 7.13(a), (i) to the extent such Indebtedness
being modified, refinanced, refunded, renewed or extended is subordinated in
right of payment to the Obligations, such modification, refinancing, refunding,
renewal or extension is subordinated in right of payment to the Obligations on
terms at least as favorable to the Lenders as those contained in the documentation
governing the Indebtedness being modified, refinanced, refunded, renewed or
extended, (ii) the terms and conditions (including, if applicable, as to
collateral but excluding as to subordination, interest rate and redemption
premium) of any such modified, refinanced, refunded, renewed or extended
Indebtedness, taken as a whole, are not materially less favorable to the Loan
Parties or the Lenders than the terms and conditions of the Indebtedness being
modified, refinanced, refunded, renewed or extended; provided that a certificate of a Responsible Officer
delivered to the Administrative Agent at least five Business Days prior to the
incurrence of such Indebtedness, together with a reasonably detailed
description of the material terms and conditions of such Indebtedness or drafts
of the documentation relating thereto, stating that the Company has determined
in good faith that such terms and conditions satisfy the foregoing requirement
shall be conclusive evidence that such terms and conditions satisfy the
foregoing requirement unless the Administrative Agent notifies the Company
within such five Business Day period that it disagrees with such determination
(including a reasonable description of the basis upon which it disagrees) and
(iii) such modification, refinancing, refunding, renewal or extension is
incurred by the Person who is the obligor of the Indebtedness being modified,
refinanced, refunded, renewed or extended.


 


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


 


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


 


“Pledged
Debt” has the meaning specified in the Security Agreement.


 


“Pledged
Equity” has the meaning specified in the Security Agreement.


 


“Post-Acquisition
Period” means, with respect to any Specified Transaction, the period
beginning on the date such Specified Transaction is consummated and ending on
the last day of the sixth full consecutive fiscal quarter immediately following
the date on which such Specified Transaction is consummated.


 


40

















 


“Post-Closing Integration
Amount” means an amount not less than $33,000,000 of certain
pre-funded post-closing integration costs identified by the Company to the
Arrangers prior to the date hereof (the “Specified Post-Closing
Integration Costs”).


 


“Post-Transaction
Period” means, with respect to the Transaction, the period beginning
on the Closing Date and ending on the last day of the fourth full consecutive
fiscal quarter immediately following the Closing Date.


 


 “Prime Rate” means the rate of interest per annum determined
from time to time by Credit Suisse as its prime rate in effect at its principal
office in New York City and notified to the Company.


 


“Pro Forma
Adjustment” means, for any Test Period that includes all or any part
of a fiscal quarter included in any Post-Acquisition Period or Post-Transaction
Period, with respect to the Acquired EBITDA of the applicable Acquired Entity
or Business or of the applicable Converted Restricted Subsidiary or the
Consolidated EBITDA of the Company and its Restricted Subsidiaries, the pro
forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA,
as the case may be, projected by the Company in good faith as a result of (a) actions
that have begun to be taken or are expected to have been begun to be taken
prior to or during such Post-Acquisition Period or such Post-Transaction
Period, as applicable, for the purposes of realizing reasonably identifiable
and factually supportable cost savings or (b) any additional costs
incurred prior to or during such Post-Acquisition Period or such
Post-Transaction Period, in each case in connection with the combination of the
operations of such Acquired Entity or Business or of such Converted Restricted
Subsidiary with the operations of the Company and the Restricted Subsidiaries; provided that, so long as such actions
have begun to be taken or are expected to have been begun to be taken prior to
or during such Post-Acquisition Period or such Post-Transaction Period, as
applicable, or such costs are incurred prior to such Post-Acquisition Period or
such Post-Transaction Period or during such Post-Acquisition Period or such
Post-Acquisition Period,  as applicable,
the cost savings related to such actions or such additional costs, as
applicable, it may be assumed, for purposes of projecting such pro forma
increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as
the case may be, that such cost savings will be realizable during the entirety
of such Test Period, or such additional costs, as applicable, will be incurred
during the entirety of such Test Period;
provided, further,  that any
such pro forma increase or decrease to such Acquired EBITDA or such
Consolidated EBITDA, as the case may be, shall be without duplication for cost
savings or additional costs already included in such Acquired EBITDA or such
Consolidated EBITDA, as the case may be, for such Test Period;  provided,
further,  that with respect to
any action expected to have begun to be taken, the underlying action shall
actually have begun to be taken prior to the date on which a Compliance
Certificate shall be required to be delivered pursuant to Section 6.02(b)
for the fiscal quarter in which the relevant cost saving shall have been
included in the Acquired EBITDA or Consolidated EBITDA, as applicable.


 


41

















 


“Pro Forma
Balance Sheet” has the meaning set forth in
Section 5.05(a)(ii).


 


“Pro Forma
Basis”, “Pro Forma Compliance”
and “Pro Forma Effect” mean, with
respect to compliance with any test or covenant hereunder, that (A) to the
extent applicable, the Pro Forma Adjustment shall have been made and
(B) all Specified Transactions and the following transactions in
connection therewith shall be deemed to have occurred as of the first day of
the applicable period of measurement in such test or covenant:  (a) income statement items (whether
positive or negative) attributable to the property or Person subject to such
Specified Transaction, (i) in the case of a Disposition of all or substantially
all Equity Interests in any Subsidiary of the Company or any division, product
line, or facility used for operations of the Company or any of its
Subsidiaries, shall be excluded, and (ii) in the case of a Permitted
Acquisition or Investment described in the definition of  “Specified Transaction”, shall be included,
(b) any retirement of Indebtedness, and (c) any Indebtedness incurred
or assumed by the Company or any of the Restricted Subsidiaries in connection
therewith and if such Indebtedness has a floating or formula rate, shall have
an implied rate of interest for the applicable period for purposes of this
definition determined by utilizing the rate which is or would be in effect with
respect to such Indebtedness as at the relevant date of determination; provided that, without limiting  the application of the Pro Forma Adjustment
pursuant to (A) above, the foregoing pro forma adjustments may be applied to
any such test or covenant solely to the extent that such adjustments are
consistent with the definition of Consolidated EBITDA and give effect to events
(including operating expense reductions) that are (i) (x) directly attributable
to such transaction, (y) expected to have a continuing impact on the Company
and the Restricted Subsidiaries and (z) factually supportable or
(ii) otherwise consistent with the definition of Pro Forma Adjustment.


 


“Pro Forma
Financial Statements” has the meaning set forth in
Section 5.05(a)(ii).


 


“Pro Rata
Share” means, with respect to each Lender at any time a fraction
(expressed as a percentage, carried out to the ninth decimal place), the
numerator of which is the amount of the Commitment of such Lender under the
applicable Facility or Facilities at such time and the denominator of which is
the amount of the Aggregate Commitments of all Lenders under the applicable
Facility or Facilities at such time;
provided that if such Commitment has been terminated, then the Pro
Rata Share of each Lender shall be determined based on the Pro Rata Share of
such Lender immediately prior to such termination and after giving effect to
any subsequent assignments made pursuant to the terms hereof.


 


“Projections”
shall have the meaning set forth in Section 6.01(c).


 


“Qualified
Equity Interests” means any Equity Interests that are not
Disqualified Equity Interests.


 


42

















 


“Qualifying
IPO” means the issuance by Holdings, any Intermediate Holding
Company, any direct or indirect parent of Holdings or the Company of its common
Equity Interests in an underwritten primary public offering (other than a
public offering pursuant to a registration statement on Form S-8) pursuant to
an effective registration statement filed with the SEC in accordance with the
Securities Act (whether alone or in connection with a secondary public
offering).


 


“Refinanced
Term Loans” has the meaning specified in Section 10.01.


 


“Register”
has the meaning set forth in Section 10.07(d).


 


“Replacement
Term Loans” has the meaning specified in Section 10.01.


 


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


 


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


 


“Required
Lenders” means, as of any date of determination, Lenders having more
than 50% of the sum of the (a) Total Outstandings (with the aggregate
amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for
purposes of this definition), (b) aggregate unused Term Commitments and
(c) aggregate unused Revolving Credit Commitments; provided that the unused Term Commitment
and unused Revolving Credit Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender or the Sponsor or
any Affiliate thereof shall be excluded for purposes of making a determination
of Required Lenders.


 


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


 


“Restricted
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interest of the
Company or any Restricted Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, defeasance, acquisition,
cancellation or termination of any such Equity Interest, or on account of any
return of capital to the Company’s stockholders, partners or members (or the
equivalent Persons thereof).


 


43

















 


“Restricted
Subsidiary” means any Subsidiary of the Company other than an
Unrestricted Subsidiary.


 


“Revolving
Commitment Increase” has the meaning set forth in
Section 2.14(a).


 


“Revolving
Commitment Increase Lender” has the meaning set forth in
Section 2.14(a).


 


“Revolving
Credit Borrowing” means a borrowing consisting of simultaneous
Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate
Loans, having the same Interest Period made by each of the Revolving Credit
Lenders pursuant to Section 2.01(b).


 


“Revolving
Credit Commitment” means, as to each Revolving Credit Lender, its
obligation to (a) make Revolving Credit Loans to the Company pursuant to
Section 2.01(b), (b) purchase participations in L/C Obligations in
respect of Letters of Credit and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth, and opposite such Lender’s name on
Schedule 2.01 under the caption “Revolving Credit Commitment” or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement including if applicable pursuant to Section 2.14. The
aggregate Revolving Credit Commitment of all Revolving Credit Lenders shall be
$100,000,000 on the Closing Date, as such amount may be adjusted from time to
time in accordance with the terms of this Agreement including if applicable
pursuant to Section 2.14.


 


“Revolving
Credit Exposure” means, as to each Revolving Credit Lender, the sum
of the outstanding principal amount of such Revolving Credit Lender’s Revolving
Credit Loans at such time and its Pro Rata Share of the L/C Obligations and the
Swing Line Obligations at such time.


 


“Revolving
Credit Facility” means, at any time, the aggregate amount of the
Revolving Credit Lenders’ Revolving Credit Commitments at such time.


 


“Revolving
Credit Lender” means, at any time, any Lender that has a Revolving
Credit Commitment at such time.


 


“Revolving
Credit Loan” has the meaning specified in Section 2.01(b).


 


“Revolving
Credit Note” means a promissory note of the Company payable to any
Revolving Credit Lender or its registered assigns, in substantially the form of
Exhibit C-2 hereto, evidencing the aggregate Indebtedness of the Company
to such Revolving Credit Lender resulting from the Revolving Credit Loans made
by such Revolving Credit Lender.


 


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


 


44

















 


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


 


“Secured
Hedge Agreement” means any Swap Contract permitted under Article VII
that is entered into by and between any Loan Party or any Restricted Subsidiary
and any Hedge Bank.


 


“Secured
Parties” means, collectively, the Administrative Agent, the
Collateral Agent, the Lenders, the Hedge Banks, the Cash Management Banks, the
Supplemental Administrative Agent and each co-agent or sub-agent appointed by
the Administrative Agent from time to time pursuant to Section 9.01(c).


 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Security
Agreement” means, collectively, the Security Agreement executed by
the Loan Parties, substantially in the form of Exhibit G-1, together with
each other security agreement supplement executed and delivered pursuant to
Section 6.11.


 


“Security
Agreement Supplement” has the meaning specified in the Security
Agreement.


 


“Senior Secured Leverage
Ratio” means, with respect to any Test Period, the ratio of
(a) Consolidated Senior Secured Debt of the Company and its Restricted
Subsidiaries as of the last day of such Test Period to (b) Consolidated
EBITDA of the Company and its Restricted Subsidiaries for such Test Period.


 


“Senior
Unsecured Notes” means $575,000,000 in aggregate principal amount of
the Company’s 10.875% senior unsecured notes due 2014 to be co-issued with
ReAble Finance Corporation (to be renamed DJO Finance Corporation), a Delaware
corporation.


 


“Senior
Unsecured Notes Indenture” means the Indenture for the Senior
Unsecured Notes, dated as of November 20, 2007.


 


“Sold
Entity or Business” has the meaning set forth in the definition of
the term “Consolidated EBITDA”.


 


“Solvent”
and “Solvency” mean, with respect
to any Person on any date of determination, that on such date (a) the fair
value of the property of such Person is greater than the total amount of
liabilities, including contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured, (c) such Person does not
intend to, and does not believe that it will, incur debts or liabilities beyond
such Person’s ability to pay such debts and liabilities as they mature and
(d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person’s property
would constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the light of
all the facts and


 


45

















 


circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.


 


“SPC”
has the meaning specified in Section 10.07(i).


 


“Specified Acquisition” means the acquisition previously
disclosed to the Arrangers prior to the Closing Date of a Person in the same or
related line of business as the Company and its Subsidiaries, having an
aggregate consideration not to exceed $150,000,000, and  that
(a) the Total Leverage Ratio after giving Pro Forma Effect to such acquisition
(including any cost savings consistent with section (a)(xi) of the definition
of Consolidated EBITDA herein) as of the last day of the Test Period
immediately preceding such acquisition shall not be greater than the Total
Leverage Ratio immediately before such acquisition and (b) such acquisition
shall be consummated on or prior to December 31, 2008.


 


“Specified Cost Savings”
has the meaning specified in the definition of Consolidated EBITDA.


 


“Specified Post-Closing
Integration Costs” has the meaning specified in the definition of
Post-Closing Integration Amount.


 


“Specified Ratings
Condition” shall be deemed to be satisfied on any day that the
corporate family rating assigned to the Company by Moody’s is B1 or higher  and the corporate rating assigned to the
Company by S&P is B+ or higher, in each case with no negative outlook.


 


“Specified
Transaction” means, with respect to any period, any Investment,
Disposition, incurrence or repayment of Indebtedness, Restricted Payment,
Subsidiary designation, Incremental Term Loan or Revolving Commitment Increase
that by the terms of this Agreement requires “Pro Forma Compliance” with a test
or covenant hereunder or requires such test or covenant to be calculated on a “Pro
Forma Basis”.


 


“Sponsors”
means The Blackstone Group and its Affiliates, but not including, however, any
portfolio companies of any of the foregoing.


 


“Sponsor
Management Agreement” means the Transaction and Monitoring Fee
Agreement between the Sponsor and Parent.


 


“Sponsor
Termination Fees” means the one-time payment under the Sponsor
Management Agreement of a termination fee to the Sponsor and its Affiliates in
the event of either a Change of Control or the completion of a Qualifying IPO.


 


“Statutory Reserves”
shall mean a fraction (expressed as a decimal), the numerator of which is the
number one and the denominator of which is the number one minus the aggregate
of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board and
any other banking authority, domestic or foreign, to which the Administrative
Agent or any Lender (including any branch, Affiliate or other fronting office
making or


 


46

















 


holding a Loan) is subject for Eurocurrency Liabilities (as defined in
Regulation D of the Board). Eurodollar Rate Loans shall be deemed to constitute
Eurocurrency Liabilities (as defined in Regulation D of the Board) and to be subject
to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D. Statutory Reserves shall be adjusted automatically on
and as of the effective date of any change in any reserve percentage.


 


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise specified, all references herein to a “Subsidiary” or
to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.


 


“Subsidiary
Guarantor” means, collectively, the Subsidiaries of the Company that
are Guarantors.


 


“Successor
Company” has the meaning specified in Section 7.04(d).


 


“Supplemental
Administrative Agent” has the meaning specified in Section 9.13
and “Supplemental Administrative Agents” shall have the corresponding meaning.


 


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


 


“Swap
Termination Value” means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or
after the date such


 


47

















 


Swap Contract has been closed out and termination value(s) determined
in accordance therewith, such termination value(s), and (b) for any date
prior to the date referenced in clause (a), the amount(s) determined as
the mark-to-market value(s) for such Swap Contracts, as determined based upon
one or more mid-market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a Lender).


 


“Swing Line
Borrowing” means a borrowing of a Swing Line Loan pursuant to
Section 2.04.


 


“Swing Line
Facility” means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.04.


 


“Swing Line
Lender” means Credit Suisse, in its capacity as provider of Swing
Line Loans, or any successor swing line lender hereunder.


 


“Swing Line
Loan” has the meaning specified in Section 2.04(a).


 


“Swing Line
Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form
of Exhibit B.


 


“Swing Line
Obligations” means, as at any date of determination, the aggregate
principal amount of all Swing Line Loans outstanding.


 


“Swing Line
Sublimit” means an amount equal to the lesser of
(a) $30,000,000 and (b) the aggregate amount of the Revolving Credit
Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Revolving Credit Commitments.


 


“Target” has the meaning specified in the recitals to this
Agreement.


 


“Taxes”
has the meaning specified in Section 3.01(a).


 


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


 


“Term
Commitment” means, as to each Term Lender, its obligation to make a
Term Loan to the Company pursuant to Section 2.01(a) in an aggregate
amount (funded at a 1.0% discount as provided in Section 2.01(a)(ii)) not
to exceed the amount set forth opposite such Lender’s name on
Schedule 2.01(a) under the caption “Term Commitment” or in the Assignment
and Assumption pursuant to which such Term Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with
this Agreement. The initial aggregate amount of the Term Commitments is
$1,065,000,000.


 


48

















 


“Term
Lender” means, at any time, any Lender that has a Term Commitment or
a Term Loan at such time.


 


“Term Loan”
means a Loan made pursuant to Section 2.01(a).


 


“Term Note”
means a promissory note of the Company payable to any Term Lender or its
registered assigns, in substantially the form of Exhibit C-1 hereto,
evidencing the aggregate Indebtedness of the Company to such Term Lender
resulting from the Term Loans made by such Term Lender.


 


“Test
Period” in effect at any time shall mean the most recent period of
four consecutive fiscal quarters of the Company ended on or prior to such time
(taken as one accounting period) in respect of which financial statements for
each quarter or fiscal year in such period have been or are required to be
delivered pursuant to Section 6.01(a) or (b).


 


“Threshold
Amount” means $25,000,000.


 


“Total
Assets” means the total assets of the Company and the Restricted
Subsidiaries on a consolidated basis, as shown on the most recent balance sheet
of the Company delivered pursuant to Section 6.01(a) or (b) or, for the
period prior to the time any such statements are so delivered pursuant to
Section 6.01(a) or (b), the pro forma financial statements of the Company
giving effect to the Transaction as set forth in the Offering Circular dated
November 20, 2007, relating to the New Notes.


 


“Total
Leverage Ratio” means, as of any date of determination, the ratio of
(a) Consolidated Total Debt of the Company and the Restricted Subsidiaries
as of the last day of the most recent Test Period ended on or prior to such
date of determination to (b) Consolidated EBITDA of the Company and the
Restricted Subsidiaries for such Test Period.


 


“Total
Outstandings” means, at any time, the sum of (i)  the aggregate Outstanding Amount of all Loans
at such time and (ii) the aggregate Outstanding Amount of all L/C
Obligations at such time.


 


“Tranche”
means a category of Commitments or Credit Extensions thereunder. For purposes
hereof, each of the following comprises a separate Tranche:  (a) the unused Revolving Commitments,
(b) the outstanding Revolving Credit Loans and L/C Obligations in respect
of Letters of Credit and (c) the outstanding Term Loans.


 


“Transaction”
means, collectively, (a) the Equity Contribution, (b) the Merger,
(c) the issuance of the New Notes, (d) the refinancing of each of the
Existing Credit Agreements and the termination of all commitments thereunder,
(e) the funding of the Term Loans in an aggregate amount of $1,065,000,000
(funded at a 1.0% discount) on the Closing Date, (f) the funding of the
Post-Closing Integration Amount, (g) the consummation of any other
transactions in connection with the foregoing, and (h) the payment of the
fees and expenses incurred in connection with any of the foregoing.


 


49

















 


“Transaction
Expenses” means any fees or expenses incurred or paid by the Parent,
Target, Merger Sub, Holdings (or any direct or indirect parents thereof), the
Company or any Restricted Subsidiary in connection with the Transaction, this
Agreement and the other Loan Documents and the transactions contemplated hereby
and thereby.


 


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


 


“Unaudited
Financial Statements” has the meaning set forth in
Section 4.01(f).


 


“Uniform
Commercial Code” means the Uniform Commercial Code as the same may
from time to time be in effect in the State of New York or the Uniform
Commercial Code (or similar code or statute) of another jurisdiction, to the
extent it may be required to apply to any item or items of Collateral.


 


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


 


“U.S. Lender” has
the meaning set forth in Section 10.15(b).


 


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


 


“Unrestricted
Subsidiary” means (i) each Subsidiary of the Company listed on
Schedule 1.01A, (ii) any Subsidiary of the Company designated by the
board of directors of the Company as an Unrestricted Subsidiary pursuant to
Section 6.14 subsequent to the date hereof and (iii) any Subsidiary
of an Unrestricted Subsidiary.


 


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


 


“wholly
owned” means, with respect to a Subsidiary of a Person, a Subsidiary
of such Person all of the outstanding Equity Interests of which (other than (x)
director’s qualifying shares and (y) shares issued to foreign nationals to the
extent required by applicable Law) are owned by such Person and/or by one or
more wholly owned Subsidiaries of such Person.


 


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


 


(a)  The meanings of defined
terms are equally applicable to the singular and plural forms of the defined
terms.


 


50

















 


(b)  (i) The words “herein,”
“hereto,” “hereof” and “hereunder” and words of similar import when used in any
Loan Document shall refer to such Loan Document as a whole and not to any
particular provision thereof.


 


(ii) Article, Section, Exhibit and Schedule references are to
the Loan Document in which such reference appears.


 


(iii) The term “including” is by way of example and not limitation.


 


(iv) The term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other
writings, however evidenced, whether in physical or electronic form.


 


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


 


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


 


SECTION 1.03. Accounting
Terms. (a)   All accounting
terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP, applied in a manner consistent with
that used in preparing the Audited Financial Statements, except as otherwise
specifically prescribed herein.


 


(b)  Notwithstanding anything to the contrary
herein, for purposes of determining compliance with any test or covenant
contained in this Agreement with respect to any period during which any
Specified Transaction occurs, the Senior Secured Leverage Ratio, the Total
Leverage Ratio and Interest Coverage Ratio shall be calculated with respect to
such period and such Specified Transaction on a Pro Forma Basis.


 


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


 


SECTION 1.05. References
to Agreements, Laws, Etc. Unless otherwise expressly provided herein,
(a) references to Organization Documents, agreements (including the Loan
Documents) and other contractual instruments shall be deemed to include all
subsequent amendments, restatements, extensions, supplements, replacements and
other modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements, replacements and other modifications are


 


51

















 


permitted by any Loan Document; and
(b) references to any Law shall include all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting
such Law.


 


SECTION 1.06. Times
of Day. Unless otherwise specified, all references herein to times of day
shall be references to Eastern time (daylight or standard, as applicable).


 


SECTION 1.07. Timing
of Payment of Performance. When the payment of any obligation or the
performance of any covenant, duty or obligation is stated to be due or
performance required on a day which is not a Business Day, the date of such
payment (other than as described in the definition of Interest Period) or
performance shall extend to the immediately succeeding Business Day.


 


SECTION 1.08. Currency
Equivalents Generally. For purposes of determining compliance with Sections
7.01, 7.02 and 7.03 with respect to any amount of obligations, Liens,
Indebtedness or Investment in a currency other than Dollars, no Default shall
be deemed to have occurred solely as a result of changes in rates of exchange
occurring after the time such obligations, Liens, Indebtedness or Investment is
incurred; provided that, for the
avoidance of doubt, the foregoing provisions of this Section 1.08 shall
otherwise apply to such Sections, including with respect to determining whether
any obligations, Liens Indebtedness or Investment may be incurred at any time
under such Sections. For purposes of determining compliance under Sections
7.02, 7.05, 7.06 and 7.11, any amount in a currency other than Dollars will be
converted to Dollars based on the average Exchange Rate for such currency for
the most recent twelve-month period immediately prior to the date of
determination determined in a manner consistent with that used in calculating
Consolidated EBITDA for the applicable period;  provided, however, that the foregoing shall not be
deemed to apply to the determination of any amount of Indebtedness.


 


ARTICLE II


 


The Commitments and Credit Extensions


 


SECTION 2.01. The
Loans. (a)    The Term Borrowings. (i) Subject to the
terms and conditions set forth herein, each Term Lender severally agrees to
make to the Company a single loan in an amount equal to such Term Lender’s Term
Commitment on the Closing Date. Amounts borrowed under this
Section 2.01(a) and repaid or prepaid may not be reborrowed. Term Loans
may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.


 


(ii) The Term Loans shall be funded by each Term Lender to the Company
on the Closing Date at a 1.0% discount; accordingly, the amount of Term Loans
funded by each Term Lender to the Company on the Closing Date shall be in an
amount equal to 99.0% of the stated principal amount of such Term Loans.


 


52
















 


(b)  The
Revolving Credit Borrowings. Subject to the terms and conditions set
forth herein each Revolving Credit Lender severally agrees to make loans to the
Company (each such loan, a “Revolving Credit
Loan”) from time to time, on any Business Day until the Maturity
Date with respect to the Revolving Credit Facility, in an aggregate principal
amount not to exceed at any time outstanding the amount of such Lender’s
Revolving Credit Commitment; provided that
after giving effect to any Revolving Credit Borrowing, the aggregate
Outstanding Amount of the Revolving Credit Loans of any Lender, plus such
Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus
such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender’s Revolving Credit Commitment. Within the limits
of each Lender’s Revolving Credit Commitment, and subject to the other terms
and conditions hereof, the Company may borrow under this Section 2.01(b),
prepay under Section 2.05, and reborrow under this Section 2.01(b). Revolving
Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.


 


SECTION 2.02. Borrowings,
Conversions and Continuations of Loans. (a) 
Each Term Borrowing, each Revolving Credit Borrowing, each conversion of
Term Loans or Revolving Credit Loans from one Type to the other, and each
continuation of Eurodollar Rate Loans shall be made upon the Company’s
irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than
11:00 a.m. (i) three (3) Business Days prior to the requested date of any
Borrowing of, or continuation of, Eurodollar Rate Loans or any conversion of
Base Rate Loans to Eurodollar Rate Loans, and (ii) one (1) Business Day
before the requested borrowing date of Base Rate Loans or conversion of any
Eurodollar Loan to Base Rate Loans. Each telephonic notice by the Company
pursuant to this Section 2.02(a) must be confirmed promptly by delivery to
the Administrative Agent of a written Loan Notice, appropriately completed and
signed by a Responsible Officer of the Company. Each Borrowing of, conversion
to or continuation of Eurodollar Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof. Except as
provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion
to Base Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $100,000 in excess thereof. Each Loan Notice (whether telephonic or
written) shall specify (i) whether the Company is requesting a Term Borrowing,
a Revolving Credit Borrowing, a conversion of Term Loans or Revolving Credit
Loans from one Type to the other, or a continuation of Eurodollar Rate Loans,
(ii) the requested date of the Borrowing, conversion or continuation, as
the case may be (which shall be a Business Day), (iii) the principal
amount of Loans to be borrowed, converted or continued, (iv) the Type of
Loans to be borrowed or to which existing Term Loans or Revolving Credit Loans
are to be converted, (v) the number and location of the account to which funds
are to be disbursed and (vi) if applicable, the duration of the Interest
Period with respect thereto. If the Company fails to specify a Type of Loan in
a Loan Notice or fails to give a timely notice requesting a conversion or
continuation, then the applicable Term Loans or Revolving Credit Loans shall be
made as, or converted to, Base Rate Loans. Any such automatic conversion to Base
Rate Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans. If the Company
requests a Borrowing of, conversion to, or continuation of Eurodollar Rate
Loans in any 


 


53





















 


such Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one
(1) month.


 


(b)  Following receipt of a Loan Notice, the
Administrative Agent shall promptly notify each Lender of the amount of its Pro
Rata Share of the applicable Class of Loans, and if no timely notice of a
conversion or continuation is provided by the Company, the Administrative Agent
shall notify each Lender of the details of any automatic conversion to Base
Rate Loans or continuation described in Section 2.02(a). In the case of
each Borrowing, each Appropriate Lender shall make the amount of its Loan
available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the Business Day
specified in the applicable Loan Notice. Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the
initial Credit Extension, Section 4.01), the Administrative Agent shall
make all funds so received available to the Company in like funds as received
by the Administrative Agent by wire transfer of such funds in accordance with
instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Company.


 


(c)  Except as otherwise provided herein, a
Eurodollar Rate Loan may be continued or converted only on the last day of an
Interest Period for such Eurodollar Rate Loan unless the Company pays the
amount due, if any, under Section 3.05 in connection therewith. During the
existence of an Event of Default, the Required Lenders may require that no
Loans be converted to or continued as Eurodollar Rate Loans.


 


(d)  The Administrative Agent shall promptly
notify the Company and the Lenders of the interest rate applicable to any
Interest Period for Eurodollar Rate Loans upon determination of such interest
rate. The determination of the Eurodollar Rate by the Administrative Agent
shall be conclusive in the absence of manifest error. At any time that Base
Rate Loans are outstanding, the Administrative Agent shall notify the Company
and the Lenders of any change in the Prime Rate used in determining the Base
Rate promptly following the announcement of such change. All computations of
interest hereunder shall be made in accordance with Section 2.08 and
Section 2.10 hereunder


 


(e)  After giving effect to all Term Borrowings,
all Revolving Credit Borrowings, all conversions of Term Loans or Revolving
Credit Loans from one Type to the other, and all continuations of Term Loans or
Revolving Credit Loans as the same Type, there shall not be more than fifteen
(15) Interest Periods in effect.


 


(f)  The failure of any Lender to make the Loan to
be made by it as part of any Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make its Loan on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Loan to be made by such other Lender on the date of any
Borrowing.


 


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


 


54

















 


Agent may, with the Company’s consent, assume
that such Lender has made such portion available to the Administrative Agent on
the date of such Borrowing in accordance with paragraph (b) above, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Company on such date a corresponding amount. If the Administrative Agent
shall have so made funds available, then, to the extent that such Lender shall
not have made such portion available to the Administrative Agent, each of such
Lender and the Company severally agrees to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Company until
the date such amount is repaid to the Administrative Agent at (i) in the case
of the Company, the interest rate applicable at the time to the Loans
comprising such Borrowing and (ii) in the case of such Lender, the greater of
the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation. A certificate
of the Administrative Agent submitted to any Lender with respect to any amounts
owing under this Section 2.02(g) shall be conclusive in the absence of
manifest error. If such Lender’s portion of such Borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
after such the date of such Borrowing, the Administrative Agent shall also be
entitled to recover such amount with interest thereon accruing from the date on
which the Administrative Agent made the funds available to the Company at the
rate per annum applicable to Base Rate Loans under the relevant Facility, on
demand, from the Company. If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount shall constitute such Lender’s
Loan as part of such Borrowing for purposes of this Agreement, and the Company’s
obligation to repay the Administrative Agent such corresponding amount pursuant
to this Section 2.02(g) shall cease.


 


SECTION 2.03. Letters
of Credit. (a)  The Letter of Credit Commitment. (i) On
and after the Closing Date the Existing Letters of Credit will constitute
Letters of Credit under this Agreement and for purposes hereof will be deemed
to have been issued on the Closing Date.


 


(ii) Subject to the terms and conditions set forth herein, (A) each L/C
Issuer agrees, in reliance upon the agreements of the other Revolving Credit
Lenders set forth in this Section 2.03, (1) from time to time on any
Business Day during the period from the Closing Date until the date that is
five (5) days prior to the Letter of Credit Expiration Date, to issue Letters
of Credit denominated in Dollars for the account of the Company (provided, that a Letter of Credit may be issued hereunder at
the request of the Company for the account of any Subsidiary of the Company and
such Letter of Credit shall be deemed for all purposes hereunder to be for the
account of the Company) and to amend or renew Letters of Credit previously
issued by it, in accordance with Section 2.03(b), and (2) to honor drafts
under the Letters of Credit and (B) the Revolving Credit Lenders severally
agree to participate in Letters of Credit issued pursuant to this
Section 2.03; provided that no L/C Issuer
shall be obligated to make any L/C Credit Extension with respect to any Letter
of Credit, and no Lender shall be obligated to participate in any Letter of
Credit if as of the date of such L/C Credit Extension, (y) the Revolving Credit
Exposure of any Lender would exceed such 


 


55

















 


Lender’s
Revolving Credit Commitment or (z) the Outstanding Amount of the L/C
Obligations would exceed the Letter of Credit Sublimit. Within the foregoing
limits, and subject to the terms and conditions hereof, the Company’s ability
to obtain Letters of Credit shall be fully revolving, and accordingly the
Company may, during the foregoing period, obtain Letters of Credit to replace
Letters of Credit that have expired or that have been drawn upon and
reimbursed.


 


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


 


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


 


(B) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after the date
of issuance or last renewal, unless the Required Lenders have approved such
expiry date;


 


(C) the expiry date of such requested Letter of Credit would occur
after the Letter of Credit Expiration Date, unless the relevant L/C Issuer has
approved such expiry date, but so long as the Revolving Credit Lenders are no
longer obligated to reimburse the relevant L/C Issuer beyond such date unless
all Revolving Lenders have approved such expiry date;


 


(D) the issuance of such Letter of Credit would violate any Laws
binding upon the L/C Issuer; or


 


(E) such Letter of Credit is in an initial amount less than $100,000.


 


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


 


56

















 


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


 


(b)  Procedures
for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be,
upon the request of the Company delivered to an L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the Company. Such
Letter of Credit Application must be received by the relevant L/C Issuer and
the Administrative Agent not later than 11:00 a.m. at least two (2) Business
Days prior to the proposed issuance date or date of amendment, as the case may
be; or, in each case, such later date and time as relevant L/C Issuer may agree
in a particular instance in its sole discretion. In the case of a request for
an initial issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail reasonably satisfactory to the relevant L/C
Issuer:  (a) the proposed issuance
date of the requested Letter of Credit (which shall be a Business Day); (b) the
amount thereof; (c) the expiry date thereof; (d) the name and address
of the beneficiary thereof; (e) the documents to be presented by such
beneficiary in case of any drawing thereunder; (f) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder; and (g) such other matters as the relevant L/C Issuer may
reasonably request. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall specify
in form and detail reasonably satisfactory to the relevant L/C Issuer (1) the
Letter of Credit to be amended; (2) the proposed date of amendment thereof
(which shall be a Business Day); (3) the nature of the proposed amendment; and
(4) such other matters as the relevant L/C Issuer may reasonably request.


