exv10w1






Exhibit 10.1




EXECUTED VERSION




FIRST AMENDMENT




          This First Amendment, dated as of February 17, 2011 (this “Amendment”), to that
certain Amended and Restated Credit Agreement, dated as of December 10, 2009 (as previously
amended, the “Existing Credit Agreement”; as amended by this Amendment, the “Credit
Agreement”), among Hanesbrands Inc., a Maryland corporation (the “Borrower”), the
various financial institutions and other persons from time to time party thereto (the
“Lenders”), Barclays Bank PLC and Goldman Sachs Credit Partners L.P., as the
co-documentation agents, Bank of America, N.A. and HSBC Securities (USA) Inc., as the
co-syndication agents, JPMorgan Chase Bank, N.A., as the administrative agent and collateral agent
(in its capacity as the administrative agent, the “Administrative Agent”) and J.P. Morgan
Securities LLC (formerly known as J.P. Morgan Securities Inc.), Banc of America Securities LLC,
HSBC Securities (USA) Inc. and Barclays Capital, the investment banking division of Barclays Bank
PLC, as the joint lead arrangers and joint bookrunners. Capitalized terms used herein but not
defined herein are used as defined in the Credit Agreement.




W I T N E S S E T H:




          WHEREAS, pursuant to the Existing Credit Agreement, the Lenders have agreed to make, and have
made, certain loans and other extensions of credit to the Borrower;




          WHEREAS, the Borrower has requested that the Existing Credit Agreement be amended to, among
other things, extend the termination date of the Revolving Loan Commitments in the manner set forth
herein;




          WHEREAS, the Required Lenders are willing to agree to this Amendment on the terms, and subject
to the conditions, set forth herein.




          NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and obligations set
forth herein and other good and valuable consideration, the adequacy and receipt of which is hereby
acknowledged, and in reliance upon the representations, warranties and covenants herein contained,
the parties hereto, intending to be legally bound, hereby agree as follows:




     SECTION 1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Credit Agreement.



     SECTION 2. Amendments. The Existing Credit Agreement is hereby amended as of the First Amendment
Effective Date (as defined below) in accordance with Exhibit B hereto: by (a) deleting each
term thereof which is lined out and (b) inserting each term thereof which is double underlined, in
each case in the place where such term appears therein.



     SECTION 3. Extension of Maturity Date. On the First Amendment Effective Date, each
Extending Revolving Loan Lender hereby extends the Stated Maturity Date as applicable to all of its
Revolving Loan Commitment (as set forth on Schedule I to this Amendment) to the Extended
Termination Date (i.e., December 10, 2015). The Stated Maturity Date applicable to the Revolving
Loan Commitment of each Non-Extending Revolving Loan Lender shall continue to be the Non-Extended
Termination Date (i.e., December 10, 2013). The Extending Revolving Loan Lenders understand and
agree that, on the Non-Extended Termination Date (or prior thereto in accordance with the Credit
Agreement), (i) the Revolving Loans of each Non-Extending Revolving Loan Lender shall become due
and payable (together with all interest and fees related thereto), (ii) the Revolving Loan
Commitment of each Non-Extending Revolving Loan Lender shall terminate and (iii) to the extent
provided in Section 4(a) below, the participating interests of each Non-Extending Revolving Loan
Lender in undrawn Letters of Credit and Open Account Discount Agreements with respect to which no
OA Payment Obligations then exist under the applicable Open Account Paying Agreement will
terminate.



 









 





2




     SECTION 4. Allocation and Repayment of Revolving Loans and Letters of Credit.
Notwithstanding anything in the Credit Agreement to the contrary:



          (a) From the First Amendment Effective Date until the Non-Extended Termination Date, all
Revolving Loans (to the extent required to be made under the Credit Agreement) shall continue to be
made, and participations in any Letters of Credit and Open Account Discount Agreements shall
continue to be allocated, ratably in accordance with the respective Revolving Loan Percentages of
the Revolving Loan Lenders as if there were a single tranche of Revolving Loan Commitments. On the
Non-Extended Termination Date, subject to the satisfaction of the conditions precedent set forth in
Section 5.2 of the Credit Agreement, the participations in any outstanding Letters of Credit (other
than in respect of then outstanding unreimbursed drawings under Letters of Credit) and Open Account
Discount Agreements (other than in respect of unreimbursed OA Payment Obligations under the
applicable Open Account Paying Agreement) of the Non-Extending Revolving Loan Lenders (the
“Non-Extended LC/OA Exposure”) shall be reallocated to and among the Extending Revolving
Loan Lenders ratably in accordance with their Revolving Loan Percentages (and the Non-Extending
Revolving Loan Lenders shall be released from their participation obligations in undrawn Letters of
Credit and Open Account Discount Agreements with respect to which no OA Payment Obligations are
then outstanding under the applicable Open Account Paying Agreement) but only to the extent the sum
of the amount of the Revolving Exposure of all Extending Revolving Loan Lenders before giving
effect to such reallocation plus the participations in any outstanding Letters of Credit
and Open Account Discount Agreements of the Non-Extending Revolving Loan Lenders being reallocated
does not exceed the Total Extended Revolving Loan Commitment Amount.




          (b) If the reallocation described in clause (a) above cannot, or can only partially, be
effected as a result of the limitations set forth therein, the Borrower shall promptly Cash
Collateralize the Non-Extended LC/OA Exposure (after giving effect to any partial reallocation
pursuant to clause (a) of this Section 4) for so long as such Non-Extended LC/OA Exposure is
outstanding.




     SECTION 5. Conditions Precedent. This Amendment shall become effective on the date on which the
following conditions precedent have been satisfied or waived (the “First Amendment Effective
Date”):



          (a) Certain Documents. The Administrative Agent shall have received each of the following:





          (i) this Amendment, duly executed by the Borrower, each Subsidiary Guarantor and the
Administrative Agent (on behalf of the Required Lenders); and




          (ii) an Acknowledgment and Consent to Amendment, in the form set forth hereto as
Exhibit A, duly executed by the Required Lenders.



          (b) Payment of Fees, Costs and Expenses. The Administrative Agent and the consenting Lenders
shall have received from the Borrower, as applicable (i) a consent fee for the account of each
Lender consenting to this Amendment by 5:00 p.m. (New York City time) on February 17, 2011, in an
amount equal to 0.375% of each such consenting Lender’s Revolving Loan Commitment, and (ii) all
other fees required to be paid, and all reasonable out-of-pocket costs and expenses for which
invoices have been presented (including the reasonable fees and expenses of Simpson Thacher &
Bartlett LLP, counsel to the Administrative Agent) as required by Section 10.3 of the Credit
Agreement.




          (c) Representations and Warranties. Each of the representations and warranties contained in
Section 6 below shall be true and correct.





 









 





3





     SECTION 6. Representations and Warranties. The Borrower and each Subsidiary Guarantor hereby
represents to the Administrative Agent and each Lender, as follows:



          (a) After giving effect to this Amendment, each of the representations and warranties in the
Credit Agreement and in the other Loan Documents are true and correct in all material respects
(except to the extent that such representation or warranty is already qualified as to materiality)
on and as of the date hereof as though made on and as of the date hereof, except to the extent that
any such representation or warranty expressly relates to an earlier date, in which case such
representation or warranty shall be true and correct in all material respects (except to the extent
that such representation or warranty is already qualified as to materiality) as of such earlier
date;




          (b) The Borrower and each Subsidiary Guarantor has taken all necessary action to authorize the
execution, delivery and performance of this Amendment, this Amendment has been duly executed and
delivered by the Borrower and each Subsidiary Guarantor, and this Amendment is the legal, valid and
binding obligation of the Borrower and each Subsidiary Guarantor, enforceable against each in
accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, or similar laws affecting the enforcement of creditors’ rights
generally and by principles of equity; and




          (c) At the time of and immediately after giving effect to this Amendment, no Default or Event
of Default has occurred and is continuing.




     SECTION 7. Costs and Expenses. The Borrower agrees to pay and reimburse the Administrative Agent
for all of its reasonable out-of-pocket costs and expenses incurred in connection with the
preparation and delivery of this Amendment, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent, in accordance with and to the extent required
by Section 10.3 of the Credit Agreement.



     SECTION 8. Reference to and Effect on the Loan Documents; Real Property Obligations.



          (a) As of the First Amendment Effective Date, each reference in the Existing Credit Agreement
to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference
in the other Loan Documents to the Credit Agreement (including, without limitation, by means of
words like “thereunder”, “thereof” and words of like import), shall mean and be a reference to the
Credit Agreement.




          (b) Except as expressly amended hereby, all of the terms and provisions of the Existing Credit
Agreement and all other Loan Documents are and shall remain in full force and effect and are hereby
ratified and confirmed.




          (c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of the Administrative Agent, any
Lender or any Issuer under the Existing Credit Agreement or any Loan Document, or constitute a
waiver or amendment of any other provision of the Existing Credit Agreement or any Loan Document
except as and to the extent expressly set forth herein.




          (d) Each of the Borrower and (by its acknowledgment hereof as set forth on the signature pages
hereto) each Subsidiary Guarantor hereby confirms that the guaranties, security interests and liens
granted pursuant to the Loan Documents (as amended hereby) continue to guarantee and secure the
Obligations as set forth in the Loan Documents (as amended hereby) and that such guaranties,
security interests and liens remain in full force and effect.




          (e) It is hereby agreed that, with respect to each parcel of real property for which there is
an existing Mortgage which has been delivered and recorded pursuant to the Loan Documents, the
Borrower shall deliver to the Administrative Agent within 90 days of the First




 









 





4



Amendment Effective Date (or within such other longer period as to which the Administrative
Agent may reasonably agree): (i) an amendment to the Mortgage on such mortgaged property in form
and substance reasonably satisfactory to the Administrative Agent, (ii) a “date-down” endorsement
to the existing title insurance policy (or a “reissued title policy”) for such mortgaged property
issued by the title company that issued such existing title insurance policy or by another title
company reasonably acceptable to the Administrative Agent, which endorsement shall update the
effective date of such existing title insurance policy and amend the description of the insured
existing Mortgage to include the amendment to such existing Mortgage and (iii) reasonably
satisfactory evidence that the Borrower has paid all premiums in respect of the endorsement to the
existing title policy (or the reissued title policy) for such mortgaged property, as well as any
charges for Mortgage recording taxes and Mortgage filing fees payable in connection with the
recording of the amendment to the Mortgage for such mortgaged property.




     SECTION 9. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the same agreement.
Receipt by the Administrative Agent of a facsimile or pdf (or other electronic transmission) copy
of an executed signature page hereof shall constitute receipt by the Administrative Agent of an
executed counterpart of this Amendment.



     SECTION 10. Governing Law. This Amendment and the rights and obligations of the parties hereto
shall be governed by, and construed and interpreted in accordance with, the law of the State of New
York without regard to the conflicts of laws provisions (other than Sections 5-1401 and 5-1402 of
the New York General Obligations Law, which the parties hereto agree apply hereto).



     SECTION 11. Loan Document and Integration. This Amendment is a Loan Document, and together with
the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the
subject matter hereof and is the final expression and agreement of the parties hereto with respect
to the subject matter hereof.



     SECTION 12. Headings. Section headings contained in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment for any other
purposes.



     SECTION 13. Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES TRIAL BY JURY IN
ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT.



 









 






          IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers and members thereunto duly authorized, as of the date indicated above.




	 	 	 	 	 
	 

	 	JPMORGAN CHASE BANK, N.A.,

     as the Administrative Agent
	 
	 	 	 	 
	 

	 	By:	 	/s/ James A. Knight
	 

	 	 	 	 
	 

	 	 	 	Name: James A. Knight

Title: Vice President






 









 






	 	 	 	 	 
	 

	 	HANESBRANDS INC.,

     as Borrower
	 
	 	 	 	 
	 

	 	By:	 	/s/ Richard D. Moss
	 

	 	 	 	 
	 

	 	 	 	Name: Richard D. Moss

Title: Chief Treasury and Tax Officer and Treasurer






 









 






          For the purposes of Sections 6 and 8(d) hereof, each Subsidiary Guarantor set forth below (i)
makes the representations set forth in Section 3 hereof on the First Amendment Effective Date (as
defined above) and (ii) hereby consents to this Amendment and confirms that all guaranties,
security interests and Liens granted by it, and all its other obligations, pursuant to the Loan
Documents (as amended hereby) remain in full force and effect.



	 	 	 	 	 
	 

	 	BA INTERNATIONAL, L.L.C.

CARIBESOCK, INC.

CARIBETEX, INC.

CASA INTERNATIONAL, LLC

CEIBENA DEL, INC.

HANES MENSWEAR, LLC

HANES PUERTO RICO, INC.

HANESBRANDS DIRECT, LLC

HANESBRANDS DISTRIBUTION, INC.

HBI BRANDED APPAREL ENTERPRISES, LLC

HBI BRANDED APPAREL LIMITED, INC.

HBI INTERNATIONAL, LLC

HBI SOURCING, LLC

INNER SELF LLC

JASPER-COSTA RICA, L.L.C.

PLAYTEX DORADO, LLC

PLAYTEX INDUSTRIES, INC.

SEAMLESS TEXTILES, LLC

UPCR, INC.

UPEL, INC.

GEARCO, INC.

GFSI HOLDINGS, INC.

GFSI, INC.

CC PRODUCTS, INC.

EVENT 1, INC.
	 