 


(ii) Promptly after receipt of any Letter of Credit Application, the
relevant L/C Issuer will confirm with the Administrative Agent (by telephone or
in writing) that the Administrative Agent has received a copy of such Letter of
Credit Application from the Company and, if not, such L/C Issuer will provide
the Administrative Agent with a copy thereof. Upon receipt by the relevant L/C
Issuer of confirmation from the Administrative Agent that the requested issuance
or amendment is permitted in accordance with the terms hereof, then, subject to
the terms and conditions hereof, such L/C Issuer shall, on the requested date,
issue a Letter of Credit for the account of the Company or enter into the
applicable amendment, as the case may be. Immediately upon the issuance of each
Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the relevant L/C
Issuer a risk 


 


57

















 


participation
in such Letter of Credit in an amount equal to the product of such Lender’s Pro
Rata Share times the amount of such Letter of Credit.


 


(iii) If the Company so requests in any applicable Letter of Credit
Application, the relevant L/C Issuer shall agree to issue a Letter of Credit
that has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal Letter of Credit must
permit the relevant L/C Issuer to prevent any such renewal at least once in
each twelve month period (commencing with the date of issuance of such Letter
of Credit) by giving prior notice to the beneficiary thereof not later than a
day (the “Nonrenewal Notice Date”)
in each such twelve month period to be agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed by the relevant L/C Issuer, the
Company shall not be required to make a specific request to the relevant L/C
Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has been
issued, the Lenders shall be deemed to have authorized (but may not require)
the relevant L/C Issuer to permit the renewal of such Letter of Credit at any
time to an expiry date not later than the Letter of Credit Expiration Date; provided that the relevant L/C Issuer
shall not permit any such renewal if (A) the relevant L/C Issuer has determined
that it would have no obligation at such time to issue such Letter of Credit in
its renewed form under the terms hereof (by reason of the provisions of Section 2.03(a)(ii)
or otherwise), or (B) it has received notice (which may be by telephone or
in writing) on or before the day that is five (5) Business Days before the
Nonrenewal Notice Date from the Administrative Agent, any Revolving Credit Lender
or the Company that one or more of the applicable conditions specified in
Section 4.02 is not then satisfied.


 


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


 


(c)  Drawings
and Reimbursements; Funding of Participations. (i) Upon receipt
from the beneficiary of any Letter of Credit of any notice of a drawing under
such Letter of Credit, the relevant L/C Issuer shall notify promptly the
Company and the Administrative Agent thereof. On the Business Day following the
date on which the Company shall have received notice of any payment by an L/C
Issuer under a Letter of Credit (or, if the Company shall have received such
notice later than 10:00 a.m. on any Business Day, on the second Business Day
following the receipt of such notice) (each such date, an “Honor Date”), the Company shall reimburse
such L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing; provided that
if such reimbursement is not made on the respective date of payment by the L/C
Issuer, the Company shall pay interest on such amount at a rate per annum equal
to the Applicable Rate then in effect in respect of Base Rate Loans from the
date of such payment until such Business Day. If the Company fails to so
reimburse such L/C Issuer by such time, unless the Company shall have notified
the Administrative Agent and the relevant L/C Issuer prior to 11:00 a.m. on the
Honor Date that the Company intends to reimburse the L/C Issuer for the amount
of the unreimbursed drawing (the “Unreimbursed
Amount”) 


 


58

















 


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


 


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


 


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


 


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


 


(v) Each Revolving Credit Lender’s obligation to make Revolving Credit
Loans or L/C Advances to reimburse an L/C Issuer for amounts drawn under
Letters of Credit, as contemplated by this Section 2.03(c), shall be
absolute and unconditional and shall not be affected by any circumstance,
including (A) any 


 


59

















 


setoff,
counterclaim, recoupment, defense or other right which such Lender may have
against the relevant L/C Issuer, the Company or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or
(C) any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided that
each Revolving Credit Lender’s obligation to make Revolving Credit Loans
pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 4.02 (other than delivery by the Company of a Loan Notice ). No
making of an L/C Advance shall relieve or otherwise impair the obligation of
the Company to reimburse the relevant L/C Issuer for the amount of any payment
made by such L/C Issuer under any Letter of Credit, together with interest as
provided herein.


 


(vi) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the relevant L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.03(c) by the time specified in Section 2.03(c)(ii), such
L/C Issuer shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to such L/C Issuer at a rate per annum equal to the
greater of the Federal Funds Rate and a rate determined by such L/C Issuer in
accordance with banking industry rules on interbank compensation. A certificate
of the relevant L/C Issuer submitted to any Revolving Credit Lender (through
the Administrative Agent) with respect to any amounts owing under this
Section 2.03(c)(vi) shall be conclusive absent manifest error.


 


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


 


(ii) If any payment received by the Administrative Agent for the
account of an L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by such L/C Issuer in its
discretion), each Appropriate Lender shall pay to the Administrative Agent for
the account of such L/C Issuer its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect.


 


60

















 


(e)  Obligations
Absolute. The obligation of the Company to reimburse the relevant
L/C Issuer for each drawing under each Letter of Credit issued by it and to
repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:


 


(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other agreement or instrument relating thereto;


 


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


 


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


 


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


 


(v) any exchange, release or nonperfection of any Collateral, or any
release or amendment or waiver of or consent to departure from the Guaranty or
any other guarantee, for all or any of the Obligations of any Loan Party in
respect of such Letter of Credit; or


 


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


 


provided that the foregoing shall not excuse
any L/C Issuer from liability to the Company to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are waived by
the Company to the extent permitted by applicable Law) suffered by the Company
that are caused by such L/C Issuer’s gross negligence or willful misconduct
when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof.


 


61

















 


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


 


(g)  Cash
Collateral. (i) If an L/C Issuer has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted in an
L/C Borrowing and the conditions set forth in Section 4.02 to a Revolving
Credit Borrowing cannot then be met, (ii) if, as of the Letter of Credit
Expiration Date, any Letter of Credit may for any reason remain outstanding and
partially or wholly undrawn, (iii) if any Event of Default occurs and is
continuing and the Administrative Agent or the Required Lenders, as applicable,
require the Company to Cash Collateralize the L/C Obligations pursuant to
Section 8.02(c) or (iv) an Event of Default set forth under
Section 8.01(f) or (g) occurs and is continuing, then the Company shall
Cash Collateralize the then Outstanding Amount of all L/C Obligations (in an
amount equal to such Outstanding Amount determined as of the date of such L/C
Borrowing or the Letter of Credit Expiration Date, as the case may be), and
shall do so not later than 2:00 p.m., New York City time, on (x) in the case of
the immediately preceding clauses (i) through (iii), (1) the 


 


62

















 


Business Day that the Company receives notice
thereof, if such notice is received on such day prior to 12:00 noon, New York
City time, or (2) if clause (1) above does not apply, the Business Day
immediately following the day that the Company receives such notice and (y) in
the case of the immediately preceding clause (iv), the Business Day on
which an Event of Default set forth under Section 8.01(f) or (g) occurs
or, if such day is not a Business Day, the Business Day immediately succeeding
such day. For purposes hereof, “Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the relevant L/C Issuer and the
Lenders, as collateral for the L/C Obligations, cash or deposit account
balances (“Cash Collateral”)
pursuant to documentation in form and substance reasonably satisfactory to the
Administrative Agent and the relevant L/C Issuer (which documents are hereby
consented to by the Lenders). Derivatives of such term have corresponding
meanings. The Company hereby grants to the Administrative Agent, for the
benefit of the L/C Issuers and the Lenders, a security interest in all such
cash, deposit accounts and all balances therein and all proceeds of the foregoing.
Cash Collateral shall be maintained in a Cash Collateral Account and may be
invested in readily available Cash Equivalents. If at any time the
Administrative Agent determines that any funds held as Cash Collateral are
subject to any right or claim of any Person other than the Administrative Agent
(on behalf of the Secured Parties) or that the total amount of such funds is
less than the aggregate Outstanding Amount of all L/C Obligations, the Company
will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the Cash
Collateral Account, an amount equal to the excess of (a) such aggregate
Outstanding Amount over (b) the total amount of funds, if any, then held as
Cash Collateral that the Administrative Agent reasonably determines to be free
and clear of any such right and claim. Upon the drawing of any Letter of Credit
for which funds are on deposit as Cash Collateral, such funds shall be applied,
to the extent permitted under applicable Law, to reimburse the relevant L/C
Issuer. To the extent the amount of any Cash Collateral exceeds the then
Outstanding Amount of such L/C Obligations and so long as no Event of Default
has occurred and is continuing, the excess shall be refunded to the Company.


 


(h)  Letter of
Credit Fees. The Company shall pay to the Administrative Agent for
the account of each Revolving Credit Lender in accordance with its Pro Rata
Share a Letter of Credit fee for each Letter of Credit issued pursuant to this
Agreement equal to the Applicable Rate times the daily maximum amount then
available to be drawn under such Letter of Credit (whether or not such maximum
amount is then in effect under such Letter of Credit if such maximum amount
increases periodically pursuant to the terms of such Letter of Credit). Such
Letter of Credit fees shall be computed on a quarterly basis in arrears. Such
Letter of Credit fees shall be due and payable on the last Business Day of each
March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. If there is any change in the
Applicable Rate during any quarter, the daily maximum amount of each Letter of Credit
shall be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect.


 


(i)  Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Company shall pay directly to each L/C Issuer for its own account a 


 


63

















 


fronting fee with respect to each Letter of
Credit issued by it equal to 0.125% per annum (or such other amount as is
agreed in a separate writing between the relevant L/C Issuer and the Company)
of the daily maximum amount then available to be drawn under such Letter of
Credit (whether or not such maximum amount is then in effect under such Letter
of Credit if such maximum amount increases periodically pursuant to the terms
of such Letter of Credit). Such fronting fees shall be computed on a quarterly
basis in arrears. Such fronting fees shall be due and payable on the last
Business Day of each March, June, September and December, commencing with the
first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. In addition, the
Company shall pay directly to each L/C Issuer for its own account the customary
issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of such L/C Issuer relating to letters of credit as from
time to time in effect. Such customary fees and standard costs and charges are
due and payable within ten (10) Business Days of demand and are nonrefundable.


 


(j)  Conflict
with Letter of Credit Application. Notwithstanding anything else to
the contrary in this Agreement, in the event of any conflict between the terms
hereof and the terms of any Letter of Credit Application, the terms hereof
shall control.


 


(k)  Reporting.
Each L/C Issuer will report in writing to the Administrative Agent (i) on the
first Business Day of each calendar month, the aggregate face amount of Letters
of Credit issued by it and outstanding as of the last Business Day of the
preceding calendar month (and on such other dates as the Administrative Agent
may request), (ii) on or prior to each Business Day on which such L/C
Issuer expects to issue, amend, renew or extend any Letter of Credit, the date
of such issuance or amendment, and the aggregate face amount of Letters of
Credit to be issued, amended, renewed or extended by it and outstanding after
giving effect to such issuance, amendment, renewal or extension (and such L/C
Issuer shall advise the Administrative Agent on such Business Day whether such
issuance, amendment, renewal or extension occurred and whether the amount
thereof changed), (iii) on each Business Day on which such L/C Issuer
makes any L/C Disbursement, the date and amount of such L/C Disbursement and
(iv) on any Business Day on which the Company fails to reimburse an L/C
Disbursement required to be reimbursed to such L/C Issuer on such day, the date
and amount of such failure.


 


(l)  Addition
of an L/C Issuer. A Revolving Credit Lender or an Affiliate thereof
may become an additional L/C Issuer hereunder pursuant to a written agreement
among the Company, the Administrative Agent and such Revolving Credit Lender. The
Administrative Agent shall notify the Revolving Credit Lenders of any such
additional L/C Issuer.


 


(m)  Letter of
Credit Amounts. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the stated amount of such
Letter of Credit in effect at such time;
provided, however,
that with respect to any Letter of Credit that, by its terms or the terms of
any document related thereto, provides for one or more automatic increases in
the stated amount thereof, the amount of such Letter of Credit shall be deemed
to be the maximum stated amount of such Letter of Credit after 


 


64

















 


giving effect to all such increases, whether
or not such maximum stated amount is in effect at such time.


 


SECTION 2.04. Swing
Line Loans. (a)  The Swing Line. Subject to the terms and
conditions set forth herein, the Swing Line Lender agrees to make loans (each
such loan, a “Swing Line Loan”) to
the Company from time to time on any Business Day (other than the Closing Date)
until the Maturity Date in respect of the Revolving Credit Facility in an
aggregate amount not to exceed at any time outstanding the amount of the Swing
Line Sublimit, notwithstanding the fact that such Swing Line Loans, when
aggregated with the Pro Rata Share of the Outstanding Amount of Revolving
Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender, may
exceed the amount of such Lender’s Revolving Credit Commitment; provided that, after giving effect to any
Swing Line Loan, the aggregate Outstanding Amount of the Revolving Credit Loans
of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of
all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit
Commitment then in effect; provided,
further, that the Company shall not use the proceeds of any Swing
Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing
limits, and subject to the other terms and conditions hereof, the Company may
borrow under this Section 2.04, prepay under Section 2.05, and
reborrow under this Section 2.04. Each Swing Line Loan shall be a Base
Rate Loan. Immediately upon the making of a Swing Line Loan, each Revolving
Credit Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such
Swing Line Loan in an amount equal to the product of such Lender’s Pro Rata
Share times the amount of such Swing Line Loan.


 


(b)  Borrowing
Procedures. Each Swing Line Borrowing shall be made upon the Company’s
irrevocable notice to the Swing Line Lender with a copy to the Administrative
Agent, which may be given by telephone. Each such notice must be received by
the Swing Line Lender with a copy to the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $100,000 (and any amount in excess of
$100,000 shall be an integral multiple of $25,000), and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must
be confirmed promptly by delivery to the Swing Line Lender with a copy to the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Company. Promptly after
receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the
Swing Line Lender will confirm with the Administrative Agent (by telephone or
in writing) that the Administrative Agent has also received such Swing Line
Loan Notice and, if not, the Swing Line Lender will notify the Administrative
Agent (by telephone or in writing) of the contents thereof. Unless the Swing
Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Revolving Credit Lender)
prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of
the limitations set forth in the first proviso to the first sentence of
Section 2.04(a), or (B) that one or more of the applicable conditions
specified in Section 4.02 is not then satisfied, then, subject to the
terms and conditions hereof, the 


 


65

















 


Swing Line Lender will, not later than 3:00
p.m. on the borrowing date specified in such Swing Line Loan Notice, make the
amount of its Swing Line Loan available to the Company.


 


(c)  Refinancing
of Swing Line Loans. (i) The Swing Line Lender at any time in
its sole and absolute discretion may request, on behalf of the Company (which
hereby irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Revolving Credit Lender make a Base Rate Loan in an amount
equal to such Lender’s Pro Rata Share of the amount of Swing Line Loans then
outstanding. Such request shall be made in writing (which written request shall
be deemed to be a Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and multiples
specified therein for the principal amount of Base Rate Loans, but subject to
the unutilized portion of the aggregate Revolving Credit Commitments and the
conditions set forth in Section 4.02. The Swing Line Lender shall furnish
the Company with a copy of the applicable Loan Notice promptly after delivering
such notice to the Administrative Agent. Each Revolving Credit Lender shall
make an amount equal to its Pro Rata Share of the amount specified in such Loan
Notice available to the Administrative Agent in immediately available funds for
the account of the Swing Line Lender at the Administrative Agent’s Office not
later than 1:00 p.m. on the day specified in such Loan Notice, whereupon,
subject to Section 2.04(c)(ii), each Revolving Credit Lender that so makes
funds available shall be deemed to have made a Base Rate Loan to the Company in
such amount. The Administrative Agent shall remit the funds so received to the
Swing Line Lender.


 


(ii) If for any reason any Swing Line Loan cannot be refinanced by such
a Revolving Credit Borrowing in accordance with Section 2.04(c)(i), the
request for Base Rate Loans submitted by the Swing Line Lender as set forth
herein shall be deemed to be a request by the Swing Line Lender that each of the
Revolving Credit Lenders fund its risk participation in the relevant Swing Line
Loan and each Revolving Credit Lender’s payment to the Administrative Agent for
the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall
be deemed payment in respect of such participation.


 


(iii) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any amount
required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.04(c) by the time specified in Section 2.04(c)(i), the
Swing Line Lender shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the Swing Line Lender at a rate per annum equal to
the greater of the Federal Funds Rate and a rate determined by the Swing Line
Lender in accordance with banking industry rules on interbank compensation. A
certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.


 


66

















 


(iv) Each Revolving Credit Lender’s obligation to make Revolving Credit
Loans or to purchase and fund risk participations in Swing Line Loans pursuant
to this Section 2.04(c) shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the Swing
Line Lender, the Company or any other Person for any reason whatsoever,
(B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Revolving Credit
Lender’s obligation to make Revolving Credit Loans pursuant to this
Section 2.04(c) is subject to the conditions set forth in
Section 4.02. No such funding of risk participations shall relieve or
otherwise impair the obligation of the Company to repay Swing Line Loans,
together with interest as provided herein.


 


(d)  Repayment
of Participations. (i) At any time after any Revolving Credit
Lender has purchased and funded a risk participation in a Swing Line Loan, if
the Swing Line Lender receives any payment on account of such Swing Line Loan,
the Swing Line Lender will distribute to such Lender its Pro Rata Share of such
payment (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender’s risk participation was funded) in
the same funds as those received by the Swing Line Lender.


 


(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by the
Swing Line Lender under any of the circumstances described in
Section 10.06 (including pursuant to any settlement entered into by the
Swing Line Lender in its discretion), each Revolving Credit Lender shall pay to
the Swing Line Lender its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned, at a rate per annum equal to the Federal Funds
Rate. The Administrative Agent will make such demand upon the request of the
Swing Line Lender.


 


(e)  Interest
for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Company for interest on the Swing Line Loans. Until
each Revolving Credit Lender funds its Base Rate Loan or risk participation
pursuant to this Section 2.04 to refinance such Lender’s Pro Rata Share of
any Swing Line Loan, interest in respect of such Pro Rata Share shall be solely
for the account of the Swing Line Lender.


 


(f)  Payments
Directly to Swing Line Lender. The Company shall make all payments
of principal and interest in respect of the Swing Line Loans directly to the
Swing Line Lender.


 


SECTION 2.05. Prepayments.
(a)    Optional. (i) The Company
may, upon notice to the Administrative Agent, at any time or from time to time
voluntarily prepay Term Loans and Revolving Credit Loans in whole or in part
without premium or penalty; provided that
(1) such notice must be received by the Administrative Agent not 


 


67

















 


later than 11:00 a.m. (A) three (3) Business
Days prior to any date of prepayment of Eurodollar Rate Loans and (B) one
(1) Business Day prior to any date of prepayment of Base Rate Loans; (2) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof; and (3) any
prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a
whole multiple of $100,000 in excess thereof or, in each case, if less, the
entire principal amount thereof then outstanding. Each such notice shall
specify the date and amount of such prepayment and the Class(es) and Type(s) of
Loans to be prepaid. The Administrative Agent will promptly notify each
Appropriate Lender of its receipt of each such notice, and of the amount of
such Lender’s Pro Rata Share of such prepayment. If such notice is given by the
Company, the Company shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued
interest thereon, together with any additional amounts required pursuant to Section 3.05.
Each prepayment of the Loans pursuant to this Section 2.05(a) shall be
paid to the Appropriate Lenders in accordance with their respective Pro Rata
Shares. Each prepayment pursuant to this Section 2.05(a)(i) shall be
applied to the Class or Classes of Loans in such manner and in such order as
the Company may determine.


 


(ii) The Company may, upon notice to the Swing Line Lender (with a copy
to the Administrative Agent), at any time or from time to time, voluntarily
prepay Swing Line Loans in whole or in part without premium or penalty; provided that (1) such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the date of the prepayment, and (2) any such prepayment shall be
in a minimum principal amount of $100,000 or a whole multiple of $25,000 in
excess thereof or, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such
prepayment. If such notice is given by the Company, the Company shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein.


 


(iii) Notwithstanding anything to the contrary contained in this
Agreement, the Company may rescind any notice of prepayment under
Section 2.05(a)(i)or 2.05(a)(ii) if such prepayment would have resulted
from a refinancing of all of the Facilities, which refinancing shall not be
consummated or shall otherwise be delayed.


 


(b)  Mandatory. (i) Within five (5) Business
Days after financial statements have been delivered pursuant to
Section 6.01(a) and the related Compliance Certificate has been delivered
pursuant to Section 6.02(b), the Company shall cause to be offered to be
prepaid in accordance with clause (viii) below, an aggregate principal
amount of Term Loans in an amount equal to (A) 50% of Excess Cash Flow, if any,
for the fiscal year covered by such financial statements (commencing with the
fiscal year ended December 31, 2008) minus (B) the sum of (i) all
voluntary prepayments of Term Loans during such fiscal year and (ii) all
voluntary prepayments of Revolving Credit Loans during such fiscal year to the
extent the Revolving Credit Commitments are permanently reduced by the amount
of such payments, in the case of each of the 


 


68

















 


immediately preceding clauses (i) and (ii),
to the extent such prepayments are not funded with the proceeds of
Indebtedness; provided that the
percentage of Excess Cash Flow specified in clause (A) shall be reduced in
respect of a fiscal year to an amount equal to 25% of Excess Cash Flow, if any,
if the Total Leverage Ratio as of the last day of such fiscal year covered by
such financial statements was less than 5.0:1.0 and greater than or equal to
4.0:1.0; 
provided, further, 
that no payment of any Loans shall be required under this
Section 2.05(b)(i) in respect of a fiscal year if the Total Leverage Ratio
as of the last day of such fiscal year covered by such financial statements was
less than 4.0:1.0.


 


(ii) (A)  If (x) the Company or
any of Restricted Subsidiary Disposes of any property or assets (other than any
Disposition of any property or assets permitted by Section 7.05(a), (b),
(c), (d), (e), (g), (h), (i), (n) or (o)) or (y) any Casualty Event
occurs, which in the aggregate results in the realization or receipt by the
Company or such Restricted Subsidiary of Net Cash Proceeds, the Company shall
cause to be offered to be prepaid in accordance with clause (viii) below
on or prior to the date which is ten (10) Business Days after the date of the
realization or receipt of such Net Cash Proceeds an aggregate principal amount
of Term Loans in an amount equal to 100% of all Net Cash Proceeds received; provided that no such prepayment shall be
required pursuant to this Section 2.05(b)(ii)(A) with respect to such
portion of such Net Cash Proceeds that the Company shall have, on or prior to
such date, given written notice to the Administrative Agent of its intent to
reinvest in accordance with Section 2.05(b)(ii)(B) (which notice may only
be provided if no Event of Default has occurred and is then continuing);


 


(B) With respect to any Net Cash Proceeds realized or received with
respect to any Disposition (other than any Disposition specifically excluded
from the application of Section 2.05(b)(ii)(A)) or any Casualty Event, at
the option of the Company, the Company may reinvest all or any portion of such
Net Cash Proceeds in assets useful for its business within (x) fifteen (15)
months following receipt of such Net Cash Proceeds or (y) if the Company enters
into a legally binding commitment to reinvest such Net Cash Proceeds within
fifteen (15) months following receipt thereof, within the later of (1) one
hundred and eighty (180) days of the date of such legally binding commitment
and (2) fifteen (15) months following receipt of such Net Cash Proceeds; provided 
that (i) so long as an Event of Default shall have occurred and be
continuing, the Company (x) shall not be permitted to make any such reinvestments
(other than pursuant to a legally binding commitment that the Company entered
into at a time when no Event of Default is continuing) and (y) shall not be
required to apply such Net Cash Proceeds which have been previously applied to
prepay Revolving Credit Loans to the prepayment of Term Loans until such time
as the relevant investment period has expired and no Event of Default is
continuing and (ii) if any Net Cash Proceeds are not so reinvested by the
deadline specified above or if any such Net Cash Proceeds are no longer
intended to be or cannot be so reinvested at any time after delivery of a
notice of reinvestment election, an amount equal to any such Net Cash 


 


69

















 


Proceeds shall
be offered to be applied in accordance with clause (viii) below within
five (5) Business Days after such deadline or the date the Company reasonably
determines that such Net Cash Proceeds are no longer intended to be or cannot
be so reinvested to the prepayment of the Term Loans as set forth in this
Section 2.05.


 


(iii) If the Company or any Restricted Subsidiary incurs or issues any
Indebtedness not expressly permitted to be incurred or issued pursuant to
Section 7.03, the Company shall cause to be offered to be prepaid in accordance
with clause (viii) below an aggregate principal amount of Term Loans in an
amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to
the date which is five (5) Business Days after the receipt of such Net Cash
Proceeds.


 


(iv) If for any reason the aggregate Revolving Credit Exposures at any
time exceeds the aggregate Revolving Credit Commitments then in effect, the
Company shall promptly prepay or cause to be promptly prepaid Revolving Credit
Loans and Swing Line Loans and/or Cash Collateralize the L/C Obligations in an
aggregate amount equal to such excess;
provided that the Company shall not be required to Cash
Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iv)
unless after the prepayment in full of the Revolving Credit Loans and Swing
Line Loans such aggregate Outstanding Amount exceeds the aggregate Revolving
Credit Commitments then in effect.


 


(v) (A) Each prepayment of Term Loans pursuant to this
Section 2.05(b) shall be applied in direct order of maturity to repayments
thereof required pursuant to Section 2.07(a); and (B) each such
prepayment shall be paid to the Lenders in accordance with their respective Pro
Rata Shares, subject to clause (vi) of this Section 2.05(b).


 


(vi) The Company shall notify the Administrative Agent in writing of
any mandatory prepayment of Term Loans required to be made pursuant to clauses
(i) through (iv) of this Section 2.05(b) at least three (3) Business Days
prior to the date of such prepayment. Each such notice shall specify the date
of such prepayment and provide a reasonably detailed calculation of the amount
of such prepayment. The Administrative Agent will promptly notify each
Appropriate Lender of the contents of the Company’s prepayment notice and of
such Appropriate Lender’s Pro Rata Share of the prepayment.


 


(vii) Funding Losses, Etc. All
prepayments under this Section 2.05 shall be made together with, in the
case of any such prepayment of a Eurodollar Rate Loan on a date other than the
last day of an Interest Period therefor, any amounts owing in respect of such
Eurodollar Rate Loan pursuant to Section 3.05. Notwithstanding any of the
other provisions of Section 2.05(b), so long as no Event of Default shall
have occurred and be continuing, if any prepayment of Eurodollar Rate Loans is
required to be made under this Section 2.05(b), other than on the last day
of the Interest Period therefor, in lieu of making any payment 


 


70

















 


pursuant to
this Section 2.05(b) in respect of any such Eurodollar Rate Loan, the
Company may, in its sole discretion, deposit the amount of any such prepayment
otherwise required to be made thereunder into a Cash Collateral Account until
the last day of such Interest Period, at which time the Administrative Agent
shall be authorized (without any further action by or notice to or from the
Company or any other Loan Party) to apply such amount to the prepayment of such
Loans in accordance with this Section 2.05(b). Upon the occurrence and
during the continuance of any Event of Default, the Administrative Agent shall
also be authorized (without any further action by or notice to or from the
Company or any other Loan Party) to apply such amount to the prepayment of the
outstanding Loans in accordance with this Section 2.05(b).


 


(viii) Term Opt-out of Prepayment.
With respect to each prepayment of Term Loans required pursuant to
Section 2.05(b), (A) the Company will, not later than the date specified
in Sections 2.05(b)(i), (ii), or (iii) for offering to make such
prepayment, give the Administrative Agent telephonic notice (promptly confirmed
in writing) requesting that the Administrative Agent provide notice of such
prepayment to each Lender of Term Loans, (B) the Administrative Agent
shall provide notice of such prepayment to each Lender of Term Loans,
(C) each Lender of Term Loans will have the right to refuse any such
prepayment by giving written notice of such refusal to the Administrative Agent
within two Business Days after such Lender’s receipt of notice from the
Administrative Agent of such offer of prepayment (and the Company shall not
prepay any such Term Loans until the date that is specified in clause (D)
below), and (D) the Company will make all such prepayments not so refused
upon the first Business Day after the Administrative Agent has provided such
notice of prepayment and (E) any prepayment refused by Lenders of Term Loans
may be retained by the Company.


 


(ix) In connection with any mandatory prepayments by the Company of the
Term Loans pursuant to this Section 2.05(b), such prepayments shall be applied
on a pro rata basis to the then outstanding Term Loans being prepaid
irrespective of whether such outstanding Term Loans are Base Rate Loans or
Eurodollar Rate Loans; provided that
if no Lenders exercise the right to waive a given mandatory prepayment of the
Term Loans pursuant to Section 2.05(b)(viii), then, with respect to such
mandatory prepayment, the amount of such mandatory prepayment shall be applied
first to Term Loans that are Base Rate Loans to the full extent thereof before
application to Term Loans that are Eurodollar Rate Loans in a manner that
minimizes the amount of any payments required to be made by the Company
pursuant to Section 3.05.


 


Notwithstanding any other provisions of this
Section 2.05(b), (i) to the extent that any of or all the Net Cash
Proceeds of any Disposition by a Foreign Subsidiary giving rise to a prepayment
event pursuant to Section 2.05(b)(ii) (a “Foreign Disposition”), the Net Cash Proceeds of any Casualty
Event from a Foreign Subsidiary (a “Foreign
Casualty Event”), or any portion of Excess Cash Flow otherwise
required to prepay the Term Loans pursuant to Section 2.05(b)(i) are prohibited
or delayed by applicable local 


 


71

















 


law from being repatriated to the United
States, the portion of such Net Cash Proceeds or Excess Cash Flow so affected
will not be required to be applied to repay Term Loans at the times provided in
this Section 2.05(b) but may be retained by the applicable Foreign
Subsidiary so long, but only so long, as the applicable local law will not
permit repatriation to the United States (the Company hereby agreeing to cause
the applicable Foreign Subsidiary to promptly take all actions reasonably
required by the applicable local law to permit such repatriation), and once
such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow
is permitted under the applicable local law, such repatriation will be
immediately effected and such repatriated Net Cash Proceeds or such portion of
Excess Cash Flow will be promptly (and in any event not later than two Business
Days after such repatriation) applied (net of additional taxes payable or
reserved against as a result thereof) to the repayment of the Term Loans
pursuant to this Section 2.05(b) to the extent provided herein, (ii) to
the extent that the Company has determined in good faith that repatriation of
any of or all the Net Cash Proceeds of any Foreign Disposition, any Foreign
Casualty Event or Excess Cash Flow would have a material adverse tax cost
consequence (taking into account any foreign tax credit or benefit received in
connection with such repatriation) with respect to such Net Cash Proceeds or
such portion of Excess Cash Flow, the Net Cash Proceeds or Excess Cash Flow so
affected may be retained by the applicable Foreign Subsidiary, provided that,
in the case of this clause (ii), on or before the date on which any Net Cash
Proceeds so retained would otherwise have been required to be applied to
reinvestments or prepayments pursuant to this Section 2.05(b) (or any
portion of such Excess Cash Flow would have been so required if it were Net
Cash Proceeds), (x) the Company applies an amount equal to such Net Cash
Proceeds or such portion of Excess Cash Flow to such reinvestments or
prepayments as if such Net Cash Proceeds or such portion of Excess Cash Flow
had been received by the Company rather than such Foreign Subsidiary, less the
amount of additional taxes that would have been payable or reserved against if
such Net Cash Proceeds or such portion of Excess Cash Flow had been repatriated
(or, if less, the Net Cash Proceeds or Excess Cash Flow that would be
calculated if received by such Foreign Subsidiary) or (y) such Net Cash
Proceeds or such portion of Excess Cash Flow are applied to the repayment of
Indebtedness of a Foreign Subsidiary,


 


SECTION 2.06. Termination
or Reduction of Commitments. Optional.
(a)    The Company may, upon written
notice to the Administrative Agent, terminate the unused Commitments of any
Class, or from time to time permanently reduce the unused Commitments of any
Class; provided that (i) any such
notice shall be received by the Administrative Agent one (1) Business Day prior
to the date of termination or reduction, (ii) any such partial reduction
shall be in an aggregate amount of $1,000,000 or any whole multiple of $500,000
in excess thereof and (iii) if, after giving effect to any reduction of
the Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit
exceeds the amount of the Revolving Credit Facility, such sublimit shall be
automatically reduced by the amount of such excess. The amount of any such
Commitment reduction shall not be applied to the Letter of Credit Sublimit or
the Swing Line Sublimit unless otherwise specified by the Company. Notwithstanding
the foregoing, the Company may rescind or postpone any notice of termination of
the Commitments if such termination would have resulted from a refinancing of
all of the Facilities, which refinancing shall not be consummated or otherwise
shall be delayed.


 


72
















 


(b)  Mandatory.
The Term Commitment of each Term Lender shall be automatically and permanently
reduced to zero upon the making of such Term Lender’s Term Loans pursuant to
Section 2.01(a). The Revolving Credit Commitments shall terminate on the
Maturity Date for the Revolving Credit Facility.


 


(c)  Application
of Commitment Reductions; Payment of Fees. The Administrative Agent
will promptly notify the Lenders of any termination or reduction of unused
portions of the Letter of Credit Sublimit, the Swing Line Sublimit or the
unused Commitments of any Class under this Section 2.06. Upon any
reduction of unused Commitments of any Class, the Commitment of each Lender of
such Class shall be reduced by such Lender’s Pro Rata Share of the amount by
which such Commitments are reduced (other than the termination of the
Commitment of any Lender as provided in Section 3.07). All commitment fees
accrued until the effective date of any termination of the Aggregate
Commitments shall be paid on the effective date of such termination.


 


SECTION 2.07. Repayment
of Loans. (a)    Term Loans. The Company shall repay to the
Administrative Agent for the ratable account of the Term Lenders (i) on the
last Business Day of each March, June, September and December, commencing with
March 31, 2008, an aggregate amount equal to 0.25% of the aggregate
principal amount of all Term Loans outstanding on the Closing Date (which
payments shall be reduced as a result of, and after giving effect to, the
application of prepayments in accordance with the order of priority set forth
in Section 2.05) and (ii) on the Maturity Date for the Term Loans,
the aggregate principal amount of all Term Loans outstanding on such date.