	 	 	 	 
	 

	 	By:	 	/s/ Richard D. Moss
	 

	 	 	 	 
	 

	 	 	 	Name: Richard D. Moss

Title: Treasurer






 









 






SCHEDULE I




REVOLVING LOAN COMMITMENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Non-Extended
	 	 	Extended Revolving	 	Revolving Loan
	Revolving Loan Lender	 	Loan Commitment	 	Commitment
	JPMorgan Chase Bank, N.A.
	 	$	59,250,000	 	 	$	0	 
	Bank of America, N.A.
	 	$	59,250,000	 	 	$	0	 
	The Bank of Nova Scotia
	 	$	30,000,000	 	 	$	0	 
	Barclays Bank PLC
	 	$	59,250,000	 	 	$	0	 
	Branch Banking and Trust Company
	 	$	45,000,000	 	 	$	0	 
	Capital One Leverage Finance Corp.
	 	$	15,000,000	 	 	$	0	 
	Fifth Third Bank
	 	 	45,000,000	 	 	$	0	 
	Goldman Sachs Group Inc.
	 	$	25,000,000	 	 	$	0	 
	HSBC Bank USA, N.A.
	 	$	59,250,000	 	 	$	0	 
	ING Capital LLC
	 	$	8,000,000	 	 	$	0	 
	Israel Discount Bank Ltd.
	 	$	15,000,000	 	 	$	0	 
	The Northern Trust Company
	 	$	25,000,000	 	 	$	0	 
	PNC Bank, National Association
	 	$	40,000,000	 	 	$	0	 
	Raymond James Bank, FSB
	 	$	10,000,000	 	 	$	0	 
	Royal Bank of Canada
	 	$	45,000,000	 	 	$	0	 
	Siemens Financial Services, Inc.
	 	$	7,500,000	 	 	$	0	 
	SunTrust Bank
	 	$	45,000,000	 	 	$	0	 
	United Overseas Bank Limited
	 	$	7,500,000	 	 	$	0	 
	 
	 	 	 	 	 	 
	Total
	 	$	600,000,000	 	 	$	0	 






 









 






EXHIBIT A




ACKNOWLEDGMENT AND CONSENT TO AMENDMENT




	 	 	 
	To:

	 	JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

277 Park Avenue

New York, NY 10017
	 
	 	 
	 

	 	Attention: James A Knight
	 
	 	 
	 

	 	     RE: HANESBRANDS INC.






          Reference is made to that certain Amended and Restated Credit Agreement, dated as of December
10, 2009 (as the same may be amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), among Hanesbrands Inc., a Maryland corporation (the
“Borrower”), the various financial institutions and other persons from time to time party
thereto (the “Lenders”), Barclays Bank PLC and Goldman Sachs Credit Partners L.P., as the
co-documentation agents, Bank of America, N.A. and HSBC Securities (USA) Inc., as the
co-syndication agents, JPMorgan Chase Bank, N.A., as the administrative agent and collateral agent
(in its capacity as the administrative agent, the “Administrative Agent”) and J.P. Morgan
Securities LLC (formerly known as J.P. Morgan Securities Inc.), Banc of America Securities LLC,
HSBC Securities (USA) Inc. and Barclays Capital, the investment banking division of Barclays Bank
PLC, as the joint lead arrangers and joint bookrunners. Capitalized terms used herein but not
defined herein are used as defined in the Credit Agreement.




          The Borrower has requested that the Lenders consent to an amendment to the
Credit Agreement on the terms described in the First Amendment to the Credit Agreement (the
“Amendment”), the form of which is attached hereto.




          Pursuant to Section 10.1 of the Credit Agreement, the undersigned
Lender hereby consents to the terms of the Amendment and authorizes the Administrative Agent to
execute and deliver the Amendment on its behalf.




	 	 	 	 	 
	 

	 	Very truly yours,
	 

	 
	 	 	 	 
	 

	 	 
	 

	 	[Name of Lender], as an Extending

Revolving Loan Lender
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:
	 
	 	 	 	 
	Dated as of ____________, 2011
	 	 	 	 






 









 






EXHIBIT B




CREDIT AGREEMENT





 












 










EXECUTION COPYEXHIBIT B




AMENDED AND RESTATED CREDIT AGREEMENT,




dated as of December 10, 2009,



as amended by the First Amendment,

dated as of February 17, 2011



among



HANESBRANDS INC.,

as the Borrower,



VARIOUS FINANCIAL INSTITUTIONS AND

OTHER PERSONS FROM TIME TO TIME

PARTY TO THIS AGREEMENT

as the Lenders,



BARCLAYS BANK PLC and GOLDMAN SACHS CREDIT PARTNERS L.P.

as the Co-Documentation Agents,



BANK OF AMERICA, N.A. and HSBC SECURITIES (USA) INC.

as the Co-Syndication Agents,



and



JPMORGAN CHASE BANK, N.A.,

as the Administrative Agent and the Collateral Agent



__________________________



J.P. MORGAN SECURITIES INC.,



BANC OF AMERICA SECURITIES LLC,



HSBC SECURITIES (USA) INC.,



and



BARCLAYS CAPITAL,



as Joint Lead Arrangers and Joint Bookrunners

























 









 








TABLE OF CONTENTS





	 	 	 	 	 	 
	 	 	Page	 	 
	 
	 	 	 	 	 
	Table of Contents






	 	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	 	1	 
	SECTION 1.1 Defined Terms
	 	 	 	1	 
	SECTION 1.2 Use of Defined Terms
	 	 	32	34	 
	 
	 	 	 	 	 
	SECTION 1.3 Cross-References
	 	 	32	34	 
	 
	 	 	 	 	 
	SECTION 1.4 Accounting and Financial Determinations
	 	 	32	34	 
	 
	 	 	 	 	 
	 
	 	 	 	 	 
	ARTICLE II COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES, NOTES AND LETTERS OF CREDIT
	 	 	33	35	 
	 
	 	 	 	 	 
	SECTION 2.1 Commitments
	 	 	33	35	 
	 
	 	 	 	 	 
	SECTION 2.2 Reduction of the Commitment Amounts
	 	 	35	37	 
	 
	 	 	 	 	 
	SECTION 2.3 Borrowing Procedures
	 	 	35	37	 
	 
	 	 	 	 	 
	SECTION 2.4 Continuation and Conversion Elections
	 	 	37	39	 
	 
	 	 	 	 	 
	SECTION 2.5 Funding
	 	 	37	39	 
	 
	 	 	 	 	 
	SECTION 2.6 Issuance Procedures
	 	 	37	39	 
	 
	 	 	 	 	 
	SECTION 2.7 Register; Notes
	 	 	42	44	 
	 
	 	 	 	 	 
	SECTION 2.8 [Reserved]
	 	 	42	44	 
	 
	 	 	 	 	 
	SECTION 2.9 Incremental Facilities
	 	 	43	44	 
	 
	 	 	 	 	 
	 
	 	 	 	 	 
	ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
	 	 	44	46	 
	 
	 	 	 	 	 
	SECTION 3.1 Repayments and Prepayments; Application
	 	 	44	46	 
	 
	 	 	 	 	 
	SECTION 3.2 Interest Provisions
	 	 	47	49	 
	 
	 	 	 	 	 
	SECTION 3.3 Fees
	 	 	48	50	 
	 
	 	 	 	 	 
	 
	 	 	 	 	 
	ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS
	 	 	49	51	 
	 
	 	 	 	 	 
	SECTION 4.1 LIBO Rate Lending Unlawful
	 	 	49	51	 
	 
	 	 	 	 	 
	SECTION 4.2 Deposits Unavailable
	 	 	49	51	 
	 
	 	 	 	 	 
	SECTION 4.3 Increased LIBO Rate Loan Costs, etc.
	 	 	50	51	 
	 
	 	 	 	 	 
	SECTION 4.4 Funding Losses
	 	 	50	52	 
	 
	 	 	 	 	 
	SECTION 4.5 Increased Capital Costs
	 	 	51	52	 
	 
	 	 	 	 	 
	SECTION 4.6 Taxes
	 	 	51	53	 
	 
	 	 	 	 	 
	SECTION 4.7 Payments, Computations; Proceeds of Collateral, etc.
	 	 	54	56	 
	 
	 	 	 	 	 
	SECTION 4.8 Sharing of Payments
	 	 	55	57	 
	 
	 	 	 	 	 
	SECTION 4.9 Setoff
	 	 	55	57	 
	 
	 	 	 	 	 
	SECTION 4.10 Mitigation
	 	 	56	57	 
	 
	 	 	 	 	 
	SECTION 4.11 Removal of Lenders
	 	 	56	58	 
	 
	 	 	 	 	 
	SECTION 4.12 Limitation on Additional Amounts, etc.
	 	 	57	58	 
	 
	 	 	 	 	 
	SECTION 4.13 Defaulting Lenders
	 	 	57	59	 
	 
	 	 	 	 	 
	 
	 	 	 	 	 
	ARTICLE V CONDITIONS TO CREDIT EXTENSIONS
	 	 	59	61	 
	 
	 	 	 	 	 
	SECTION 5.1 Initial Credit Extension
	 	 	59	61	 
	 
	 	 	 	 	 
	SECTION 5.2 All Credit Extensions
	 	 	63	65	 
	 
	 	 	 	 	 






-i- 









 






	 	 	 	 	 	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	64	66	 
	 
	 	 	 	 	 
	SECTION 6.1 Organization, etc.
	 	 	64	66	 
	 
	 	 	 	 	 
	SECTION 6.2 Due Authorization, Non-Contravention, etc.
	 	 	64	66	 
	 
	 	 	 	 	 
	SECTION 6.3 Government Approval, Regulation, etc.
	 	 	65	66	 
	 
	 	 	 	 	 
	SECTION 6.4 Validity, etc.
	 	 	65	67	 
	 
	 	 	 	 	 
	SECTION 6.5 Financial Information
	 	 	65	67	 
	 
	 	 	 	 	 
	SECTION 6.6 No Material Adverse Change
	 	 	65	67	 
	 
	 	 	 	 	 
	SECTION 6.7 Litigation, Labor Controversies, etc.
	 	 	66	67	 
	 
	 	 	 	 	 
	SECTION 6.8 Subsidiaries
	 	 	66	68	 
	 
	 	 	 	 	 
	SECTION 6.9 Ownership of Properties
	 	 	66	68	 
	 
	 	 	 	 	 
	SECTION 6.10 Taxes
	 	 	66	68	 
	 
	 	 	 	 	 
	SECTION 6.11 Pension and Welfare Plans
	 	 	66	68	 
	 
	 	 	 	 	 
	SECTION 6.12 Environmental Warranties
	 	 	66	68	 
	 
	 	 	 	 	 
	SECTION 6.13 Accuracy of Information
	 	 	68	70	 
	 
	 	 	 	 	 
	SECTION 6.14 Regulations U and X
	 	 	68	70	 
	 
	 	 	 	 	 
	SECTION 6.15 Compliance with Contracts, Laws, etc.
	 	 	68	70	 
	 
	 	 	 	 	 
	SECTION 6.16 Solvency
	 	 	68	70	 
	 
	 	 	 	 	 
	 
	 	 	 	 	 
	ARTICLE VII COVENANTS
	 	 	69	70	 
	 
	 	 	 	 	 
	SECTION 7.1 Affirmative Covenants
	 	 	69	70	 
	 
	 	 	 	 	 
	SECTION 7.2 Negative Covenants
	 	 	75	77	 
	 
	 	 	 	 	 
	 
	 	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT
	 	 	89	92	 
	 
	 	 	 	 	 
	SECTION 8.1 Listing of Events of Default
	 	 	89	92	 
	 
	 	 	 	 	 
	SECTION 8.2 Action if Bankruptcy
	 	 	92	94	 
	 
	 	 	 	 	 
	SECTION 8.3 Action if Other Event of Default
	 	 	92	94	 
	 
	 	 	 	 	 
	 
	 	 	 	 	 
	ARTICLE IX THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT; THE LEAD ARRANGERS, THE
SYNDICATION AGENT AND THE DOCUMENTATION AGENT
	 	 	92	95	 
	 
	 	 	 	 	 
	SECTION 9.1 Actions
	 	 	92	95	 
	 
	 	 	 	 	 
	SECTION 9.2 Funding Reliance, etc.
	 	 	93	95	 
	 
	 	 	 	 	 
	SECTION 9.3 Exculpation
	 	 	93	96	 
	 
	 	 	 	 	 
	SECTION 9.4 Successor
	 	 	93	96	 
	 
	 	 	 	 	 
	SECTION 9.5 Loans by JPMorgan Chase Bank
	 	 	94	96	 
	 
	 	 	 	 	 
	SECTION 9.6 Credit Decisions
	 	 	94	97	 
	 
	 	 	 	 	 
	SECTION 9.7 Copies, etc.
	 	 	94	97	 
	 
	 	 	 	 	 
	SECTION 9.8 Reliance by Agents
	 	 	94	97	 
	 
	 	 	 	 	 
	SECTION 9.9 Defaults
	 	 	95	97	 
	 
	 	 	 	 	 
	SECTION 9.10 Lead Arrangers, Syndication Agents and Documentation Agents
	 	 	95	98	 
	 
	 	 	 	 	 
	SECTION 9.11 Posting of Approved Electronic Communications
	 	 	95	98	 
	 
	 	 	 	 	 
	 
	 	 	 	 	 
	ARTICLE X MISCELLANEOUS PROVISIONS
	 	 	97	99	 
	 
	 	 	 	 	 
	SECTION 10.1 Waivers, Amendments, etc.
	 	 	97	99	 
	 
	 	 	 	 	 
	SECTION 10.2 Notices; Time
	 	 	98	101	 
	 
	 	 	 	 	 
	SECTION 10.3 Payment of Costs and Expenses
	 	 	99	101	 
	 
	 	 	 	 	 
	SECTION 10.4 Indemnification
	 	 	100	102	 
	 
	 	 	 	 	 






-ii- 









 






	 	 	 	 	 	 
	SECTION 10.5 Survival
	 	 	101	104	 
	 
	 	 	 	 	 
	SECTION 10.6 Severability
	 	 	101	104	 
	 
	 	 	 	 	 
	SECTION 10.7 Headings
	 	 	101	104	 
	 
	 	 	 	 	 
	SECTION 10.8 Execution in Counterparts, Effectiveness, etc.
	 	 	101	104	 
	 
	 	 	 	 	 
	SECTION 10.9 Governing Law; Entire Agreement
	 	 	101	104	 
	 
	 	 	 	 	 
	SECTION 10.10 Successors and Assigns
	 	 	102	104	 
	 
	 	 	 	 	 
	SECTION 10.11 Sale and Transfer of Credit Extensions;
Participations in Credit Extensions;
Notes
	 	 	102	105	 
	 