 


(b)  Revolving
Credit Loans. The Company shall repay to the Administrative Agent
for the ratable account of the Appropriate Lenders on the Maturity Date for the
Revolving Credit Facility the aggregate principal amount of all of its
Revolving Credit Loans outstanding on such date.


 


(c)  Swing Line
Loans. The Company shall repay its Swing Line Loans on the Maturity
Date for the Revolving Credit Facility.


 


SECTION 2.08. Interest.
(a)    Subject to the provisions of
Section 2.08(b), (i) each Eurodollar Rate Loan shall bear interest on the
outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate for such Interest Period plus the Applicable
Rate; (ii) each Base Rate Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate and (iii) each Swing Line
Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate for Revolving Credit Loans.


 


(b)  The Company shall pay interest on past due
amounts hereunder at a fluctuating interest rate per annum at all times equal
to the Default Rate to the fullest extent permitted by applicable Laws. Accrued
and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.


 


73

















 


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


 


(d)  All computations of interest hereunder shall
be made in accordance with Section 2.10.


 


SECTION 2.09. Fees.
In addition to certain fees described in Sections 2.03(h) and (i):


 


(a)  Commitment Fee. The Company shall pay to the Administrative
Agent for the account of each Revolving Credit Lender in accordance with its
Pro Rata Share, a commitment fee equal to the Applicable Rate with respect to
commitment fees times the actual daily amount by which the aggregate Revolving
Credit Commitment exceeds the sum of (A) Outstanding Amount of Revolving Credit
Loans and (B) the Outstanding Amount of L/C Obligations; provided that any commitment fee accrued
with respect to any of the Commitments of a Defaulting Lender during the period
prior to the time such Lender became a Defaulting Lender and unpaid at such
time shall not be payable by the Company so long as such Lender shall be a
Defaulting Lender except to the extent that such commitment fee shall otherwise
have been due and payable by the Company prior to such time; and provided, further,  that no commitment fee shall accrue on any of
the Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender. The commitment fee shall accrue at all times from the date
hereof until the Maturity Date for the Revolving Credit Facility, including at
any time during which one or more of the conditions in Article IV is not met,
and shall be due and payable quarterly in arrears on the last Business Day of
each March, June, September and December, commencing with the first such date
to occur after the Closing Date, and on the Maturity Date for the Revolving
Credit Facility. The commitment fee shall be calculated quarterly in arrears,
and if there is any change in the Applicable Rate during any quarter, the
actual daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect.


 


(b)  Other Fees. The Company shall pay to the Agents such fees as
shall have been separately agreed upon in writing in the amounts and at the
times so specified. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever (except as expressly agreed between the
Company and the applicable Agent).


 


SECTION 2.10. Computation
of Interest and Fees. All computations of interest for Base Rate Loans when
the Base Rate is determined by the Prime Rate shall be made on the basis of a
year of three hundred and sixty-five (365) days and actual days elapsed. All
other computations of fees and interest shall be made on the basis of a three
hundred and sixty (360) day year and actual days elapsed. Interest shall accrue
on each 


 


74

















 


Loan for the day on which the Loan is made,
and shall not accrue on a Loan, or any portion thereof, for the day on which
the Loan or such portion is paid;  provided that any Loan that is
repaid on the same day on which it is made shall, subject to
Section 2.12(a), bear interest for one (1) day. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.


 


SECTION 2.11. Evidence
of Indebtedness. (a)    The Credit
Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and evidenced by one or more entries in the
Register maintained by the Administrative Agent, acting solely for purposes of
Treasury Regulation Section 5f.103-1(c), as agent for the Company, in each
case in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be prima facie evidence absent
manifest error of the amount of the Credit Extensions made by the Lenders to
the Company and the interest and payments thereon. Any failure to so record or
any error in doing so shall not, however, limit or otherwise affect the
obligation of the Company hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error. Upon the
request of any Lender made through the Administrative Agent, the Company shall
execute and deliver to such Lender (through the Administrative Agent) a Note
payable to such Lender, which shall evidence such Lender’s Loans in addition to
such accounts or records. Each Lender may attach schedules to its Note and
endorse thereon the date, Type (if applicable), amount and maturity of its
Loans and payments with respect thereto.


 


(b)  In addition to the accounts and records
referred to in Section 2.11(a), each Lender and the Administrative Agent
shall maintain in accordance with its usual practice accounts or records and,
in the case of the Administrative Agent, entries in the Register, evidencing
the purchases and sales by such Lender of participations in Letters of Credit and
Swing Line Loans. In the event of any conflict between the accounts and records
maintained by the Administrative Agent and the accounts and records of any
Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.


 


(c)  Entries made in good faith by the
Administrative Agent in the Register pursuant to Sections 2.11(a) and (b),
and by each Lender in its account or accounts pursuant to Sections 2.11(a)
and (b), shall be  prima facie  evidence of the amount of principal and
interest due and payable or to become due and payable from the Company to, in
the case of the Register, each Lender and, in the case of such account or
accounts, such Lender, under this Agreement and the other Loan Documents,
absent manifest error; provided that
the failure of the Administrative Agent or such Lender to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of the Company under this
Agreement and the other Loan Documents.


 


75

















 


SECTION 2.12. Payments
Generally. (a)    All payments to be
made by the Company shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Company hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the applicable Administrative Agent’s Office in Dollars and
in immediately available funds not later than 2:00 p.m. on the date specified
herein. The Administrative Agent will promptly distribute to each Lender its
Pro Rata Share (or other applicable share as provided herein) of such payment
in like funds as received by wire transfer to such Lender’s Lending Office. All
payments received by the Administrative Agent after 2:00 p.m. shall be deemed
received, in the Administrative Agent’s sole discretion, on the next succeeding
Business Day and any applicable interest or fee shall continue to accrue.


 


(b)  Except as otherwise provided, if any payment
to be made by the Company shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of
time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would
cause payment of interest on or principal of Eurodollar Rate Loans to be made
in the next succeeding calendar month, such payment shall be made on the
immediately preceding Business Day.


 


(c)  Unless the Company or any Lender has notified
the Administrative Agent, prior to the date any payment is required to be made
by it to the Administrative Agent hereunder, that the Company or such Lender,
as the case may be, will not make such payment, the Administrative Agent may
assume that the Company or such Lender, as the case may be, has timely made
such payment and may (but shall not be so required to), in reliance thereon,
make available a corresponding amount to the Person entitled thereto. If and to
the extent that such payment was not in fact made to the Administrative Agent
in immediately available funds, then:


 


(i) if the Company failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately available
funds, together with interest thereon in respect of each day from and including
the date such amount was made available by the Administrative Agent to such
Lender to the date such amount is repaid to the Administrative Agent in
immediately available funds at the Federal Funds Rate from time to time in
effect; and


 


(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period from
the date such amount was made available by the Administrative Agent to the
Company to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum
equal to the Federal Funds Rate from time to time in effect. When such Lender
makes payment to the Administrative Agent (together with all accrued interest
thereon), then such 


 


76

















 


payment amount
(excluding the amount of any interest which may have accrued and been paid in
respect of such late payment) shall constitute such Lender’s Loan included in
the applicable Borrowing. If such Lender does not pay such amount forthwith
upon the Administrative Agent’s demand therefor, the Administrative Agent may
make a demand therefor upon the Company, and the Company shall pay such amount
to the Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable Borrowing. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its Commitment or to
prejudice any rights which the Administrative Agent or the Company may have
against any Lender as a result of any default by such Lender hereunder.


 


A notice of
the Administrative Agent to any Lender or the Company with respect to any
amount owing under this Section 2.12(c) shall be conclusive, absent
manifest error.


 


(d)  If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided
in the foregoing provisions of this Article II, and such funds are not made
available to the Company by the Administrative Agent because the conditions to
the applicable Credit Extension set forth in Article IV are not satisfied or
waived in accordance with the terms hereof, the Administrative Agent shall
return such funds (in like funds as received from such Lender) to such Lender,
without interest.


 


(e)  The obligations of the Lenders hereunder to
make Loans and to fund participations in Letters of Credit and Swing Line Loans
are several and not joint. The failure of any Lender to make any Loan or to
fund any such participation on any date required hereunder shall not relieve
any other Lender of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender to so make its
Loan or purchase its participation.


 


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


 


(g)  Whenever any payment received by the
Administrative Agent under this Agreement or any of the other Loan Documents is
insufficient to pay in full all amounts due and payable to the Administrative
Agent and the Lenders under or in respect of this Agreement and the other Loan
Documents on any date, such payment shall be distributed by the Administrative
Agent and applied by the Administrative Agent and the Lenders in the order of
priority set forth in Section 8.04. If the Administrative Agent receives
funds for application to the Obligations of the Loan Parties under or in
respect of the Loan Documents under circumstances for which the Loan Documents
do not specify the manner in which such funds are to be applied, the
Administrative Agent may, but shall not be obligated to, elect to distribute
such funds to each of the Lenders in accordance with such Lender’s Pro Rata
Share of the sum of (a) the Outstanding Amount 


 


77

















 


of all Loans outstanding at such time and (b)
the Outstanding Amount of all L/C Obligations outstanding at such time, in
repayment or prepayment of such of the outstanding Loans or other Obligations
then owing to such Lender.


 


SECTION 2.13. Sharing
of Payments. If, other than as expressly provided elsewhere herein, any
Lender shall obtain on account of the Loans made by it, or the participations
in L/C Obligations and Swing Line Loans held by it, any payment (whether
voluntary, involuntary, through the exercise of any right of setoff, or
otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Loans made by them and/or such subparticipations in the
participations in L/C Obligations or Swing Line Loans held by them, as the case
may be, as shall be necessary to cause such purchasing Lender to share the
excess payment in respect of such Loans or such participations, as the case may
be, pro rata with each of them; provided
that if all or any portion of such excess payment is thereafter recovered from
the purchasing Lender under any of the circumstances described in
Section 10.06 (including pursuant to any settlement entered into by the
purchasing Lender in its discretion), such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the purchase
price paid therefor, together with an amount equal to such paying Lender’s
ratable share (according to the proportion of (i) the amount of such paying
Lender’s required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered, without further
interest thereon. The Company agrees that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by
applicable Law, exercise all its rights of payment (including the right of
setoff, but subject to Section 10.09) with respect to such participation
as fully as if such Lender were the direct creditor of the Company in the
amount of such participation. The Administrative Agent will keep records (which
shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section 2.13 and will in each case
notify the Lenders following any such purchases or repayments. Each Lender that
purchases a participation pursuant to this Section 2.13 shall from and
after such purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.


 


SECTION 2.14. Incremental
Credit Extensions. (a)    The Company
may at any time or from time to time after the Closing Date, by notice to the
Administrative Agent (whereupon the Administrative Agent shall promptly deliver
a copy to each of the Lenders), request (a) one or more additional
tranches of term loans (the “Incremental Term
Loans”) or (b) one or more increases in the amount of the Revolving
Credit Commitments (each such increase, a “Revolving
Commitment Increase”); provided that
(i) both at the time of any such request and upon the effectiveness of any
Incremental Amendment referred to below, no Default or Event of Default shall
exist and at the time that any such Incremental Term Loan is made (and after
giving effect thereto) no Default or Event of Default shall exist and
(ii) the Company shall be in compliance with the 


 


78

















 


covenant set forth in Section 7.11
determined on a Pro Forma Basis as of the last day of the most recent Test
Period ended prior to the applicable Incremental Facility Closing Date, in each
case, as if such Incremental Term Loans or Revolving Commitment Increase, as
applicable, had been outstanding on the last day of such Test Period. Each
tranche of Incremental Term Loans and each Revolving Commitment Increase shall
be in an aggregate principal amount that is not less than $20,000,000 (provided that such amount may be less than
$20,000,000 if such amount represents all remaining availability under the
limit set forth in the next sentence). Notwithstanding anything to the contrary
herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment
Increases shall not exceed the greater of (i) $150,000,000 and (ii) the
additional aggregate amount of secured Indebtedness which would be permitted to
be incurred as of any date of determination (assuming for this purpose that the
full amount of any Revolving Credit Increase had been utilized as of such date)
such that, after giving Pro Forma Effect to such incurrence (and any other
transactions consummated on such date), the Senior Secured Leverage Ratio for
the immediately preceding Test Period would not be greater than 4.00 to 1.0. Each
tranche of Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the
Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than
the Maturity Date with respect to the Term Loans, (c) shall have a
Weighted Average Life to Maturity of no less than the Weighted Average Life to
Maturity then in effect for the Term Loans and (d) except as set forth
above, shall be treated substantially the same as the Term Loans (in each case,
including with respect to mandatory and voluntary prepayments); provided that (i) the terms and
conditions applicable to Incremental Term Loans may be materially different
from those of the Term Loans to the extent such differences are reasonably
acceptable to the Administrative Agent and (ii) the interest rates and
amortization schedule applicable to the Incremental Term Loans shall be
determined by the Company and the lenders thereof. Each notice from the Company
pursuant to this Section shall set forth the requested amount and proposed
terms of the relevant Incremental Term Loans or Revolving Commitment Increases.
Incremental Term Loans may be made, and Revolving Commitment Increases may be
provided, by any existing Lender (and each existing Term Lender will have the
right, but not an obligation, to make a portion of any Incremental Term Loan,
and each existing Revolving Credit Lender will have the right, but no
obligation, to provide a portion of any Revolving Commitment Increase, in each
case on terms permitted in this Section 2.14 and otherwise on terms
reasonably acceptable to the Administrative Agent) or by any other bank or
other financial institution (any such other bank or other financial institution
being called an “Additional Lender”); provided that the Administrative Agent
and each L/C Issuer (in the case of a Revolving Commitment Increase) shall have
consented (not to be unreasonably withheld) to such Lender’s or Additional
Lender’s making such Incremental Term Loans or providing such Revolving
Commitment Increases if such consent would be required under
Section 10.07(b) for an assignment of Loans or Revolving Credit
Commitments, as applicable, to such Lender or Additional Lender. Commitments in
respect of Incremental Term Loans and Revolving Commitment Increases shall
become Commitments (or in the case of a Revolving Commitment Increase to be
provided by an existing Revolving Credit Lender, an increase in such Lender’s
applicable Revolving Credit Commitment) under this Agreement pursuant to an
amendment (an “Incremental Amendment”)
to this 


 


79

















 


Agreement and, as appropriate, the other Loan
Documents, executed by Holdings, the Company, each Lender agreeing to provide
such Commitment, if any, each Additional Lender, if any, and the Administrative
Agent. The Incremental Amendment may, without the consent of any other Lenders,
effect such amendments to this Agreement and the other Loan Documents as may be
necessary or appropriate, in the reasonable opinion of the Administrative Agent
and the Company, to effect the provisions of this Section. The effectiveness of
(and, in the case of any Incremental Amendment for an Incremental Term Loan,
the borrowing under) any Incremental Amendment shall be subject to the
satisfaction on the date thereof (each, an “Incremental
Facility Closing Date”) of each of the conditions set forth in
Section 4.02 (it being understood that all references to “the date of such
Credit Extension” or similar language in such Section 4.02 shall be deemed
to refer to the effective date of such Incremental Amendment) and such other
conditions as the parties thereto shall agree. The Company will use the
proceeds of the Incremental Term Loans and Revolving Commitment Increases for
any purpose not prohibited by this Agreement. No Lender shall be obligated to
provide any Incremental Term Loans or Revolving Commitment Increases, unless it
so agrees. Upon each increase in the Revolving Credit Commitments pursuant to
this Section, each Revolving Credit Lender immediately prior to such increase
will automatically and without further act be deemed to have assigned to each
Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in
respect of such increase, and each such Revolving Commitment Increase Lender
will automatically and without further act be deemed to have assumed, a portion
of such Revolving Credit Lender’s participations hereunder in outstanding
Letters of Credit and Swing Line Loans such that, after giving effect to each
such deemed assignment and assumption of participations, the percentage of the
aggregate outstanding (i) participations hereunder in Letters of Credit and
(ii) participations hereunder in Swing Line Loans held by each Revolving
Credit Lender (including each such Revolving Commitment Increase Lender) will
equal the percentage of the aggregate Revolving Credit Commitments of all
Revolving Credit Lenders represented by such Revolving Credit Lender’s
Revolving Credit Commitment and (b) if, on the date of such increase, there are
any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or
prior to the effectiveness of such Revolving Commitment Increase be prepaid
from the proceeds of additional Revolving Credit Loans made hereunder
(reflecting such increase in Revolving Credit Commitments), which prepayment
shall be accompanied by accrued interest on the Revolving Credit Loans being
prepaid and any costs incurred by any Lender in accordance with Section 3.05.
The Administrative Agent and the Lenders hereby agree that the minimum
borrowing, pro rata borrowing and pro rata payment requirements contained
elsewhere in this Agreement shall not apply to the transactions effected
pursuant to the immediately preceding sentence.


 


(b)  This Section 2.14 shall supersede any
provisions in Section 2.13 or 10.01 to the contrary.


 


80

















 


ARTICLE III


 


Taxes, Increased Costs Protection and Illegality


 


SECTION 3.01. Taxes.
(a)    Except as provided in this
Section 3.01, any and all payments by the Company (the term Company under
Article III being deemed to include any Subsidiary for whose account a Letter
of Credit is issued) to or for the account of any Agent or any Lender under any
Loan Document shall be made free and clear of and without deduction for any and
all present or future taxes, duties, levies, imposts, deductions, assessments,
fees, withholdings or similar charges, and all liabilities (including additions
to tax, penalties and interest) with respect thereto, excluding, in the case of
each Agent and each Lender, taxes imposed on or measured by its net income or
overall gross income (including branch profits), and franchise (and similar)
taxes imposed on it in lieu of net income taxes, by the jurisdiction (or any
political subdivision thereof) under the Laws of which such Agent or such
Lender, as the case may be, is organized or maintains a Lending Office, and all
liabilities (including additions to tax, penalties and interest) with respect
thereto (all such non-excluded taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and liabilities being
hereinafter referred to as “Taxes”).
If the Company shall be required by any Laws to deduct any Taxes or Other Taxes
from or in respect of any sum payable under any Loan Document to any Agent or
any Lender, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 3.01), each of such Agent and such Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Company shall make such deductions,
(iii) the Company shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable Laws, and
(iv) within thirty (30) days after the date of such payment (or, if
receipts or evidence are not available within thirty (30) days, as soon as
possible thereafter), the Company shall furnish to such Agent or Lender (as the
case may be) the original or a certified copy of a receipt evidencing payment
thereof to the extent such a receipt is issued therefor, or other written proof
of payment thereof that is reasonably satisfactory to the Administrative Agent.
If the Company fails to pay any Taxes or Other Taxes when due to the
appropriate taxing authority or fails to remit to any Agent or any Lender the
required receipts or other required documentary evidence, the Company shall
indemnify such Agent and such Lender for any incremental taxes, interest or
penalties that may become payable by such Agent or such Lender arising out of
such failure.


 


(b)  In addition, the Company agrees to pay any
and all present or future stamp, court or documentary taxes and any other
excise, property, intangible or mortgage recording taxes or charges or similar
levies which arise from any payment made under any Loan Document or from the
execution, delivery, performance, enforcement or registration of, or otherwise
with respect to, any Loan Document (hereinafter referred to as “Other Taxes”).


 


(c)  The Company agrees to indemnify each Agent
and each Lender for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section 3.01) paid by such 


 


81

















 


Agent and such Lender and (ii) any
liability (including additions to tax, penalties, interest and expenses)
arising therefrom or with respect thereto, in each case whether or not such
Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority; provided such
Agent or Lender, as the case may be, provides the Company with a written
statement thereof setting forth in reasonable detail the basis and calculation
of such amounts. Payment under this Section 3.01(c) shall be made within
thirty (30) days after the date such Lender or such Agent makes a demand
therefor.


 


(d)  The Company shall not be required pursuant to
this Section 3.01 to pay any additional amount to, or to indemnify, any
Lender or Agent, as the case may be, to the extent that such Lender or such
Agent becomes subject to United States withholding taxes subsequent to the
Closing Date (or, if later, the date such Lender or Agent becomes a party to
this Agreement) as a result of a change in the place of organization of such
Lender or Agent or a change in the Lending Office of such Lender, except to the
extent that any such change is requested or required in writing by the Company
(and provided that nothing in this clause (d) shall be construed as
relieving the Company from any obligation to make such payments or
indemnification with respect to United States withholding taxes in the
event of a change in Lending Office or place of organization that precedes a
change in Law to the extent such withholding taxes result from a change in
Law).


 


(e)  Notwithstanding anything else herein to the
contrary, if a Lender or an Agent is subject to United States withholding
tax at a rate in excess of zero percent at the time such Lender or such Agent,
as the case may be, first becomes a party to this Agreement, withholding tax
imposed by such jurisdiction at such rate shall be considered excluded from
Taxes unless and until such Lender or Agent, as the case may be, provides the
appropriate forms certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for
periods governed by such forms;  provided that, if at the date of
the Assignment and Assumption pursuant to which a Lender becomes a party to
this Agreement, the Lender assignor was entitled to payments under
clause (a) of this Section 3.01 in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) withholding
tax, if any, applicable with respect to the Lender assignee on such date.


 


(f)  If any Lender or Agent determines, in its
reasonable discretion, that it has received a refund in respect of any Taxes or
Other Taxes as to which indemnification or additional amounts have been paid to
it by the Company pursuant to this Section 3.01, it shall promptly remit
such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by the Company under this Section 3.01 with respect to the
Taxes or Other Taxes giving rise to such refund plus any interest included in
such refund by the relevant taxing authority attributable thereto) to the
Company, net of all out-of-pocket expenses of the Lender or Agent, as the case
may be and without interest (other than any interest paid by the relevant
taxing authority with respect to such refund);
provided that the Company, upon the request of the Lender or Agent,
as the case may be, 


 


82

















 


agrees promptly to return such refund to such
party in the event such party is required to repay such refund to the relevant
taxing authority. Such Lender or Agent, as the case may be, shall, at the
Company’s request, provide the Company with a copy of any notice of assessment
or other evidence of the requirement to repay such refund received from the
relevant taxing authority (provided
that such Lender or Agent may delete any information therein that such Lender
or Agent deems confidential). Nothing herein contained shall interfere with the
right of a Lender or Agent to arrange its tax affairs in whatever manner it
thinks fit nor oblige any Lender or Agent to claim any tax refund or to make
available its tax returns or disclose any information relating to its tax affairs
or any computations in respect thereof.


 


(g)  Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 3.01(a) or (c) with
respect to such Lender it will, if requested by the Company, use commercially
reasonable efforts (subject to such Lender’s overall internal policies of
general application and legal and regulatory restrictions) to designate another
Lending Office for any Loan or Letter of Credit affected by such event; provided that such efforts are made on
terms that, in the sole judgment of such Lender, cause such Lender and its
Lending Office(s) to suffer no economic, legal or regulatory disadvantage; and  provided,
further,  that nothing in this
Section 3.01(g) shall affect or postpone any of the Obligations of the Company
or the rights of such Lender pursuant to Section 3.01(a) or (c).


 


SECTION 3.02. Illegality.
If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or
to determine or charge interest rates based upon the Eurodollar Rate, then, on
notice thereof by such Lender to the Company through the Administrative Agent,
any obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such
Lender notifies the Administrative Agent and the Company that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice,
the Company shall upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or promptly, if such Lender may not lawfully
continue to maintain such Eurodollar Rate Loans. Upon any such prepayment or
conversion, the Company shall also pay accrued interest on the amount so
prepaid or converted and all amounts due, if any, in connection with such
prepayment or conversion under Section 3.05. Each Lender agrees to
designate a different Lending Office if such designation will avoid the need
for such notice and will not, in the good faith judgment of such Lender,
otherwise be materially disadvantageous to such Lender.


 


SECTION 3.03. Inability
to Determine Rates. If the Required Lenders determine that for any reason
adequate and reasonable means do not exist for determining the Eurodollar Rate
for any requested Interest Period with respect to a proposed Eurodollar Rate
Loan, or that the Eurodollar Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan does not adequately and fairly
reflect the cost 


 


83

















 


to such Lenders of funding such Loan, or that
Dollar deposits are not being offered to banks in the London interbank
eurodollar market for the applicable amount and the Interest Period of such
Eurodollar Rate Loan, the Administrative Agent will promptly so notify the
Company and each Lender. Thereafter, the obligation of the Lenders to make or
maintain Eurodollar Rate Loans shall be suspended until the Administrative
Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, the Company may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for
a Borrowing of Base Rate Loans in the amount specified therein.


 


SECTION 3.04. Increased
Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans.
(a)  If any Lender determines that as a
result of the introduction of or any change in or in the interpretation of any
Law, in each case after the date hereof, or such Lender’s compliance therewith,
there shall be any increase in the cost to such Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Loans or (as the case may be)
issuing or participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the foregoing
(excluding for purposes of this Section 3.04(a) any such increased costs
or reduction in amount resulting from (i) Taxes or Other Taxes (as to which
Section 3.01 shall govern), (ii) changes in the basis of taxation of
overall net income or overall gross income (including branch profits), and
franchise (and similar) taxes imposed in lieu of net income taxes, by the
United States or any foreign jurisdiction or any political subdivision of
either thereof under the Laws of which such Lender is organized or maintains a
Lending Office, and (iii) reserve requirements contemplated by
Section 3.04(c)), then from time to time within fifteen (15) days after
demand by such Lender setting forth in reasonable detail such increased costs
(with a copy of such demand to the Administrative Agent given in accordance
with Section 3.06), the Company shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction.


 


(b)  If any Lender determines that the
introduction of any Law regarding capital adequacy or any change therein or in
the interpretation thereof, in each case after the date hereof, or compliance
by such Lender (or its Lending Office) therewith, has the effect of reducing
the rate of return on the capital of such Lender or any corporation controlling
such Lender as a consequence of such Lender’s obligations hereunder (taking
into consideration its policies with respect to capital adequacy and such
Lender’s desired return on capital to a level below that which such Lender or
its parent could have achieved but for such introduction, change or
interpretation), then from time to time upon demand of such Lender setting
forth in reasonable detail the charge and the calculation of such reduced rate
of return (with a copy of such demand to the Administrative Agent given in
accordance with Section 3.06), the Company shall pay to such Lender such
additional amounts as will compensate such Lender for such reduction within
fifteen (15) days after receipt of such demand.


 


(c)  The Company shall pay to each Lender, (i) as
long as such Lender shall be required to maintain reserves with respect to
liabilities or assets consisting of or 


 


84

















 


including Eurodollar funds or deposits,
additional interest on the unpaid principal amount of each Eurodollar Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such
Lender (as determined by such Lender in good faith, which determination shall
be conclusive in the absence of manifest error), and (ii) as long as such
Lender shall be required to comply with any reserve ratio requirement or
analogous requirement of any other central banking or financial regulatory
authority imposed in respect of the maintenance of the Commitments or the
funding of the Eurodollar Rate Loans, such additional costs (expressed as a
percentage per annum and rounded upwards, if necessary, to the nearest five
decimal places) equal to the actual costs allocated to such Commitment or Loan
by such Lender (as determined by such Lender in good faith, which determination
shall be conclusive absent manifest error) which in each case shall be due and
payable on each date on which interest is payable on such Loan, provided the
Company shall have received at least fifteen (15) days’ prior notice (with a
copy to the Administrative Agent) of such additional interest or cost from such
Lender. If a Lender fails to give written notice fifteen (15) days prior to the
relevant Interest Payment Date, such additional interest or cost shall be due
and payable fifteen (15) days from receipt of such notice.


 


(d)  Failure or delay on the part of any Lender to
demand compensation pursuant to this Section 3.04 shall not constitute a
waiver of such Lender’s right to demand such compensation, provided that the Company shall not be
required to compensate a Lender pursuant to Section 3.04(a), (b) or
(c) for any such increased cost or reduction incurred more than one
hundred and eighty (180) days prior to the date that such Lender demands, or
notifies the Company in writing of its intention to demand, compensation
therefor; provided, further,
that, if the circumstance giving rise to such increased cost or reduction is
retroactive, then such 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.


 


(e)  If any Lender requests compensation under
this Section 3.04, then such Lender will, if requested by the Company, use
commercially reasonable efforts to designate another Lending Office for any
Loan or Letter of Credit affected by such event; provided that such efforts are made on terms that, in the
reasonable judgment of such Lender, cause such Lender and its Lending Office(s)
to suffer no material economic, legal or regulatory disadvantage; and  provided,
further,  that nothing in this
Section 3.04(e) shall affect or postpone any of the Obligations of the
Company or the rights of such Lender pursuant to Section 3.04(a), (b),
(c) or (d).


 


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


 


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


 


85

















 


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


 


including any
loss or expense arising from the liquidation or reemployment of funds obtained
by it to maintain such Loan or from fees payable to terminate the deposits from
which such funds were obtained.


 


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


 


SECTION 3.06. Matters
Applicable to All Requests for Compensation. (a)  Any Agent or any Lender claiming compensation
under this Article III shall deliver a certificate to the Company setting forth
the additional amount or amounts to be paid to it hereunder which shall be
conclusive in the absence of manifest error. In determining such amount, such
Agent or such Lender may use any reasonable averaging and attribution methods.


 


(b)  With respect to any Lender’s claim for
compensation under Section 3.01, 3.02, 3.03 or 3.04, the Company shall not
be required to compensate such Lender for any amount incurred more than one
hundred and eighty (180) days prior to the date that such Lender notifies the Company
of the event that gives rise to such claim;
provided that, if the circumstance giving rise to such claim is
retroactive, then such 180-day period referred to above shall be extended to
include the period of retroactive effect thereof. If any Lender requests
compensation by the Company under Section 3.04, the Company may, by notice
to such Lender (with a copy to the Administrative Agent), suspend the
obligation of such Lender to make or continue from one Interest Period to
another Eurodollar Rate Loans, or to convert Base Rate Loans into Eurodollar
Rate Loans, until the event or condition giving rise to such request ceases to
be in effect (in which case the provisions of Section 3.06(c) shall be
applicable); 
provided that such suspension shall not affect the right of
such Lender to receive the compensation so requested.


 


(c)  If the obligation of any Lender to make or
continue from one Interest Period to another any Eurodollar Rate Loan, or to
convert Base Rate Loans into Eurodollar Rate Loans shall be suspended pursuant
to Section 3.06(b) hereof, such Lender’s Eurodollar Rate Loans shall be
automatically converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for such Eurodollar Rate Loans (or, in the case of
an immediate conversion required by Section 3.02, on such earlier date as
required by Law) and, unless and until such Lender gives notice as provided
below that the circumstances specified in Section 3.01, 3.02, 3.03 or 3.04
hereof that gave rise to such conversion no longer exist:


 


86

















 


(i) to the extent that such Lender’s Eurodollar Rate Loans have been so
converted, all payments and prepayments of principal that would otherwise be
applied to such Lender’s Eurodollar Rate Loans shall be applied instead to its
Base Rate Loans; and


 


(ii) all Loans that would otherwise be made or continued from one
Interest Period to another by such Lender as Eurodollar Rate Loans shall be
made or continued instead as Base Rate Loans, and all Base Rate Loans of such
Lender that would otherwise be converted into Eurodollar Rate Loans shall
remain as Base Rate Loans.


 


(d)  If any Lender gives notice to the Company
(with a copy to the Administrative Agent) that the circumstances specified in Section 3.01,
3.02, 3.03 or 3.04 hereof that gave rise to the conversion of such Lender’s
Eurodollar Rate Loans pursuant to this Section 3.06 no longer exist (which
such Lender agrees to do promptly upon such circumstances ceasing to exist) at
a time when Eurodollar Rate Loans made by other Lenders are outstanding, such
Lender’s Base Rate Loans shall be automatically converted, on the first day(s)
of the next succeeding Interest Period(s) for such outstanding Eurodollar Rate
Loans, to the extent necessary so that, after giving effect thereto, all Loans
held by the Lenders holding Eurodollar Rate Loans and by such Lender are held
pro rata (as to principal amounts, interest rate basis, and Interest Periods)
in accordance with their respective Commitments.


 


SECTION 3.07. Replacement
of Lenders under Certain Circumstances. (a) 
If at any time (i) the Company becomes obligated to pay additional
amounts or indemnity payments described in Section 3.01 or
Section 3.04 as a result of any condition described in such Sections or
any Lender ceases to make Eurodollar Rate Loans as a result of any condition
described in Section 3.02 or Section 3.04, (ii) any Lender
becomes a Defaulting Lender or (iii) any Lender becomes a Non-Consenting
Lender, then the Company may, on ten (10) Business Days’ prior written notice
to the Administrative Agent and such Lender, replace such Lender by causing
such Lender to (and such Lender shall be obligated to) assign pursuant to
Section 10.07(b) (with the assignment fee to be paid by the Company in
such instance) all of its rights and obligations under this Agreement to one or
more Eligible Assignees; provided that
neither the Administrative Agent nor any Lender shall have any obligation to
the Company to find a replacement Lender or other such Person; and provided, further, that (A) in the
case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such
compensation or payments and (B) in the case of any such assignment
resulting from a Lender becoming a Non-Consenting Lender, the applicable
Eligible Assignees shall have agreed to the applicable departure, waiver or
amendment of the Loan Documents.