	 	 	 	 	 
	SECTION 10.12 Other Transactions
	 	 	104	107	 
	 
	 	 	 	 	 
	SECTION 10.13 Forum Selection and Consent to Jurisdiction; Waivers
	 	 	105	107	 
	 
	 	 	 	 	 
	SECTION 10.14 Waiver of Jury Trial
	 	 	105	108	 
	 
	 	 	 	 	 
	SECTION 10.15 Patriot Act
	 	 	106	108	 
	 
	 	 	 	 	 
	SECTION 10.16 Judgment Currency
	 	 	106	108	 
	 
	 	 	 	 	 
	SECTION 10.17 No Fiduciary Duty
	 	 	106	109	 
	 
	 	 	 	 	 
	SECTION 10.18 Counsel Representation
	 	 	107	109	 
	 
	 	 	 	 	 
	SECTION 10.19 Confidentiality
	 	 	107	109	 
	 
	 	 	 	 	 
	SECTION 10.20 Resignation of Citi; Appointment of
JPMorgan as Successor Swing Line Lender
	 	 	107	110	 
	 
	 	 	 	 	 
	SECTION 10.21 Effect of Amendment and Restatement
	 	 	108	111	 
	 
	 	 	 	 	 
	SECTION 10.22 Consent of Required Lenders
	 	 	108	111	 
	 
	 	 	 	 	 






	 	 	 	 	 

	SCHEDULE I

	 	 
	 	-             Disclosure Schedule
	SCHEDULE II

	 	 
	 	-             Percentages; Notice Address
	SCHEDULE III

	 	 
	 	-             Existing Letters of Credit
	EXHIBIT A-1

	 	-
	 	Form of Revolving Note
	 
	 	 	 	 
	EXHIBIT A-2

	 	-
	 	Form of New Term Note
	EXHIBIT A-3

	 	-
	 	Form of Swing Line Note
	EXHIBIT B-1

	 	-
	 	Form of Borrowing Request
	EXHIBIT B-2

	 	-
	 	Form of Issuance Request
	EXHIBIT C

	 	-
	 	Form of Continuation/Conversion Notice
	EXHIBIT D

	 	-
	 	Form of Lender Assignment Agreement
	EXHIBIT E

	 	-
	 	Form of Compliance Certificate
	EXHIBIT F

	 	-
	 	Form of Guaranty
	EXHIBIT G

	 	-
	 	Form of Pledge and Security Agreement
	EXHIBIT H

	 	-
	 	Form of Closing Date Certificate
	EXHIBIT I

	 	-
	 	Form of Solvency Certificate











-iii- 









 








AMENDED AND RESTATED CREDIT AGREEMENT




     THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of September 5, 2006, as amended and
restated as of December 10, 2009, and as further amended by the First Amendment dated as of
February 17, 2011, is among HANESBRANDS INC., a Maryland corporation (the “Borrower”),
the various financial institutions and other Persons from time to time party to this Agreement (the
“Lenders”), BARCLAYS BANK PLC and GOLDMAN SACHS CREDIT PARTNERS L.P., as the
co-documentation agents (in such capacities, the “Co-Documentation Agents”), BANK OF
AMERICA, N.A. and HSBC SECURITIES (USA) INC., as the co-syndication agents (in such capacities, the
“Co-Syndication Agents”), JPMORGAN CHASE BANK, N.A., as the administrative agent and the
collateral agent (in such capacities, the “Administrative Agent” and “Collateral
Agent”, respectively), and J.P. MORGAN SECURITIES INC., BANC OF AMERICA SECURITIES LLC, HSBC
SECURITIES (USA) INC. and BARCLAYS CAPITAL, the investment banking division of BARCLAYS BANK PLC,
as the joint lead arrangers and joint bookrunners (in such capacities, the “Lead
Arrangers”).



     The parties hereto agree as follows:



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




               SECTION 1.1 Defined Terms. The following terms (whether or not underscored) when used
in this Agreement, including its preamble and recitals, shall, except where the context otherwise
requires, have the following meanings (such meanings to be equally applicable to the singular and
plural forms thereof):



     “2014 Senior Note Documents” means the 2014 Senior Notes, the 2014 Senior Note
Indenture and all other agreements, documents and instruments executed and delivered with respect
to the 2014 Senior Notes or the 2014 Senior Note Indenture, as the same may be refinanced,
amended, supplemented, amended and restated or otherwise modified from time to time in accordance
with this Agreement.



     “2014 Senior Note Indenture” means the Indenture, between the Borrower and the Person
acting as trustee thereunder (the “2014 Senior Notes Trustee”), pursuant to which the 2014
Senior Notes and any supplemental issuance of “senior notes” thereunder are issued, as the same may
be amended, supplemented, amended and restated or otherwise modified from time to time in
accordance with this Agreement.



     “2014 Senior Notes” means the $500,000,000 aggregate principal amount of
floating rate senior unsecured notes due December 15, 2014 issued by the Borrower.



     “2014 Senior Notes Trustee” is defined in the definition of “2014 Senior Note
Indenture”.



     “2016 Senior Note Documents” means the 2016 Senior Notes, the 2016 Senior Note
Indenture and all other agreements, documents and instruments executed and delivered with respect
to the 2016 Senior Notes or the 2016 Senior Note Indenture, as the same may be refinanced,
amended, supplemented, amended and restated or otherwise modified from time to time in accordance
with this Agreement.



 









 






     “2016 Senior Note Indenture” means the Indenture, between the Borrower and the Person
acting as trustee thereunder (the “2016 Senior Notes Trustee”), pursuant to which the 2016
Senior Notes and any supplemental issuance of “senior notes” thereunder are issued, as the same may
be amended, supplemented, amended and restated or otherwise modified from time to time in
accordance with this Agreement.



     “2016 Senior Notes” means the $500,000,000 aggregate principal amount of 8.00%
senior unsecured notes due December 15, 2016 issued by the Borrower.



     “2016 Senior Notes Trustee” is defined in the definition of “2016 Senior Note
Indenture”.



     “2020 Senior Note Documents” means the 2020 Senior Notes, the 2020 Senior Note Indenture
and all other agreements, documents and instruments executed and delivered with respect to the 2020
Senior Notes or the 2020 Senior Note Indenture, as the same may be refinanced, amended,
supplemented, amended and restated or otherwise modified from time to time in accordance with this
Agreement



     “2020 Senior Note Indenture” means the Indenture, dated as of August 1, 2008, among the
Borrower, the subsidiary guarantors party thereto and Branch Banking and Trust Company, as trustee,
as amended and supplemented by the Fourth Supplemental Indenture thereto, dated November 9, 2010,
among the Borrower, the subsidiary guarantors party thereto and Branch Banking and Trust Company,
pursuant to which the 2020 Senior Notes were issued, as the same may be amended, supplemented,
amended and restated or otherwise modified from time to time in accordance with this Agreement.



     “2020 Senior Notes” means the $1,000,000,000 aggregate principal amount of 6.375% senior
unsecured notes due December 15, 2020 issued by the Borrower.



     “Acquired Permitted Capital Expenditure Amount” is defined in clause (a) of
Section 7.2.7.



     “Administrative Agent” is defined in the preamble and includes each other
Person appointed as the successor Administrative Agent pursuant to Section 9.4.



     “Affected Lender” is defined in Section 4.11.



     “Affiliate” of any Person means any other Person which, directly or indirectly,
controls, is controlled by or is under common control with such Person. “Control” of a Person
means the power, directly or indirectly, (i) to vote 10% or more of the Capital Securities (on a
fully diluted basis) of such Person having ordinary voting power for the election of directors,
managing members or general partners (as applicable), or (ii) to direct or cause the direction of
the management and policies of such Person (whether by contract or otherwise).



     “Agents” means, as the context may require, the Administrative Agent and the
Collateral Agent and, for the purposes of Section 5.1 only, the Co-Syndication Agents and
the Co-Documentation Agents, collectively, or either of them individually.



2 









 





     “Agreement” means, on any date, this Amended and Restated Credit Agreement as
originally in effect on the Restatement Effective Date, as amended by the First Amendment
and as thereafter from time to time further amended, supplemented, amended and restated or
otherwise modified from time to time and in effect on such date.



     “Alternate Base Rate” means on any date and with respect to all Base Rate Loans, a
fluctuating rate of interest per annum equal to the highest of (i) the Base Rate in effect on such
day, and (ii) the Federal Funds Rate in effect on such day plus 1/2 of 1.0% and (iii) for a LIBO Rate
Loan, the LIBO Rate (Reserve Adjusted) with a one-month Interest Period commencing on such day (or
if such day is not a Business Day, the immediately preceding Business Day) plus 1.0%.
Changes in the rate of interest on that portion of any Loans maintained as Base Rate Loans will
take effect simultaneously with each change in the Alternate Base Rate. The Administrative Agent
will give notice promptly to the Borrower and the Lenders of changes in the Alternate Base Rate;
provided that, the failure to give such notice shall not affect the Alternate Base Rate in
effect after such change.



     “Applicable Commitment Fee Margin” means (i) with respect to the Extended
Revolving Loan Commitments, 0.50% and (ii) with respect to the Non-Extended Revolving Loan
Commitments, the applicable percentage set forth below corresponding to the relevant Leverage
Ratio:



	 	 	 
	Leverage Ratio
	 	Applicable Commitment

Fee Margin
	 
	 	 
	Greater than or equal to 3.75:1.00
	 	0.750%
	 
	Less than 3.75:1.00
	 	0.500%






          Notwithstanding anything to the contrary set forth in this Agreement (including the then
effective Leverage Ratio), the Applicable Commitment Fee Margin from the Restatement Effective Date
through (and including) the date of delivery of the financial statements for the second full Fiscal
Quarter ending after the Restatement Effective Date shall be 0.75%. The Leverage Ratio used to
compute the Applicable Commitment Fee Margin with respect to the Non-Extended Revolving Loan
Commitments shall be that set forth in the Compliance Certificate most recently delivered by
the Borrower to the Administrative Agent. Changes in the Applicable Commitment Fee Margin
resulting from a change in the Leverage Ratio shall become effective upon delivery by the Borrower
to the Administrative Agent of a new Compliance Certificate pursuant to clause (c) of
Section 7.1.1. If the Borrower fails to deliver a Compliance Certificate on or before the
date required pursuant to clause (c) of Section 7.1.1, the Applicable Commitment
Fee Margin from and including the day after such required date of delivery to but not including the
date the Borrower delivers to the Administrative Agent a Compliance Certificate shall equal the
highest Applicable Commitment Fee Margin set forth above.




          “Applicable Margin” means the applicable percentage set forth below
corresponding to the relevant Leverage Ratio:





3 









 








	 	 	 	 	 	 	 	 	 
	 	 	Applicable Margin for	 
	 	 	New Term Loans	 
	Leverage Ratio	 	LIBO Rate Loans	 	 	Base Rate Loans	 
	Greater than or
equal to 2.50:1.00
	 	 	3.25	%	 	 	2.25	%
	Less than 2.50:1:00
	 	 	3.00	%	 	 	2.00	%






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Applicable Margin for	 	 	Applicable Margin for
	 
	 	 	Revolving Loans (including	 	 	Revolving Loans (including
	 
	 	 	Swing Line Loans)
made
by	 	 	Swing Line Loans) made by
	 
	 	 	Extending Revolving Loan
	 	 	Non-Extending Revolving Loan
	 
	 	 	Lenders
	 	 	Lenders
	 
		 	LIBO Rate	 	 	Base Rate
	 	 	LIBO Rate
	 	 	Base Rate	 
	Leverage Ratio	 	Loans	 	 	Loans
	 	 	Loans
	 	 	Loans	 
	Greater than or
equal to 4.00:1.00
	 	 	4.753.50	%	 	 	2.50	%	 	 	4.75	%	 	 	3.75	%
	 
	 	 	 	 	 	 	 	 	 	 	 
	Less than 4.00:1.00
but greater than or
equal to 3.25:1.00
	 	 	4.503.25	%	 	 	2.25	%	 	 	4.50	%	 	 	3.50	%
	 
	 	 	 	 	 	 	 	 	 	 	 
	Less than 3.25:1.00
but greater than or
equal to 2.50:1.00
	 	 	4.253.00	%	 	 	2.00	%	 	 	4.25	%	 	 	3.25	%
	 
	 	 	 	 	 	 	 	 	 	 	 
	Less than 2.50:1.00
	 	 	4.002.75	%	 	 	1.75	%	 	 	4.00	%	 	 	3.00	%
	 
	 	 	 	 	 	 	 	 	 	 	 





Notwithstanding anything to the contrary set forth in this Agreement (including the then effective
Leverage Ratio), the Applicable Margin for (i) all New Term Loans from the Closing Date through
(and including) the date of delivery of the financial statements for the second full Fiscal Quarter
ending after Restatement Effective Date shall be (A) 3.25%, in the case of LIBO Rate Loans, and (B)
2.25%, in the case of Base Rate Loans and (ii) all Revolving Loans (including Swing Line Loans)
from the Restatement Effective Date through (and including) the date of delivery of the financial
statements for the second full Fiscal Quarter ending after Restatement Effective Date shall be (A)
4.50%, in the case of LIBO Rate Loans, and (B) 3.50%, in the case of Base Rate Loans. The Leverage
Ratio used to compute the Applicable Margin shall be the Leverage Ratio set forth in the Compliance
Certificate most recently delivered by the
Borrower to the Administrative Agent. Changes in the Applicable Margin resulting from a change in
the Leverage Ratio shall become effective upon delivery by the Borrower to the Administrative Agent
of a new Compliance Certificate pursuant to clause (c) of Section 7.1.1. If the
Borrower fails to deliver a Compliance Certificate on or before the date required pursuant to
clause (c) of Section 7.1.1, the Applicable Margin from and including the day after
such required date of delivery to but not including the date





4 











 




the Borrower delivers to the Administrative Agent a Compliance Certificate shall equal the
highest Applicable Margin set forth above.




     “Applicable Percentage” means, at any time of determination, with respect to a
mandatory prepayment in respect of Excess Cash Flow pursuant to clause (f) of Section
3.1.1, (A) 50.0%, if the Leverage Ratio set forth in the Compliance Certificate most recently
delivered by the Borrower to the Administrative Agent was greater than or equal to 3.50:1.00, (B)
25.0%, if the Leverage Ratio set forth in such Compliance Certificate was less than 3.50:1.00 but
greater than or equal to 3.00:1.00, and (C) 0%, if the Leverage Ratio set forth in such Compliance
Certificate was less than 3.00:1.00.