 


(b)  Any Lender being replaced pursuant to
Section 3.07(a) above shall (i) execute and deliver an Assignment and
Assumption with respect to such Lender’s Commitment and outstanding Loans and
participations in L/C Obligations and Swing Line Loans, and (ii) deliver
any Notes evidencing such Loans to the Company or 


 


87

















 


Administrative Agent. Pursuant to such
Assignment and Assumption, (A) the assignee Lender shall acquire all or a
portion, as the case may be, of the assigning Lender’s Commitment and
outstanding Loans and participations in L/C Obligations and Swing Line Loans,
(B) all obligations of the Company owing to the assigning Lender relating
to the Loans and participations so assigned shall be paid in full (including
the amounts of any interest, fees or any other amounts accrued for the account
of such Lender to the date of such payment on any such outstanding Loans or
participations in L/C Obligations or Swing Line Loans) by the assignee Lender
to such assigning Lender concurrently with such assignment and assumption and
(C) upon such payment and, if so requested by the assignee Lender,
delivery to the assignee Lender of the appropriate Note or Notes executed by
the Company, the assignee Lender shall become a Lender hereunder and the
assigning Lender shall cease to constitute a Lender hereunder with respect to
such assigned Loans, Commitments and participations, except with respect to
indemnification provisions under this Agreement, which shall survive as to such
assigning Lender. Each Lender hereby grants to the Administrative Agent an
irrevocable power of attorney (which power is coupled with an interest) to
execute and deliver, on behalf of such Lender as assignor, any Assignment and
Acceptance necessary to effectuate any assignment of such Lender’s interests
hereunder in the circumstances contemplated by this Section 3.07.


 


(c)  Notwithstanding anything to the contrary
contained above, any Lender that acts as an L/C Issuer may not be replaced
hereunder at any time that it has any Letter of Credit outstanding hereunder
unless arrangements reasonably satisfactory to such L/C Issuer (including the
furnishing of a back-up standby letter of credit in form and substance, and
issued by an issuer reasonably satisfactory to such L/C Issuer or the
depositing of cash collateral into a cash collateral account in amounts and
pursuant to arrangements reasonably satisfactory to such L/C Issuer) have been
made with respect to each such outstanding Letter of Credit and the Lender that
acts as the Administrative Agent may not be replaced hereunder except in
accordance with the terms of Section 9.09.


 


(d)  In the event that (i) the Company or the
Administrative Agent has requested that the Lenders consent to a departure or
waiver of any provisions of the Loan Documents or agree to any amendment
thereto, (ii) the consent, waiver or amendment in question requires the
agreement of all affected Lenders in accordance with the terms of
Section 10.01 or all the Lenders with respect to a certain Class of the
Loans and (iii) the Required Lenders have agreed to such consent, waiver
or amendment, then any Lender who does not agree to such consent, waiver or
amendment shall be deemed a “Non-Consenting
Lender.”


 


SECTION 3.08. Survival.
All of the Company’s obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations
hereunder.


 


88

















 


ARTICLE IV


 


Conditions Precedent to Credit Extensions


 


SECTION 4.01. Conditions
of Initial Credit Extension. The obligation of each Lender to make its
initial Credit Extension hereunder is subject to satisfaction of the following
conditions precedent:


 


(a)  The Administrative Agent’s receipt of the
following, each of which shall be originals or facsimiles (followed promptly by
originals) unless otherwise specified, each properly executed by a Responsible
Officer of the signing Loan Party, each in form and substance reasonably
satisfactory to the Administrative Agent and its legal counsel:


 


(i) executed counterparts of this Agreement and the Guaranty;


 


(ii) each Collateral Document, duly executed by each Loan Party
thereto, together with:


 


(A) certificates, if any, representing the Pledged Equity referred to
therein accompanied by undated stock powers executed in blank and instruments
evidencing the Pledged Debt indorsed in blank;


 


(B) to the extent required under the Collateral and Guarantee
Requirement, opinions of local counsel for the Loan Parties in states in which
the Mortgaged Properties are located, with respect to the enforceability and
perfection of the Mortgages and any related fixture filings in form and
substance reasonably satisfactory to the Administrative Agent; and


 


(C) evidence that all other actions, recordings and filings that the
Administrative Agent may deem reasonably necessary to satisfy the Collateral
and Guarantee Requirement shall have been taken, completed or otherwise
provided for in a manner reasonably satisfactory to the Administrative Agent;


 


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


 


(iv) opinions from (A) Simpson Thacher & Bartlett LLP, New
York counsel to the Loan Parties substantially in the form of Exhibit I,
(B) Reed Smith LLP, special regulatory counsel to the Loan Parties,
(C) Faegre & Benson LLP, 


 


89

















 


Minnesota
counsel to certain Loan Parties and (D) Rice Silbey, Reuter &
Sullivan, LLP, Nevada counsel to certain Loan Parties;


 


(v) a certificate signed by a Responsible Officer of the Company
certifying that since December 31, 2006, except as set forth in
(A) the Company Reports (as defined in the Merger Agreement, without
giving effect to any amendment thereof after the date of the Merger Agreement)
filed with the Securities and Exchange Commission from and after December 31,
2006 through and including the date of the Merger Agreement or (B) the
Form 8-K filed in connection with the announcement of the Merger Agreement
(but, in any case, only to the extent (x) such disclosure does not constitute a
“risk factor” or a “forward-looking statement” under the heading “Forward-Looking
Statements” in any of such Company Reports and (y) the applicability of such
disclosure to this condition is reasonably apparent) or (C) in the
corresponding sections or subsections of the Company Disclosure Schedule (as
defined in the Merger Agreement, without giving effect to any amendment thereof
after the date of the Merger Agreement), there shall not have occurred any
Change (as defined in the Merger Agreement) that, individually or in the
aggregate, has had or could reasonably be expected to have, a Company Material
Adverse Effect (as defined in the Merger Agreement without giving effect to any
amendment thereof after the date of the Merger Agreement);


 


(vi) a certificate attesting to the Solvency of the Loan Parties (taken
as a whole) on the Closing Date after giving effect to the Transaction, from
the Chief Financial Officer of the Company;


 


(vii) evidence that all insurance (including title insurance) required
to be maintained pursuant to the Loan Documents has been obtained and is in
effect and that the Collateral Agent has been named as loss payee under each
casualty and property insurance policy and each of the Secured Parties has been
named an additional insured under each liability insurance policy;


 


(viii) certified copies of the Merger Agreement, duly executed by the
parties thereto, together with all material agreements, instruments and other
documents delivered in connection therewith as the Administrative Agent shall
reasonably request, each including certification by a Responsible Officer of
the Company that such documents are in full force and effect as of the Closing
Date;


 


(ix) a Loan Notice or Letter of Credit Application, as applicable,
relating to the initial Credit Extension; and


 


(x) copies of a recent Lien and judgment search in each jurisdiction
reasonably requested by the Collateral Agent with respect to the Loan Parties.


 


(b)  All fees and expenses required to be paid
hereunder and invoiced before the Closing Date shall have been paid in full in
cash.


 


90

















 


(c)  Prior to or simultaneously with the initial
Credit Extension, (i) the Equity Contribution shall have been consummated,
which to the extent constituting other than common Equity Interests shall be on
terms and conditions and pursuant to documentation reasonably satisfactory to
the Arrangers to the extent material to the interests of the Lenders and
(ii) the Merger shall be consummated in accordance with the terms of the
Merger Agreement, without giving effect to any amendments or waivers by the
Company or Merger Sub thereto that are materially adverse to the Lenders
without the consent of the Arrangers, which consent shall not be unreasonably
withheld or delayed.


 


(d)  Prior to or simultaneously with the initial
Credit Extensions, the Company shall have received at least $575,000,000 in
gross cash proceeds from the issuance of the New Notes.


 


(e)  Prior to or simultaneously with the initial
Credit Extensions, the Company shall have terminated each of the Existing
Credit Agreements, all Liens granted thereunder shall have been terminated and
taken all other necessary actions such that, after giving effect to the
Transaction, (i) the Company and its Subsidiaries shall have outstanding no
Indebtedness other than (A) the Loans and L/C Obligations, (B) the
New Notes, (C) the Existing Notes and (D) Indebtedness listed on
Schedule 7.03(b).


 


(f)  The Arrangers shall have received (i) the
Audited Financial Statements and (ii) unaudited consolidated balance
sheets and related statements of income, stockholders’ equity and cash flows of
each of the Company and its consolidated Subsidiaries and the Target and its
consolidated Subsidiaries for each subsequent fiscal quarter ended at least
forty-five (45) days before the Closing Date (collectively, the “Unaudited Financial Statements”), which
financial statements described in clauses (i) and (ii) shall be prepared
in accordance with GAAP.


 


(g)  The Arrangers shall have received the Pro
Forma Financial Statements.


 


(h)  The Arrangers shall have received all
documentation and other information reasonably requested in writing by it at
least five (5 ) Business Days prior to the Closing Date in order to allow the
Arrangers to comply with applicable “know your customer” and anti-money
laundering rules and regulations, including the USA PATRIOT Act.


 


SECTION 4.02. Conditions
to All Credit Extensions. The obligation of each Lender to honor any
Request for Credit Extension (other than a Loan Notice requesting only a
conversion of Loans to the other Type, or a continuation of Eurodollar Rate
Loans) is subject to the following conditions precedent:


 


(a)  The representations and
warranties of the Company and each other Loan Party contained in Article V or
any other Loan Document shall be true and correct in all material respects on
and as of the date of such Credit Extension, except for such representations
and warranties expressly stated to relate to a 


 


91

















 


specific
earlier date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date;  provided,  that any representation and warranty that is
qualified as to “materiality,” “Material Adverse Effect” or similar language
shall be true and correct in all respects on such respective dates and provided, further, that, in the case of
the initial Credit Extension, such representations and warranties shall be
limited to the Specified Representations. For purposes of this
Section 4.02(a), the Specified Representations shall mean the
representations and warranties set forth in clauses (a) and (b) of
Section 5.01, Section 5.02 (but not clauses (a), (b) or (c) thereof),
and Sections 5.04, 5.13 and 5.16.


 


(b)  With respect to any request
for an Extension of Credit to occur after the Closing Date, no Default shall
exist, or would result from such proposed Credit Extension or from the
application of the proceeds therefrom.


 


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


 


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


 


ARTICLE V


 


Representations and Warranties


 


The Company
represents and warrants to the Administrative Agent and the Lenders that:


 


SECTION 5.01. Existence,
Qualification and Power; Compliance with Laws. Each Loan Party and each of
its Subsidiaries (a) is a Person duly organized or formed, validly
existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority to (i)
own or lease its assets and carry on its business and (ii) in the case of
the Loan Parties only, execute, deliver and perform its obligations under the
Loan Documents to which it is a party, (c) is duly qualified and in good
standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification, (d) is in compliance with all Laws, orders, writs,
injunctions and orders and (e) has all requisite governmental licenses,
authorizations, consents and approvals to operate its business as currently
conducted; except in each case referred to in clause (c), (d) or (e), to
the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.


 


92
















 


SECTION 5.02. Authorization;
No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is a party, and the
consummation of the Transaction, are within such Loan Party’s corporate or
other powers, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of
any of such Person’s Organization Documents, (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under (other than as
permitted by Section 7.01), or require any payment to be made under (i)
(x) any Existing Notes Documentation or (y) any other Contractual Obligation to
which such Person is a party or affecting such Person or the properties of such
Person or any of its Subsidiaries or (ii) any material order, injunction,
writ or decree of any Governmental Authority or any arbitral award to which
such Person or its property is subject; or (c) violate any Law; except
with respect to any conflict, breach or contravention or payment (but not
creation of Liens) referred to in clause (b)(i) or (c) of this
Section 5.02, to the extent that such conflict, breach, contravention or
payment could not reasonably be expected to have a Material Adverse Effect.


 


SECTION 5.03. Governmental
Authorization; Other Consents. No material approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in connection
with (a) the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document, (b) the
grant by any Loan Party of the Liens granted by it pursuant to the Collateral
Documents, (c) the perfection or maintenance of the Liens created under
the Collateral Documents (including the priority thereof) or (d) the
exercise by the Administrative Agent or any Lender of its rights under the Loan
Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for (i) filings necessary to perfect the Liens on
the Collateral granted by the Loan Parties in favor of the Secured Parties,
(ii) the approvals, consents, exemptions, authorizations, actions, notices
and filings which have been duly obtained, taken, given or made and are in full
force and effect and (iii) those approvals, consents, exemptions,
authorizations or other actions, notices or filings, the failure of which to
obtain or make could not reasonably be expected to have a Material Adverse
Effect.


 


SECTION 5.04. Binding
Effect. This Agreement and each other Loan Document has been duly executed
and delivered by each Loan Party that is party thereto. This Agreement and each
other Loan Document constitutes, a legal, valid and binding obligation of such
Loan Party, enforceable against each Loan Party that is party thereto in
accordance with its terms, except as such enforceability may be limited by
Debtor Relief Laws and by general principles of equity.


 


SECTION 5.05. Financial
Statements; No Material Adverse Effect. 

(a)  (i) The Audited Financial
Statements and the Unaudited Financial Statements fairly present in all
material respects the financial condition of each of the Company and its
consolidated Subsidiaries and the Target and its consolidated Subsidiaries as
of the dates thereof and their results of operations for the period covered
thereby in accordance with GAAP consistently applied throughout the periods
covered thereby, except as otherwise 


 


93

















 


expressly noted therein, subject, in the case
of the Unaudited Financial Statements, to changes resulting from audit, normal
year-end adjustments and absence of footnotes. During the period from December
31, 2006 to and including the Closing Date, there has been (i) no sale,
transfer or other disposition by either of the Company and its consolidated
Subsidiaries or the Target and its consolidated Subsidiaries of any material
part of the business or property of either of the Company and its consolidated
Subsidiaries or the Target and its consolidated Subsidiaries, taken as a whole
and (ii) no purchase or other acquisition by either of the Company and its
consolidated Subsidiaries or the Target and its consolidated Subsidiaries of
any business or property (including any Equity Interests of any other Person)
material in relation to the consolidated financial condition of either of the
Company and its consolidated Subsidiaries or the Target and its consolidated
Subsidiaries, in each case, which is not reflected in the foregoing financial
statements or in the notes thereto has not otherwise been disclosed in writing
to the Lenders prior to the Closing Date or in any public filing made by either
the Company or the Target, as applicable, with the SEC.


 


(ii) The unaudited pro forma
consolidated balance sheet of the Company and its Subsidiaries as at September
29, 2007 (including the notes thereto) (the “Pro
Forma Balance Sheet”) and the unaudited  pro forma  consolidated statement of operations of the
Company and its Subsidiaries for the most recent fiscal year, the nine-months
ended September 29, 2007 and the 12-month period ending on September 29, 2007
(together with the Pro Forma Balance Sheet, the “Pro Forma Financial Statements”), copies of which have
heretofore been furnished to the Administrative Agent for further delivery to
each Lender, have been prepared giving effect (as if such events had occurred
on such date or at the beginning of such periods, as the case may be) to the
Transaction and all other transactions that would be required to be given pro
forma effect by Regulation S-X promulgated under the Exchange Act (including
other adjustments consistent with the definition of Pro Forma Adjustment or as
otherwise agreed between the Company and the Administrative Agent). The Pro
Forma Financial Statements have been prepared in good faith, based on
assumptions believed by the Company to be reasonable as of the date of delivery
thereof, and present fairly in all material respects on a  pro
forma basis and in accordance with GAAP the estimated
financial position of the Company and its Subsidiaries as at September 29,
2007 and their estimated results of operations for the periods covered thereby,
assuming that the events specified in the preceding sentence had actually
occurred at such date or at the beginning of the periods covered thereby.


 


(b)  Since the Closing Date, there has been no
event or circumstance, either individually or in the aggregate, that has had or
could reasonably be expected to have a Material Adverse Effect.


 


(c)  The forecasts of consolidated balance sheets,
income statements and cash flow statements of the Company and its Subsidiaries
for each fiscal year ending after the Closing Date until the seventh anniversary
of the Closing Date, copies of which have been furnished to the Administrative
Agent prior to the Closing Date, have been prepared in good faith on the basis
of the assumptions stated therein, which assumptions were 


 


94

















 


believed to be reasonable at the time of
preparation of such forecasts, it being understood that actual results may vary
from such forecasts and that such variations may be material.


 


SECTION 5.06. Litigation.
There are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Company, threatened in writing or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, by or against the
Company or any of its Subsidiaries or against any of their properties or
revenues that either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.


 


SECTION 5.07. No
Default. Neither the Company nor any Subsidiary is in default under or with
respect to, or a party to, any Contractual Obligation (other than Contractual
Obligations in respect of Indebtedness) that could, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.


 


SECTION 5.08. Ownership
of Property; Liens. Set forth on Schedule 5.08 hereto is a complete
list of all real property owned by any Loan Party or any of its Subsidiaries
with a book value in excess of $5,000,000 as of the date hereof, showing as of
the date hereof the relevant jurisdiction thereof. Each Loan Party and each of
its Subsidiaries has good record and marketable title in fee simple to, or
valid leasehold interests in, or easements or other limited property interests
in, all real property necessary in the ordinary conduct of its business, free
and clear of all Liens except for minor defects in title that do not materially
interfere with its ability to conduct its business or to utilize such assets
for their intended purposes and Liens permitted by Section 7.01 and except
where the failure to have such title could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.


 


SECTION 5.09. Environmental
Compliance. (a)  There are no claims,
actions, suits, or proceedings alleging potential liability or responsibility
for violation of, or otherwise relating to, any Environmental Law that could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


 


(b)  Except as specifically disclosed in
Schedule 5.09(b) or except as could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, (i) none of the
properties currently or formerly owned, leased or operated by any Loan Party or
any of its Subsidiaries is listed or proposed for listing on the NPL or on the
CERCLIS or any analogous foreign, state or local list or is adjacent to any
such property; (ii) there are no and never have been any underground or
aboveground storage tanks or any surface impoundments, septic tanks, pits,
sumps or lagoons in which Hazardous Materials are being or have been treated,
stored or disposed on any property currently owned, leased or operated by any
Loan Party or any of its Subsidiaries or, to its knowledge, on any property
formerly owned or operated by any Loan Party or any of its Subsidiaries;
(iii) there is no asbestos or asbestos-containing material on any property
currently owned or operated by any Loan Party or any of its Subsidiaries; and
(iv) Hazardous Materials have not been released, discharged or disposed of
by any Person on any property currently or formerly owned, leased or operated
by any Loan Party or any of its Subsidiaries and Hazardous Materials have not
otherwise been released, 


 


95

















 


discharged or disposed of by any of the Loan
Parties and their Subsidiaries at any other location.


 


(c)  The properties owned, leased or operated by
the Company and the Subsidiaries do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute, or constituted a violation of,
(ii) require remedial action under, or (iii) could give rise to
liability under, Environmental Laws, which violations, remedial actions and
liabilities, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.


 


(d)  Except as specifically disclosed in
Schedule 5.09(d), neither the Company nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together with other
potentially responsible parties, any investigation or assessment or remedial or
response action relating to any actual or threatened release, discharge or
disposal of Hazardous Materials at any site, location or operation, either
voluntarily or pursuant to the order of any Governmental Authority or the
requirements of any Environmental Law except for such investigation or
assessment or remedial or response action that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.


 


(e)  All Hazardous Materials generated, used,
treated, handled or stored at, or transported to or from, any property
currently or formerly owned or operated by any Loan Party or any of its
Subsidiaries have been disposed of in a manner not reasonably expected to
result, individually or in the aggregate, in a Material Adverse Effect.


 


(f)  Except as would not reasonably be expected to
result, individually or in the aggregate, in a Material Adverse Effect, none of
the Loan Parties and their Subsidiaries has contractually assumed any liability
or obligation under or relating to any Environmental Law.


 


SECTION 5.10. Taxes.
Except as set forth in Schedule 5.10 or except as could not, either
individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries have filed all
Federal and state and other tax returns and reports required to be filed, and
have paid all Federal and state and other taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those (a) which are not overdue
by more than thirty (30) days or (b) which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves
have been provided in accordance with GAAP.


 


SECTION 5.11. ERISA
Compliance. (a)  Except as set forth
in Schedule 5.11(a) or as could not, either individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect, each
Plan is in compliance in with the applicable provisions of ERISA, the Code and
other Federal or state Laws.


 


(b)  (i) No ERISA Event has occurred during the
five year period prior to the date on which this representation is made or
deemed made with respect to any 


 


96

















 


Pension Plan; (ii) no Pension Plan has
an “accumulated funding deficiency” (as defined in Section 412 of the
Code), whether or not waived; (iii) neither any Loan Party nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability under
Title IV of ERISA with respect to any Pension Plan (other than premiums due and
not delinquent under Section 4007 of ERISA); (iv) neither any Loan
Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and
(v) neither any Loan Party nor any ERISA Affiliate has engaged in a
transaction that could be subject to Sections 4069 or 4212(c) of ERISA,
except, with respect to each of the foregoing clauses of this
Section 5.11(b), as could not reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect.


 


SECTION 5.12. Subsidiaries;
Equity Interests. As of the Closing Date, neither Holdings nor any Loan
Party has any Subsidiaries other than those specifically disclosed in
Schedule 5.12, and all of the outstanding Equity Interests in Material
Subsidiaries have been validly issued, are fully paid and nonassessable and all
Equity Interests owned by Holdings or a Loan Party are owned free and clear of
all Liens except (i) those created under the Collateral Documents and
(ii) any nonconsensual Lien that is permitted under Section 7.01. As
of the Closing Date, Schedule 5.12 (a) sets forth the name and
jurisdiction of each Subsidiary, (b) sets forth the ownership interest of the
Company and any other Subsidiary in each Subsidiary, including the percentage
of such ownership and (c) identifies each Subsidiary the Equity Interests
of which are required to be pledged on the Closing Date pursuant to the
Collateral and Guarantee Requirement.


 


SECTION 5.13. Margin
Regulations; Investment Company Act. (a) 
The Company is not engaged and will not engage, principally or as one of
its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock, and no proceeds
of any Borrowings or drawings under any Letter of Credit will be used for any
purpose that violates Regulation U.


 


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


 


SECTION 5.14. Disclosure.
No report, financial statement, certificate or other written information
furnished by or on behalf of any Loan Party to any Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of
this Agreement or delivered hereunder or any other Loan Document (as modified
or supplemented by other information so furnished) when taken as a whole
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not materially misleading; provided that, with respect to projected
financial information and pro forma financial information, the Company
represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time of 


 


97

















 


preparation; it being understood that such
projections may vary from actual results and that such variances may be
material.


 


SECTION 5.15. Solvency.
On the Closing Date after giving effect to the Transaction, the Loan Parties,
on a consolidated basis, are Solvent.


 


SECTION 5.16. Subordination
of Junior Financing. The Obligations are “Senior Debt,” “Senior
Indebtedness,” “Guarantor Senior Debt” or “Senior Secured Financing” (or any
comparable term) under, and as defined in, any Junior Financing Documentation.


 


SECTION 5.17. Labor
Matters. Except as, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect: 
(a) there are no strikes or other labor disputes against any of the
Company or its Subsidiaries pending or, to the knowledge of the Company,
threatened; (b) hours worked by and payment made to employees of each of the
Company or its Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Laws dealing with such matters; and
(c) all payments due from any of the Company or its Subsidiaries on
account of employee health and welfare insurance have been paid or accrued as a
liability on the books of the relevant party.


 


SECTION 5.18. Food
and Drug. Except as could not reasonably be expected to result in a
Material Adverse Effect, the Company and/or its Subsidiaries have all requisite
permits, licenses, and approvals that are required under the Laws of the
United States Food and Drug Administration (the “FDA”) (the “FDA Laws”) for the operation of the business of the Company
and its Subsidiaries (collectively, the “FDA
Permits”) and such FDA Permits (a) are valid and in full force
and effect, (b) have not been reversed, stayed, set aside, annulled, or
suspended and (c) are not subject to any conditions or requirements that
are not generally imposed on the holders thereof. The Company and/or its
Subsidiaries are in compliance with all applicable FDA Laws, including, without
limitation, current good manufacturing practice requirements except as could
not reasonably be expected to result in a Material Adverse Effect.


 


SECTION 5.19. Clinical
Trials. Except as could not reasonably be expected to result in a Material
Adverse Effect:  (a) the Company and
its Subsidiaries have received all investigational exemptions from the FDA
(including investigational device exemptions and investigational new drug
exemptions) for all products requiring such exemptions (the “Investigational Exemptions”) and (b) such
products (i) are being used by the Company and its Subsidiaries in clinical
investigations, trials, studies and otherwise in accordance with the terms of
the applicable Investigational Exemption, and (ii) have not been and are
not being sold or distributed outside the terms of such Investigational
Exemptions.


 


SECTION 5.20. State
Food and Drug Laws. Except as could not reasonably be expected to result in
a Material Adverse Effect, each of the Company and its Subsidiaries have all
requisite licenses, permits, authorizations, consents, clearances, and other
approvals under the food and drug Laws of each state in which the Company 


 


98

















 


and its Subsidiaries operate (collectively,
the “State Permits”) and that are
required for the operation of the business of the Company and its Subsidiaries
under the Laws of such states and such State Permits (i) are valid and in full
force and effect, (ii) have not been reversed, stayed, set aside,
annulled, or suspended, and (iii) are not subject to any conditions or requirements
that are not generally imposed on the holders thereof.


 


SECTION 5.21. HIPAA.
Except as could not reasonably be expected to result in a Material Adverse
Effect, to the extent the Company or any of its Subsidiaries is a “covered
entity” as defined in the Privacy Regulations (45 CFR 160.103) promulgated
pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) or the Company or any of its
Subsidiaries are subject to or covered by the so called “Administrative
Simplification” provisions of HIPAA, the Company and its Subsidiaries are
HIPAA-Compliant. For purposes hereof, “HIPAA-Compliant” shall mean that the
Company or its Subsidiaries, as the case may be, is or will be in compliance in
all material respects with each of the applicable requirements of the so-called
“Administrative Simplification” provisions of HIPAA on and as of each date that
any part thereof, or any final rule or regulations thereunder, becomes
effective in accordance with its or their terms, as the case may be.


 


SECTION 5.22. Medicare,
Medicaid and Fraud and Abuse. Except as could not reasonably be expected to
result in a Material Adverse Effect, the Company and each of its Subsidiaries
that bill the Medicare program are in compliance with the conditions of
participation imposed by the Social Security Act of 1935, as amended, and the
U.S. Secretary of Health and Human Services. Except as could not reasonably be
expected to result in a Material Adverse Effect, the Company and its
Subsidiaries, as the case may be, have a Medicare provider or supplier
agreement and a Medicare provider or supplier number in effect covering each
location at which the Company and its Subsidiaries, as the case may be, accepts
Medicare patients. Except as could not reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries have a Medicaid
provider agreement and Medicaid provider number in force in each state in which
the Company or its Subsidiaries bill the Medicaid program.


 


ARTICLE VI


 


Affirmative Covenants


 


So long as any
Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder which is accrued and payable shall remain unpaid or unsatisfied
(other than Obligations under Secured Hedge Agreements, Cash Management
Obligations or contingent indemnification obligations not then due and
payable), or any Letter of Credit shall remain outstanding (unless such Letters
of Credit shall have been collateralized on terms and conditions reasonably
satisfactory to the relevant L/C Issuers following termination of the
Commitment), the Company shall, and shall (except in the case of the covenants
set forth in Sections 6.01, 6.02 and 6.03) cause each Restricted
Subsidiary to:


 


99

















 


SECTION 6.01. Financial
Statements. Deliver to the Administrative Agent for prompt further
distribution to each Lender:


 


(a)  as soon as available, but in
any event within ninety (90) days after the end of each fiscal year of the
Company (or, in the case of the financial statements for the fiscal year ending
December 31, 2007, on or before the date that is 120 days after the end of such
fiscal year), a consolidated balance sheet of the Company and its Subsidiaries
as at the end of such fiscal year, and the related consolidated statements of
income or operations, stockholders’ equity and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited
and accompanied by a report and opinion of an independent registered public
accounting firm of nationally recognized standing, which report and opinion
shall be prepared in accordance with generally accepted auditing standards and
shall not be subject to any “going concern” or like qualification or exception
or any qualification or exception as to the scope of such audit;


 


(b)  as soon as available, but in
any event within forty-five (45) days after the end of each of the first three
(3) fiscal quarters of each fiscal year of the Company (or, in the case of the
financial statements for the fiscal quarter ending March 31, 2008, on or before
the date which is 60 days after the end of such fiscal quarter), a consolidated
balance sheet of the Company and its Subsidiaries as at the end of such fiscal
quarter, and the related consolidated statements of income or operations,
stockholders’ equity and cash flows for such fiscal quarter and for the portion
of the fiscal year then ended, setting forth in each case in comparative form
the figures for the corresponding fiscal quarter of the previous fiscal year
and the corresponding portion of the previous fiscal year, all in reasonable
detail and certified by a Responsible Officer of the Company as fairly presenting
in all material respects the financial condition, results of operations,
stockholders’ equity and cash flows of the Company and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes;


 


(c)  as soon as available, and in
any event no later than ninety (90) days after the end of each fiscal year of
the Company (or in the case of the detailed consolidated budget for the fiscal
year 2008, on or before the date that is 120 days after the end of fiscal year
2007), a detailed consolidated budget for the following fiscal year (including
a projected consolidated balance sheet of the Company and its Subsidiaries as
of the end of the following fiscal year, the related consolidated statements of
projected cash flow and projected income and a summary of the material
underlying assumptions applicable thereto), and, as soon as available,
significant revisions, if any, of such budget and projections with respect to
such fiscal year (collectively, the “Projections”),
which Projections shall in each case be accompanied by a certificate of a
Responsible Officer stating that such Projections are based on reasonable
estimates, information and assumptions and 


 


100

















 


that such
Responsible Officer has no reason to believe that such Projections are
incorrect or misleading in any material respect; and


 


(d)  simultaneously with the
delivery of each set of consolidated financial statements referred to in
Sections 6.01(a) and 6.01(b) above, the related consolidating financial
statements reflecting the adjustments necessary to eliminate the accounts of
Unrestricted Subsidiaries (if any) from such consolidated financial statements.


 


Notwithstanding
the foregoing, the obligations in paragraphs (a) and (b) of this
Section 6.01 may be satisfied with respect to financial information of the
Company and the Restricted Subsidiaries by furnishing (A) the applicable
financial statements of Holdings (or any other direct or indirect parent of
Holdings, including the Parent) or (B) the Company or Holdings (or any
other direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, as
applicable, filed with the SEC; provided that,
with respect to each of clauses (A) and (B), (i) to the extent such information
relates to Holdings (or another parent of the Company, including the Parent),
such information is accompanied by consolidating information that explains in
reasonable detail the differences between the information relating to Holdings
(or such parent), on the one hand, and the information relating to the Company
and the Restricted Subsidiaries on a standalone basis, on the other hand and
(ii) to the extent such information is in lieu of information required to
be provided under Section 6.01(a), such materials are accompanied by a
report and opinion of an independent registered public accounting firm of
nationally recognized standing, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be subject
to any “going concern” or like qualification or exception or any qualification
or exception as to the scope of such audit.


 


SECTION 6.02. Certificates;
Other Information. Deliver to the Administrative Agent for prompt further
distribution to each Lender:


 


(a)  no later than five (5) days
after the delivery of the financial statements referred to in
Section 6.01(a), a certificate of its independent registered public
accounting firm certifying such financial statements and stating that in making
the examination necessary therefor no knowledge was obtained of an Event of
Default resulting from a violation of Section 7.11 or, if any such Event
of Default shall exist, stating the nature and status of such event;


 


(b)  no later than five (5) days after the
delivery of the financial statements referred to in Section 6.01(a) and
(b), a duly completed Compliance Certificate signed by a Responsible Officer of
the Company (which shall set forth in reasonable detail the calculation of the
Integration Reserve Amount as of such date, including the amount of Specified
Post-Closing Integration Costs funded by the Company during the applicable
period) and, if such Compliance Certificate demonstrates an Event of Default
resulting from a violation of Section 7.11, any of the Equity Investors
may deliver, together with such Compliance Certificate, notice of their intent
to cure (a “Notice of Intent to Cure”)
such Event of Default pursuant to Section 8.05; provided that the delivery of a Notice of 


 


101

















 


Intent to Cure, in and of itself without the
corresponding application of proceeds from a Permitted Equity Issuance pursuant
to Section 8.05, shall in no way affect or alter the occurrence, existence
or continuation of any such Event of Default or the rights, benefits, powers
and remedies of the Administrative Agent and the Lenders under any Loan
Document;


 


(c)  promptly after the same are
publicly available, copies of all annual, regular, periodic and special reports
and registration statements which the Company files with the SEC or with any
Governmental Authority that may be substituted therefor (other than amendments
to any registration statement (to the extent such registration statement, in
the form it became effective, is delivered), exhibits to any registration
statement and, if applicable, any registration statement on Form S-8) and in
any case not otherwise required to be delivered to the Administrative Agent
pursuant hereto;


 


(d)  promptly after the furnishing
thereof, copies of any material requests or material notices received by any
Loan Party (other than in the ordinary course of business) or material
statements or material reports furnished to any holder of debt securities of
any Loan Party or of any of its Subsidiaries pursuant to the terms of any
Existing Notes Documentation, New Notes Documentation or Junior Financing
Documentation in a principal amount greater than the Threshold Amount and not
otherwise required to be furnished to the Lenders pursuant to any other clause
of this Section 6.02;


 


(e)  together with the delivery
of each Compliance Certificate pursuant to Section 6.02(b) at the end of
each fiscal year of the Company, (i) a report setting forth the information
required by Section 3.03(c) of the Security Agreement or confirming that
there has been no change in such information since the Closing Date or the date
of the last such report or any interim report, and (ii) a list of each
Subsidiary that identifies each Subsidiary as a Restricted or an Unrestricted
Subsidiary as of the date of delivery of such Compliance Certificate; and


 


(f)  such additional information
regarding the business, legal, financial or corporate affairs of any Loan Party
or any Subsidiary, or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender through the Administrative Agent may from
time to time reasonably request in writing.


 


Documents
required to be delivered pursuant to Section 6.01(a), (b), (c) or
Section 6.02(d) (to the extent any such documents are included in
materials otherwise filed with the SEC) may be delivered electronically and if
so delivered, shall be deemed to have been delivered on the date (i) on which
the Company posts such documents on EDGAR, or provides a link thereto on Parent’s,
Holdings’ or the Company’s website on the Internet at the website address
listed on Schedule 10.02; or (ii) on which such documents are posted
on the Company’s behalf on IntraLinks/IntraAgency or another relevant website,
if any, to which each Lender and the Administrative Agent have access (whether
a commercial, third-party website or whether sponsored by the Administrative
Agent); provided that:  (i) upon written request by the
Administrative Agent, the 


 


102

















 


Company shall
deliver paper copies of such documents to the Administrative Agent for further
distribution to each Lender until a written request to cease delivering paper
copies is given by the Administrative Agent and (ii) the Company shall
notify (which may be by facsimile or electronic mail) the Administrative Agent
of the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Company shall be required to
provide paper copies of the Compliance Certificates required by
Section 6.02(b) to the Administrative Agent. Each Lender shall be solely
responsible for timely accessing posted documents or requesting delivery of
paper copies of such documents from the Administrative Agent and maintaining
its copies of such documents.