     “Approved Foreign Bank” is defined in the definition of “Cash Equivalent Investment”.



     “Approved Fund” means any Person (other than a natural Person) that (i) is engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course, and (ii) is administered or managed by a Lender, an Affiliate of a
Lender or a Person or an Affiliate of a Person that administers or manages a Lender.



     “Authorized Officer” means, relative to any Obligor, the chief executive officer,
president, chief financial officer, treasurer, assistant treasurer, secretary, assistant secretary
and those of its other officers, general partners or managing members (as applicable), in each case
whose signatures and incumbency shall have been certified to the Agents, the Lenders and the
Issuers pursuant to Section 5.1.1.



     “Available Retained Excess Cash Flow” means, on any date of determination thereof, an
amount equal to Retained Excess Cash Flow, minus the sum of (i) the amount of such Retained Excess
Cash Flow used to make any Investments pursuant to Section 7.2.5(l) and (p), (ii) the
amount of such Retained Excess Cash Flow used to make Restricted Payments pursuant to Section
7.2.6(e), (iii) the amount of such Retained Excess Cash Flow used to make Capital Expenditures
pursuant to Section 7.2.7 and (iv) the amount of such Retained Excess Cash Flow used to
make Permitted Acquisitions pursuant to the first proviso in Section 7.2.10(b).



     “Base Rate” means, at any time, the rate of interest publicly announced by JPMorgan
Chase Bank as its prime rate in effect at its principal office in New York City.



     “Base Rate Loan” means a Loan denominated in Dollars bearing interest at a fluctuating
rate determined by reference to the Alternate Base Rate.



     “Borrower” is defined in the preamble.



     “Borrowing” means the Loans of the same type and, in the case of LIBO Rate Loans,
having the same Interest Period made by all Lenders required to make such Loans on the same
Business Day and pursuant to the same Borrowing Request in accordance with Section 2.3.



     “Borrowing Request” means a Loan request and certificate duly executed by an
Authorized Officer of the Borrower substantially in the form of Exhibit B-1 hereto.



5









 





     “Business Day” means (i) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New York, New York, (ii) relative
to the making, continuing, prepaying or repaying of any LIBO Rate Loans, any day which is a
Business Day described in clause (i) above and on which dealings in Dollars are carried on
in the London interbank eurodollar market and (iii) for purposes of Section 2.1.2 any day
which is neither a Saturday or Sunday nor a legal holiday where the relevant Issuer is located
(and, if such Issuer is located in Hong Kong, excluding any day upon which a Typhoon Number 8
signal or black rainstorm warning is hoisted before 12:00 noon (Hong Kong time)).



     “CapEx Pull Forward Amount” is defined in clause (b) of Section 7.2.7.



     “Capital Expenditures” means, for any period, the aggregate amount of (i) all
expenditures of the Borrower and its Subsidiaries for fixed or capital assets made during such
period which, in accordance with GAAP, would be classified as capital expenditures and (ii)
Capitalized Lease Liabilities incurred by the Borrower and its Subsidiaries during such period;
provided that Capital Expenditures shall not include any such expenditures which constitute
any of the following, without duplication: (a) a Permitted Acquisition, (b) to the extent permitted
by this Agreement, capital expenditures consisting of Net Disposition Proceeds or Net Casualty
Proceeds not otherwise required to be used to repay the Loans and (c) imputed interest capitalized
during such period incurred in connection with Capitalized Lease Liabilities not paid or payable in
cash. For the avoidance of doubt (x) to the extent that any item is classified under clause
(i) of this definition and later classified under clause (ii) of this definition or
could be classified under either clause, it will only be required to be counted once for purposes
hereunder and (y) in the event the Borrower or any Subsidiary owns an asset that was not used and
is now being reused, no portion of the unused asset shall be considered Capital Expenditures
hereunder; provided that any expenditure necessary in order to permit such asset to be
reused shall be included as a Capital Expenditure during the period that such expenditure actually
is made.



     “Capital Securities” means, with respect to any Person, all shares, interests,
participations or other equivalents (however designated, whether voting or non-voting) of such
Person’s capital, whether now outstanding or issued after the Restatement Effective Date;
provided however, any shares, interests, participations or other equivalents
required to be issued in connection with convertible debt shall not be considered “Capital
Securities” until issued.



     “Capitalized Lease Liabilities” means, with respect to any Person, all monetary
obligations of such Person and its Subsidiaries under any leasing or similar arrangement which, in
accordance with GAAP, should be classified as capitalized leases, and for purposes of each Loan
Document the amount of such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP, and the stated maturity thereof shall be the date of the last payment of rent
or any other amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a premium or a penalty; provided,
however, any changes to the treatment or reclassification of operating leases under GAAP or
the interpretation of GAAP that would cause operating leases to be considered capitalized leases
under GAAP shall be ignored as if such treatment or reclassification had never occurred and, for
the avoidance of doubt, operating leases shall not be considered Capitalized Lease Liabilities
hereunder.



6









 





     “Cash Collateralize” means, with respect to (i) a Letter of Credit, the deposit of
immediately available funds into a cash collateral account maintained with (or on behalf of) the
Administrative Agent on terms reasonably satisfactory to the Administrative Agent in an amount
equal to the Stated Amount of such Letter of Credit and (ii) OA Payment Obligations, the deposit of
immediately available funds into a cash collateral account maintained with (or on behalf of) the
applicable Open Account Discount Purchaser in an amount equal to the aggregate Dollar amount of
such OA Payment Obligations.



     “Cash Equivalent Investment” means, at any time:




     (a) any direct obligation of (or unconditionally guaranteed by) the United States or a
State thereof (or any agency or political subdivision thereof, to the extent such
obligations are supported by the full faith and credit of the United States or a State
thereof) maturing not more than one year after such time;




     (b) commercial paper maturing not more than 270 days from the date of issue, which is
issued by (i) a corporation (other than an Affiliate of any Obligor) organized under the
laws of any State of the United States or of the District of Columbia and rated A-1 or
higher by S&P or P-1 or higher by Moody’s, or (ii) any Lender (or its holding company);




     (c) any certificate of deposit, time deposit or bankers acceptance, maturing not more
than one year after its date of issuance, which is issued by either (i) any bank organized
under the laws of the United States (or any State thereof) and which has (A) a credit rating
of A2 or higher from Moody’s or A or higher from S&P and (B) a combined capital and surplus
greater than $500,000,000, or (ii) any Lender;




     (d) any repurchase agreement having a term of 30 days or less entered into with any
Lender or any commercial banking institution satisfying the criteria set forth in clause
(c)(i) which (i) is secured by a fully perfected security interest in any obligation of
the type described in clause (a), and (ii) has a market value at the time such
repurchase agreement is entered into of not less than 100% of the repurchase obligation of
such commercial banking institution thereunder;




     (e) with respect to any Foreign Subsidiary, non-Dollar denominated (i) certificates of
deposit of, bankers acceptances of, or time deposits with, any commercial bank which is
organized and existing under the laws of the country in which such Person maintains its
chief executive office or principal place of business or is organized provided such country
is a member of the Organization for Economic Cooperation and Development, and which has a
short-term commercial paper rating from S&P of at least “A-1” or the equivalent thereof or
from Moody’s of at least “P-1” or the equivalent thereof (any such bank being an
“Approved Foreign Bank”) and maturing within one year of the date of acquisition and
(ii) equivalents of demand deposit accounts which are maintained with an Approved Foreign
Bank; and




     (f) readily marketable obligations issued or directly and fully guaranteed or insured
by the government or any agency or instrumentality of any member nation of the
European Union whose legal tender is the Euro and which are denominated in Euros or any



7









 






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 Foreign Subsidiary organized in such jurisdiction, having (i) one of the
three highest ratings from either Moody’s or S&P and (ii) maturities of not more than one
year from the date of acquisition thereof; provided that the full faith and credit
of any such member nation of the European Union is pledged in support thereof.



    “Cash Management Obligations” means, with respect to the Borrower or any of its
Subsidiaries, any direct or indirect liability, contingent or otherwise, of such Person in respect
of cash management services (including treasury, depository, overdraft (daylight and temporary),
credit or debit card, electronic funds transfer and other cash management arrangements) provided
after the Restatement Effective Date by a Person who is (or was at the time such Cash Management
Obligations were incurred) the Administrative Agent, any Lender or any Affiliate thereof, including
obligations for the payment of fees, interest, charges, expenses, attorneys’ fees and disbursements
in connection therewith to the extent provided for in the documents evidencing such cash management
services.



    “Cash Restructuring Charges” is defined in the definition of “EBITDA.”



    “Casualty Event” means the damage, destruction or condemnation, as the case may be, of
property of any Person or any of its Subsidiaries.



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



    “CERCLIS” means the Comprehensive Environmental Response Compensation Liability
Information System List.



    “Change in Control” means




     (a) any person or group (within the meaning of Sections 13(d) and 14(d) under the
Exchange Act) shall become the ultimate “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of Capital Securities representing
more than 35% of the Capital Securities of the Borrower on a fully diluted basis;




     (b) during any period of 24 consecutive months, individuals who at the beginning of
such period constituted the Board of Directors of the Borrower (together with any new
directors whose election to such Board or whose nomination for election by the stockholders
of the Borrower was approved by a vote of a majority of the directors then still in office
who were either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a majority of
the Board of Directors of the Borrower then in office; or



     (c) the occurrence of any “Change of Control” (or similar term) under (and as defined
in) any 2014 Senior Note Document
or, 2016 Senior Note Document or 2020
Senior Note Document.



8









 





    “Citi” means, as the context may require, Citicorp USA, Inc. and Citibank, N.A.,
collectively, or either of them, individually.



    “Closing Date Certificate” means the closing date certificate executed and delivered
by an Authorized Officer of the Borrower substantially in the form of Exhibit H hereto.



    “Code” means the Internal Revenue Code of 1986, and the regulations thereunder, in
each case as amended, reformed or otherwise modified from time to time.



    “Co-Documentation Agents” is defined in the preamble.



    “Collateral Agent” is defined in the preamble and includes each other Person
appointed as successor Collateral Agent pursuant to Section 9.4.



    “Commercial Letter of Credit” means any Letter of Credit issued for the purpose of
providing the primary payment mechanism in connection with the purchase of any materials, goods or
services by the Borrower or any Subsidiary in the ordinary course of business of the Borrower or
such Subsidiary.



    “Commitment” means, as the context may require, the New Term Loan Commitment, the
Revolving Loan Commitment, the Letter of Credit Commitment or the Swing Line Loan Commitment.



    “Commitment Amount” means, as the context may require, the New Term Loan Commitment
Amount, the Revolving Loan Commitment Amount, the Letter of Credit Commitment Amount or the Swing
Line Loan Commitment Amount.



    “Commitment Termination Date” means, as the context may require, the New Term Loan
Commitment Termination Date or the Revolving Loan Commitment Termination Date.



    “Commitment Termination Event” means




     (a) the occurrence of any Event of Default with respect to the Borrower described in
clauses (a) through (d) of Section 8.1.9; or




     (b) the occurrence and continuance of any other Event of Default and either (i) the
declaration of all or any portion of the Loans to be due and payable pursuant to Section
8.3, or (ii) the giving of notice by the Administrative Agent, acting at the direction
of the Required Lenders, to the Borrower that the Commitments have been terminated.



    “Communications” is defined in clause (a) of Section 9.11.



    “Compliance Certificate” means a certificate duly completed and executed by an
Authorized Officer of the Borrower, substantially in the form of Exhibit E hereto.



    “Contingent Liability” means any agreement, undertaking or arrangement by which any
Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or



9









 




otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the Indebtedness
of any other Person (other than by endorsements of instruments in the course of collection), or
guarantees the payment of dividends or other distributions upon the Capital Securities of any other
Person. The amount of any Person’s obligation under any Contingent Liability shall (subject to any
limitation with respect thereto) be deemed to be the outstanding principal amount of the debt,
obligation or other liability guaranteed thereby.




    “Continuation/Conversion Notice” means a notice of continuation or conversion and
certificate duly executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit C hereto.



    “Controlled Group” means all members of a controlled group of corporations and all
members of a controlled group of trades or businesses (whether or not incorporated) under common
control which, together with the Borrower, are treated as a single employer under Section 414(b) or
414(c) of the Code or Section 4001 of ERISA.



    “Copyright Security Agreement” means any Copyright Security Agreement executed and
delivered by any Obligor in substantially the form of Exhibit C to the Security Agreement, as
amended, supplemented, amended and restated or otherwise modified from time to time.



    “Co-Syndication Agents” is defined in the preamble.



    “Credit Extension” means, as the context may require,




     (a) the making of a Loan by a Lender; or




     (b) the issuance of any Letter of Credit, any amendment to or modification of any
Letter of Credit that increases the face amount thereof, or the extension of any Stated
Expiry Date of any existing Letter of Credit, by an Issuer.



    “Default” means any Event of Default or any condition, occurrence or event which,
after notice or lapse of time relating to any cure period or both, would constitute an Event of
Default.



    “Defaulting Lender” means any Lender that has (a) failed to fund any portion of its
Loans or participations in Letters of Credit or Swing Line Loans within three Business Days of the
date required to be funded by it hereunder, (b) notified the Borrower, the Administrative Agent,
the Issuers, the Swing Line Lender or any Lender in writing that it does not intend to comply with
any of its funding obligations under this Agreement or has made a public statement to the effect
that it does not intend to comply with its funding obligations under this Agreement or under other
agreements in which it commits to extend credit, (c) failed, within three Business Days after
written request by the Administrative Agent, to confirm that it will comply with the terms of this
Agreement relating to its obligations to fund prospective Loans and participations in
then outstanding Letters of Credit and Swing Line Loans, (d) otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount (other than any other amount that is de
minimis) required to be paid by it hereunder within three Business Days of the date when due,
unless the subject of a good faith dispute, or (e) (i) become or is insolvent or has a parent
company that has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken



10









 




any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such
proceeding or appointment or has a parent company that has become the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it,
or has taken any action in furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment; provided that a Lender shall not be a
Defaulting Lender solely by virtue of the ownership or acquisition by a Governmental Authority or
an instrumentality thereof of any equity interest in such Lender or a parent company thereof.




    “Disbursement” is defined in Section 2.6.2.



    “Disbursement Date” is defined in Section 2.6.2.



    “Disclosure Schedule” means the Disclosure Schedule attached hereto as Schedule
I, as it may be amended, supplemented, amended and restated or otherwise modified from time to
time by the Borrower with the written consent of, in the case of non-material modification, the
Administrative Agent and, in the case of material modifications the Required Lenders.



    “Disposition” (or similar words such as “Dispose”) means any sale, transfer,
lease (as lessor), contribution or other conveyance (including by way of merger) of, or the
granting of options, warrants or other rights to, any of the Borrower’s or its Subsidiaries’ assets
(including accounts receivable and Capital Securities of Subsidiaries) to any other Person in a
single transaction or series of transactions other than (i) to another Obligor, (ii) by a Foreign
Subsidiary to any other Foreign Subsidiary, (iii) by a Receivables Subsidiary to any other Person
or (iv) customary derivatives issued in connection with the issuance of convertible debt.



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



    “EBITDA” means, for any applicable period, the sum of




     (a) Net Income, plus




     (b) to the extent deducted in determining Net Income, the sum of (i) amounts
attributable to amortization (including amortization of goodwill and other intangible
assets), (ii) Federal, state, local and foreign income withholding, franchise, state single
business unitary and similar Tax expense, (iii) Interest Expense, (iv) depreciation of
assets, (v) all non-cash charges, including all non-cash charges associated with announced
restructurings, whether announced previously or in the future (such non-cash restructuring
charges being “Non-Cash Restructuring Charges”), (vi) net cash charges associated
with or related to any contemplated restructurings (such cost restructuring charges being
“Cash Restructuring Charges”) in an aggregate amount not to exceed $120,000,000
since September 5, 2006, (vii) all amounts in respect of extraordinary losses, (viii)
non-cash compensation expense, or other non-cash expenses or charges,arising from the sale of stock, the granting of stock options, the granting of stock
appreciation rights and similar arrangements (including any repricing, amendment,
modification, substitution or change of any such stock, stock option, stock appreciation
rights or similar arrangements), (ix) any financial advisory fees, accounting fees, legal
fees and other similar advisory and consulting fees, cash charges in respect of strategic
market reviews, management bonuses and early retirement of Indebtedness, and related
out-of-pocket expenses incurred by the



11









 






Borrower or any of its Subsidiaries as a result of the Transaction, including fees and expenses in connection with the issuance, redemption or
exchange of the 2016 Senior Notes, all determined in accordance with GAAP, (x) non-cash or
unrealized losses on agreements with respect to Hedging Obligations and (xi) to the extent
non-recurring and not capitalized, any financial advisory fees, accounting fees, legal fees
and similar advisory and consulting fees and related costs and expenses of the Borrower and
its Subsidiaries incurred as a result of Permitted Acquisitions, Investments, Restricted
Payments, Dispositions permitted hereunder and the issuance of Capital Securities or
Indebtedness permitted hereunder, all determined in accordance with GAAP and in each case
eliminating any increase or decrease in income resulting from non-cash accounting
adjustments made in connection with the related Permitted Acquisition or Dispositions, (xii)
losses on agreements with respect to Hedging Obligations and any related tax losses and any
costs, fees, and expenses related to the termination thereof, in each case incurred in
connection with or as a result of the Transaction, (xiii) to the extent the related loss is
not added back pursuant to clause (c), all proceeds of business interruption
insurance policies, (xiv) expenses incurred by the Borrower or any Subsidiary to the extent
reimbursed in cash by a third party, and (xv) extraordinary, unusual or non-recurring cash
charges not to exceed $10,000,000 in any Fiscal Year, minus




     (c) to the extent included in determining such Net Income, the sum of (i) all amounts
in respect of extraordinary gains, (ii) non-cash gains on agreements with respect to Hedging
Obligations, (iii) reversals (in whole or in part) of any restructuring charges previously
treated as Non-Cash Restructuring Charges in any prior period, (iv) gains on agreements with
respect to Hedging Obligations and any related tax gains, in each case incurred in
connection with or as a result of the Transaction and (v) non-cash items increasing such Net
Income for such period, other than (A) the accrual of revenue consistent with past practice
and (B) the reversal in such period of an accrual of, or cash reserve for, cash expenses in
a prior period, to the extent such accrual or reserve did not increase EBITDA in a prior
period.



    “Eligible Assignee” means (i) in the case of an assignment of a New Term Loan, (A) a
Lender, (B) an Affiliate of a Lender, (C) an Approved Fund or (D) any other Person (other than an
Ineligible Assignee), and (ii) in the case of any assignment of the Revolving Loan Commitment or
Revolving Loans, (A) a Lender, (B) an Affiliate of a Lender or (C) any other Person (other than an
Ineligible Assignee) approved by the Borrower (such approval of the Borrower not to be unreasonably
withheld or delayed) unless an Event of Default has occurred and is continuing.



   “EMU” means Economic and Monetary Union as contemplated in the Treaty on European
Union.



    “EMU Legislation” means legislative measures of the European Council (including
European Council regulations) for the introduction of, changeover to or operation of a single or
unified European currency (whether known as the Euro or otherwise), being in part the
implementation of the third stage of EMU.



    “Environmental Laws” means all applicable federal, state or local statutes, laws,
ordinances, codes, rules, regulations and legally binding guidelines (including consent decrees and



12









 




administrative orders) relating to protection of public health and safety from environmental
hazards and protection of the environment.




    “Equity Equivalents” means with respect to any Person any rights, warrants, options,
convertible securities, exchangeable securities, indebtedness or other rights, in each case
exercisable for or convertible or exchangeable into, directly or indirectly, Capital Securities of
such Person or securities exercisable for or convertible or exchangeable into Capital Securities of
such Person, whether at the time of issuance or upon the passage of time or the occurrence of some
future event.



    “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto of similar import, together with the regulations thereunder, in each case
as in effect from time to time. References to Sections of ERISA also refer to any successor
Sections thereto.



    “Euros” means the single currency of Participating Member States of the European
Union.



   “Event of Default” is defined in Section 8.1.



    “Excess Cash Flow” means, for any Fiscal Year, the excess (if any), of




     (a) EBITDA for such Fiscal Year



     minus




     (b) the sum (for such Fiscal Year) of (i) Interest Expense actually paid in cash by the
Borrower and its Subsidiaries, (ii) scheduled principal repayments with respect to the
permanent reduction of Indebtedness, to the extent actually made, (iii) all Federal, state,
local and foreign income withholding, franchise, state single business unitary and similar
Taxes actually paid in cash or payable (only to the extent related to Taxes associated with
such Fiscal Year) by the Borrower and its Subsidiaries, (iv) Capital Expenditures to the
extent (x) actually made by the Borrower and its Subsidiaries in such Fiscal Year or (y)
committed to be made by the Borrower and its Subsidiaries and that are permitted to be
carried forward to the next succeeding Fiscal Year pursuant to Section 7.2.7;
provided that the amounts deducted from Excess Cash Flow pursuant to preceding
clause (y) shall not thereafter be deducted in the determination of Excess Cash Flow
for the Fiscal Year during which such payments were actually made, (v) the portion of the
purchase price paid in cash with respect to Permitted Acquisitions to the extent such
Permitted Acquisition was made in connection with the Borrower’s offshore migration of its
supply chain, (vi) to the extent permitted to be included in the calculation of EBITDA
for such Fiscal Year, the amount of Cash Restructuring Charges actually so included in
such calculation and (vii) without duplication to any amounts deducted in preceding
clauses (i) through (vi), all items added back to EBITDA pursuant to clause
(b) of the definition thereof that represent amounts actually paid in cash.



    “Excluded Properties” means the “Commerce” property, “Canterbury” property and
“Northridge” property (each as identified under the “Facility Name” column of the table set forth
in Item 6.9(b) of the Disclosure Schedule).



13









 





    “Exemption Certificate” is defined in clause (e) of Section 4.6.



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



    “Existing Letters of Credit” means each of the Letters of Credit issued by an Issuer
and outstanding on the Restatement Effective Date, as listed on Schedule III hereto.



    “Extended Revolving Loan Commitment” means, with respect to any Extending Revolving Loan
Lender at any time, such Lender’s Revolving Loan Commitment extended pursuant to the First
Amendment.



    “Extended Termination Date” means December 10, 2015.



    “Extending Revolving Loan Lender” means any Revolving Loan Lender which has agreed to
extend its Revolving Loan Commitment pursuant to the First Amendment.



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



    “Filing Agent” is defined in Section 5.1.11.



    “Filing Statements” is defined in Section 5.1.11.



    “First Amendment” means the First Amendment to this Agreement dated as of the First
Amendment Effective Date.



    “First Amendment Effective Date” means February 17, 2011.



    “First Joinder Agreement” means the Joinder Agreement dated as of September 1, 2010
pursuant to which the Revolving Loan Commitment Amount was increased from $400,000,000 to
$600,000,000.



    “Fiscal Quarter” means a quarter ending on the Saturday nearest to the last day of
March, June, September or December.



    “Fiscal Year” means any period of fifty-two or fifty-three consecutive calendar weeks
ending on the Saturday nearest to December 31; references to a Fiscal Year with a number
corresponding to any calendar year (e.g., the “2009 Fiscal Year”) refer to the Fiscal Year
ending on the Saturday nearest to December 31 of such calendar year.



    “Foreign Pledge Agreement” means any supplemental pledge agreement governed by the
laws of a jurisdiction other than the United States or a State thereof executed and delivered by
the Borrower or any of its Subsidiaries pursuant to the terms of this Agreement, in form and
substance



14









 




reasonably satisfactory to the Lead Arrangers, as necessary under the laws of
organization or incorporation of a Foreign Subsidiary to further protect or perfect the Lien on and
security interest in any Capital Securities issued by such Foreign Subsidiary constituting
Collateral (as defined in the Security Agreement), including any Foreign Pledge Agreement as
amended in accordance with Section 7.1.11.




    “Foreign Subsidiary” means any Subsidiary that is not a U.S. Subsidiary or a
Receivables Subsidiary.



    “Foreign Working Capital Lender” means each Person that is (or at the time such
Indebtedness was incurred, was) a Lender or an Affiliate of a Lender to whom a Foreign Subsidiary
owes Indebtedness that was permitted to be incurred pursuant to clause (n) of Section
7.2.2.



    “F.R.S. Board” means the Board of Governors of the Federal Reserve System or any
successor thereto.



    “GAAP” is defined in Section 1.4.



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



    “Guaranty” means the amended and restated guaranty executed and delivered by an
Authorized Officer of the Borrower and each U.S. Subsidiary pursuant to the terms of this
Agreement, substantially in the form of Exhibit F hereto, as amended, supplemented, amended
and restated or otherwise modified from time to time.



    “Hazardous Material” means (i) any “hazardous substance”, as defined by CERCLA, (ii)
any “hazardous waste”, as defined by the Resource Conservation and Recovery Act, as amended, or
(iii) any pollutant or contaminant or hazardous, dangerous or toxic chemical, material or substance
(including any petroleum product) within the meaning of any other Environmental Laws.



    “Hedging Obligations” means, with respect to any Person, all liabilities of such
Person under foreign exchange contracts, commodity hedging agreements, currency exchange
agreements, interest rate swap agreements, interest rate cap agreements and interest rate collar
agreements, and all other agreements or arrangements designed to protect such Person against
fluctuations in interest rates, currency exchange rates or commodity prices.



    “herein”, “hereof”, “hereto”, “hereunder” and similar terms
contained in any Loan Document refer to such Loan Document as a whole and not to any particular
Section, paragraph or provision of such Loan Document.



    “HSBC” means HSBC Bank USA, National Association, in its individual capacity, and any
successor thereto by merger, consolidation or otherwise.



15









 





    “Impermissible Qualification” means any qualification or exception to the opinion or
certification of any independent public accountant as to any financial statement of the Borrower
(i) which is of a “going concern” or similar nature, (ii) which relates to the limited scope in any
material respect of examination of matters relevant to such financial statement, or (iii) which
relates to the treatment or classification of any item in such financial statement (excluding
treatment or classification changes which are the result of changes in GAAP or the interpretation
of GAAP) and which, as a condition to its removal, would require an adjustment to such item the
effect of which would be to cause the Borrower to be in Default.



    “including” and “include” means including without limiting the generality of
any description preceding such term, and, for purposes of each Loan Document, the parties hereto
agree that the rule of ejusdem generis shall not be applicable to limit a general statement, which
is followed by or referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.



    “Increased Amount Date” is defined in Section 2.9.



    “Incremental Loan CommitmentCredit Increase” is defined in Section
2.9.



    “Incremental Lender” means any Incremental Revolving Lender or Incremental Term Loan
Lender.



    “Incremental Revolving Commitments” is defined in Section 2.9.



    “Incremental Revolving Lender” is defined in Section 2.9.



    “Incremental Revolving Loan” is defined in Section 2.9.



    “Incremental Term Loan Lender” is defined in Section 2.9.



    “Incremental Term Loan” is defined in Section 2.9.



    “Incremental Term Loan Commitment” is defined in Section 2.9.



    “Indebtedness” of any Person means, (i) all obligations of such Person for borrowed
money or advances and all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (ii) all monetary obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker’s acceptances issued for the
account of such Person, (iii) all Capitalized Lease Liabilities of such Person, (iv) for purposes
of Section 8.1.5 only, net Hedging Obligations of such Person, (v) whether or not so
included as liabilities in accordance with GAAP, all obligations of such Person to pay the deferred
purchase price of property or services (excluding trade accounts payable and accrued expenses in
the ordinary course of business which are not overdue for a period of more than 90 days or, if
overdue for more than 90 days, as to which a dispute exists and adequate reserves in conformity
with GAAP have been established on the books of such Person), (vi) indebtedness secured by (or for
which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured
by) a Lien on property owned or being acquired by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such indebtedness shall




16











 




have been assumed by such Person or is limited in recourse (provided that in the event
such indebtedness is limited in recourse solely to the property subject to such Lien, for the
purposes of this Agreement the amount of such indebtedness shall not exceed the greater of the book
value or the fair market value (as determined in good faith by the Borrower’s board of directors)
of the property subject to such Lien), (vii) monetary obligations arising under Synthetic Leases,
(viii) the full outstanding balance of trade receivables, notes or other instruments sold with full
recourse (and the portion thereof subject to potential recourse, if sold with limited recourse),
other than in any such case any thereof sold solely for purposes of collection of delinquent
accounts and other than in connection with any Permitted Securitization or any Permitted Factoring
Facility, (ix) all obligations (other than intercompany obligations) of such Person pursuant to any
Permitted Securitization (other than Standard Securitization Undertakings) or any Permitted
Factoring Facility, and (x) all Contingent Liabilities of such Person in respect of any of the
foregoing. The Indebtedness of any Person shall include the Indebtedness of any other Person
(including any partnership in which such Person is a general partner) to the extent such Person is
liable therefore as a result of such Person’s ownership interest in or other relationship with such
Person, except to the extent the terms of such Indebtedness provide that such Person is not liable
thereforetherefor.