 


The Company
hereby acknowledges that (a) the Administrative Agent and/or the Arrangers
will make available to the Lenders and the L/C Issuers materials and/or
information provided by or on behalf of the Company hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders
may be “public-side” Lenders (i.e.,
Lenders that do not wish to receive material non-public information with
respect to the Company or its securities) (each, a “Public Lender”). the Company hereby agrees to make all
Borrower Materials that the Company intends to be made available to Public
Lenders clearly and conspicuously designated as “PUBLIC”. By designating
Borrower Materials as “PUBLIC”, the Company authorizes such Borrower Materials
to be made available to a portion of the Platform designated “Public Investor,”
which is intended to contain only information that is either publicly available
or not material information (though it may be sensitive and proprietary) with
respect to the Company or its securities for purposes of United States
Federal and state securities laws. Notwithstanding the foregoing, the Company
shall not be under any obligation to mark any Borrower Materials “PUBLIC”.


 


SECTION 6.03. Notices.
Promptly after obtaining knowledge thereof, notify the Administrative Agent:


 


(a)  of the occurrence of any
Default;


 


(b)  of any matter that has
resulted or could reasonably be expected to result in a Material Adverse
Effect, including arising out of or resulting from (i) breach or
non-performance of, or any default or event of default under, a Contractual
Obligation of any Loan Party or any Subsidiary, (ii) any dispute,
litigation, investigation, proceeding or suspension between any Loan Party or
any Subsidiary and any Governmental Authority, (iii) the commencement of,
or any material development in, any litigation or proceeding affecting any Loan
Party or any Subsidiary, including pursuant to any applicable Environmental
Laws or the assertion or occurrence of any noncompliance by any Loan Party or
as any of its Subsidiaries with, or liability under, any Environmental Law or
Environmental Permit, or (iv) the occurrence of any ERISA Event.


 


103

















 


Each notice
pursuant to this Section shall be accompanied by a written statement of a
Responsible Officer of the Company (x) that such notice is being delivered
pursuant to Section 6.03(a) or (b) (as applicable) and (y) setting forth
details of the occurrence referred to therein and stating what action the
Company has taken and proposes to take with respect thereto.


 


SECTION 6.04. Payment
of Obligations. Pay, discharge or otherwise satisfy as the same shall
become due and payable, all its obligations and liabilities in respect of
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or in respect of its property, except, in each case, to
the extent the failure to pay or discharge the same could not reasonably be
expected to have a Material Adverse Effect.


 


SECTION 6.05. Preservation
of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 7.04 or 7.05 and
(b) take all reasonable action to maintain all rights, privileges (including
its good standing), permits, licenses and franchises necessary or desirable in
the normal conduct of its business, except in the case of each of clauses (a)
and (b) above (i) to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect or (ii) pursuant to a
transaction permitted by Section 7.02, 7.04 or 7.05.


 


SECTION 6.06. Maintenance
of Properties. Except if the failure to do so could not reasonably be
expected to have a Material Adverse Effect, (a) maintain, preserve and
protect all of its material properties and equipment necessary in the operation
of its business in good working order, repair and condition, ordinary wear and
tear excepted and casualty or condemnation excepted, and (b) make all necessary
renewals, replacements, modifications, improvements, upgrades, extensions and
additions thereof or thereto in accordance with prudent industry practice.


 


SECTION 6.07. Maintenance
of Insurance. Maintain with financially sound and reputable insurance
companies, insurance with respect to its properties and business against loss
or damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts (after giving
effect to any self-insurance reasonable and customary for similarly situated
Persons engaged in the same or similar businesses as the Company and the
Restricted Subsidiaries) as are customarily carried under similar circumstances
by such other Persons.


 


SECTION 6.08. Compliance
with Laws. Comply in all material respects with the requirements of all
Laws and all orders, writs, injunctions and decrees applicable to it or to its
business or property, except if the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.


 


SECTION 6.09. Books
and Records. Maintain proper books of record and account, in which entries
that are full, true and correct in all material respects and are in conformity
with GAAP consistently applied shall be made of all material financial 


 


104

















 


transactions and matters involving the assets
and business of the Company or such Subsidiary, as the case may be.


 


SECTION 6.10. Inspection
Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at the reasonable expense of the Company and at such reasonable times during
normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Company;
provided that, excluding any such visits and inspections during the
continuation of an Event of Default, only the Administrative Agent on behalf of
the Lenders may exercise rights of the Administrative Agent and the Lenders
under this Section 6.10 and the Administrative Agent shall not exercise
such rights more often than two (2) times during any calendar year absent the
existence of an Event of Default and only one (1) such time shall be at the
Company’s expense;  provided, further,  that when an Event of Default exists, the
Administrative Agent or any Lender (or any of their respective representatives
or independent contractors) may do any of the foregoing at the expense of the
Company at any time during normal business hours and upon reasonable advance
notice. The Administrative Agent and the Lenders shall give the Company the
opportunity to participate in any discussions with the Company’s independent
public accountants.


 


SECTION 6.11. Covenant
to Guarantee Obligations and Give Security. At the Company’s expense, take
all action necessary or reasonably requested by the Administrative Agent to
ensure that the Collateral and Guarantee Requirement continues to be satisfied,
including:


 


(a)  upon the formation or
acquisition of any Intermediate Holding Company or any new direct or indirect
wholly owned Domestic Subsidiary (in each case, other than an Unrestricted
Subsidiary or an Excluded Subsidiary) by any Loan Party or the designation in
accordance with Section 6.14 of any existing direct or indirect wholly
owned Domestic Subsidiary as a Restricted Subsidiary (other than an Excluded
Subsidiary):


 


(i) within thirty (30) days after such formation, acquisition or
designation or such longer period as the Administrative Agent may agree in its
discretion:


 


(A) cause each such Intermediate Holding Company or Restricted
Subsidiary that is required to become a Guarantor under the Collateral and
Guarantee Requirement to furnish to the Administrative Agent a description of
the real properties owned by such Restricted Subsidiary that have a book value
in excess of $5,000,000 in detail reasonably satisfactory to the Administrative
Agent;


 


(B) cause each such Intermediate Holding Company or Restricted
Subsidiary that is required to become a Guarantor pursuant to the Collateral
and Guarantee Requirement to duly execute and deliver to the 


 


105

















 


Administrative
Agent or the Collateral Agent (as appropriate) Mortgages, Security Agreement
Supplements, Intellectual Property Security Agreements, Guaranties and other
security agreements and documents (including, with respect to Mortgages, the
documents listed in Section 6.13(b)), in the case of such other security
agreements and documents as reasonably requested by and in form and substance
reasonably satisfactory to the Administrative Agent (consistent with the
Mortgages, Security Agreement, Intellectual Property Security Agreements and
other security agreements in effect on the Closing Date), in each case granting
Liens required by the Collateral and Guarantee Requirement;


 


(C)  (x) cause each such
Intermediate Holding Company or Restricted Subsidiary that is required to
become a Guarantor pursuant to the Collateral and Guarantee Requirement to
deliver any and all certificates representing Equity Interests (to the extent
certificated) that are required to be pledged pursuant to the Collateral and
Guarantee Requirement, accompanied by undated stock powers or other appropriate
instruments of transfer executed in blank and instruments evidencing the
intercompany Indebtedness held by such Restricted Subsidiary and required to be
pledged pursuant to the Collateral Documents, indorsed in blank to the
Collateral Agent and (y) cause each direct parent of such Restricted Subsidiary
to deliver any and all certificates representing the outstanding Equity
Interests (to the extent certificated) of such Restricted Subsidiary that are
required to be pledged pursuant to the Collateral and Guarantee Requirement,
accompanied by undated stock powers or other appropriate instruments of
transfer executed in blank and instruments evidencing the intercompany
Indebtedness issued by such Restricted Subsidiary and required to be pledged in
accordance with the Collateral Documents, indorsed in blank to the Collateral
Agent;


 


(D) take and cause such Intermediate Holding Company or Intermediate
Holding Company or Restricted Subsidiary to take whatever action (including the
recording of Mortgages, the filing of Uniform Commercial Code financing
statements and delivery of stock and membership interest certificates) may be
necessary in the reasonable opinion of the Administrative Agent to vest in the
Administrative Agent (or in any representative of the Administrative Agent
designated by it) valid Liens required by the Collateral and Guarantee
Requirement, enforceable against all third parties in accordance with their
terms, except as such enforceability may be limited by Debtor Relief Laws and
by general principles of equity,


 


(ii) within thirty (30) days after the reasonable request therefor by
the Administrative Agent, deliver to the Administrative Agent a signed copy of
an opinion, addressed to the Administrative Agent and the other Secured
Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative
Agent as 


 


106

















 


to such
matters set forth in this Section 6.11(a) as the Administrative Agent may
reasonably request, and


 


(iii) as promptly as practicable after the request therefor by the
Administrative Agent, deliver to the Administrative Agent with respect to each
parcel of real property that is owned by such Intermediate Holding Company or
Restricted Subsidiary and has a book value in excess of $5,000,000, to the
extent such items are in the possession of, or under the control of, the
Company, any existing title reports, surveys or environmental assessment
reports.


 


(b)  after the Closing Date,
concurrently with (x) the acquisition of any material personal property by any
Loan Party, or (y) the acquisition of any owned real property by any Loan Party
with a book value in excess of $5,000,000, and such personal property or owned
real property shall not already be subject to a perfected Lien pursuant to the
Collateral Documents, the Company shall give notice thereof to the
Administrative Agent and promptly thereafter shall cause such assets to be
subjected to a Lien to the extent required by the Collateral and Guarantee
Requirement and will take, or cause the relevant Loan Party to take, such actions
as shall be necessary or reasonably requested by the Administrative Agent to
grant and perfect or record such Lien, including, as applicable, the actions
referred to in Section 6.13(b) with respect to real property.


 


SECTION 6.12. Compliance
with Environmental Laws. Except, in each case, to the extent that the
failure to do so could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect, comply, and take all reasonable
actions to cause all lessees and other Persons operating or occupying its
properties to comply with all applicable Environmental Laws and Environmental
Permits; obtain and renew all Environmental Permits necessary for its
operations and properties; and, in each case to the extent required by Environmental
Laws, conduct any investigation, study, sampling and testing, and undertake any
cleanup, removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws.


 


SECTION 6.13. Further
Assurances. (a)  Promptly upon
reasonable request by the Administrative Agent (i) correct any material defect
or error that may be discovered in the execution, acknowledgment, filing or
recordation of any Collateral Document or other document or instrument relating
to any Collateral, and (ii) do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register any and all such further
acts, deeds, certificates, assurances and other instruments as the
Administrative Agent may reasonably request from time to time in order to carry
out more effectively the purposes of the Collateral Documents.


 


(b)  In the case of any real property referred to
in Section 6.11(b), provide the Administrative Agent with Mortgages with
respect to such owned real property within thirty (30) days of the acquisition
of such real property, together with:


 


107

















 


(i) evidence that counterparts of the Mortgages have been duly
executed, acknowledged and delivered and are in form suitable for filing or
recording in all filing or recording offices that the Administrative Agent may
deem reasonably necessary or desirable in order to create a valid and
subsisting perfected Lien on the property described therein in favor of the
Administrative Agent or the Collateral Agent (as appropriate) for the benefit
of the Secured Parties and that all filing and recording taxes and fees have
been paid or otherwise provided for in a manner reasonably satisfactory to the
Administrative Agent;


 


(ii) fully paid American Land Title Association Lender’s Extended
Coverage title insurance policies or the equivalent or other form available in
each applicable jurisdiction (the “Mortgage
Policies”) in form and substance, with endorsements and in amount,
reasonably acceptable to the Administrative Agent (not to exceed the value of
the real properties covered thereby), issued, coinsured and reinsured by title
insurers reasonably acceptable to the Administrative Agent, insuring the
Mortgages to be valid subsisting Liens on the property described therein, free
and clear of all defects and encumbrances, subject to Liens permitted by
Section 7.01, and providing for such other affirmative insurance
(including endorsements for future advances under the Loan Documents) and such
coinsurance and direct access reinsurance as the Administrative Agent may
reasonably request;


 


(iii) opinions of local counsel for the Loan Parties in states in which
the real properties are located, with respect to the enforceability and
perfection of the Mortgages and any related fixture filings in form and
substance reasonably satisfactory to the Administrative Agent; and


 


(iv) such other evidence that all other actions that the Administrative
Agent may reasonably deem necessary or desirable in order to create valid and
subsisting Liens on the property described in the Mortgages has been taken.


 


SECTION 6.14. Designation
of Subsidiaries. The board of directors of the Company may at any time designate
any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted
Subsidiary as a Restricted Subsidiary;
provided that (i) immediately before and after such
designation, no Default shall have occurred and be continuing,
(ii) immediately after giving effect to such designation, the Company and
the Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis, with
the covenant set forth in Section 7.11 (and, as a condition precedent to
the effectiveness of any such designation, the Company shall deliver to the
Administrative Agent a certificate setting forth in reasonable detail the
calculations demonstrating such compliance), (iii) the Company may not be
designated as an Unrestricted Subsidiary and, (iv) no Subsidiary may be
designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for
the purpose of the Existing Notes, the New Notes or any Junior Financing, as
applicable, and (v) no Restricted Subsidiary may be designated as an
Unrestricted Subsidiary if it was previously designated an Unrestricted
Subsidiary. The designation of any Subsidiary as an Unrestricted Subsidiary
shall constitute an Investment by the Company therein at the date of
designation in an amount equal to the net book value of the Company’s (as


 


108

















 


applicable) investment therein. The
designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall
constitute the incurrence at the time of designation of any Indebtedness or
Liens of such Subsidiary existing at such time.


 


ARTICLE VII


 


Negative Covenants


 


So long as any
Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder which is accrued and payable shall remain unpaid or unsatisfied
(other than Obligations under Secured Hedge Agreements, Cash Management
Obligations or contingent indemnification obligations not then due and
payable), or any Letter of Credit shall remain outstanding (unless such Letters
of Credit shall have been collateralized on terms and conditions reasonably
satisfactory to the relevant L/C Issuers following the termination of the
Commitments), the Company shall not, nor shall it permit any of the Restricted
Subsidiaries to, directly or indirectly:


 


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


 


(a)  Liens pursuant to any Loan
Document;


 


(b)  Liens existing on the date
hereof and listed on Schedule 7.01(b) and any modifications, replacements,
renewals or extensions thereof; provided that
(i) the Lien does not extend to any additional property other than
(A) after-acquired property that is affixed or incorporated into the
property covered by such Lien or financed by Indebtedness permitted under
Section 7.03, and (B) proceeds and products thereof, and
(ii) the renewal, extension or refinancing of the obligations secured or
benefited by such Liens is permitted by Section 7.03;


 


(c)  Liens for taxes, assessments
or governmental charges which are not overdue for a period of more than thirty
(30) days or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP;


 


(d)  statutory Liens of
landlords, carriers, warehousemen, mechanics, materialmen, repairmen,
construction contractors or other like Liens arising in the ordinary course of
business which secure amounts not overdue for a period of more than thirty (30)
days or if more than thirty (30) days overdue, are unfiled and no other action
has been taken to enforce such Lien or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;


 


(e)  (i) pledges or deposits in
the ordinary course of business in connection with workers’ compensation,
unemployment insurance and other social security 


 


109

















 


legislation
and (ii) pledges and deposits in the ordinary course of business securing
liability for reimbursement or indemnification obligations of (including
obligations in respect of letters of credit or bank guarantees for the benefit
of) insurance carriers providing property, casualty or liability insurance to
the Company or any Restricted Subsidiary;


 


(f)  deposits to secure the
performance of bids, trade contracts, governmental contracts and leases (other
than indebtedness for borrowed money), statutory obligations, surety, stay,
customs and appeal bonds, performance bonds and other obligations of a like
nature (including those to secure health, safety and environmental obligations)
incurred in the ordinary course of business;


 


(g)  easements, rights-of-way,
restrictions, encroachments, protrusions and other similar encumbrances and
minor title defects affecting real property which, in the aggregate, do not in
any case materially interfere with the ordinary conduct of the business of the
Company and its Restricted Subsidiaries, taken as a whole;


 


(h)  Liens securing judgments for
the payment of money not constituting an Event of Default under
Section 8.01(h);


 


(i)  Liens securing Indebtedness
permitted under Section 7.03(e);
provided that (i) such Liens attach concurrently with or within two
hundred and seventy (270) days after the acquisition, repair, replacement,
construction or improvement (as applicable) of the property subject to such
Liens, (ii) such Liens do not at any time encumber any property except for
accessions to such property other than the property financed by such
Indebtedness and the proceeds and the products thereof and (iii) with
respect to Capitalized Leases, such Liens do not at any time extend to or cover
any assets (except for accessions to such assets) other than the assets subject
to such Capitalized Leases; provided that
individual financings of equipment provided by one lender may be cross
collateralized to other financings of equipment provided by such lender;


 


(j)  leases, licenses, subleases
or sublicenses granted to others in the ordinary course of business which do
not (i) interfere in any material respect with the business of the Company and
its Restricted Subsidiaries, taken as a whole or (ii) secure any
Indebtedness;


 


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


 


(l)  Liens (i) of a collection
bank arising under Section 4-210 of the Uniform Commercial Code on items
in the course of collection, (ii) attaching to commodity trading accounts
or other commodities brokerage accounts incurred in the ordinary course of
business; and (iii) in favor of a banking institution arising as a matter
of law encumbering deposits (including the right of set-off) and which are
within the general parameters customary in the banking industry;


 


110
















 


(m)  Liens (i) on cash advances
in favor of the seller of any property to be acquired in an Investment
permitted pursuant to Section 7.02(i) or (n) to be applied against the
purchase price for such Investment, and (ii) consisting of an agreement to
Dispose of any property in a Disposition permitted under Section 7.05, in
each case, solely to the extent such Investment or Disposition, as the case may
be, would have been permitted on the date of the creation of such Lien;


 


(n)  Liens on property of any
Restricted Subsidiary that is not a Loan Party securing Indebtedness of the
applicable Restricted Subsidiary permitted under Section 7.03;


 


(o)  Liens existing on property
at the time of its acquisition or existing on the property of any Person at the
time such Person becomes a Restricted Subsidiary (other than by designation as
a Restricted Subsidiary pursuant to Section 6.14), in each case after the
date hereof (other than Liens on the Equity Interests of any Person that
becomes a Restricted Subsidiary); provided that
(i) such Lien was not created in contemplation of such acquisition or such
Person becoming a Restricted Subsidiary, (ii) such Lien does not extend to
or cover any other assets or property (other than the proceeds or products
thereof and other than after-acquired property subjected to a Lien securing
Indebtedness and other obligations incurred prior to such time and which
Indebtedness and other obligations are permitted hereunder that require,
pursuant to their terms at such time, a pledge of after-acquired property, it
being understood that such requirement shall not be permitted to apply to any
property to which such requirement would not have applied but for such
acquisition), and (iii) the Indebtedness secured thereby is permitted
under Section 7.03(e) , (g), or (k);


 


(p)  any interest or title of a
lessor, sublessor, licensor, sublicensor under leases, subleases, licenses or
sublicenses entered into by the Company or any of the Restricted Subsidiaries
in the ordinary course of business;


 


(q)  Liens arising out of
conditional sale, title retention, consignment or similar arrangements for sale
of goods entered into by the Company or any of the Restricted Subsidiaries in
the ordinary course of business permitted by this Agreement;


 


(r)  Liens deemed to exist in
connection with Investments in repurchase agreements under Section 7.02
and reasonably customary initial deposit and margin deposits and similar Liens
attaching to commodity trading accounts or other brokerage accounts maintained
in the ordinary course of business and not for speculative purposes;


 


(s)  Liens that are contractual
rights of set-off (i) relating to the establishment of depository relations
with banks not given in connection with the issuance of Indebtedness,
(ii) relating to pooled deposit, sweep accounts, or automatic clearing
house accounts of the Company or any Restricted Subsidiary


 


111

















 


to permit
satisfaction of overdraft or similar obligations incurred in the ordinary course
of business of the Company and the Restricted Subsidiaries or
(iii) relating to purchase orders and other agreements entered into with
customers of the Company or any Restricted Subsidiary in the ordinary course of
business;


 


(t)  Liens solely on any cash
earnest money deposits made by the Company or any of the Restricted
Subsidiaries in connection with any letter of intent or purchase agreement
permitted hereunder;


 


(u)  (i) Liens placed upon the
Equity Interests of any Restricted Subsidiary acquired pursuant to a Permitted
Acquisition to secure Indebtedness incurred pursuant to Section 7.03(g) in
connection with such Permitted Acquisition and (ii) Liens placed upon the
assets of such Restricted Subsidiary and any of its Subsidiaries to secure a
Guarantee by such Restricted Subsidiary and its Subsidiaries of any such
Indebtedness incurred pursuant to Section 7.03(g) in connection with such
Permitted Acquisition;


 


(v)  any modification,
replacements, renewals of any Liens permitted by clauses (b), (i), (o) and (u); provided that (i) the Lien does not
extend to any additional property other than (A) after-acquired property
that is affixed or incorporated into the property covered by such Lien or
financed by Indebtedness permitted under Section 7.03, and (B) proceeds
and products thereof, and (ii) the renewal, extension or refinancing of
the obligations secured or benefited by such Liens is permitted by
Section 7.03;


 


(w)  Liens on property of any
Foreign Subsidiary securing Indebtedness incurred pursuant to Section 7.03(s);


 


(x)  ground leases or subleases
in respect of real property on which facilities owned, leased or subleased by
the Company or any of its Subsidiaries are located;


 


(y)  other Liens securing
Indebtedness or other obligations outstanding in an aggregate amount not to
exceed $35,000,000;


 


(z)  Liens arising from
precautionary Uniform Commercial Code financing statement filings;


 


(aa)  Liens on insurance policies
and the proceeds thereof securing the financing of the premiums with respect
thereto;


 


(bb)   any zoning or similar law
or right reserved to or vested in any Governmental Authority to control or
regulate the use of any real property that does not materially interfere with
the ordinary conduct of the business of the Company or any Material Subsidiary;
and


 


(cc)  Liens on specific items of
inventory or other goods and the proceeds thereof securing such Person’s
obligations in respect of documentary letters of


 


112

















 


credit or
banker’s acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or goods.


 


SECTION 7.02. Investments.
Make or hold any Investments, except:


 


(a)  Investments by the Company
or a Restricted Subsidiary in assets that were Cash Equivalents when such
Investment was made;


 


(b)  loans or advances to
officers, directors and employees of the Company (or any direct or indirect
parent thereof) and the Restricted Subsidiaries (i) for reasonable and
customary business-related travel, entertainment, relocation and analogous
ordinary business purposes of the Company and the Restricted Subsidiaries,
(ii) in connection with such Person’s purchase of Equity Interests of the
Company (or any direct or indirect parent thereof; provided that the amount of such loans and advances shall be
contributed to the Company in cash as common equity), and (iii) for
purposes not described in the foregoing clauses (i) and (ii), in an aggregate
principal amount at any time outstanding not exceeding $10,000,000;


 


(c)  Investments (i) by the
Company or any Restricted Subsidiary in any Loan Party, (ii) by any
Restricted Subsidiary that is not a Loan Party in any other such Restricted
Subsidiary that is also not a Loan Party, or (iii) by the Company or any
Restricted Subsidiary (A) in any Restricted Subsidiary that is not a Loan
Party; provided that the
aggregate amount of such Investments by Loan Parties in Restricted Subsidiaries
that are not Loan Parties (together with, but without duplication of, the
aggregate consideration paid in respect of Permitted Acquisitions of Persons
that do not become Loan Parties pursuant to Section 7.02(i)(B) (but
excluding any consideration funded under the proviso thereto) shall not exceed
$325,000,000 (net of any amount representing a return of capital in respect of
any such Investment) in the aggregate during the term of this Agreement; provided  further that,
such amount shall be increased by (i) the net cash proceeds of Permitted
Equity Issuances (other than Permitted Equity Issuances made pursuant to
Section 8.05) that are Not Otherwise Applied and (ii) if, as of the
last day of the immediately preceding Test Period, the Senior Secured Leverage
Ratio (calculated on a Pro Forma Basis) is not greater than 4.00:1, the
Available Amount at the time such Investment is made, (B) in any
Restricted Subsidiary that is not a Loan Party, constituting an exchange of
Equity Interests of such Restricted Subsidiary for Indebtedness of such
Restricted Subsidiary or (C) constituting Guarantees of Indebtedness or
other monetary obligations of Restricted Subsidiaries that are not Loan Parties
owing to any Loan Party, to the extent such Guarantees are permitted under
Section 7.03;


 


(d)  Investments consisting of
extensions of credit in the nature of accounts receivable or notes receivable
arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors and other credits to suppliers in the
ordinary course of business;


 


113

















 


(e)  Investments consisting of
Liens, Indebtedness, fundamental changes, Dispositions and Restricted Payments
permitted under Sections 7.01, 7.03, 7.04, 7.05 and 7.06, respectively;


 


(f)  Investments (i) existing or
contemplated on the date hereof and set forth on Schedule 7.02(f) and any
modification, replacement, renewal, reinvestment or extension thereof and
(ii) existing on the date hereof by the Company or any Restricted
Subsidiary in the Company or any other Restricted Subsidiary and any
modification, renewal or extension thereof;
provided that the amount of the original Investment is not increased
except by the terms of such Investment as of the Closing Date or as otherwise
permitted by this Section 7.02;


 


(g)  Investments in Swap
Contracts permitted under Section 7.03;


 


(h)  promissory notes and other
noncash consideration received in connection with Dispositions permitted by
Section 7.05;


 


(i)  the purchase or other
acquisition of property and assets or businesses of any Person or of assets
constituting a business unit, a line of business or division of such Person, or
Equity Interests in a Person that, upon the consummation thereof, will be a
Subsidiary of the Company (including as a result of a merger or consolidation); provided that, with respect to each
purchase or other acquisition made pursuant to this Section 7.02(i) (each,
a “Permitted Acquisition”):


 


(A) subject to clause (B) below, such purchase or acquisition
shall result in the issuer of such Equity Interests or the entity acquiring
such property, assets or businesses, as the case may be, becoming a Restricted
Subsidiary (if such entity is not a Restricted Subsidiary prior thereto) and,
to the extent required under the Collateral and Guarantee Requirement, a
Guarantor, and such purchase or acquisition shall result in the Collateral
Agent being granted a security interest in any such Equity Interests or assets
so acquired to the extent required by Section 6.11, within the times
specified therein;


 


(B) the aggregate amount of consideration paid in respect of
acquisitions of Persons that do not become Loan Parties (together with, but
without duplication of, the aggregate amount of all Investments in Restricted
Subsidiaries that are not Loan Parties pursuant to Section 7.02(c)(iii)(A)
(but excluding any such amounts under the second proviso thereto)) shall not
exceed $325,000,000 (net of any amounts representing a return of capital in
respect of any such Investment) in the aggregate during the term of this
Agreement; provided that, such
amount shall be increased by (i) the Net Cash Proceeds of Permitted Equity
Issuances (other than Permitted Equity Issuances made pursuant to Section 8.05)
that are Not Otherwise Applied and (ii) if, as of the last day of the
immediately preceding Test Period, the Senior Secured Leverage Ratio


 


114

















 


(calculated on
a Pro Forma Basis) is not greater than 4.00:1, the Available Amount at the time
such Investment is made; provided,
further that the limitations set
forth in this clause (B) shall not apply to the Specified Acquisition;


 


(C) the acquired property, assets, business or Person is in the same or
related line of business as the Company and its Subsidiaries;


 


(D) the board of directors (or similar governing body) of the Person to
be so purchased or acquired shall not have indicated publicly its opposition to
the consummation of such purchase or acquisition (which opposition has not been
publicly withdrawn);


 


(E) (1) immediately before and immediately after giving Pro Forma
Effect to any such purchase or other acquisition, no Default shall have
occurred and be continuing and (2) immediately after giving effect to such
purchase or other acquisition, (I) the Company and the Restricted
Subsidiaries shall be in Pro Forma Compliance with the covenant set forth in
Section 7.11 as of the last day of the Test Period immediately preceding
such purchase or other acquisition and (II) the Total Leverage Ratio
(calculated on a Pro Forma Basis) as of the last day of the Test Period
immediately preceding such purchase or other acquisition shall not be greater
than 6.00:1 (provided that the
requirements of this clause (E)(2)(II) shall not apply to any such purchases or
other acquisitions the aggregate consideration in respect of which does not
exceed $25,000,000 and provided, further that the requirements of clauses
(E)(2)(I) and (E)(2)(II) shall not apply to the Specified Acquisition), and
compliance with the requirements of the foregoing clauses (E)(2)(I) and
(E)(2)(II), to the extent applicable, shall be evidenced by a certificate from
the Chief Financial Officer of the Company demonstrating such compliance
calculation in reasonable detail; and


 


(F) the Company shall have delivered to the Administrative Agent, on
behalf of the Lenders, no later than five (5) Business Days after the date on
which any such purchase or other acquisition is consummated, a certificate of a
Responsible Officer, in form and substance reasonably satisfactory to the
Administrative Agent, certifying that all of the requirements set forth in this
Section 7.02(i) have been satisfied or will be satisfied on or prior to
the consummation of such purchase or other acquisition;


 


(j)  the Transaction;


 


(k)  Investments in the ordinary
course of business consisting of Article 3 endorsements for collection or
deposit and Article 4 customary trade arrangements with customers consistent
with past practices;


 


115

















 


(l)  Investments (including debt
obligations and Equity Interests) received in connection with the bankruptcy or
reorganization of suppliers and customers or in settlement of delinquent
obligations of, or other disputes with, customers and suppliers arising in the
ordinary course of business or upon the foreclosure with respect to any secured
Investment or other transfer of title with respect to any secured Investment;


 


(m)  loans and advances to the
Company (or any direct or indirect parent thereof) in lieu of, and not in
excess of the amount of (after giving effect to any other loans, advances or
Restricted Payments in respect thereof), Restricted Payments to the extent
permitted to be made to the Company (or such parent) in accordance with
Section 7.06(f), (g), (h) or (i);


 


(n)  so long as immediately after
giving effect to any such Investment, no Default has occurred and is
continuing, other Investments that do not exceed the greater of $120,000,000
and 4.0% of Total Assets in the aggregate, net of any amount representing
return of capital in respect of any such Investment and valued at the time of
the making thereof; provided that,
such amount shall be increased by (i) the net cash proceeds of Permitted Equity
Issuances (other than Permitted Equity Issuances made pursuant to
Section 8.05) that are Not Otherwise Applied and (ii) if, as of the
last day of the immediately preceding Test Period, the Senior Secured Leverage
Ratio (calculated on a Pro Forma Basis) is not greater than 4.00:1, the
Available Amount at the time such Investment is made;


 


(o)  advances of payroll payments
to employees in the ordinary course of business;


 


(p)  Investments to the extent
that payment for such Investments is made solely with capital stock of the
Company (or any direct or indirect parent thereof);


 


(q)  Investments held by a
Restricted Subsidiary acquired after the Closing Date or of a Person merged
into the Company or merged or consolidated with a Restricted Subsidiary in
accordance with Section 7.04 after the Closing Date to the extent that
such Investments were not made in contemplation of or in connection with such
acquisition, merger or consolidation and were in existence on the date of such
acquisition, merger or consolidation;


 


(r)  Guarantee Obligations of the
Company or any Restricted Subsidiary in respect of leases (other than
Capitalized Leases) or of other obligations that do not constitute
Indebtedness, in each case entered into in the ordinary course of business;


 


(s)  loans and advances to
independent sales Persons against commissions in an aggregate amount at any
time outstanding not to exceed $15,000,000; and


 


(t)  asset purchases (including
purchases of inventory, supplies and materials) and the licensing or
contribution of intellectual property pursuant to


 


116

















 


joint marketing arrangements with other Persons, in each case in the
ordinary course of business;


 


provided that no
Investment in an Unrestricted Subsidiary that would otherwise be permitted
under this Section 7.02 shall be permitted hereunder to the extent that
any portion of such Investment is used to make any prepayments, redemptions,
purchases, defeasances and other payments in respect of Junior Financings.


 


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


 


(a)  Indebtedness of the Company
and any of its Subsidiaries under the Loan Documents;


 


(b)  (i) Indebtedness outstanding
on the date hereof and listed on Schedule 7.03(b) and any Permitted
Refinancing thereof and (ii) intercompany Indebtedness outstanding on the
date hereof;


 


(c)  Guarantee Obligations of the
Company and the Restricted Subsidiaries in respect of Indebtedness of the
Company or any Restricted Subsidiary otherwise permitted hereunder (except that
a Restricted Subsidiary that is not a Loan Party may not, by virtue of this
Section 7.03(c), guarantee Indebtedness that such Restricted Subsidiary could
not otherwise incur under this Section 7.03);
provided that (A) no Guarantee Obligations of any Restricted
Subsidiary of any Existing Note, New Note, or Junior Financing shall be
permitted unless such Restricted Subsidiary shall have also provided a
Guarantee of the Obligations substantially on the terms set forth in the
Guaranty and (B) if the Indebtedness being guaranteed is subordinated to
the Obligations, such Guarantee Obligation shall be subordinated to the
Guarantee of the Obligations on terms at least as favorable to the Lenders as
those contained in the subordination of such Indebtedness;


 


(d)  Subject to
Section 7.02(c), Indebtedness of the Company or any Restricted Subsidiary
owing to the Company or any other Restricted Subsidiary; provided that, all such Indebtedness of
any Loan Party owed to any Person that is not a Loan Party shall be subject to
the subordination terms set forth in Section 5.03 of the Security
Agreement;


 


(e)  So long as immediately after
giving effect to the incurrence of any such Attributable Indebtedness or other
Indebtedness, the Company and the Restricted Subsidiaries will be in Pro Forma
Compliance with the covenant set forth in Section 7.11 as of the last day
of the immediately preceding Test Period, (i) Attributable Indebtedness
and other Indebtedness (including Capitalized Leases) financing the
acquisition, construction, repair, replacement or improvement of fixed or
capital assets; provided that
such Indebtedness is incurred concurrently with or within two hundred and
seventy (270) days after the applicable acquisition, construction, repair,
replacement or improvement,


 


117

















 


(ii) Attributable
Indebtedness arising out of sale-leaseback transactions permitted by
Section 7.05(f) and (iii) any Permitted Refinancing of any
Indebtedness set forth in the immediately preceding clauses (i) and (ii);


 


(f)  Indebtedness in respect of
Swap Contracts designed to hedge against interest rates, foreign exchange rates
or commodity pricing risks incurred in the ordinary course of business and not
for speculative purposes;


 


(g)  Indebtedness of the Company
and the Restricted Subsidiaries (i) assumed in connection with any
Permitted Acquisition or (ii) incurred to finance a Permitted Acquisition,
in each case, that is secured only by the assets or business acquired in the
applicable Permitted Acquisition (including any acquired Equity Interests) and
so long as both immediately prior and after giving effect thereto, (A) no
Default shall exist or result therefrom, (B) the Company and the Restricted
Subsidiaries will be in Pro Forma Compliance with the covenant set forth in
Section 7.11 as of the last day of the immediately preceding Test Period,
and (C) the aggregate principal amount of such Indebtedness and all
Indebtedness resulting from any Permitted Refinancing thereof at any time
outstanding pursuant to this paragraph (g) does not exceed $40,000,000; provided that the aggregate amount of
Indebtedness of Persons that are not Loan Parties incurred pursuant to, and
outstanding at any time under, this clause (g) (and any Permitted
Refinancing thereof) and clause (z) of Section 7.03(h) below shall
not exceed $150,000,000 at any time outstanding;


 


(h)  (i) Indebtedness of the
Company and the Restricted Subsidiaries (A) assumed in connection with any
Permitted Acquisition; provided that
(x) such Indebtedness is not incurred in contemplation of such Permitted
Acquisition and (y) the aggregate principal amount of all Indebtedness
assumed in reliance on this sub-clause (A) (excluding for purposes of the
basket calculation in this clause (y), however, any such Indebtedness that
is unsecured and subordinated and otherwise satisfies the requirements of
clauses (v), (w)(1), (x) and (y) of the proviso below) does not
exceed $60,000,000 at any time outstanding, or (B) incurred to finance a
Permitted Acquisition and (ii) any Permitted Refinancing of either of the
foregoing; provided, in each case
that such Indebtedness and all Indebtedness resulting from any Permitted
Refinancing thereof (v) is unsecured or is subordinated to the Obligations
on terms no less favorable to the Lenders than the subordination terms set
forth in the Existing Notes Indenture as of the Closing Date, (w) both
immediately prior and after giving effect thereto, (1) no Default shall
exist or result therefrom and (2) the Total Leverage Ratio (calculated on
a Pro Forma Basis) shall not be greater than 6.00 to 1.0, (x) matures after,
and does not require any scheduled amortization or other scheduled payments of
principal prior to, the Maturity Date of the Term Loans (it being understood
that such Indebtedness may have mandatory prepayment, repurchase or redemptions
provisions satisfying the requirement of clause (y) hereof), (y) has terms
and conditions (other than interest rate, redemption premiums and subordination
terms), taken as a whole, that are not materially less favorable to the Company
as the terms and conditions of the Existing Notes as of the Closing Date; provided


 


118

















 


that a
certificate of a Responsible Officer delivered to the Administrative Agent at
least five Business Days prior to the incurrence of such Indebtedness, together
with a reasonably detailed description of the material terms and conditions of
such Indebtedness or drafts of the documentation relating thereto, stating that
the Company has determined in good faith that such terms and conditions satisfy
the foregoing requirement shall be conclusive evidence that such terms and
conditions satisfy the foregoing requirement unless the Administrative Agent
notifies the Company within such five Business Day period that it disagrees
with such determination (including a reasonable description of the basis upon
which it disagrees); and (z) with respect to such Indebtedness described in the
immediately preceding clause (B), such Indebtedness is either incurred by
the Company or a Guarantor or, if such Indebtedness is incurred by a Restricted
Subsidiary that is not a Loan Party, the aggregate amount of such Indebtedness
of Persons that are not Loan Parties incurred pursuant to, and outstanding at
any time under, this clause (z) (and any Permitted Refinancing thereof)
and Section 7.03(g) shall not exceed $150,000,000 at any time outstanding;


 


(i)  Indebtedness representing
deferred compensation to employees of Holdings (or any direct or indirect
parent thereof), the Company and the Restricted Subsidiaries incurred in the
ordinary course of business;


 


(j)  Indebtedness to current or
former officers, directors and employees, their respective estates, spouses or
former spouses to finance the purchase or redemption of Equity Interests of the
Company (or any direct or indirect parent thereof) permitted by
Section 7.06;


 


(k)  Indebtedness incurred by the
Company or the Restricted Subsidiaries in a Permitted Acquisition, any other
Investment expressly permitted hereunder or any Disposition, in each case to
the extent constituting indemnification obligations or obligations in respect
of purchase price (including earn-outs) or other similar adjustments;


 


(l)  Indebtedness consisting of
obligations of the Company or the Restricted Subsidiaries under deferred
compensation or other similar arrangements incurred by such Person in
connection with the Transaction and Permitted Acquisitions or any other
Investment expressly permitted hereunder;


 


(m)  Cash Management Obligations
and other Indebtedness in respect of netting services, overdraft protections,
automatic clearinghouse arrangements and similar arrangements in each case in
connection with deposit accounts;


 


(n)  Indebtedness in an aggregate
principal amount not to exceed $150,000,000 at any time outstanding;


 


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


 


119

















 


(p)  Indebtedness incurred by the
Company or any of the Restricted Subsidiaries in respect of letters of credit,
bank guarantees, bankers’ acceptances or similar instruments issued or created
in the ordinary course of business, including in respect of workers
compensation claims, health, disability or other employee benefits or property,
casualty or liability insurance or self-insurance or other Indebtedness with
respect to reimbursement-type obligations regarding workers compensation
claims; provided that any
reimbursement obligations in respect thereof are reimbursed within 30 days
following the incurrence thereof;


 


(q)  obligations in respect of
performance, bid, appeal and surety bonds and performance and completion
guarantees and similar obligations provided by the Company or any of the
Restricted Subsidiaries or obligations in respect of letters of credit, bank
guarantees or similar instruments related thereto, in each case in the ordinary
course of business or consistent with past practice;


 


(r)  unsecured Indebtedness of
the Company or any Restricted Subsidiary; provided that,
(i) both immediately prior and after giving Pro Forma Effect to such
incurrence (A) no Default shall exist or result therefrom and (B) the
Total Leverage Ratio shall not be greater than 6.00 to 1.0 and (ii) if
such Indebtedness is subordinated to the Obligations, it is done so on terms no
less favorable to the Lenders than the subordination terms set forth in the
Existing Notes Indenture as of the Closing Date; provided,
further, that Restricted Subsidiaries
that are not Loan Parties may not incur Indebtedness pursuant to this
clause (s) in excess of $200,000,000 at any time outstanding;


 


(s)  Indebtedness incurred by a
Foreign Subsidiary which, when aggregated with the principal amount of all
other Indebtedness incurred pursuant to this clause (s) and then
outstanding, does not exceed 5% of Foreign Subsidiary Total Assets;


 


(t)  Indebtedness supported by a
Letter of Credit, in a principal amount not to exceed the face amount of such
Letter of Credit;


 


(u)  Indebtedness in respect of the
Existing Notes, the New Notes and any Permitted Refinancing thereof; and


 


(v)  all premiums (if any),
interest (including post-petition interest), fees, expenses, charges and
additional or contingent interest on obligations described in clauses (a)
through (u) above.


 


For purposes
of determining compliance with this Section 7.03, in the event that an item of
Indebtedness meets the criteria of more than one of the categories of
Indebtedness described in clauses (a) through (u) above, the Company shall, in
its sole discretion, classify and reclassify or later divide, classify or
reclassify such item of Indebtedness (or any portion thereof) and will only be
required to include the amount and type of such Indebtedness in one or more of
the above clauses; provided that
(i) all Indebtedness outstanding under the Loan Documents will be deemed to
have been


 


120

















 


incurred on such date in reliance only on the
exception in clause (a) of Section 7.03, and (ii) all Indebtedness outstanding
under the Existing Notes or the New Notes will be deemed to have been incurred
on such date in reliance only on the exception of clause (u) of Section 7.03.


 


The accrual of
interest, the accretion of accreted value and the payment of interest in the
form of additional Indebtedness shall not be deemed to be an incurrence of
Indebtedness for purposes of this Section 7.03.


 


SECTION 7.04. Fundamental
Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that:


 


(a)  any Restricted Subsidiary
may merge with (i) the Company (including a merger, the purpose of which
is to reorganize the Company into a new jurisdiction); provided that (x) the Company shall be
the continuing or surviving Person and such merger does not result in the
Company ceasing to be incorporated under the Laws of the United States,
any state thereof or the District of Columbia, or (ii) any one or more
other Restricted Subsidiaries;  provided that when any Restricted
Subsidiary that is a Loan Party is merging with another Restricted Subsidiary,
a Loan Party shall be the continuing or surviving Person;


 


(b)  (i) any Subsidiary that is
not a Loan Party may merge or consolidate with or into any other Subsidiary
that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve
or change its legal form if (x) the Company determines in good faith that such
action is in the best interests of the Company and its Subsidiaries and if not
materially disadvantageous to the Lenders and (y) to the extent such Restricted
Subsidiary is a Loan Party, any assets or business not otherwise disposed of or
transferred in accordance with Section 7.02 or 7.05 or, in the case of any
such business, discontinued, shall be transferred to or otherwise owned or
conducted by another Loan Party after giving effect to such liquidation or
dissolution;


 


(c)  any Restricted Subsidiary
may Dispose of all or substantially all of its assets (upon voluntary liquidation
or otherwise) to the Company or to another Restricted Subsidiary; provided that if the transferor in such a
transaction is a Guarantor or the Company, then (i) the transferee must
either be the Company or a Guarantor or (ii) to the extent constituting an
Investment, such Investment must be a permitted Investment in or Indebtedness
of a Restricted Subsidiary which is not a Loan Party in accordance with
Sections 7.02 and 7.03, respectively;


 


(d)  so long as no Default exists
or would result therefrom, the Company may merge or consolidate with any other
Person; provided that
(i) the Company shall be the continuing or surviving corporation or
(ii) if the Person formed by or surviving any such merger or consolidation
is not the Company (any such Person, the “Successor
Company”), (A) the Successor Company shall be an entity


 


121

















 


organized or
existing under the laws of the United States, any state thereof, the
District of Columbia or any territory thereof, (B) the Successor Company
shall expressly assume all the obligations of the Company under this Agreement
and the other Loan Documents to which the Company is a party pursuant to a
supplement hereto or thereto in form reasonably satisfactory to the
Administrative Agent, (C) each Guarantor, unless it is the other party to
such merger or consolidation, shall have by a supplement to the Guaranty
confirmed that its Guarantee shall apply to the Successor Company’s obligations
under this Agreement, (D) each Guarantor, unless it is the other party to
such merger or consolidation, shall have by a supplement to the Security
Agreement confirmed that its obligations thereunder shall apply to the
Successor Company’s obligations under this Agreement, (E) each mortgagor of a
Mortgaged Property, unless it is the other party to such merger or
consolidation, shall have by an amendment to or restatement of the applicable
Mortgage (or other instrument reasonably satisfactory to the Administrative
Agent) confirmed that its obligations thereunder shall apply to the Successor
Company’s obligations under this Agreement, and (F) the Company shall have
delivered to the Administrative Agent an officer’s certificate and an opinion
of counsel, each stating that such merger or consolidation and such supplement
to this Agreement or any Collateral Document preserves the enforceability of
this Agreement, the Guaranty and the Collateral Documents and the perfection of
the Liens under the Collateral Documents;  provided, further, that if the
foregoing are satisfied, the Successor Company will succeed to, and be
substituted for, the Company under this Agreement;


 


(e)  so long as no Default exists
or would result therefrom, any Restricted Subsidiary may merge with any other
Person in order to effect an Investment permitted pursuant to
Section 7.02; provided that
the continuing or surviving Person shall be a Restricted Subsidiary, which
together with each of its Restricted Subsidiaries, shall have complied with the
requirements of Section 6.11;


 


(f)  the Transaction may be
consummated; and


 


(g)  so long as no Default exists
or would result therefrom, a merger, dissolution, liquidation, consolidation or
Disposition, the purpose of which is to effect a Disposition permitted pursuant
to Section 7.05, may be effected.


 


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


 


(a)  Dispositions of obsolete or
worn out property, whether now owned or hereafter acquired, in the ordinary
course of business and Dispositions of property no longer used or useful in the
conduct of the business of the Company and the Restricted Subsidiaries;


 


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


 


122

















 


(c)  Dispositions of property to
the extent that (i) such property is exchanged for credit against the
purchase price of similar replacement property or (ii) the proceeds of
such Disposition are promptly applied to the purchase price of such replacement
property;


 


(d)  Dispositions of property to
the Company or to a Restricted Subsidiary;
provided that if the transferor of such property is a Guarantor or
the Company (i) the transferee thereof must either be the Company or a
Guarantor or (ii) to the extent such transaction constitutes an
Investment, such transaction is permitted under Section 7.02;


 


(e)  Dispositions permitted by
Sections 7.02, 7.04 and 7.06 and Liens permitted by Section 7.01;


 


(f)  Dispositions of property
pursuant to sale-leaseback transactions;
provided that the fair market value of all property so Disposed of
after the Closing Date (taken together with the aggregate book value of all
property Disposed of pursuant to Section 7.05(k)) shall not exceed 4.0% of
Total Assets per year;


 


(g)  Dispositions in the ordinary
course of business of Cash Equivalents;


 


(h)  Dispositions of accounts
receivable in connection with the collection or compromise thereof;


 


(i)  leases, subleases, licenses
or sublicenses (including the provision of software under an open source
license), in each case in the ordinary course of business and which do not
materially interfere with the business of the Company and the Restricted
Subsidiaries, taken as a whole;


 


(j)  transfers of property
subject to Casualty Events upon receipt of the Net Cash Proceeds of such
Casualty Event;


 


(k)  Dispositions of property not
otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition
(other than any such Disposition made pursuant to a legally binding commitment
entered into at a time when no Default exists), no Default shall exist or would
result from such Disposition, (ii) the aggregate book value of all
property Disposed of in reliance on this clause (k) (taken together with the
aggregate fair market value of all property Disposed of pursuant to
Section 7.05(f)) shall not exceed 4.0% of Total Assets per year and
(iii) with respect to any Disposition pursuant to this clause (k) for
a purchase price in excess of $10,000,000, the Company or a Restricted
Subsidiary shall receive not less than 75% of such consideration in the form of
cash or Cash Equivalents (in each case, free and clear of all Liens at the time
received, other than nonconsensual Liens permitted by Section 7.01 and
Liens permitted by Section 7.01(r) and clauses (i) and (ii) of
Section 7.01(s)); provided, however,
that for the purposes of this clause (iii), (A) any liabilities (as
shown on the Company’s or such Restricted Subsidiary’s most recent balance
sheet provided hereunder or in the footnotes thereto) of the Company or such
Restricted


 


123

















 


Subsidiary,
other than liabilities that are by their terms subordinated to the payment in
cash of the Obligations, that are assumed by the transferee with respect to the
applicable Disposition and for which the Company and all of the Restricted
Subsidiaries shall have been validly released by all applicable creditors in
writing, (B) any securities received by the Company or such Restricted Subsidiary
from such transferee that are converted by the Company or such Restricted
Subsidiary into cash (to the extent of the cash received) within 180 days
following the closing of the applicable Disposition and (C) any Designated
Non-Cash Consideration received by the Company or such Restricted Subsidiary in
respect of such Disposition having an aggregate fair market value, taken
together with all other Designated Non-Cash Consideration received pursuant to
this clause (C) that is at that time outstanding, not in excess of 1.5% of
Total Assets at the time of the receipt of such Designated Non-Cash
Consideration, with the fair market value of each item of Designated Non-Cash
Consideration being measured at the time received and without giving effect to
subsequent changes in value, shall be deemed to be cash;


 


(l)  Dispositions listed on
Schedule 7.05(l);


 


(m)  Dispositions of Investments
in joint ventures 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;


 


(n)  any issuance or sale of
Equity Interests in, or Indebtedness or other securities of, an Unrestricted
Subsidiary; and


 


(o)  the unwinding of any Swap
Contract pursuant to its terms;


 


provided that any Disposition of any property
pursuant to this Section 7.05 (except pursuant to Sections 7.05(e)
and except for Dispositions from a Loan Party to another Loan Party), shall be
for no less than the fair market value of such property at the time of such
Disposition. To the extent any Collateral is Disposed of as expressly permitted
by this Section 7.05 to any Person other than the Company or any
Restricted Subsidiary, such Collateral shall be sold free and clear of the
Liens created by the Loan Documents, and the Administrative Agent or the
Collateral Agent, as applicable, shall be authorized to take any actions deemed
appropriate in order to effect the foregoing.


 


SECTION 7.06. Restricted
Payments. Declare or make, directly or indirectly, any Restricted Payment,
except:


 


(a)  each Restricted Subsidiary
may make Restricted Payments to the Company and to other Restricted
Subsidiaries (and, in the case of a Restricted Payment by a non-wholly owned
Restricted Subsidiary, to the Company and any other Restricted Subsidiary and
to each other owner of Equity Interests of such Restricted Subsidiary based on
their relative ownership interests of the relevant class of Equity Interests);


 


124

















 


(b)  the Company and each
Restricted Subsidiary may declare and make Restricted Payments payable solely
in the Equity Interests (other than Disqualified Equity Interests not otherwise
permitted by Section 7.03) of such Person;


 


(c)  Restricted Payments made on
the Closing Date to consummate the Transaction;


 


(d)  to the extent constituting
Restricted Payments, the Company and the Restricted Subsidiaries may enter into
and consummate transactions expressly permitted by any provision of
Section 7.02, 7.04 or 7.08 other than Section 7.08(f);


 


(e)  repurchases of Equity
Interests in the Company (or any direct or indirect parent thereof) or any
Restricted Subsidiary deemed to occur upon exercise of stock options or
warrants if such Equity Interests represent a portion of the exercise price of
such options or warrants;


 


(f)  the Company or any
Restricted Subsidiary may pay (or make Restricted Payments to allow any direct
or indirect parent thereof to pay) for the repurchase, retirement or other
acquisition or retirement for value of Equity Interests of the Company (or of
any such parent of the Company) by any present or former manager, employee,
director or consultant of the Company (or any direct or indirect parent of the
Company) or any of its Subsidiaries pursuant to any employee or director equity
plan, employee or director stock option plan or any other employee or director
benefit plan or any agreement (including any stock subscription or shareholder
agreement) with any manager, employee, director or consultant of the Company
(or any direct or indirect parent thereof) or any of its Subsidiaries; provided that the aggregate amount of Restricted Payments
made pursuant to this clause (f) shall not exceed $10,000,000 in any
calendar year (which shall increase to $20,000,000 subsequent to the
consummation of a Qualifying IPO) (with unused amounts in any calendar year
being carried over to succeeding calendar years subject to a maximum of
$20,000,000 in any calendar year or $40,000,000 subsequent to the consummation
of a Qualifying IPO, respectively); provided further
that such amount in any calendar year may be increased by an amount not to
exceed:


 


(i) to the extent contributed to the Company, the net cash proceeds
from the sale of Equity Interests (other than Disqualified Equity Interests) of
the Company or any of the Company’s direct or indirect parent companies, in
each case to members of management, employees, directors or consultants of the
Company, any of its Subsidiaries or any of its direct or indirect parent companies
that occurs after the Closing Date, to the extent the net cash proceeds from
the sale of such Equity Interests have been Not Otherwise Applied; plus 


 


(ii) the net cash proceeds of key man life insurance policies received
by the Company or its Restricted Subsidiaries; less


 


125

















 


(iii) the amount of any Restricted Payments previously made with the
cash proceeds described in clauses (i) and (ii) of this Section 7.06(f);


 


(g)  the Company and its Restricted
Subsidiaries may make Restricted Payments to any direct or indirect parent of
the Company:


 


(i) the proceeds of which will be used to pay the tax liability to each
relevant jurisdiction in respect of consolidated, combined, unitary or
affiliated returns for the relevant jurisdiction of such parent attributable to
the ownership or operations of the Company and its Subsidiaries determined as
if the Company and its Subsidiaries filed a separate consolidated federal
income tax return as if they were corporations;


 


(ii) the proceeds of which shall be used to pay its operating expenses
incurred in the ordinary course of business and other corporate overhead costs
and expenses (including administrative, legal, accounting and similar expenses
provided by third parties), which are reasonable and customary and incurred in
the ordinary course of business, attributable to the ownership or operations of
the Company and its Subsidiaries, in an aggregate amount not to exceed
$2,000,000 in any fiscal year plus any reasonable and customary indemnification
claims made by directors or officers of any direct or indirect parent of the
Company;


 


(iii) the proceeds of which shall be used to pay management and
monitoring fees to the extent permitted by Section 7.08(e) and related indemnities
and reasonable expenses and franchise taxes and other fees, taxes and expenses
required to maintain its direct or indirect parents’ corporate existence;


 


(iv) to finance any Investment permitted to be made pursuant to
Section 7.02; provided that
(A) such Restricted Payment shall be made substantially concurrently with
the closing of such Investment and (B) any direct or indirect parent of
the Company shall, immediately following the closing thereof, cause
(1) all property acquired (whether assets or Equity Interests) to be
contributed to the Company or its Restricted Subsidiaries or (2) the
merger (to the extent permitted in Section 7.04) of the Person formed or
acquired into the Company or its Restricted Subsidiaries in order to consummate
such Permitted Acquisition, in each case, in accordance with the requirements
of Section 6.11; and


 


(v) the proceeds of which shall be used to pay costs, fees and expenses
(other than to Affiliates) related to any unsuccessful equity or debt offering
permitted by this Agreement;


 


(vi) the proceeds of which shall be used to pay customary salary, bonus
and other benefits payable to officers, employees and consultants of any direct
or indirect parent company of the Company to the extent such salaries, bonuses
and other benefits are attributable to the ownership or operation of the
Company and its Restricted Subsidiaries;


 


126

















 


(h)  in addition to the foregoing
Restricted Payments and so long as no Default shall have occurred and be
continuing or would result therefrom, the Company may make additional
Restricted Payments in an aggregate amount, together with the aggregate amount
of (1) prepayments, redemptions, purchases, defeasances and other payments in
respect of Junior Financings made pursuant to Section 7.13(a)(v) and (2)
loans and advances to any direct or indirect parent of the Company made
pursuant to Section 7.02(m) in lieu of Restricted Payments permitted by
this clause (h), not to exceed the sum of (i) $15,000,000,
(ii) the aggregate amount of the Net Cash Proceeds of Permitted Equity
Issuances (other than Permitted Equity Issuances made pursuant to
Section 8.05) that are Not Otherwise Applied and (iii) if the Senior
Secured Leverage Ratio (calculated on a Pro Forma Basis) as of the last day of
the immediately preceding Test Period is not greater than 4.00:1, the Available
Amount at the time such Restricted Payment is made;


 


(i)  So long as no Default or
Event of Default shall have occurred and be continuing or would result
therefrom, at any time on or after the fifth anniversary of the date of
issuance of any Permitted Holdings Debt, the Company may make Restricted
Payments to any direct or indirect parent thereof in an amount not in excess of
the amount of regularly scheduled cash interest payable during the period of 30
days following the date of such Restricted Payment on outstanding Permitted
Holdings Debt, provided that (A) any such
Restricted Payment relating to any such cash interest payment must be paid not
earlier than 30 days prior to the date when such cash interest is required to
be paid by such parent and the proceeds must be applied by such parent to the
payment of such interest when due and (B) the Interest Coverage Ratio
(calculated on a Pro Forma Basis) as of the last day of the immediately
preceding Test Period is not less than 2.00:1.


 


Notwithstanding anything to the contrary
herein, the Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, make any Restricted Payment consisting of any proceeds
from a Permitted Equity Issuance made pursuant to Section 8.05.


 


SECTION 7.07. Change
in Nature of Business. Engage in any material line of business
substantially different from those lines of business conducted by the Company
and the Restricted Subsidiaries on the date hereof or any business reasonably
related or ancillary thereto.


 


SECTION 7.08. Transactions
with Affiliates. Enter into any transaction of any kind with any Affiliate
of the Company, whether or not in the ordinary course of business, other than
(a) transactions among Loan Parties or any Restricted Subsidiary or any
entity that becomes a Restricted Subsidiary as a result of such transaction,
(b) on terms substantially as favorable to the Company or such Restricted
Subsidiary as would be obtainable by the Company (or any direct or indirect
parent thereof), or such Restricted Subsidiary at the time in a comparable arm’s-length
transaction with a Person other than an Affiliate, (c) the Transaction and
the payment of fees and expenses related to the Transaction, (d) the
issuance of Equity Interests to the officers, directors,


 


127

















 


employees and consultants of the Company (or
any direct or indirect parent thereof) or any of its Subsidiaries in connection
with the Transaction, (e) the payment of management and monitoring fees to
the Sponsors in an aggregate amount in any fiscal year not to exceed the amount
permitted to be paid pursuant to the Sponsor Management Agreement as in effect
on the date hereof and any Sponsor Termination Fees not to exceed the amount
set forth in the Sponsor Management Agreement as in effect on the date hereof
and related indemnities and reasonable expenses, (f) equity issuances,
repurchases, retirements or other acquisitions or retirements of Equity
Interests by the Company (or any direct or indirect parent thereof) permitted
under Section 7.06, (g) loans and other transactions by the Company and
the Restricted Subsidiaries to the extent permitted under Article VII, (h)
employment and severance arrangements between the Company (or any direct or
indirect parent thereof) and the Restricted Subsidiaries and their respective
directors, officers and employees in the ordinary course of business of the
Company and the Restricted Subsidiaries and transactions pursuant to stock
option and employee benefit plans and arrangements, (i) payments by the
Company and the Restricted Subsidiaries pursuant to the tax sharing agreements
among the Company (and any such parent thereof), and the Restricted
Subsidiaries on customary terms to the extent attributable to the ownership or
operation of the Company and the Restricted Subsidiaries, (j) the payment of
customary fees and reasonable out of pocket costs to, and indemnities provided
on behalf of, directors, officers and employees of the Company (or any direct
or indirect parent thereof) and the Restricted Subsidiaries in the ordinary
course of business to the extent attributable to the ownership or operation of
the Company (or such parent thereof) and the Restricted Subsidiaries, (k)
transactions pursuant to permitted agreements in existence on the Closing Date
and set forth on Schedule 7.08 or any amendment thereto to the extent such
an amendment is not adverse to the Lenders in any material respect, (l)
dividends, redemptions and repurchases permitted under Section 7.06, and
(m) customary payments by the Company or any Restricted Subsidiary to the
Sponsors made for any financial advisory, financing, underwriting or placement
services or in respect of other investment banking activities (including in
connection with acquisitions or divestitures), which payments are approved by
the majority of the members of the board of directors or a majority of the
disinterested members of the board of directors of the Company, in good faith.


 


SECTION 7.09. Burdensome
Agreements. Enter into or permit to exist any Contractual Obligation (other
than this Agreement or any other Loan Document) that limits the ability of
(a) any Restricted Subsidiary of the Company that is not a Guarantor to
make Restricted Payments to the Company or any Guarantor or (b) the Company or
any Loan Party to create, incur, assume or suffer to exist Liens on property of
such Person for the benefit of the Secured Parties with respect to the
Facilities and the Obligations or under the Loan Documents; provided that the foregoing clauses (a)
and (b) shall not apply to Contractual Obligations which (i) (x) exist on the
date hereof and (to the extent not otherwise permitted by this
Section 7.09) are listed on Schedule 7.09 hereto and (y) to the
extent Contractual Obligations permitted by clause (x) are set forth in an
agreement evidencing Indebtedness, are set forth in any agreement evidencing
any permitted renewal, extension or refinancing of such Indebtedness so long as
such renewal, extension or refinancing does not expand the scope of such
Contractual Obligation, (ii) are binding on a Restricted Subsidiary at the
time such Restricted 


 


128

















 


Subsidiary first becomes a Restricted
Subsidiary of the Company, so long as such Contractual Obligations were not
entered into in contemplation of such Person becoming a Restricted Subsidiary
of the Company; provided, further,
that this clause (ii) shall not apply to Contractual Obligations that are
binding on a Person that becomes a Restricted Subsidiary pursuant to
Section 6.14, (iii) represent Indebtedness of a Restricted Subsidiary
of the Company which is not a Loan Party which is permitted by
Section 7.03, (iv) arise in connection with any Disposition permitted
by Section 7.05, (v) are customary provisions in joint venture
agreements and other similar agreements applicable to joint ventures permitted
under Section 7.02 and applicable solely to such joint venture entered
into in the ordinary course of business, (vi) are negative pledges and
restrictions on Liens in favor of any holder of Indebtedness permitted under
Section 7.03 but solely to the extent any negative pledge relates to the
property financed by or the subject of such Indebtedness (and excluding in any
event any Indebtedness constituting any Junior Financing), (vii) are
customary restrictions on leases, subleases, licenses or asset sale agreements
otherwise permitted hereby so long as such restrictions relate only to the
assets subject thereto, (viii) comprise restrictions imposed by any
agreement relating to secured Indebtedness permitted pursuant to
Section 7.03(e), 7.03(g) or 7.03(s) to the extent that such restrictions
apply only to the property or assets securing such Indebtedness or, in the case
of Indebtedness incurred pursuant to Section 7.03(g) only, to the Company
or the Restricted Subsidiaries incurring or guaranteeing such Indebtedness,
(ix) are customary provisions restricting subletting or assignment of any
lease governing a leasehold interest of the Company or any Restricted
Subsidiary, (x) are customary provisions restricting assignment of any
agreement entered into in the ordinary course of business, (xi) are
restrictions on cash or other deposits imposed by customers under contracts
entered into in the ordinary course of business, (xii) are customary
restrictions contained in the Existing Notes Indenture, the News Notes
Indenture or any Junior Financing Documentation, (xiii) arise in
connection with cash or other deposits permitted under Section 7.01, and
(xvi) are imposed by Law or by any Governmental Authority.


 


SECTION 7.10. Use
of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, in a manner inconsistent with the uses set forth in the preliminary
statements to this Agreement and, for the avoidance of doubt, use the
Integration Reserve Amount for any purpose other than payment of the Specified
Post-Closing Integration Costs.


 


SECTION 7.11. Financial
Covenant. Permit the Senior Secured Leverage Ratio as of the last day of
any Test Period (beginning with the Test Period ending on June 30, 2008)
to be greater than the ratio set forth below opposite the last day of such Test
Period:


 


	
  Fiscal Year

  	
   

  	
  First Quarter

  End

  	
   

  	
  Second Quarter End

  	
   

  	
  Third Quarter End

  	
   

  	
  Fourth Quarter End

  	
   

  
	
  2008

  	
   

  	
  N/A

  	
   

  	
  5.10:1

  	
   

  	
  5.10:1

  	
   

  	
  4.75:1

  	
   

  
	
  2009

  	
   

  	
  4.65:1

  	
   

  	
  4.50:1

  	
   

  	
  4.50:1

  	
   

  	
  4.25:1

  	
   

  
	
  2010

  	
   

  	
  4.15:1

  	
   

  	
  4.00:1

  	
   

  	
  3.75:1

  	
   

  	
  3.50:1

  	
   

  
	
  2011

  	
   

  	
  3.50:1

  	
   

  	
  3.50:1

  	
   

  	
  3.50:1

  	
   

  	
  3.25:1

  	
   

  
	
  Thereafter

  	
   

  	
  3.25:1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


129

















 


Any provision
of this Agreement that contains a requirement for the Company to be in
compliance with the covenant contained in this Section 7.11 prior to the
time that this covenant is otherwise applicable shall be deemed to require that
the Senior Secured Leverage Ratio for the applicable Test Period not be greater
than 5.10:1.00.


 


SECTION 7.12. Accounting
Changes. Make any change in fiscal year;
provided, however, that the Company may, upon written notice to the
Administrative Agent, change its fiscal year to any other fiscal year
reasonably acceptable to the Administrative Agent, in which case, the Company
and the Administrative Agent will, and are hereby authorized by the Lenders to,
make any adjustments to this Agreement that are necessary to reflect such
change in fiscal year.


 


SECTION 7.13. Prepayments,
Etc. of Indebtedness. (a)  Prepay,
redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner (it being understood that payments of regularly scheduled
interest shall be permitted) the Existing Notes, any subordinated Indebtedness
incurred under Section 7.03(h) or any other Indebtedness that is or is
required to be subordinated to the Obligations pursuant to the terms of the
Loan Documents (collectively, “Junior
Financing”) or make any payment in violation of any subordination
terms of any Junior Financing Documentation, except (i) the refinancing
thereof with the Net Cash Proceeds of any Indebtedness (to the extent such
Indebtedness constitutes a Permitted Refinancing and, if applicable, is
permitted pursuant to Section 7.03(h)), to the extent not required to
prepay any Loans or Facility pursuant to Section 2.05(b), (ii) the
conversion of any Junior Financing to Equity Interests (other than Disqualified
Equity Interests) of the Company or any of its direct or indirect parents,
(iii) the prepayment of Indebtedness of the Company or any Restricted
Subsidiary to the Company or any Restricted Subsidiary to the extent permitted
by the Collateral Documents and (iv) prepayments, redemptions, purchases,
defeasances and other payments in respect of Junior Financings prior to their
scheduled maturity in an aggregate amount, together with the aggregate amount
of (1) Restricted Payments made pursuant to Section 7.06(h) and (2) loans
and advances to the Company (or any direct or indirect parent thereof) made
pursuant to Section 7.02(m), not to exceed the sum of (i) $15,000,000,
(ii) the amount of the Net Cash Proceeds of Permitted Equity Issuances
(other than Permitted Equity Issuances made pursuant to Section 8.05) that
are Not Otherwise Applied and (iii) if, as of the last day of the
immediately preceding Test Period the Senior Secured Leverage Ratio (calculated
on a Pro Forma Basis) is not greater than 4.00:1, the amount of Available
Amount at the time such prepayment, redemption, purchase, defeasance or other
payment is made; provided that,
notwithstanding the foregoing, any Junior Financing incurred after the Closing
Date other than a Permitted Refinancing of Existing Notes may be prepaid,
redeemed, purchased, defeased or otherwise satisfied if, both immediately prior
to and after giving effect thereto, (i) no Default or Event of Default shall
have occurred and be continuing or would result therefrom and (ii) as of the
last day of the immediately preceding Test Period the Senior Secured Leverage
Ratio (calculated on a Pro Forma Basis) is not greater than 4.00:1.