     “Indemnified Liabilities” is defined in Section 10.4.



     “Indemnified Parties” is defined in Section 10.4.



     “Ineligible Assignee” means a natural Person, the Borrower, any Affiliate of the
Borrower or any other Person taking direction from, or working in concert with, the Borrower or any
of the Borrower’s Affiliates.



     “Information” is defined in Section 10.19.



     “Interest Coverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio
computed for the period consisting of such Fiscal Quarter and each of the three immediately
preceding Fiscal Quarters of:




     (a) EBITDA (for all such Fiscal Quarters)



     to




     (b) the sum (for all such Fiscal Quarters) of Interest Expense.



     “Interest Expense” means, for any applicable period, the aggregate interest expense
(both, without duplication, when accrued or paid and net of interest income paid during such period
to the Borrower and its Subsidiaries) of the Borrower and its Subsidiaries for such applicable
period, including the portion of any payments made in respect of Capitalized Lease Liabilities
allocable to interest expense; provided that the term “Interest Expense” shall not include
any interest expense attributable to a Permitted Factoring Facility.



     “Interest Period” means, relative to any LIBO Rate Loan, the period beginning on (and
including) the date on which such LIBO Rate Loan is made or continued as, or converted into, a LIBO
Rate Loan pursuant to Sections 2.3 or 2.4 and shall end on (but exclude) the day
which numerically corresponds to such date one, two, three or six months and, if agreed by all
affected



17









 




Lenders, one or two weeks or 9 or 12 months thereafter (or, if any such month has no
numerically corresponding day, on the last Business Day of such month), as the Borrower may select
in its relevant notice pursuant to Sections 2.3 or 2.4; provided that,





     (a) the Borrower shall not be permitted to select Interest Periods to be in effect at
any one time which have expiration dates occurring on more than twelve different dates; and




     (b) if such Interest Period would otherwise end on a day which is not a Business Day,
such Interest Period shall end on the next following Business Day (unless such next
following Business Day is the first Business Day of a calendar month, in which case such
Interest Period shall end on the Business Day next preceding such numerically corresponding
day).



     “Investment” means, relative to any Person, (i) any loan, advance or extension of
credit made by such Person to any other Person, including the purchase by such Person of any bonds,
notes, debentures or other debt securities of any other Person, and (ii) any Capital Securities
held by such Person in any other Person. The amount of any Investment shall be the original
principal or capital amount thereof less all returns of principal or equity thereon and shall, if
made by the transfer or exchange of property other than cash, be deemed to have been made in an
original principal or capital amount equal to the fair market value of such property at the time of
such Investment.



     “ISP Rules” is defined in Section 10.9.



     “Issuance Request” means a Letter of Credit request and certificate duly executed by
an Authorized Officer of the Borrower, substantially in the form of Exhibit B-2 hereto, or
in such electronic format as an Issuer and the Administrative Agent in their discretion accept.
Each Issuance Request delivered in an electronic format shall constitute for all purposes of this
Agreement a certification by an Authorized Officer as to the matters set forth in Exhibit
B-2.



     “Issuer” means HSBC or another Lender selected by the Borrower and reasonably
acceptable to the Administrative Agent, in each case, in its capacity as an Issuer of the Letters
of Credit. At the request of HSBC and with the Borrower’s consent (not to be unreasonably withheld
or delayed), another Lender or an Affiliate of HSBC may issue one or more Letters of Credit
hereunder, in which case the term “Issuer” shall include any such Affiliate or other Lender with
respect to Letters of Credit issued by such Affiliate or such Lender.



     “Joinder Agreement” is defined in Section 2.9.



     “Judgment Currency” is defined in Section 10.16.



     “JPMorgan” means JPMorgan Chase Bank, N.A.



     “Lead Arrangers” is defined in the preamble.



     “Lender Assignment Agreement” means an assignment agreement substantially in the form
of Exhibit D hereto.



18









 





     “Lenders” is defined in the preamble.



     “Lender’s Environmental Liability” means any and all losses, liabilities, obligations,
penalties, claims, litigation, demands, defenses, costs, judgments, suits, proceedings, damages
(including consequential damages), disbursements or expenses of any kind or nature whatsoever
(including reasonable attorneys’ fees at trial and appellate levels and experts’ fees and
disbursements and expenses incurred in investigating, defending against or prosecuting any
litigation, claim or proceeding) which may at any time be imposed upon, incurred by or asserted or
awarded against the Administrative Agent, any Lender or any Issuer or any of such Person’s
Affiliates, shareholders, directors, officers, employees, and agents in connection with or arising
from:




     (a) any Hazardous Material on, in, under or affecting all or any portion of any
property of the Borrower or any of its Subsidiaries, the groundwater thereunder, or any
surrounding areas thereof to the extent caused by Releases from the Borrower’s or any of its
Subsidiaries’ or any of their respective predecessors’ properties;




     (b) any misrepresentation, inaccuracy or breach of any warranty, contained or referred
to in Section 6.12;




     (c) any violation or claim of violation by the Borrower or any of its Subsidiaries of
any Environmental Laws; or




     (d) the imposition of any lien for damages caused by or the recovery of any costs for
the cleanup, release or threatened release of Hazardous Material by the Borrower or any of
its Subsidiaries, or in connection with any property owned or formerly owned by the Borrower
or any of its Subsidiaries.



     “Letter of Credit” means a letter of credit that is a Standby Letter of Credit or
Commercial Letter of Credit. For greater certainty Letters of Credit shall include all Existing
Letters of Credit.



     “Letter of Credit Commitment” means an Issuer’s obligation to issue Letters of Credit
pursuant to Section 2.1.2.



     “Letter of Credit Commitment Amount” means, on any date, a maximum amount equal to
$150,000,000, as such amount may be permanently reduced from time to time pursuant to Section
2.2.



     “Letter of Credit Outstandings” means, on any date, an amount equal to the sum of (i)
the then aggregate amount which is undrawn and available under all issued and outstanding Letters
of Credit, and (ii) the then aggregate amount of all unpaid and outstanding Reimbursement
Obligations.



     “Leverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio of




     (a) Total Debt outstanding on the last day of such Fiscal Quarter



     to



19









 






     (b) EBITDA computed for the period consisting of such Fiscal Quarter and each of the
three immediately preceding Fiscal Quarters.



     “LIBO Rate” means, relative to any Interest Period pertaining to a LIBO Rate Loan, the
rate per annum determined on the basis of the rate for deposits in Dollars for a period equal to
such Interest Period commencing on the first day of such Interest Period appearing on the Reuters
Screen LIBOR01 Page as of 11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on such page (or otherwise on such
screen), the “LIBO Rate” shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be selected by the Administrative Agent
or, in the absence of such availability, by reference to the rate at which the Administrative Agent
is offered Dollar deposits at or about 11:00 A.M., New York City time, two Business Days prior to
the beginning of such Interest Period in the interbank eurodollar market where its eurodollar and
foreign currency and exchange operations are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein. Notwithstanding the foregoing, with
respect to any New Term Loan, the LIBO Rate shall not be less than 2.00% per annum.



     “LIBO Rate Loan” means a Loan bearing interest, at all times during an Interest Period
applicable to such Loan, at a rate of interest determined by reference to the LIBO Rate (Reserve
Adjusted).



     “LIBO Rate (Reserve Adjusted)” means, relative to any Loan to be made, continued or
maintained as, or converted into, a LIBO Rate Loan for any Interest Period, a rate per annum
determined pursuant to the following formula:



	 	 	 	 	 

	LIBO Rate
	 	=
	 	LIBO Rate
	 
	 	 	 	 
	(Reserve Adjusted)
	 	 	 	1.00 — LIBOR Reserve Percentage





The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans will be determined by
the Administrative Agent on the basis of the LIBOR Reserve Percentage in effect, and the applicable
rates furnished to and received by the Administrative Agent, two Business Days before the first day
of such Interest Period.




     “LIBOR Reserve Percentage” means, relative to any Interest Period for LIBO Rate Loans,
the reserve percentage (expressed as a decimal) equal to the maximum aggregate reserve requirements
(including all basic, emergency, supplemental, marginal and other reserves and taking into account
any transitional adjustments or other scheduled changes in reserve requirements) specified under
regulations issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of or including “Eurocurrency Liabilities”, as currently defined in
Regulation D of the F.R.S. Board, having a term approximately equal or comparable to such Interest
Period.



     “Lien” means any security interest, mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in
property, or other priority or preferential arrangement of any kind or nature whatsoever.



20









 





     “Loan Documents” means, collectively, this Agreement, the First Joinder Agreement,
the First Amendment, the Notes, the Letters of Credit, the Open Account Paying Agreements, each
Rate Protection Agreement, the Security Agreement, each Mortgage, each Foreign Pledge Agreement,
each other agreement pursuant to which the Collateral Agent is granted by the Borrower or its
Subsidiaries a Lien to secure the Obligations, and the Guaranty; provided, however,
that for purposes of the definition of “Material Adverse Effect” below, references therein to any
“Loan Document(s)” shall not include any Foreign Pledge Agreement.



     “Loans” means, as the context may require, a Revolving Loan, a New Term Loan or a
Swing Line Loan of any type.



     “Material Adverse Effect” means any event, development or circumstance that has had or
could reasonably be expected to have a material adverse effect on (i) the business, financial
condition, operations, performance, or assets of the Borrower and its Subsidiaries (other than any
Receivables Subsidiary) taken as a whole, (ii) the validity or enforceability of any of the Loan
Documents or the rights and remedies of any Secured Party under any Loan Document or (iii) the
ability of any Obligor to perform when due its Obligations under any Loan Document.



     “Measurement Period” means, for any determination under this Agreement, the period of the
four consecutive Fiscal Quarters most recently ended.



     “Moody’s” means Moody’s Investors Service, Inc. and its successors.



     “Mortgage” means each mortgage, deed of trust or agreement executed and delivered by
any Obligor in favor of the Administrative Agent for the benefit of the Secured Parties pursuant to
the requirements of this Agreement in form and substance reasonably satisfactory to the Lead
Arrangers, under which a Lien is granted on such real property and fixtures described therein, in
each case as amended in accordance with Section 7.1.11 and as further amended,
supplemented, amended and restated or otherwise modified from time to time.



     “Mortgaged Property” means each parcel of real property set forth on Item 6.9(a) of
the Disclosure Schedule.



     “Net Casualty Proceeds” means, with respect to any Casualty Event, the amount of any
insurance proceeds or condemnation awards received by the Borrower or any of its U.S. Subsidiaries
in connection with such Casualty Event (net of all collection or similar expenses related thereto),
but excluding any proceeds or awards required to be paid to a creditor (other than the Lenders)
which holds a first priority Lien permitted by clause (d) of Section 7.2.3 on the
property which is the subject of such Casualty Event.



     “Net Debt Proceeds” means, with respect to the sale or issuance by the Borrower or any
of its U.S. Subsidiaries (other than a Receivables Subsidiary or a Subsidiary party to a Permitted
Factoring Facility) of any Indebtedness to any other Person after the Restatement Effective Date
pursuant to clause (b)(iii) of Section 7.2.2 or which is not expressly permitted by
Section 7.2.2, the excess of (i) the gross cash proceeds actually received by such Person from such sale or
issuance, over (ii) all arranging or underwriting discounts, fees, costs, expenses and commissions,
and all legal, investment banking, brokerage and accounting and other professional fees, sales
commissions and disbursements and other closing costs and expenses actually incurred in



21









 




connection with such sale or issuance other than any such fees, discounts, commissions or disbursements paid
to Affiliates of the Borrower or any such Subsidiary in connection therewith.




     “Net Disposition Proceeds” means the gross cash proceeds received by the Borrower or
its U.S. Subsidiaries from any Disposition pursuant to clauses (j) (l), (m)
or (n) of Section 7.2.11 or Section 7.2.15 and any cash payment received in
respect of promissory notes or other non-cash consideration delivered to the Borrower or its U.S.
Subsidiaries in respect thereof, minus the sum of (i) all legal, investment banking,
brokerage, accounting and other professional fees, costs, sales commissions and expenses and other
closing costs, fees and expenses incurred in connection with such Disposition, (ii) all taxes
actually paid or estimated by the Borrower to be payable in cash in connection with such
Disposition, (iii) payments made by the Borrower or its U.S. Subsidiaries to retire Indebtedness
(other than the Credit Extensions) where payment of such Indebtedness is required in connection
with such Disposition and (iv) any liability reserves established by the Borrower or such
Subsidiary in respect of such Disposition in accordance with GAAP; provided that, if the
amount of any estimated taxes pursuant to clause (ii) exceeds the amount of taxes required
to be paid in cash in respect of such Disposition, the aggregate amount of such excess shall
constitute Net Disposition Proceeds and to the extent any such reserves described in clause
(iv) are not fully used at the end of any applicable period for which such reserves were
established, such unused portion of such reserves shall constitute Net Disposition Proceeds.



     “Net Income” means, for any period, the aggregate of all amounts which would be
included as net income on the consolidated financial statements of the Borrower and its
Subsidiaries for such period.



     “New Term Loan Commitment” means, relative to any Lender, such Lender’s obligation (if
any) to make New Term Loans pursuant to Section 2.1.3.



     “New Term Loan Commitment Amount” means, on any date, $750,000,000.



     “New Term Loan Commitment Termination Date” means the earliest of




     (a) December 31, 2009 (if the New Term Loans have not been made on or prior to such
date);




     (b) the Restatement Effective Date (immediately after the making of the New Term Loans
on such date); and




     (c) the date on which any Commitment Termination Event occurs.



          Upon the occurrence of any event described above, the New Term Loan Commitments shall
terminate automatically and without any further action.



     “New Term Loans” is defined in Section 2.1.3.



    “New Term Note” means a promissory note of the Borrower payable to any Lender, in the
form of Exhibit A-2 hereto (as such promissory note may be amended, endorsed or otherwise
modified from time to time), evidencing the aggregate Indebtedness of the Borrower to such



22









 




Lender resulting from outstanding New Term Loans, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.




     “New Term Percentage” means, relative to any Lender, the applicable percentage
relating to New Term Loans set forth opposite its name on Schedule II hereto under the New
Term Loan Commitment column or set forth in a Lender Assignment Agreement under the New Term Loan
Commitment column, as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreements executed by such Lender and its assignee Lender and delivered pursuant to
Section 10.11. A Lender shall not have any New Term Loan Commitment if its percentage
under the New Term Loan Commitment column is zero.



     “Non-Cash Restructuring Charges” is defined in the definition of “EBITDA”.



     “Non-Consenting Lender” is defined in Section 4.11.



     “Non-Defaulting Lender” means a Lender other than a Defaulting Lender.



     “Non-Excluded Taxes” means any Taxes other than (i) net income and franchise Taxes
imposed on (or measured by) net income or net profits with respect to any Secured Party by any
Governmental Authority under the laws of which such Secured Party is organized or in which it
maintains its applicable lending office, (ii) any branch profit taxes or any similar taxes imposed
by the United States of America or any other Governmental Authority described in clause
(i), (iii) Other Taxes, and (iv) any United States federal withholding taxes imposed on amounts
payable to any Secured Party at the time such recipient becomes a party to this Agreement (or
designates a new lending office) except to the extent that such Secured Party (or its assignor, if
any) was entitled, at the time of the designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding taxes pursuant to
Section 4.6(a)(1) or 4.6(d).



     “Non-Extended Revolving Loan Commitment” means any Revolving Loan Commitment not extended
pursuant to the First Amendment.



     “Non-Extended Termination Date” means December 10, 2013.



     “Non-Extending Revolving Loan Lender” means any Revolving Loan Lender which has not agreed
to extend its Revolving Loan Commitment to the Extended Termination Date pursuant to the First
Amendment Effective Date.



     “Non-U.S. Lender” means any Lender that is not a “United States person”, as defined
under Section 7701(a)(30) of the Code.



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



     “OA Payment Obligations” is defined in the definition of “Open Account Paying
Agreement”.




23











 






     “OA Payment Outstandings” means, on any date, the aggregate amount of OA Payment
Obligations owed by the Obligors under all Open Account Paying Agreements.



     “Obligations” means all obligations (monetary or otherwise, whether absolute or
contingent, matured or unmatured) of the Borrower and each other Obligor arising under or in
connection with a Loan Document, including Reimbursement Obligations and OA Payment Obligations and
the principal of and premium, if any, and interest (including interest accruing during the pendency
of any proceeding of the type described in Section 8.1.9, whether or not allowed in such
proceeding) on the Loans.



     “Obligor” means, as the context may require, the Borrower, each Subsidiary Guarantor
and each other Person (other than a Secured Party) obligated (other than Persons solely consenting
to or acknowledging such document) under any Loan Document.



     “OFAC” is defined in Section 6.15.



     “OID” is defined in Section 2.9.



     “Open Account Discount Agreement” is defined in the definition of “Open Account Paying
Agreement”.



     “Open Account Discount Purchase” means a purchase, made at a discount pursuant to an
Open Account Discount Agreement, by an Open Account Discount Purchaser from an Open Account
Supplier of account receivables in respect of obligations owed by an Obligor.



     “Open Account Discount Purchaser” is defined in the definition of “Open Account Paying
Agreement”.



     “Open Account Paying Agreement” means an open account paying agency agreement
between or among a Lender or any of its Affiliates and an Obligor, as identified as an “Open
Account Paying Agreement” through notice given from each party thereto to the Administrative Agent,
and/or any other agreement or acknowledgment pursuant to which an Obligor has committed to pay such
Lender or its Affiliates the full face amount of any account receivable in respect of obligations
owed by an Obligor (the “OA Payment Obligations”) purchased by such Lender or its
Affiliates (each, an “Open Account Discount Purchaser”) from certain vendors or other
obligees of an Obligor prior to the Revolving Loan CommitmentExtended Termination Date
(each, an “Open Account Supplier”) (each agreement pursuant to which such account
receivables are purchased from an Open Account Supplier, an “Open Account Discount
Agreement”).



     “Open Account Supplier” is defined in the definition of “Open Account Paying
Agreement”.



     “Organic Document” means, relative to any Obligor, as applicable, its articles or
certificate of incorporation, by-laws, certificate of partnership, partnership agreement,
certificate of formation, limited liability agreement, operating agreement and all shareholder agreements,
voting trusts and similar arrangements applicable to any of such Obligor’s Capital Securities.



24









 





     “Original Closing Date” means September 5, 2006.



     “Original Credit Agreement” means the Credit Agreement dated as of September 5, 2006,
as amended prior to the Restatement Effective Date, among the Borrower, the lenders party thereto,
Citi, as administrative agent and collateral agent, and the co-documentation agents, syndication
agents and lead arrangers party thereto.



     “Original Currency” is defined in Section 10.16.



     “Other Taxes” means any and all stamp, documentary or similar Taxes, or any other
excise or property Taxes or similar levies that arise on account of any payment made or required to
be made under any Loan Document or from the execution, delivery, registration, recording or
enforcement of any Loan Document.



     “Participant” is defined in clause (e) of Section 10.11.



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



     “Patent Security Agreement” means any Patent Security Agreement executed and delivered
by any Obligor in substantially the form of Exhibit A to the Security Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.



     “Patriot Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)), as amended and supplemented from time to time.



     “Patriot Act Disclosures” means all documentation and other information available to
the Borrower or its Subsidiaries which a Lender, if subject to the Patriot Act, is required to
provide pursuant to the applicable section of the Patriot Act and which required documentation and
information the Administrative Agent or any Lender reasonably requests in order to comply with
their ongoing obligations under applicable “know your customer” and anti-money laundering rules and
regulations, including the Patriot Act.



     “PBGC” means the Pension Benefit Guaranty Corporation and any Person succeeding to any
or all of its functions under ERISA.



     “Pension Plan” means a “pension plan”, as such term is defined in Section 3(2) of
ERISA, which is subject to Title IV of ERISA (other than a multiemployer plan as defined in Section
4001(a)(3) of ERISA), and to which the Borrower or any corporation, trade or business that is,
along with the Borrower, a member of a Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within the meaning of Section 4063 of
ERISA at any time during the preceding five years, or by reason of being deemed to be a
contributing sponsor under Section 4069 of ERISA.



     “Percentage” means, as the context may require, any Lender’s Revolving Loan Percentage
or New Term Percentage.



     “Permitted Acquisition” means an acquisition (whether pursuant to an acquisition of a
majority of the Capital Securities of a target or all or substantially all of a target’s assets or
any



25









 




division or line of business of a target or merger) by the Borrower or any Subsidiary from any
Person of a business in which the following conditions are satisfied:





     (a) the Borrower shall have delivered a certificate certifying that before and after
giving effect to such acquisition, the representations and warranties set forth in each Loan
Document shall, in each case, be true and correct in all material respects with the same
effect as if then made (unless stated to relate solely to an earlier date, in which case
such representations and warranties shall be true and correct in all material respects as of
such earlier date) and no Default has occurred and is continuing or would result therefrom;
and




     (b) the Borrower shall have delivered to the Administrative Agent a Compliance
Certificate for the period of four full Fiscal Quarters immediately preceding such
acquisition (prepared in good faith and in a manner and using such methodology which is
consistent with the most recent financial statements delivered pursuant to Section
7.1.1) giving pro forma effect to the consummation of such acquisition
and evidencing compliance with the covenants set forth in Section 7.2.4.



     “Permitted Factoring Facility” means any and all agreements or facilities entered into
by the Borrower or any of its Subsidiaries for the purpose of factoring its receivables for cash
consideration.



     “Permitted Liens” is defined in Section 7.2.3.



     “Permitted Securitization” means any Disposition by the Borrower or any of its
Subsidiaries consisting of Receivables and related collateral, credit support and similar rights
and any other assets that are customarily transferred in a securitization of receivables, pursuant
to one or more securitization programs, to a Receivables Subsidiary or a Person who is not an
Affiliate of the Borrower; provided that (i) the consideration to be received by the
Borrower and its Subsidiaries other than a Receivables Subsidiary for any such Disposition consists
of cash, a promissory note or a customary contingent right to receive cash in the nature of a
“hold-back” or similar contingent right, (ii) no Default shall have occurred and be continuing or
would result therefrom and (iii) the aggregate outstanding balance of the Indebtedness in respect
of all such programs at any point in time is not in excess of $400,000,000.



     “Person” means any natural person, corporation, limited liability company,
partnership, joint venture, association, trust or unincorporated organization, Governmental
Authority or any other legal entity, whether acting in an individual, fiduciary or other capacity.



     “Platform” is defined in clause (b) of Section 9.11.



     “Pro Forma Unsecured Indebtedness” is defined in Section 7.2.2(s).



     “Pro Forma Unsecured Indebtedness Documents” means any indenture or other agreement, or
any bonds, debentures, notes or other instruments, executed and delivered with respect to Pro Forma
Unsecured Indebtedness, as the same may be amended, supplemented
amended and restated or otherwise modified from time to time in accordance with this
Agreement.



26









 





     “Purchase Money Note” means a promissory note evidencing a line of credit, or
evidencing other Indebtedness owed to the Borrower or any Subsidiary in connection with a Permitted
Securitization or Permitted Factoring Facility, which note shall be repaid from cash available to
the maker of such note, other than amounts required to be established as reserves, amounts paid to
investors in respect of interest, principal and other amounts owing to such investors and amounts
paid in connection with the purchase of newly generated accounts receivable.



     “Quarterly Payment Date” means the last day of March, June, September and December,
or, if any such day is not a Business Day, the next succeeding Business Day.



     “Rate Protection Agreement” means, collectively, any agreement with respect to Hedging
Obligations entered into by the Borrower or any of its Subsidiaries under which the counterparty of
such agreement is (or at the time such agreement was entered into, was) a Lender or an Affiliate of
a Lender.



     “Receivable” shall mean a right to receive payment arising from a sale or lease of
goods or the performance of services by a Person pursuant to an arrangement with another Person
pursuant to which such other Person is obligated to pay for goods or services under terms that
permit the purchase of such goods and services on credit and shall include, in any event, any items
of property that would be classified as an “account,” “chattel paper,” “payment intangible” or
“instrument” under the UCC and any supporting obligations.



     “Receivables Subsidiary” shall mean any wholly owned Subsidiary of the Borrower (or
another Person in which the Borrower or any Subsidiary makes an Investment and to which the
Borrower or one or more of its Subsidiaries transfer Receivables and related assets) which engages
in no activities other than in connection with the financing of Receivables and which is designated
by the Board of Directors of the applicable Subsidiary (as provided below) as a Receivables
Subsidiary and which meets the following conditions:




     (a) no portion of the Indebtedness or any other obligations (contingent or otherwise)
of such Subsidiary:




     (i) is guaranteed by the Borrower or any Subsidiary (that is not a Receivables
Subsidiary);




     (ii) is recourse to or obligates the Borrower or any Subsidiary (that is not a
Receivables Subsidiary); or




     (iii) subjects any property or assets of the Borrower or any Subsidiary (that
is not a Receivables Subsidiary), directly or indirectly, contingently or otherwise,
to the satisfaction thereof;




     (b) with which neither the Borrower nor any Subsidiary (that is not a Receivables
Subsidiary) has any material contract, agreement, arrangement or understanding (other than
Standard Securitization Undertakings); and



27









 






     (c) to which neither the Borrower nor any Subsidiary (that is not a Receivables
Subsidiary) has any obligation to maintain or preserve such entity’s financial condition or
cause such entity to achieve certain levels of operating results.



     Any such designation by the Board of Directors of the applicable Subsidiary shall be evidenced
by a certified copy of the resolution of the Board of Directors of such Subsidiary giving effect to
such designation and an officer’s certificate certifying, to the best of such officer’s knowledge
and belief, that such designation complies with the foregoing conditions



     “Refunded Swing Line Loans” is defined in clause (b) of Section 2.3.2.



     “Regulation S-X” is defined in Section 5.1.6.



     “Register” is defined in clause (a) of Section 2.7.



     “Reimbursement Obligation” is defined in Section 2.6.3.



     “Release” means a “release”, as such term is defined in CERCLA.



     “Replacement Lender” is defined in Section 4.11.



     “Replacement Notice” is defined in Section 4.11.



     “Required Lenders” means, at any time, Non-Defaulting Lenders holding more than 50% of
the Total Exposure Amount of all Non-Defaulting Lenders.



     “Resource Conservation and Recovery Act” means the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901, et seq., as amended.



     “Restatement Effective Date” means December 10, 2009.



     “Restricted Payment” means (i) the declaration or payment of any dividend (other than
dividends payable solely in Capital Securities of the Borrower or any Subsidiary (excluding a
Receivables Subsidiary)) on, or the making of any payment or distribution on account of, or setting
apart assets for a sinking or other analogous fund for the purchase, redemption, defeasance,
retirement or other acquisition of, any class of Capital Securities of the Borrower or any
warrants, options or other right or obligation to purchase or acquire any such Capital Securities,
whether now or hereafter outstanding, or (ii) the making of any other distribution in respect of
such Capital Securities, in each case either directly or indirectly, whether in cash, property or
obligations of the Borrower or any Subsidiary or otherwise; provided, however, that
any conversion feature of convertible debt shall not be considered a “Restricted Payment”.



     “Retained Excess Cash Flow” means, on any date of determination, the aggregate amount
of Excess Cash Flow for all prior Fiscal Years ending on or after December 31, 2009 that is not
required to be applied to repay New Term Loans pursuant to Section 3.1.1(f).