 


130
















 


(b)  Amend, modify or change in any manner
materially adverse to the interests of the Lenders any term or condition of any
Junior Financing Documentation.


 


SECTION 7.14. Equity
Interests of the Company and Restricted Subsidiaries.  Permit any Domestic Subsidiary that is a
Restricted Subsidiary to be a non-wholly owned Subsidiary, except (i) as a
result of or in connection with a dissolution, merger, consolidation or
Disposition of a Restricted Subsidiary permitted by Section 7.04, 7.05 or
an Investment in any Person permitted under Section 7.02 or (ii) so
long as such Restricted Subsidiary continues to be a Guarantor.  


 


ARTICLE VIII


 


Events of Default and Remedies


 


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


 


(a)  Non-Payment.  The Company or any other Loan Party fails to
pay (i) when and as required to be paid herein, any amount of principal of
any Loan, or (ii) within five (5) Business Days after the same becomes
due, any interest on any Loan or any other amount payable hereunder or with
respect to any other Loan Document; or


 


(b)  Specific
Covenants.  The Company fails
to perform or observe any term, covenant or agreement contained in any of
Sections 6.03(a) or 6.05(a) (solely with respect to the Company) or
Article VII; provided that any
Event of Default under Section 7.11 is subject to cure as contemplated by
Section 8.05; or


 


(c)  Other
Defaults.  Any Loan Party
fails to perform or observe any other covenant or agreement (not specified in
Section 8.01(a) or (b) above) contained in any Loan Document on its part
to be performed or observed and such failure continues unremedied for thirty
(30) days after receipt by the Company of written notice thereof from the
Administrative Agent; or


 


(d)  Representations
and Warranties.  Any
representation, warranty, certification or statement of fact made or deemed
made by or on behalf of the Company or any other Loan Party herein, in any
other Loan Document, or in any document required to be delivered in connection
herewith or therewith shall be incorrect or misleading in any material respect
when made or deemed made; or


 


(e)  Cross-Default.  The Company or any Restricted Subsidiary
(A) fails to make any payment beyond the applicable grace period with
respect thereto, if any (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness (other than
Indebtedness hereunder) having an aggregate principal amount of not less than
the Threshold Amount, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or any other event
occurs (other than, with respect to Indebtedness consisting of Swap Agreements,
termination events or equivalent events pursuant to the terms of such Swap Agreements),
the effect of which default or other event is to cause, or to permit the holder


 


131

















 


or holders of such Indebtedness (or a trustee
or agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause, with the giving of notice if required, such Indebtedness to become
due or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity; provided that this clause (e)(B)
shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness, if such sale or transfer is permitted hereunder and under the
documents providing for such Indebtedness; or


 


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


 


(g)  Attachment.  Any writ or warrant of attachment or
execution or similar process is issued or levied against all or any material
part of the property of the Loan Parties, taken as a whole, and is not
released, vacated or fully bonded within sixty (60) days after its issue or
levy; or


 


(h)  Judgments.  There is entered against any Loan Party or
any Restricted Subsidiary a final judgment or order for the payment of money in
an aggregate amount exceeding the Threshold Amount (to the extent not covered
by independent third-party insurance as to which the insurer has been notified
of such judgment or order and has not denied coverage) and such judgment or order
shall not have been satisfied, vacated, discharged or stayed or bonded pending
an appeal for a period of sixty (60) consecutive days; or


 


(i)  ERISA.  (i) An ERISA Event occurs with respect to a
Pension Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of any Loan Party under Title IV of ERISA in an
aggregate amount which could reasonably be expected to result in a Material
Adverse Effect, or (ii) any Loan Party or any ERISA Affiliate fails to pay
when due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under Section 4201 of
ERISA under a Multiemployer Plan in an aggregate amount which could reasonably
be expected to result in a Material Adverse Effect; or


 


(j)  Invalidity
of Loan Documents.  Any
material provision of any Loan Document, at any time after its execution and
delivery and for any reason other than as


 


132

















 


expressly permitted hereunder or thereunder
(including as a result of a transaction permitted under Section 7.04 or
7.05) or as a result of acts or omissions by the Administrative Agent or any
Lender or the satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party contests in writing the validity or
enforceability of any provision of any Loan Document; or any Loan Party denies
in writing that it has any further liability or obligation under any Loan
Document (other than as a result of repayment in full of the Obligations and
termination of the Aggregate Commitments), or purports in writing to revoke or
rescind any Loan Document; or


 


(k)  Change of
Control.  There occurs any
Change of Control; or


 


(l)  Collateral
Documents.  (i) Any Collateral
Document after delivery thereof pursuant to Section 4.01 or 6.11 shall for
any reason (other than pursuant to the terms thereof including as a result of a
transaction permitted under Section 7.04 or 7.05) cease to create a valid
and perfected lien, with the priority required by the Collateral Documents, (or
other security purported to be created on the applicable Collateral) on and
security interest in any material portion of the Collateral purported to be
covered thereby, subject to Liens permitted under Section 7.01, except to
the extent that any such loss of perfection or priority results from the
failure of the Administrative Agent or the Collateral Agent to maintain
possession of certificates actually delivered to it representing securities pledged
under the Collateral Documents or to file Uniform Commercial Code continuation
statements and except as to Collateral consisting of real property to the
extent that such losses are covered by a lender’s title insurance policy and
such insurer has not denied coverage, or (ii) any of the Equity Interests
of the Company ceasing to be pledged pursuant to the Security Agreement free of
Liens other than Liens created by the Security Agreement or any nonconsensual
Liens arising solely by operation of Law; or


 


(m)  Junior
Financing Documentation.  (i)
Any of the Obligations of the Loan Parties under the Loan Documents for any
reason shall cease to be “Senior Indebtedness” (or any comparable term) or “Senior
Secured Financing” (or any comparable term) under, and as defined in any Junior
Financing Documentation or (ii) the subordination provisions set forth in
any Junior Financing Documentation shall, in whole or in part, cease to be
effective or cease to be legally valid, binding and enforceable against the holders
of any Junior Financing, if applicable.


 


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


 


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


 


(b)  declare the unpaid principal
amount of all outstanding Loans, all interest accrued and unpaid thereon, and
all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and


 


133

















 


payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company;


 


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


 


(d)  exercise on behalf of itself
and the Lenders all rights and remedies available to it and the Lenders under
the Loan Documents or applicable Law;


 


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


 


SECTION 8.03. Exclusion
of Immaterial Subsidiaries.  Solely
for the purpose of determining whether a Default has occurred under
clause (f) or (g) of Section 8.01, any reference in any such
clause to any Restricted Subsidiary or Loan Party shall be deemed not to
include any Restricted Subsidiary affected by any event or circumstances
referred to in any such clause that did not, as of the last day of the most
recent completed fiscal quarter of the Company, have assets with a value in excess
of 5% of the consolidated total assets of the Company and the Restricted
Subsidiaries and did not, as of the four quarter period ending on the last day
of such fiscal quarter, have revenues exceeding 5% of the total revenues of the
Company and the Restricted Subsidiaries (it being agreed that all Restricted
Subsidiaries affected by any event or circumstance referred to in any such
clause shall be considered together, as a single consolidated Restricted
Subsidiary, for purposes of determining whether the condition specified above
is satisfied).


 


SECTION 8.04. Application
of Funds.  After the exercise of
remedies provided for in Section 8.02 (or after the Loans have
automatically become immediately due and payable and the L/C Obligations have
automatically been required to be Cash Collateralized as set forth in the
proviso to Section 8.02), any amounts received on account of the
Obligations shall be applied by the Administrative Agent in the following
order:


 


First,
to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (other than principal and interest, but including
Attorney Costs payable under Section 10.04 and amounts payable under
Article III) payable to the Administrative Agent in its capacity as such;


 


Second, to payment
of that portion of the Obligations constituting fees, indemnities and other
amounts (other than principal and interest) payable to the Lenders (including
Attorney Costs payable under Section 10.05 and amounts


 


134

















 


payable under
Article III), ratably among them in proportion to the amounts described in this
clause Second payable to them;


 


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


 


Fourth, to payment
of that portion of the Obligations constituting unpaid principal of the Loans
and L/C Borrowings, the Swap Termination Value under Secured Hedge Agreements
and the Cash Management Obligations, ratably among the Lenders and the other
Secured Parties in proportion to the respective amounts described in this
clause Fourth held by them;


 


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


 


Sixth, to the
payment of all other Obligations of the Loan Parties that are due and payable
to the Administrative Agent and the other Secured Parties on such date, ratably
based upon the respective aggregate amounts of all such Obligations owing to
the Administrative Agent and the other Secured Parties on such date; and


 


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


 


Subject to
Section 2.03(c) and to the extent an Event of Default shall be continuing
at such time, amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause
Fifth above shall be applied to satisfy drawings under such Letters
of Credit as they occur.  If any amount
remains on deposit as Cash Collateral after all Letters of Credit have either
been fully drawn or expired, such remaining amount shall be applied to the
other Obligations, if any, in the order set forth above and, if no Obligations
remain outstanding, to the Company.


 


SECTION 8.05. Company’s
Right to Cure.  (a)  Notwithstanding anything to the contrary
contained in Section 8.01, in the event of any Event of Default under any
covenant set forth in Section 7.11 and until the expiration of the tenth
(10th) day after the date on which financial statements are required to be
delivered with respect to the applicable fiscal quarter hereunder, Holdings (or
any Intermediate Holding Company or any direct or indirect parent of Holdings)
or the Company may engage in a Permitted Equity Issuance to any of the Equity
Investors and apply the amount of the net cash proceeds thereof to increase
Consolidated EBITDA with respect to such applicable quarter; provided that such net cash proceeds
(i) are actually received by the Company (including through capital
contribution of such net cash proceeds to the Company) no later than ten (10)
days after the date on which financial statements are required to be delivered
with respect to such fiscal quarter hereunder, and (ii) do not exceed the


 


135

















 


aggregate amount necessary to cure such Event
of Default under Section 7.11 for any applicable period.


 


The parties
hereby acknowledge that this Section 8.05(a) may not be relied on for
purposes of calculating any financial ratios other than as applicable to
Section 7.11 and shall not result in any adjustment to any amounts other
than the amount of the Consolidated EBITDA referred to in the immediately
preceding sentence.


 


(b)  In each period (i) of four fiscal
quarters, there shall be at least one (1) fiscal quarter in which no cure
set forth in Section 8.05(a) is made and (ii) of eight fiscal
quarters, there shall be at least four (4) fiscal quarters, in which no cure
set forth in Section 8.05(a) is made.


 


ARTICLE IX


 


Administrative Agent and Other Agents


 


SECTION 9.01. Appointment
and Authorization of Agents. 
(a)  Each Lender hereby
irrevocably appoints, designates and authorizes the Administrative Agent to
take such action on its behalf under the provisions of this Agreement and each
other Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall have no duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise exist
against the Administrative Agent. 
Without limiting the generality of the foregoing sentence, the use of
the term “agent” herein and in the other Loan Documents with reference to any
Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable Law.  Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.


 


(b)  Each L/C Issuer shall act on behalf of the
Lenders with respect to any Letters of Credit issued by it and the documents
associated therewith, and each such L/C Issuer shall have all of the benefits
and immunities (i) provided to the Agents in this Article IX with respect
to any acts taken or omissions suffered by such L/C Issuer in connection with
Letters of Credit issued by it or proposed to be issued by it and the
applications and agreements for letters of credit pertaining to such Letters of
Credit as fully as if the term “Agent” as used in this Article IX and in the
definition of “Agent-Related Person” included such L/C Issuer with respect to
such acts or omissions, and (ii) as additionally provided herein with
respect to such L/C Issuer.


 


(c)  The Administrative Agent shall also act as
the “collateral agent” under the Loan Documents, and each of the Lenders (in
its capacities as a Lender, Swing Line


 


136

















 


Lender (if applicable), L/C Issuer (if
applicable) and a potential Hedge Bank) hereby irrevocably appoints and
authorizes the Administrative Agent to act as the agent of (and to hold any
security interest created by the Collateral Documents for and on behalf of or
on trust for) such Lender for purposes of acquiring, holding and enforcing any
and all Liens on Collateral granted by any of the Loan Parties to secure any of
the Obligations, together with such powers and discretion as are reasonably
incidental thereto.  In this connection,
the Administrative Agent, as “collateral agent” (and any co-agents, sub-agents
and attorneys-in-fact appointed by the Administrative Agent pursuant to
Section 9.02 for purposes of holding or enforcing any Lien on the
Collateral (or any portion thereof) granted under the Collateral Documents, or
for exercising any rights and remedies thereunder at the direction of the
Administrative Agent), shall be entitled to the benefits of all provisions of
this Article IX (including, Section 9.07, as though such co-agents,
sub-agents and attorneys-in-fact were the “collateral agent” under the Loan
Documents) as if set forth in full herein with respect thereto.


 


(d)  Except as provided in Sections 9.09 and
9.11, the provisions of this Article IX are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and neither the Company
nor any other Loan Party shall have rights as a third party beneficiary of any
of such provisions.


 


SECTION 9.02. Delegation
of Duties.  The Administrative Agent
may execute any of its duties under this Agreement or any other Loan Document
(including for purposes of holding or enforcing any Lien on the Collateral (or
any portion thereof) granted under the Collateral Documents or of exercising
any rights and remedies thereunder) by or through agents, employees or
attorneys-in-fact including for the purpose of any Borrowings, such sub-agents
as shall be deemed necessary by the Administrative Agent and shall be entitled
to advice of counsel and other consultants or experts concerning all matters
pertaining to such duties.  The Administrative
Agent shall not be responsible for the negligence or misconduct of any agent or
sub-agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct (as determined in the final judgment of a
court of competent jurisdiction).


 


SECTION 9.03. Liability
of Agents.  No Agent-Related Person
shall (a) be liable for any action taken or omitted to be taken by any of
them under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence or
willful misconduct, as determined by the final judgment of a court of competent
jurisdiction, in connection with its duties expressly set forth herein), or (b)
be responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Loan Party or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document, or
the perfection or priority of any Lien or security interest created or
purported to be created under the Collateral Documents, or for any failure of
any Loan Party or any other party to any Loan Document to perform its
obligations hereunder or thereunder.  No
Agent-Related Person shall be under any


 


137

















 


obligation to any Lender or participant to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party or
any Affiliate thereof.


 


SECTION 9.04. Reliance
by Agents.  (a)  Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, electronic mail
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to any Loan Party), independent accountants and other experts selected by such
Agent.  Each Agent shall be fully justified
in failing or refusing to take any action under any Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such
action.  Each Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
or any other Loan Document in accordance with a request or consent of the
Required Lenders (or such greater number of Lenders as may be expressly
required hereby in any instance) and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders.


 


(b)  For purposes of determining compliance with
the conditions specified in Section 4.01, each Lender that has signed this
Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless
the Administrative Agent shall have received notice from such Lender prior to
the proposed Closing Date specifying its objection thereto.


 


SECTION 9.05. Notice
of Default.  The Administrative Agent
shall not be deemed to have knowledge or notice of the occurrence of any
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice
from a Lender or the Company referring to this Agreement, describing such
Default and stating that such notice is a “notice of default.”  The Administrative Agent will notify the
Lenders of its receipt of any such notice. 
The Administrative Agent shall take such action with respect to any
Event of Default as may be directed by the Required Lenders in accordance with
Article VIII; provided that
unless and until the Administrative Agent has received any such direction, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Event of Default as it
shall deem advisable or in the best interest of the Lenders.


 


SECTION 9.06. Credit
Decision; Disclosure of Information by Agents.  Each Lender acknowledges that no
Agent-Related Person has made any representation or warranty to it, and that no
act by any Agent hereafter taken, including any consent to and


 


138

















 


acceptance of any assignment or review of the
affairs of any Loan Party or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. 
Each Lender represents to each Agent that it has, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Loan Parties and their respective
Subsidiaries, and all applicable bank or other regulatory Laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Company and the other Loan Parties
hereunder.  Each Lender also represents
that it will, independently and without reliance upon any Agent-Related Person
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and other condition
and creditworthiness of the Company and the other Loan Parties.  Except for notices, reports and other
documents expressly required to be furnished to the Lenders by any Agent
herein, such Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of any
of the Loan Parties or any of their respective Affiliates which may come into
the possession of any Agent-Related Person.


 


SECTION 9.07. Indemnification
of Agents.  Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Loan Party and without limiting the obligation of any Loan Party
to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided that no Lender shall be liable
for the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities resulting from such Agent-Related Person’s own gross negligence or
willful misconduct, as determined by the final judgment of a court of competent
jurisdiction; provided that no
action taken in accordance with the directions of the Required Lenders (or such
other number or percentage of the Lenders as shall be required by the Loan
Documents) shall be deemed to constitute gross negligence or willful misconduct
for purposes of this Section 9.07. 
In the case of any investigation, litigation or proceeding giving rise
to any Indemnified Liabilities, this Section 9.07 applies whether any such
investigation, litigation or proceeding is brought by any Lender or any other
Person.  Without limitation of the
foregoing, each Lender shall reimburse the Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any
other Loan Document, or any document contemplated by or referred to herein, to
the extent that the Administrative Agent is not reimbursed for such expenses by
or on behalf of the Company.  The
undertaking in this Section 9.07 shall


 


139

















 


survive termination of the Aggregate
Commitments, the payment of all other Obligations and the resignation of the
Administrative Agent.


 


SECTION 9.08. Agents
in their Individual Capacities. 
Credit Suisse and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire Equity Interests in
and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with each of the Loan Parties and their
respective Affiliates as though Credit Suisse were not the Administrative Agent
or an L/C Issuer hereunder and without notice to or consent of the
Lenders.  The Lenders acknowledge that,
pursuant to such activities, Credit Suisse or its Affiliates may receive
information regarding any Loan Party or its Affiliates (including information
that may be subject to confidentiality obligations in favor of such Loan Party
or such Affiliate) and acknowledge that the Administrative Agent shall be under
no obligation to provide such information to them.  With respect to its Loans, Credit Suisse
shall have the same rights and powers under this Agreement as any other Lender
and may exercise such rights and powers as though it were not the
Administrative Agent or an L/C Issuer, and the terms “Lender” and “Lenders”
include Credit Suisse in its individual capacity.


 


SECTION 9.09. Successor
Agents.  The Administrative Agent may
resign as the Administrative Agent upon thirty (30) days’ notice to the Lenders
and the Company.  If the Administrative
Agent resigns under this Agreement, the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders, which successor agent
shall be consented to by the Company at all times other than during the
existence of an Event of Default under Section 8.01(f) or (g) (which
consent of the Company shall not be unreasonably withheld or delayed).  If no successor agent is appointed prior to
the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Company, a successor agent from among the Lenders.  Upon the acceptance of its appointment as
successor agent hereunder, the Person acting as such successor agent shall
succeed to all the rights, powers and duties of the retiring Administrative Agent
and the term “Administrative Agent,” shall mean such successor administrative
agent and/or supplemental administrative agent, as the case may be, and the
retiring Administrative Agent’s appointment, powers and duties as the
Administrative Agent shall be terminated. 
After the retiring Administrative Agent’s resignation hereunder as the
Administrative Agent, the provisions of this Article IX and Sections 10.04
and 10.05 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Administrative Agent under this Agreement.  If no successor agent has accepted
appointment as the Administrative Agent by the date which is thirty (30) days
following the retiring Administrative Agent’s notice of resignation, the
retiring Administrative Agent’s resignation shall nevertheless become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.  Upon the
acceptance of any appointment as the Administrative Agent hereunder by a
successor and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such amendments or supplements to the
Mortgages, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may request, in order to
(a) continue the perfection of the Liens granted or purported to be
granted by the


 


140

















 


Collateral Documents or (b) otherwise ensure
that the Collateral and Guarantee Requirement is satisfied, the Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. 
After the retiring Administrative Agent’s resignation hereunder as the
Administrative Agent, the provisions of this Article IX shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken
by it while it was acting as the Administrative Agent.


 


SECTION 9.10. Administrative
Agent May File Proofs of Claim.  In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
any Loan Party, the Administrative Agent (irrespective of whether the principal
of any Loan or L/C Obligation shall then be due and payable as herein expressed
or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Company) shall be entitled and
empowered, by intervention in such proceeding or otherwise:


 


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


 


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


 


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


 


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


 


SECTION 9.11. Collateral
and Guaranty Matters.  The Lenders
irrevocably agree:


 


141

















 


(a)  that any Lien on any
property granted to or held by the Administrative Agent or the Collateral Agent
under any Loan Document shall be automatically released (i) upon
termination of the Aggregate Commitments and payment in full of all Obligations
(other than (x) obligations under Secured Hedge Agreements, (y) Cash Management
Obligations and (z) contingent indemnification obligations not yet accrued and
payable) and the expiration or termination of all Letters of Credit (unless
such Letters of Credit have been collateralized on terms and conditions
reasonably satisfactory to the relevant L/C Issuers following termination of
the Commitments), (ii) at the time the property subject to such Lien is
transferred or to be transferred as part of or in connection with any transfer
permitted hereunder or under any other Loan Document to any Person other than
Holdings, the Company or any Subsidiary Guarantor, (iii) subject to
Section 10.01, if the release of such Lien is approved, authorized or
ratified in writing by the Required Lenders, or (iv) if the property
subject to such Lien is owned by a Guarantor, upon release of such Guarantor
from its obligations under its Guaranty pursuant to clause (c) below;


 


(b)  to release or subordinate
any Lien on any property granted to or held by the Administrative Agent or the
Collateral Agent under any Loan Document to the holder of any Lien on such
property that is permitted by Section 7.01(i) or (o);


 


(c)  that any Guarantor shall be
automatically released from its obligations under the Guaranty if such Person
ceases to be a Restricted Subsidiary as a result of a transaction or
designation permitted hereunder (including as a result of a Guarantor being
redesignated as an Unrestricted Subsidiary);
provided that no such release shall occur if such Guarantor
continues to be a guarantor in respect of the Existing Notes, the New Notes or
any Junior Financing; and


 


Upon request
by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its
interest in particular types or items of property, or to release any Guarantor
from its obligations under the Guaranty pursuant to this
Section 9.11.  In each case as
specified in this Section 9.11, the Administrative Agent will (and each
Lender irrevocably authorizes the Administrative Agent to), at the Company’s
expense, execute and deliver to the applicable Loan Party such documents as
such Loan Party may reasonably request to evidence the release or subordination
of such item of Collateral from the assignment and security interest granted
under the Collateral Documents, or to evidence the release of such Guarantor
from its obligations under the Guaranty, in each case in accordance with the
terms of the Loan Documents and this Section 9.11.


 


SECTION 9.12. Other
Agents; Arrangers and Managers.  None
of the Lenders or other Persons identified on the facing page or signature
pages of this Agreement as a “co-syndication agent,” “documentation agent,” “joint
bookrunner” or “arranger” (other than as set forth in clause (ii)) shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such.  Without limiting the foregoing, none of the
Lenders or other Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender.


 


142

















 


Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders or other Persons so identified
in deciding to enter into this Agreement or in taking or not taking action
hereunder.


 


SECTION 9.13. Appointment
of Supplemental Administrative Agents. 
(a)  It is the purpose of this
Agreement and the other Loan Documents that there shall be no violation of any
Law of any jurisdiction denying or restricting the right of banking
corporations or associations to transact business as agent or trustee in such
jurisdiction.  It is recognized that in
case of litigation under this Agreement or any of the other Loan Documents, and
in particular in case of the enforcement of any of the Loan Documents, or in
case the Administrative Agent deems that by reason of any present or future Law
of any jurisdiction it may not exercise any of the rights, powers or remedies
granted herein or in any of the other Loan Documents or take any other action
which may be desirable or necessary in connection therewith, the Administrative
Agent is hereby authorized to appoint an additional individual or institution
selected by the Administrative Agent in its sole discretion as a separate
trustee, co-trustee, administrative agent, collateral agent, administrative
sub-agent or administrative co-agent (any such additional individual or
institution being referred to herein individually as a “Supplemental Administrative Agent” and
collectively as “Supplemental Administrative
Agents”).


 


(b)  In the event that the Administrative Agent
appoints a Supplemental Administrative Agent with respect to any Collateral,
(i) each and every right, power, privilege or duty expressed or intended
by this Agreement or any of the other Loan Documents to be exercised by or
vested in or conveyed to the Administrative Agent with respect to such
Collateral shall be exercisable by and vest in such Supplemental Administrative
Agent to the extent, and only to the extent, necessary to enable such
Supplemental Administrative Agent to exercise such rights, powers and
privileges with respect to such Collateral and to perform such duties with
respect to such Collateral, and every covenant and obligation contained in the
Loan Documents and necessary to the exercise or performance thereof by such
Supplemental Administrative Agent shall run to and be enforceable by either the
Administrative Agent or such Supplemental Administrative Agent, and
(ii) the provisions of this Article IX and of Sections 10.04 and
10.05 that refer to the Administrative Agent shall inure to the benefit of such
Supplemental Administrative Agent and all references therein to the
Administrative Agent shall be deemed to be references to the Administrative
Agent and/or such Supplemental Administrative Agent, as the context may
require.


 


(c)  Should any instrument in writing from the
Company, Holdings or any other Loan Party be required by any Supplemental
Administrative Agent so appointed by the Administrative Agent for more fully
and certainly vesting in and confirming to him or it such rights, powers,
privileges and duties, the Company or Holdings, as applicable, shall, or shall
cause such Loan Party to, execute, acknowledge and deliver any and all such
instruments promptly upon request by the Administrative Agent.  In case any Supplemental Administrative
Agent, or a successor thereto, shall die, become incapable of acting, resign or
be removed, all the rights, powers, privileges and duties of such Supplemental
Administrative Agent, to the extent permitted by Law, shall vest in and be


 


143

















 


exercised by the Administrative Agent until
the appointment of a new Supplemental Administrative Agent.


 


ARTICLE X


 


Miscellaneous


 


SECTION 10.01.
Amendments, Etc.  Except as
otherwise set forth in this Agreement (including pursuant to Section 2.14),
no amendment, modification, supplement or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Company or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Company or the applicable Loan Party, as
the case may be, and each such amendment, modification, supplement, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided that,
no such amendment, modification, supplement, waiver or consent shall:


 


(a)  extend or increase the
Commitment of any Lender without the written consent of each Lender directly
affected thereby (it being understood that a waiver of any condition precedent
set forth in Section 4.02 or the waiver of any Default, mandatory
prepayment or mandatory reduction of the Commitments shall not constitute an
extension or increase of any Commitment of any Lender);


 


(b)  postpone any date scheduled
for, or reduce the amount of, any payment of principal or interest under
Section 2.07 or 2.08 without the written consent of each Lender directly
affected thereby, it being understood that the waiver of (or amendment to the
terms of) any mandatory prepayment of the Term Loans shall not constitute a
postponement of any date scheduled for the payment of principal or interest;


 


(c)  reduce the principal of, or
the rate of interest specified herein on, any Loan or L/C Borrowing, or
(subject to clause (iii) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby, it being
understood that any change to the definition of Senior Secured Leverage Ratio, Total
Leverage Ratio, Interest Coverage Ratio or in the component definitions of each
thereof shall not constitute a reduction in the rate; provided that, only the consent of the Required Lenders
shall be necessary to amend the definition of “Default Rate” or to waive any
obligation of the Company to pay interest or Letter of Credit fees at the
Default Rate;


 


(d)  change any provision of this
Section 10.01, the definition of “Required Lenders” or “Pro Rata Share” or
Sections 2.05(b)(v)(B), 2.06(c), 8.04 or 2.13 without the written consent
of each Lender affected thereby;


 


144

















 


(e)  other than in a transaction
permitted under Section 7.04 or 7.05, release all or substantially all of
the Collateral in any transaction or series of related transactions, without
the written consent of each Lender;


 


(f)  other than in connection
with a transaction permitted under Section 7.04 or 7.05, release all or
substantially all of the aggregate value of the Guarantees, without the written
consent of each Lender;


 


and provided, further, that (i) no
amendment, waiver or consent shall, unless in writing and signed by each L/C
Issuer in addition to the Lenders required above, affect the rights or duties
of an L/C Issuer under this Agreement or any Letter of Credit Application
relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lenders required above, affect the rights or duties
of, or any fees or other amounts payable to, the Administrative Agent under
this Agreement or any other Loan Document; (iv) Section 10.07(i) may
not be amended, waived or otherwise modified without the consent of each
Granting Lender all or any part of whose Loans are being funded by an SPC at
the time of such amendment, waiver or other modification; and (v) the
consent of Lenders holding more than 50% of any Class of Commitments shall be
required with respect to any amendment that by its terms adversely affects the
rights of such Class in respect of payments hereunder in a manner different
than such amendment affects other Classes. 
Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender (it being understood that any Commitments or
Loans held or deemed held by any Defaulting Lender shall be excluded for a vote
of the Lenders hereunder requiring any consent of the Lenders).


 


Notwithstanding
the foregoing, this Agreement may be amended (or amended and restated) with the
written consent of the Required Lenders, the Administrative Agent and the
Company (a) to add one or more additional credit facilities to this
Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share
ratably in the benefits of this Agreement and the other Loan Documents with the
Term Loans and the Revolving Credit Loans and the accrued interest and fees in
respect thereof and (b) to include appropriately the Lenders holding such
credit facilities in any determination of the Required Lenders.


 


In addition,
notwithstanding the foregoing, this Agreement may be amended with the written
consent of the Administrative Agent, Holdings, the Company and the Lenders
providing Replacement Term Loans (as defined below) to permit the refinancing
of all outstanding Term Loans (“Refinanced
Term Loans”) with a replacement term loan tranche (“Replacement Term Loans”) hereunder; provided that (a) the aggregate
principal amount of such Replacement Term Loans shall not exceed the


 


145

















 


aggregate
principal amount of such Refinanced Term Loans, (b) the Applicable Rate for
such Replacement Term Loans shall not be higher than the Applicable Rate for
such Refinanced Term Loans, (c) the Weighted Average Life to Maturity of
such Replacement Term Loans shall not be shorter than the Weighted Average Life
to Maturity of such Refinanced Term Loans at the time of such refinancing
(except to the extent of nominal amortization for periods where amortization
has been eliminated as a result of prepayment of the applicable Term Loans) and
(d) all other terms applicable to such Replacement Term Loans shall be
substantially identical to, or no less favorable to the Lenders providing such
Replacement Term Loans than, those applicable to such Refinanced Term Loans, except
to the extent necessary to provide for covenants and other terms applicable to
any period after the latest final maturity of the Term Loans in effect
immediately prior to such refinancing.


 


Notwithstanding
anything to the contrary contained in Section 10.01, in consultation with
the Administrative Agent, the Company and the Arrangers may without the input
or consent of the Lenders, effect amendments to this Agreement and the other
Loan Documents as may be necessary or appropriate in the opinion of the
Arrangers to effect the provisions of Section 2.14.


 


Notwithstanding
anything to the contrary contained in Section 10.01, guarantees,
collateral security documents and related documents executed by Subsidiaries in
connection with this Agreement may be in a form reasonably determined by the
Administrative Agent and may be, together with this Agreement, amended,
supplemented and waived with the consent of the Administrative Agent at the
request of the Company without the need to obtain the consent of any other
Lender if such amendment, supplement or waiver is delivered in order (i) to
comply with local Law or advice of local counsel, (ii) to cure ambiguities,
omissions, mistakes or defects or (iii) to cause such guarantee, collateral
security document or other document to be consistent with this Agreement and
the other Loan Documents.


 


SECTION 10.02.
Notices and Other Communications; Facsimile Copies.  (a)  General. 
Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder or under any other Loan Document shall be
in writing (including by facsimile transmission).  All such written notices shall be mailed,
faxed or delivered to the applicable address, facsimile number or electronic
mail address, and all notices and other communications expressly permitted
hereunder to be given by telephone shall be made to the applicable telephone
number, as follows:


 


(i) if to Holdings, the Company, the Administrative Agent, an L/C
Issuer or the Swing Line Lender, to the address, facsimile number, electronic
mail address or telephone number specified for such Person on
Schedule 10.02 or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a notice to
the other parties; and


 


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


 


146

















 


number as
shall be designated by such party in a notice to the Company, the
Administrative Agent, the L/C Issuers and the Swing Line Lender.


 


All such
notices and other communications shall be deemed to be given or made upon the
earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on
behalf of the relevant party hereto; (B) if delivered by mail, four (4)
Business Days after deposit in the mails, postage prepaid; (C) if
delivered by facsimile, when sent and receipt has been confirmed by telephone;
and (D) if delivered by electronic mail (which form of delivery is subject
to the provisions of Section 10.02(c) and shall require the prior consent
of each of the Administrative Agent, the L/C Issuers and the Swing Line Lender
to such form of delivery with respect to any notice delivered pursuant to
Article II or Section 6.03(a)), when delivered;
provided that notices and other communications to the Administrative
Agent, the L/C Issuers and the Swing Line Lender pursuant to Article II shall
not be effective until actually received by such Person.  In no event shall a voice mail message be
effective as a notice, communication or confirmation hereunder.


 


(b)  Effectiveness
of Facsimile or other Electronic Documents and Signatures.  Loan Documents may be transmitted and/or
signed by facsimile or other electronic transmission (i.e. a “pdf” or “tif”).  The effectiveness of any such documents and
signatures shall, subject to applicable Law, have the same force and effect as
manually signed originals and shall be binding on all Loan Parties, the Agents
and the Lenders.


 


(c)  Reliance
by Agents and Lenders.  The
Administrative Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Loan Notices and Swing Line Loan Notices)
purportedly given by or on behalf of the Company even if (i) such notices
were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof.  The Company shall
indemnify each Agent-Related Person and each Lender from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Company in the absence of gross
negligence or willful misconduct.  All
telephonic notices to the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.


 


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


 


147

















 


SECTION 10.04.
Attorney Costs, Expenses and Taxes. 
The Company agrees (a) if the Closing Date occurs, to pay or
reimburse the Administrative Agent and the Arrangers for all reasonable and
documented out-of-pocket costs and expenses incurred in connection with the
preparation, negotiation, syndication and execution of this Agreement and the
other Loan Documents, and any amendment, waiver, consent or other modification
of the provisions hereof and thereof (whether or not the transactions
contemplated thereby are consummated), and the consummation and administration
of the transactions contemplated hereby and thereby, including all Attorney
Costs of Cravath, Swaine & Moore LLP and such local counsel in any material
jurisdiction retained with your consent, and (b) to pay or reimburse the
Administrative Agent for all reasonable and documented out-of-pocket costs and
expenses incurred in connection with the enforcement of any rights or remedies
under this Agreement or the other Loan Documents (including all such costs and
expenses incurred during any legal proceeding, including any proceeding under
any Debtor Relief Law, and including all Attorney Costs of counsel to the
Administrative Agent).  The foregoing
costs and expenses shall include all reasonable search, filing, recording and
title insurance charges and fees and taxes related thereto.  The agreements in this Section 10.04
shall survive the termination of the Aggregate Commitments and repayment of all
other Obligations.  All amounts due under
this Section 10.04 shall be paid within ten (10) Business Days of receipt
by the Company of an invoice relating thereto setting forth such expenses in
reasonable detail.  If any Loan Party
fails to pay when due any costs, expenses or other amounts payable by it
hereunder or under any Loan Document, such amount may be paid on behalf of such
Loan Party by the Administrative Agent in its sole discretion.


 


SECTION 10.05.
Indemnification by the Company. 
Whether or not the transactions contemplated hereby are consummated, the
Company shall indemnify and hold harmless each Agent-Related Person, each
Lender and their respective Affiliates, directors, officers, employees,
counsel, agents, trustees, investment advisors and attorneys-in-fact
(collectively, the “Indemnitees”)
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses and
disbursements (including Attorney Costs) of any kind or nature whatsoever which
may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with
(a) the execution, delivery, enforcement, performance or administration of
any Loan Document or any other agreement, letter or instrument delivered in
connection with the transactions contemplated thereby or the consummation of
the transactions contemplated thereby, (b) any Commitment, Loan or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any
refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit
if the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), or (c) any actual or
alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by the Company, any Subsidiary or any
other Loan Party, or any Environmental Liability related in any way to the
Company, any Subsidiary or any other Loan Party, or (d) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee


 


148

















 


is a party thereto (all the foregoing,
collectively, the “Indemnified Liabilities”),
in all cases, whether or not caused by or arising, in whole or in part, out of
the negligence of the Indemnitee; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses or disbursements resulted from
(x) the gross negligence or willful misconduct of such Indemnitee or of
any Affiliate, director, officer, employee, counsel, agent or attorney-in-fact
of such Indemnitee or (y) a material breach of the Loan Documents any such
Indemnitee or by any Affiliate, director, officer, employee, counsel, agent or
attorney-in-fact of such Indemnitee.  No
Indemnitee shall be liable for any damages arising from the use by others of
any information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, nor shall
any Indemnitee or any Loan Party have any liability for any special, punitive,
indirect or consequential damages relating to this Agreement or any other Loan
Document or arising out of its activities in connection herewith or therewith
(whether before or after the Closing Date). 
In the case of an investigation, litigation or other proceeding to which
the indemnity in this Section 10.05 applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is
brought by any Loan Party, its directors, stockholders or creditors or an
Indemnitee or any other Person, whether or not any Indemnitee is otherwise a
party thereto and whether or not any of the transactions contemplated hereunder
or under any of the other Loan Documents is consummated.  All amounts due under this Section 10.05
shall be paid within ten (10) Business Days after written demand therefor; provided, however, that such Indemnitee
shall promptly refund such amount to the extent that there is a final judicial
or arbitral determination that such Indemnitee was not entitled to indemnification
or contribution rights with respect to such payment pursuant to the express
terms of this Section 10.05.  The
agreements in this Section 10.05 shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.


 


SECTION 10.06.
Payments Set Aside.  To the extent
that any payment by or on behalf of the Company is made to any Agent or any
Lender, or any Agent or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by such Agent or such Lender
in its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such setoff had not occurred,
and (b) each Lender severally agrees to pay to the Administrative Agent upon
demand its applicable share of any amount so recovered from or repaid by any
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time
to time in effect.


 


SECTION 10.07.
Successors and Assigns.  (a)  The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their


 


149

















 


respective successors and assigns permitted
hereby, except that, except as otherwise provided herein, neither Holdings nor
the Company may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except
(i) to an Eligible Assignee, (ii) by way of participation in
accordance with the provisions of Section 10.07(f), (iii) by way of
pledge or assignment of a security interest subject to the restrictions of Section 10.07(h)
or (iv) to an SPC in accordance with the provisions of
Section 10.07(i) (and any other attempted assignment or transfer by any
party hereto shall be null and void). 
Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in
Section 10.07(f) and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by reason
of this Agreement.


 


(b)  (i) Subject to the conditions set forth in
paragraph (b)(ii) below, any Lender may assign to one or more assignees (“Assignees”) all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans (including for purposes of this Section 10.07(b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to
it) with the prior written consent (such consent not to be unreasonably withheld
or delayed) of:


 


(A) the Company; provided
that no consent of the Company shall be required for an assignment to a Lender,
an Affiliate of a Lender, an Approved Fund, if an Event of Default under
Section 8.01(a), (f) or (g) has occurred and is continuing, any
Assignee;


 


(B) the Administrative Agent;
provided that no consent of the Administrative Agent shall be
required for an assignment (i) of all or any portion of a Term Loan to a
Lender, an Affiliate of a Lender or an Approved Fund or (ii) to an Agent
or an Affiliate of an Agent;


 


(C) each L/C Issuer at the time of such assignment; provided that no consent of the L/C
Issuers shall be required for any assignment of a Term Loan or any assignment
to an Agent or an Affiliate of an Agent; and


 


(D) the Swing Line Lender; provided
that no consent of the Swing Line Lender shall be required for any assignment
of a Term Loan or any assignment to an Agent or an Affiliate of an Agent.


 


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


 


(A) except in the case of an assignment to a Lender or an Affiliate of
a Lender or an assignment of the entire remaining amount of the assigning
Lender’s Commitment or Loans of any Class, the amount of the Commitment or
Loans of the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent)


 


150

















 


shall not be
less than $5,000,000 (in the case of each Revolving Credit Facility), or
$1,000,000 (in the case of a Term Loan) (provided
that simultaneous assignments to or by two or more Approved Funds shall be
aggregated for purposes of complying with such minimum assignment amount)
unless each of the Company and the Administrative Agent otherwise consents; provided that (1) no such consent of the
Company shall be required if an Event of Default under Section 8.01(a),
(f) or (g) has occurred and is continuing and (2) such amounts shall be
aggregated in respect of each Lender and its Affiliates or Approved Funds, if
any;


 


(B) the parties to each such assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption via an electronic
settlement system acceptable to the Administrative Agent (or, if previously
agreed with the Administrative Agent, manually), and shall pay to the
Administrative Agent a processing and recordation fee of $3,500 (which fee may
be waived or reduced in the sole discretion of the Administrative Agent); and


 


(C) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire and all applicable tax
forms.


 


This paragraph
(b) shall not prohibit any Lender from assigning all or a portion of its rights
and obligations among separate Facilities on a non-pro rata basis.


 


(c)  Subject to acceptance and recording thereof
by the Administrative Agent pursuant to Section 10.07(d), from and after
the effective date specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Sections 3.01, 3.04, 3.05, 10.04 and 10.05 with respect to facts and
circumstances occurring prior to the effective date of such assignment).  Upon request, and the surrender by the
assigning Lender of its Note, the Company (at its expense) shall execute and
deliver a Note to the assignee Lender. 
Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this clause (c) shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with Section 10.07(f).


 


(d)  The Administrative Agent, acting solely for
this purpose as an agent of the Company, shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the


 


151

















 


names and addresses of the Lenders, and the
Commitments of, and principal amounts (and related interest amounts) of the
Loans, L/C Obligations (specifying the Unreimbursed Amounts), L/C Borrowings
and amounts due under Section 2.03, owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, absent manifest error, and the Company, the Agents and the Lenders
shall treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 
The Register shall be available for inspection by the Company, any Agent
and any Lender, at any reasonable time and from time to time upon reasonable prior
notice.


 


(e)  Upon its receipt of, and consent to, a duly
completed Assignment and Assumption executed by an assigning Lender and an
Assignee, an Administrative Questionnaire completed in respect of the assignee
(unless the Assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) above, if applicable, and the written consent
of the Administrative Agent and, if required, the Company, the Swing Line
Lender and each L/C Issuer to such assignment and any applicable tax forms, the
Administrative Agent shall promptly (i) accept such Assignment and Assumption
and (ii) record the information contained therein in the Register. No
assignment shall be effective unless it has been recorded in the Register as
provided in this paragraph (e).


 


(f)  Any Lender may at any time, without the
consent of, or notice to, the Company or the Administrative Agent, the L/C
Issuers or the Swing Line Lender, sell participations to any Person (other than
a natural person) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations and/or Swing Line
Loans) owing to it); provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Company, the
Agents and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement.  Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and the other Loan
Documents and to approve any amendment, modification or waiver of any provision
of this Agreement or the other Loan Documents;
provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any
amendment, waiver or other modification described in the first proviso to
Section 10.01 that directly affects such Participant.  Subject to Section 10.07(g), the Company
agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to Section 10.07(c) but
shall not be entitled to recover greater amounts under such Sections than
the selling Lender would be entitled to recover.  To the extent permitted by applicable Law,
each Participant also shall be entitled to the benefits of Section 10.09
as though it were a Lender; provided that
such Participant agrees to be subject to Section 2.13 as though it were a
Lender.


 


152
















 


(g)  A Participant shall not be entitled to
receive any greater payment under Section 3.01, 3.04 or 3.05 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Company’s prior written consent. A
Participant shall not be entitled to the benefits of Section 3.01 unless
the Company is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Company, to comply with
Section 10.15 as though it were a Lender.


 


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


 


(i)  Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle identified
as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Company (an “SPC”)
the option to provide all or any part of any Loan that such Granting Lender
would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to fund any Loan, and (ii) if an
SPC elects not to exercise such option or otherwise fails to make all or any
part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. Each party hereto hereby agrees that
(i) neither the grant to any SPC nor the exercise by any SPC of such
option shall increase the costs or expenses or otherwise increase or change the
obligations of the Company under this Agreement (including its obligations
under Section 3.01, 3.04 or 3.05), (ii) no SPC shall be liable for
any indemnity or similar payment obligation under this Agreement for which a
Lender would be liable, and (iii) the Granting Lender shall for all
purposes, including the approval of any amendment, waiver or other modification
of any provision of any Loan Document, remain the lender of record hereunder. The
making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. Notwithstanding anything to the contrary contained herein, any
SPC may (i) with notice to, but without prior consent of the Company and
the Administrative Agent and with the payment of a processing fee of $3,500,
assign all or any portion of its right to receive payment with respect to any
Loan to the Granting Lender and (ii) disclose on a confidential basis any
non-public information relating to its funding of Loans to any rating agency,
commercial paper dealer or provider of any surety or Guarantee Obligation or
credit or liquidity enhancement to such SPC.


 


(j)  Notwithstanding anything to the contrary
contained herein, (1) any Lender may in accordance with applicable Law create a
security interest in all or any portion of the Loans owing to it and the Note,
if any, held by it and (2) any Lender that is a Fund may create a security
interest in all or any portion of the Loans owing to it and the Note, if any,
held by it to the trustee for holders of obligations owed, or securities
issued, by such Fund as security for such obligations or securities; provided that unless and until such
trustee actually becomes a Lender in compliance with the other provisions of
this


 


153

















 


Section 10.07, (i) no such pledge
shall release the pledging Lender from any of its obligations under the Loan
Documents and (ii) such trustee shall not be entitled to exercise any of
the rights of a Lender under the Loan Documents even though such trustee may
have acquired ownership rights with respect to the pledged interest through
foreclosure or otherwise.


 


(k)  Notwithstanding anything to the contrary
contained herein, any L/C Issuer or the Swing Line Lender may, upon thirty (30)
days’ notice to the Company and the Lenders, resign as an L/C Issuer or the
Swing Line Lender, respectively; provided
that on or prior to the expiration of such 30-day period with respect to such
resignation, the relevant L/C Issuer or the Swing Line Lender shall have
identified a successor L/C Issuer or Swing Line Lender reasonably acceptable to
the Company willing to accept its appointment as successor L/C Issuer or Swing
Line Lender, as applicable. In the event of any such resignation of an L/C
Issuer or the Swing Line Lender, the Company shall be entitled to appoint from
among the Lenders willing to accept such appointment a successor L/C Issuer or
Swing Line Lender hereunder; provided that
no failure by the Company to appoint any such successor shall affect the
resignation of the relevant L/C Issuer or the Swing Line Lender, as the case
may be, except as expressly provided above. If an L/C Issuer resigns as an L/C
Issuer, it shall retain all the rights and obligations of an L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as an L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or
fund risk participations in Unreimbursed Amounts pursuant to
Section 2.03(c)). If the Swing Line Lender resigns as Swing Line Lender,
it shall retain all the rights of the Swing Line Lender provided for hereunder
with respect to Swing Line Loans made by it and outstanding as of the effective
date of such resignation, including the right to require the Lenders to make
Base Rate Loans or fund risk participations in outstanding Swing Line Loans
pursuant to Section 2.04(c).


 


SECTION 10.08.
Confidentiality. Each of the Agents and the Lenders agrees to maintain
the confidentiality of the Information, except that Information may be
disclosed (a) to its Affiliates and its and its Affiliates’ directors,
officers, employees, trustees, investment advisors and agents, including
accountants, legal counsel and other advisors (it being understood that the Persons
to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential); (b) to
the extent requested by any Governmental Authority; (c) to the extent
required by applicable Laws or regulations or by any subpoena or similar legal
process; (d) to any other party to this Agreement; (e) subject to an
agreement containing provisions substantially the same as those of this
Section 10.08 (or as may otherwise be reasonably acceptable to the
Company), to any pledgee referred to in Section 10.07(h), counterparty to
a Swap Contract, Eligible Assignee of or Participant in, or any prospective
Eligible Assignee of or Participant in, any of its rights or obligations under
this Agreement; (f) with the written consent of the Company; (g) to
the extent such Information becomes publicly available other than as a result
of a breach of this Section 10.08; (h) to any Governmental Authority or
examiner (including the National Association of Insurance Commissioners or any
other similar organization) regulating any Lender; or (i) to any rating
agency when required by it (it being understood that,


 


154

















 


prior to any such disclosure, such rating
agency shall undertake to preserve the confidentiality of any Information
relating to the Loan Parties received by it from such Lender). In addition, the
Agents and the Lenders may disclose the existence of this Agreement and
information about this Agreement to market data collectors, similar service
providers to the lending industry, and service providers to the Agents and the
Lenders in connection with the administration and management of this Agreement,
the other Loan Documents, the Commitments, and the Credit Extensions. For the
purposes of this Section 10.08, “Information”
means all information received from any Loan Party relating to any Loan Party
or any of its Subsidiaries or any of their businesses, other than any such
information that is publicly available to any Agent or any Lender prior to
disclosure by any Loan Party other than as a result of a breach of this
Section 10.08; provided that,
in the case of information received from a Loan Party after the date hereof,
such information is clearly identified at the time of delivery as confidential
or (ii) is delivered pursuant to Section 6.01, 6.02 or 6.03 hereof.


 


SECTION 10.09.
Setoff. In addition to any rights and remedies of the Lenders provided
by Law, upon the occurrence and during the continuance of any Event of Default,
each Lender and its Affiliates and each L/C Issuer and its Affiliates is
authorized at any time and from time to time, without prior notice to the
Company or any other Loan Party, any such notice being waived by the Company
(on its own behalf and on behalf of each Loan Party and its Subsidiaries) to
the fullest extent permitted by applicable Law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held by, and other Indebtedness at any time owing by, such Lender and its
Affiliates or such L/C Issuer and its Affiliates to or for the credit or the
account of the respective Loan Parties and their Subsidiaries against any and
all Obligations owing to such Lender and its Affiliates or such L/C Issuer and
its Affiliates hereunder or under any other Loan Document, now or hereafter
existing, irrespective of whether or not such Agent, such Lender or Affiliate,
or such L/C Issuer or Affiliate shall have made demand under this Agreement or
any other Loan Document and although such Obligations may be contingent or
unmatured. Each Lender and each L/C Issuer agrees promptly to notify the
Company and the Administrative Agent in writing after any such set off and
application made by such Lender or L/C Issuer;
provided that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of the Administrative
Agent, each Lender and each L/C Issuer under this Section 10.09 are in
addition to other rights and remedies (including other rights of setoff) that
the Administrative Agent, such Lender and such L/C Issuer may have.


 


SECTION 10.10.
Interest Rate Limitation. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under
the Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the “Maximum
Rate”). If any Agent or any Lender shall receive interest in an
amount that exceeds the Maximum Rate, the excess interest shall be applied to
the principal of the Loans or, if it exceeds such unpaid principal, refunded to
the Company. In determining whether the interest contracted for, charged, or
received by an Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Law, (a) characterize any payment that
is not principal as an expense, fee, or premium rather than interest, (b)
exclude voluntary prepayments and the


 


155

















 


effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder.


 


SECTION 10.11.
Counterparts. This Agreement and each other Loan Document may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. Delivery by
facsimile transmission or other electronic transmission (i.e. a “pdf” or “tif”)
of an executed counterpart of a signature page to this Agreement and each other
Loan Document shall be effective as delivery of an original executed
counterpart of this Agreement and such other Loan Document. The Agents may also
require that any such documents and signatures delivered by facsimile
transmission or other electronic transmission be confirmed by a manually signed
original thereof; provided that
the failure to request or deliver the same shall not limit the effectiveness of
any document or signature delivered by facsimile transmission or other
electronic transmission.


 


SECTION 10.12.
Integration. This Agreement, together with the other Loan Documents,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and thereof and supersedes all prior agreements, written or oral,
on such subject matter. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that
the inclusion of supplemental rights or remedies in favor of the Agents or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.


 


SECTION 10.13.
Survival of Representations and Warranties. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by each Agent
and each Lender, regardless of any investigation made by any Agent or any
Lender or on their behalf and notwithstanding that any Agent or any Lender may
have had notice or knowledge of any Default at the time of any Credit
Extension, and shall continue in full force and effect as long as any Loan or
any other Obligation hereunder shall remain unpaid or unsatisfied (other than
Obligations under Secured Hedge Agreements, Cash Management Obligations or
contingent indemnification obligations not then due and payable) or any Letter
of Credit shall remain outstanding.


 


SECTION 10.14.
Severability. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby. The
invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.


 


156

















 


SECTION 10.15.
Tax Forms. (a)  (i) Each Lender
and Agent that is not a “United States person” within the meaning of
Section 7701(a)(30) of the Code (each, a “Foreign Lender”) shall deliver to the Company and the
Administrative Agent, on or prior to the date which is ten (10) Business Days
after the Closing Date (or upon accepting an assignment of an interest herein),
two duly signed, properly completed copies of either IRS Form W-8BEN or any
successor thereto (relating to such Foreign Lender and entitling it to an
exemption from, or reduction of, United States withholding tax on all
payments to be made to such Foreign Lender by the Company or any other Loan
Party pursuant to this Agreement or any other Loan Document) or IRS Form W-8ECI
or any successor thereto (relating to all payments to be made to such Foreign
Lender by the Company or any other Loan Party pursuant to this Agreement or any
other Loan Document) or such other evidence reasonably satisfactory to the
Company and the Administrative Agent that such Foreign Lender is entitled to an
exemption from, or reduction of, United States withholding tax, including
any exemption pursuant to Section 871(h) or 881(c) of the Code, and in the
case of a Foreign Lender claiming such an exemption under Section 881(c)
of the Code, a certificate that establishes in writing to the Company and the
Administrative Agent that such Foreign Lender is not (i) a “bank” as
defined in Section 881(c)(3)(A) of the Code, (ii) a 10-percent
stockholder within the meaning of Section 871(h)(3)(B) of the Code, or
(iii) a controlled foreign corporation related to the Company with the
meaning of Section 864(d) of the Code. Thereafter and from time to time at
the request of the Company in writing, each such Foreign Lender shall
(A) promptly submit to the Company and the Administrative Agent such
additional duly completed and signed copies of one or more of such forms or
certificates (or such successor forms or certificates as shall be adopted from
time to time by the relevant United States taxing authorities) as may then
be available under then current United States Laws and regulations to
avoid, or such evidence as is reasonably satisfactory to the Company and the
Administrative Agent of any available exemption from, or reduction of,
United States withholding taxes in respect of all payments to be made to
such Foreign Lender by the Company or other Loan Party pursuant to this
Agreement, or any other Loan Document, in each case, (1) on or before the date
that any such form, certificate or other evidence expires or becomes obsolete,
(2) after the occurrence of any event requiring a change in the most recent
form, certificate or evidence previously delivered by it to the Company and the
Administrative Agent and (3) from time to time thereafter if reasonably
requested by the Company or the Administrative Agent, and (B) promptly
notify the Company and the Administrative Agent of any change in circumstances
which would modify or render invalid any claimed exemption or reduction.


 


(ii) Each Foreign Lender, to the extent it does not act or ceases to
act for its own account with respect to any portion of any sums paid or payable
to such Foreign Lender under any of the Loan Documents (for example, in the
case of a typical participation by such Foreign Lender), shall deliver to the
Company and the Administrative Agent on the date when such Foreign Lender
ceases to act for its own account with respect to any portion of any such sums
paid or payable, and at such other times as may be necessary in the
determination of the Company or the Administrative Agent (in either case, in
the reasonable exercise of its discretion), (A) two duly signed completed
copies of the forms or statements


 


157

















 


required to be
provided by such Foreign Lender as set forth above, to establish the portion of
any such sums paid or payable with respect to which such Foreign Lender acts
for its own account that is not subject to United States withholding tax,
and (B) two duly signed completed copies of IRS Form W-8IMY (or any
successor thereto), together with any information such Foreign Lender chooses
to transmit with such form, and any other certificate or statement of exemption
required under the Code, to establish that such Foreign Lender is not acting
for its own account with respect to a portion of any such sums payable to such
Foreign Lender.


 


(iii) The Company shall not be required to pay any additional amount or
any indemnity payment under Section 3.01 to (A) any Foreign Lender if
such Foreign Lender shall have failed to satisfy the foregoing provisions of
this Section 10.15(a), or (B) any U.S. Lender if such U.S. Lender
shall have failed to satisfy the provisions of Section 10.15(b); provided that (i) if such Lender shall
have satisfied the requirement of this or Section 10.15(b), as applicable,
on the date such Lender became a Lender or ceased to act for its own account
with respect to any payment under any of the Loan Documents, nothing in this
Section 10.15(a) or Section 10.15(b) shall relieve the Company of its
obligation to pay any amounts pursuant to Section 3.01 in the event that,
as a result of any change in any applicable Law, treaty or governmental rule,
regulation or order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly entitled to deliver
forms, certificates or other evidence at a subsequent date establishing the
fact that such Lender or other Person for the account of which such Lender
receives any sums payable under any of the Loan Documents is not subject to
withholding or is subject to withholding at a reduced rate and
(ii) nothing in this Section 10.15(a) shall relieve the Company of
its obligation to pay any amounts pursuant to Section 3.01 in the event
that the requirements of Section 10.15(a)(ii) have not been satisfied if
the Company is entitled, under applicable Law, to rely on any applicable forms
and statements required to be provided under this Section 10.15 by the
Foreign Lender that does not act or has ceased to act for its own account under
any of the Loan Documents, including in the case of a typical participation.


 


(iv) The Administrative Agent may deduct and withhold any taxes
required by any Laws to be deducted and withheld from any payment under any of
the Loan Documents.


 


(b)  Each Lender and Agent that is a “United States
person” within the meaning of Section 7701(a)(30) of the Code (each, a “U.S. Lender”) shall deliver to the
Administrative Agent and the Company two duly signed, properly completed copies
of IRS Form W-9 on or prior to the Closing Date (or on or prior to the date it
becomes a party to this Agreement), certifying that such U.S. Lender is
entitled to an exemption from United States backup withholding tax, or any
successor form. If such U.S. Lender fails to deliver such forms, then the
Administrative Agent may withhold from any payment to such U.S. Lender an
amount equivalent to the applicable backup withholding tax imposed by the Code.


 


158

















 


SECTION 10.16.
No Advisory or Fiduciary Responsibility. In connection with all aspects
of each transaction contemplated hereby, the Company and each other Loan Party
acknowledge and agree that:  (i) the
Facilities provided hereunder on the date hereof and any arranging of the
Facilities by the Arrangers prior to the date hereof are arm’s-length
commercial transactions between the Company and each other Loan Party on the
one hand, and the Administrative Agent and the Arrangers on the other hand, and
the Company and each other Loan Party are capable of evaluating and
understanding, and understand and accept the terms, risks and conditions of the
transactions contemplated hereby; (ii) in connection with the process
leading to such transactions prior to the date hereof, the Administrative Agent
and the Arrangers have been acting solely as principals and are not the
financial advisors, agents or fiduciaries, for the Company or any other Loan
Party; (iii) neither the Administrative Agent nor any Arranger has assumed
an advisory, agency or fiduciary responsibility in favor of the Company or any
other Loan Party with respect to any of the transactions contemplated hereby or
the process leading thereto and neither the Administrative Agent nor any
Arranger, in their capacity as such, has any obligation to the Company or any
other Loan Party with respect to the transactions contemplated hereby except
those obligations expressly set forth herein and in the other Loan Documents;
(iv) the Administrative Agent and the Arrangers and their respective
Affiliates may be engaged in a broad range of transactions that involve
interests that differ from the Company and the other Loan Parties and neither
the Administrative Agent nor any Arranger has any obligation to disclose any of
such interests by virtue of any advisory, agency or fiduciary relationship; and
(v) the Administrative Agent and the Arrangers have not provided any
legal, accounting, regulatory or tax advice with respect to any of the transactions
contemplated hereby prior to the date hereof and each of the Company and the
other Loan Parties has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate.


 


SECTION 10.17.
GOVERNING LAW. (a)  THIS AGREEMENT
AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.


 


(b)  ANY LEGAL ACTION OR PROCEEDING ARISING UNDER
ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN
DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT
OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE COMPANY,
HOLDINGS, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE COMPANY,
HOLDINGS, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON


 


159

















 


CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.


 


SECTION 10.18.
WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION 10.18 WITH ANY COURT AS WRITTEN EVIDENCE
OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL
BY JURY.


 


SECTION 10.19.
Binding Effect. This Agreement shall become effective when it shall have
been executed by the Company and Holdings and the Administrative Agent shall
have been notified by each Lender, Swing Line Lender and L/C Issuer that each
such Lender, Swing Line Lender and L/C Issuer has executed it and thereafter
shall be binding upon and inure to the benefit of the Company, each Agent and
each Lender and their respective successors and assigns, except that the
Company shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders except as permitted by
Section 7.04.


 


SECTION 10.20.
Electronic Execution of Assignments. The words “execution,” “signed,” “signature,”
and words of like import in any Assignment and Assumption shall be deemed to
include electronic signatures or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as
a manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act, or any other similar
state laws based on the Uniform Electronic Transactions Act.


 


SECTION 10.21.
Effect of Certain Inaccuracies. In the event that any financial
statement or Compliance Certificate previously delivered pursuant to
Section  6.02 was inaccurate (regardless of
whether this Agreement or the Commitments are in effect when such inaccuracy is
discovered), and such inaccuracy, if corrected, would have led to the
application of a higher Applicable Rate for any period (an “Applicable Period”) than the Applicable Rate
applied for such Applicable Period,


 


160

















 


then (i) the Company shall as soon as
practicable deliver to the Administrative Agent a corrected financial statement
and a corrected Compliance Certificate for such Applicable Period, (ii) the
Applicable Rate shall be determined based on the corrected Compliance
Certificate for such Applicable Period, and (iii) the Company shall within 15
days after the delivery of the corrected financial statements and Compliance Certificate
pay to the Administrative Agent the accrued additional interest or fees owing
as a result of such increased Applicable Rate for such Applicable Period. This
Section 10.21 shall not limit the rights of the Administrative Agent or the
Lenders with respect to Sections 2.08(b) and 8.01.


 


SECTION 10.22.
USA PATRIOT Act. Each Lender hereby notifies the Company that pursuant
to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the
Company, which information includes the name and address of the Company and
other information that will allow such Lender to identify the Company in
accordance with the Act.


 


SECTION 10.23.
LEGEND. THE TERM LOANS HAVE BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE DATE AND YIELD TO MATURITY OF
THESE LOANS MAY BE OBTAINED BY WRITING TO THE ADMINISTRATIVE AGENT AT THE
ADDRESS SET FORTH IN SECTION 10.02.


 


[THE REMAINDER OF THIS PAGE IS INTENTIONALLY
LEFT BLANK.]


 


161

















 


IN
WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.


 


	
   

  	
  REABLE THERAPEUTICS FINANCE

  LLC,

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
    /s/ Harry L. Zimmerman

  
	
   

  	
    Name: Harry L. Zimmerman

  
	
   

  	
    Title:

  	
   Executive Vice President,

  
	
   

  	
   

  	
   General Counsel, Secretary

  
	
   

  	
   

  	
   and Assistant Treasurer

  
					



 


 


	
   

  	
  REABLE THERAPEUTICS HOLDINGS

  LLC,

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
    /s/ Harry L. Zimmerman

  
	
   

  	
    Name: Harry L. Zimmerman

  
	
   

  	
    Title:

  	
   Executive Vice President,

  
	
   

  	
   

  	
   General Counsel, Secretary

  
	
   

  	
   

  	
   and Assistant Treasurer

  
					



 


 


[ReAble/DJO Credit Agreement]


 

















 


	
   

  	
  CREDIT SUISSE, CAYMAN ISLANDS

  BRANCH, as
  Administrative Agent,

  Collateral Agent, L/C Issuer, Swing Line

  Lender and Lender,

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
    /s/ Judith E. Smith

  	
   

  
	
   

  	
    Name: Judith E. Smith

  
	
   

  	
    Title:  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
    /s/ Doreen Barr

  	
   

  
	
   

  	
    Name: Doreen Barr

  
	
   

  	
    Title: Vice President

  
						



 


 


[ReAble/DJO Credit Agreement]


 

















 


SIGNATURE PAGE TO THE


REABLE THERAPEUTICS FINANCE LLC


CREDIT AGREEMENT DATED


AS OF NOVEMBER 20, 2007


 


	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
    /s/ John P. Wofford

  
	
   

  	
    Name: John P. Wofford

  
	
   

  	
    Title:   Vice President

  
				



 


 


[ReAble/DJO Credit Agreement]


 

















 


SIGNATURE PAGE TO THE


REABLE THERAPEUTICS FINANCE LLC


CREDIT AGREEMENT DATED


AS OF NOVEMBER 20, 2007


 


	
   

  	
  Name of Lender:  The Bank of
  Nova Scotia

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
    /s/ James Forward

  
	
   

  	
    Name: James Forward

  
	
   

  	
    Title:   Managing Director

  
				



 


 


[ReAble/DJO Credit Agreement]


 

















 


SIGNATURE PAGE TO THE


REABLE THERAPEUTICS FINANCE LLC


CREDIT AGREEMENT DATED


AS OF NOVEMBER 20, 2007


 


	
   

  	
  Name of Lender:  Bank of the
  West

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
    /s/ Kris T. Ilkov

  
	
   

  	
    Name: Kris T. Ilkov

  
	
   

  	
    Title:   Vice President

  
				



 


 


[ReAble/DJO Credit Agreement]


 

















 


SIGNATURE PAGE TO THE


REABLE THERAPEUTICS FINANCE LLC


CREDIT AGREEMENT DATED


AS OF NOVEMBER 20, 2007


 


	
   

  	
  Name of Lender:  Caisse de
  dépôt et placement du Québec

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
    /s/ Pierre Lambert

  	
   

  
	
   

  	
    Name: Pierre Lambert

  
	
   

  	
    Title:   Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
    /s/ Diane C. Favreau

  	
   

  
	
   

  	
    Name: Diane C. Favreau

  
	
   

  	
    Title:   Vice-President

  
						



 


 


[ReAble/DJO Credit Agreement]


 

















 


SIGNATURE PAGE TO THE


REABLE THERAPEUTICS FINANCE LLC


CREDIT AGREEMENT DATED


AS OF NOVEMBER 20, 2007


 


	
   

  	
  Name of Lender:  Natixis

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
    /s/ Tefta Ghilaga

  	
   

  
	
   

  	
    Name: Tefta Ghilaga

  
	
   

  	
    Title:   Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
    /s/ Frank H. Madden, Jr.

  	
   

  
	
   

  	
    Name: Frank H. Madden, Jr.

  
	
   

  	
    Title:   Managing Director

  
						



 


 


[ReAble/DJO Credit Agreement]


 

















 


SIGNATURE PAGE TO THE


REABLE THERAPEUTICS FINANCE LLC


CREDIT AGREEMENT DATED


AS OF NOVEMBER 20, 2007


 


	
   

  	
  Name of Lender:  Wachovia Bank,
  National Association

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
    /s/ Kirk Tesch

  
	
   

  	
    Name: Kirk Tesch

  
	
   

  	
    Title:   Vice President

  
				



 


 


[ReAble/DJO Credit Agreement]