     
“Revolving Exposure” means, relative to any Revolving Loan Lender, at any time, (i)
the



28









 




aggregate outstanding principal amount of all Revolving Loans of such Lender at such time, plus
(ii) such Lender’s Revolving Loan Percentage of the Letter of Credit Outstandings, plus
(iii) such Lender’s Swing Line Exposure, plus (iv) such Lender’s Revolving Loan Percentage
of the OA Payment Outstandings.




     “Revolving Loan Commitment” means, relative to any Lender, such Lender’s obligation
(if any) to make Revolving Loans pursuant to clause (a) of Section 2.1.1. As
of the First Amendment Effective Date, each Revolving Loan Lender shall have either an Extended
Revolving Loan Commitment or a Non-Extended Revolving Loan Commitment, as (and in such amounts) set
forth in Schedule I to the First Amendment.



     “Revolving Loan Commitment Amount” means, on any date,
$400,000,000,600,000,000, as such amount may be reduced on the Non-Extended Termination
Date or otherwise from time to time pursuant to Section 2.2.



     “Revolving Loan Commitment Termination Date” means the earliest of:




     (a) December 31, 2009 (if the initial Credit Extension has not occurred on or prior to
such date);




     (b)
the fourth anniversary of the
Restatement
EffectiveStated
Maturity Date;




     (c) the date on which the Revolving Loan Commitment Amount is terminated in full or
reduced to zero pursuant to the terms of this Agreement; and




     (d) the date on which any Commitment Termination Event occurs.


Upon the occurrence of any event described in the preceding clauses (c) or (d), the
Revolving Loan Commitments shall terminate automatically and without any further action.




     “Revolving Loan Lender” is defined in clause (a) of Section 2.1.1.



     “Revolving Loan Percentage” means, relative to any Lender, the applicable percentage
relating to Revolving Loans set forth opposite its name on Schedule II hereto
underpercentage which such Lender’s Revolving Loan Commitment then constitutes of the
Revolving Loan Commitment column or set forth in a Lender Assignment Agreement under the Revolving
Loan Commitment column, as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreements executed by such Lender and its assignee Lender and delivered pursuant to
Section 10.11. A Lender shall not have any Revolving Loan Commitment if its percentage
under the Revolving Loan Commitment column is zeroAmount, or at any time after such Lender’s
Revolving Loan Commitments have expired or terminated in full, the percentage which such Lender’s
Revolving Exposure then constitutes of the Total Revolving Exposure
Amount; provided that in the case of Section 4.13 when a Defaulting Lender shall exist,
“Revolving Loan Percentage” shall be computed disregarding any Defaulting Lender’s Revolving
Exposure.



     “Revolving Loans” is defined in clause (a) of Section 2.1.1.



29









 





     “Revolving Note” means a promissory note of the Borrower payable to any Revolving Loan
Lender, in the form of Exhibit A-1 hereto (as such promissory note may be amended, endorsed
or otherwise modified from time to time), evidencing the aggregate Indebtedness of the Borrower to
such Revolving Loan Lender resulting from outstanding Revolving Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal thereof.



     “S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill
Companies, Inc. and its successors.



     “SEC” means the Securities and Exchange Commission.



     “Secured Parties” means, collectively, the Lenders, the Issuers, any Open Account
Discount Purchasers, the Administrative Agent, the Collateral Agent, the Lead Arrangers, each
Foreign Working Capital Lender (if applicable), each counterparty to a Rate Protection Agreement
that is (or at the time such Rate Protection Agreement was entered into, was) a Lender or an
Affiliate thereof and (in each case), each Person to whom the Borrower or any of its Subsidiaries
owes Cash Management Obligations, and each of their respective successors, transferees and assigns.



     “Security Agreement” means the Amended and Restated Pledge and Security Agreement
executed and delivered by each Obligor, substantially in the form of Exhibit G hereto,
together with any supplemental Foreign Pledge Agreements delivered pursuant to the terms of this
Agreement, in each case as amended, supplemented, amended and restated or otherwise modified from
time to time.



     “Senior Secured Leverage Ratio” means, onas of the last day of any
dateFiscal Quarter, the ratio of




     (a) Total Senior Secured Debt outstanding on the last day of such dayFiscal
Quarter




     to




     (b) Total Tangible Assets as of such day. EBITDA computed for the period consisting
of such Fiscal Quarter and each of the three immediately preceding Fiscal Quarters.



     “Solvency Certificate” means a certificate executed by the chief financial or
accounting Authorized Officer of the Borrower substantially in the form of Exhibit I.



     “Solvent” means, with respect to any Person and its Subsidiaries on a particular date,
that on such date (i) the fair value of the property (on a going-concern basis) of such Person and
its Subsidiaries on a consolidated basis is greater than the total amount of liabilities, including
contingent liabilities, of such Person and its Subsidiaries on a consolidated basis, (ii) the
present fair salable value of the assets (on a going-concern basis) of such Person and its
Subsidiaries on a consolidated basis is not less than the amount that will be required to pay the
probable liability of such Person and its Subsidiaries on a consolidated basis on its debts as they
become absolute and



30









 




matured in the ordinary course of business, (iii) such Person does not intend
to, and does not believe that it or its Subsidiaries will, incur debts or liabilities beyond the
ability of such Person and its Subsidiaries to pay as such debts and liabilities mature in the
ordinary course of business (including through refinancings, asset sales and other capital market
transactions), and (iv) such Person and its Subsidiaries on a consolidated basis is not engaged in
business or a transaction, and such Person and its Subsidiaries on a consolidated basis is not
about to engage in a business or a transaction, for which the property of such Person and its
Subsidiaries on a consolidated basis would constitute an unreasonably small capital. The amount of
Contingent Liabilities at any time shall be computed as the amount that, in light of all the facts
and circumstances existing at such time, can reasonably be expected to become an actual or matured
liability.




     “Specified Default” means (i) any Default under Section 8.1.1 or Section
8.1.9 or (ii) any other Event of Default.



     “Standby Letter of Credit” means any Letter of Credit other than a Commercial Letter
of Credit.



     “Standard Securitization Undertakings” shall mean representations, warranties,
covenants and indemnities entered into by the Borrower or any Subsidiary which are reasonably
customary in a securitization of Receivables.



     “Stated Amount” means, on any date and with respect to a particular Letter of Credit,
the total amount then available to be drawn under such Letter of Credit.



     “Stated Expiry Date” is defined in Section 2.6.



     “Stated Maturity Date” means (i) with respect to the New Term Loans, the sixth
anniversary of the Restatement Effective Date and, (ii), with respect to all
Revolving Loans and Swing Line Loans, the fourth anniversary of the Restatement Effectivethe
Non-Extended Revolving Loan Commitments, the Non-Extended Termination Date and (iii) with respect
to the Extended Revolving Loan Commitments, the Extended Termination Date.



     “Subsidiary” means, with respect to any Person, any other Person of which more than
50% of the outstanding Voting Securities of such other Person (irrespective of whether at the time
Capital Securities of any other class or classes of such other Person shall or might have voting
power upon the occurrence of any contingency) is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more other Subsidiaries of such Person, or by
one or more other Subsidiaries of such Person. Unless the context otherwise specifically requires,
the term “Subsidiary” shall be a reference to a Subsidiary of the Borrower (other than a
Receivables Subsidiary).



     “Subsidiary Guarantor” means each U.S. Subsidiary that has executed and delivered to
the Administrative Agent the Guaranty (including by means of a delivery of a supplement thereto).



     “Swing Line Exposure” means, at any time, the aggregate principal amount of all
outstanding Swing Line Loans at such time. The Swing Line Exposure of any Revolving Loan Lender at
any time shall be its Revolving Loan Percentage of the total Swing Line Exposure at such time.



31









 





     “Swing Line Lender” means, subject to the terms of this Agreement, JPMorgan Chase
Bank, N.A.



     “Swing Line Loan Commitment” is defined in clause (b) of Section
2.1.1.



     “Swing Line Loan Commitment Amount” means, on any date, $50,000,000, as such amount
may be reduced from time to time pursuant to Section 2.2.



     “Swing Line Loans” is defined in clause (b) of Section 2.1.1.



     “Swing Line Note” means a promissory note of the Borrower payable to the Swing Line
Lender, in the form of Exhibit A-3 hereto (as such promissory note may be amended,
restated, endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness
of the Borrower to the Swing Line Lender resulting from outstanding Swing Line Loans, and also
means all other promissory notes accepted from time to time in substitution therefor or renewal
thereof.



     “Synthetic Lease” means, as applied to any Person, any lease (including leases that
may be terminated by the lessee at any time) of any property (whether real, personal or mixed) (i)
that is not a capital lease in accordance with GAAP and (ii) in respect of which the lessee retains
or obtains ownership of the property so leased for federal income tax purposes, other than any such
lease under which that Person is the lessor.



     “Taxes” means all income, stamp or other taxes, duties, levies, imposts, charges,
assessments, fees, deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, and all interest, penalties or similar
liabilities with respect thereto.



     “Termination Date” means the date on which all Obligations have been paid in full in
cash (other than contingent indemnification obligations for which no claim has been asserted), all
Letters of Credit have been terminated or expired (or been Cash Collateralized), all Rate
Protection Agreements have been terminated and all Commitments shall have terminated.



     “Total Debt” means, on any date, the outstanding principal amount of all Indebtedness
of the Borrower and its Subsidiaries of the type referred to in clause (i) of the
definition of “Indebtedness”, clause (ii) of the definition of “Indebtedness”, clause
(iii) of the definition of “Indebtedness”, clause (vii) of the definition of
“Indebtedness” and clause (ix) of the definition of “Indebtedness”, in each case exclusive
of (a) intercompany Indebtedness between the Borrower and its Subsidiaries, (b) any Contingent
Liability in respect of any of the foregoing, (c)
any Permitted Factoring Facility, (d) any Commercial Letter of Credit, (e) any Letter of
Credit or other credit support relating to the termination of agreements with respect to Hedging
Obligations, in each case under this clause (e), incurred in connection with or as a result of the
Transaction and (f) any Open Account Paying Agreements.



     “Total Exposure Amount” means, on any date of determination (and without duplication),
the outstanding principal amount of all Loans, the aggregate amount of all Letter of Credit
Outstandings and
OA Payment
Outstandings and the unfunded amount of the Commitments.



32









 





     “Total Extended Revolving Loan Commitment Amount” means the aggregate amount of the
Lenders’ Extended Revolving Loan Commitments as of the First Amendment Effective Date.



     “Total Non-Extended Revolving Loan Commitment Amount” means the aggregate amount of the
Lenders’ Non-Extended Revolving Loan Commitments as of the First Amendment Effective Date.



     “Total Revolving Exposure Amount” means, on any date of determination (and without
duplication), the outstanding principal amount of all Revolving Loans and Swing Line Loans, the
aggregate amount of all Letter of Credit Outstandings and OA Payment Outstandings and the unfunded
amount of Revolving Loan Commitments.



     “Total Senior Secured Debt” means, on any date, all Total Debt which is secured by a
Lien.



     “Total Tangible Assets” means, on any date, the aggregate amount of assets of the
Borrower and its Subsidiaries shown on a consolidated balance sheet of such Persons at such date
less goodwill and other intangible assets.



     “Trademark Security Agreement” means any Trademark Security Agreement executed and
delivered by any Obligor substantially in the form of Exhibit B to the Security Agreement, as
amended, supplemented, amended and restated or otherwise modified from time to time.



     “Transaction” means, collectively, (i) the amendment and restatement of the Original
Credit Agreement in order to refinance the Borrower’s existing term loans and replace its existing
revolving facility thereunder and (ii) the issuance by the Borrower of the 2016 Senior Notes and
the concurrent repayment of all outstanding loans under the Borrower’s existing second lien credit
agreement.



     “Transaction Documents” means, collectively, the 2016 Senior Notes and any other
material document executed or delivered in connection with the Transaction, including any
transition services agreements and tax sharing agreements, in each case as amended, supplemented,
amended and restated or otherwise modified from time to time in accordance with Section
7.2.12.



     “Treaty on European Union” means the Treaty of Rome of March 25, 1957, as amended by
the Single European Act 1986 and the Maastricht Treaty (which was signed at Maastricht, the
Kingdom of Netherlands, on February 1, 1992 and came into force on November 1, 1993), as
amended from time to time.



     “type” means, relative to any Loan, the portion thereof, if any, being maintained as a
Base Rate Loan or a LIBO Rate Loan.



     “UCC” means the Uniform Commercial Code as in effect from time to time in the State
of New York; provided that if, with respect to any Filing Statement or by reason of any
provisions of law, the perfection or the effect of perfection or non-perfection of the security
interests granted to the Collateral Agent pursuant to the applicable Loan Document is governed by
the Uniform Commercial Code as in effect in a jurisdiction of the United States other than New
York, then “UCC” means the Uniform Commercial Code as in effect from time to time in such other



33









 




jurisdiction for purposes of the provisions of each Loan Document and any Filing Statement relating
to such perfection or effect of perfection or non-perfection.




     “United States” or “U.S.” means the United States of America, its fifty states
and the District of Columbia.



     “U.S. Subsidiary” means any Subsidiary (other than a Receivables Subsidiary) that is
incorporated or organized under the laws of the United States.



     “Voting Securities” means, with respect to any Person, Capital Securities of any class
or kind ordinarily having the power to vote for the election of directors, managers or other voting
members of the governing body of such Person.



     “Welfare Plan” means a “welfare plan”, as such term is defined in Section 3(1) of
ERISA.



     “wholly owned Subsidiary” means any Subsidiary all of the outstanding Capital
Securities of which (other than any director’s qualifying shares or investments by foreign
nationals mandated by applicable laws) is owned directly or indirectly by the Borrower.



               SECTION 1.2 Use of Defined Terms. Unless otherwise defined or the context otherwise requires,
terms for which meanings are provided in this Agreement shall have such meanings when used in each
other Loan Document and the Disclosure Schedule.



               SECTION 1.3 Cross-References. Unless otherwise specified, references in a Loan Document to any
Article or Section are references to such Article or Section of such Loan Document, and references
in any Article, Section or definition to any clause are references to such clause of such Article,
Section or definition.



               SECTION 1.4 Accounting and Financial Determinations. (a) Unless otherwise specified, all accounting terms used in
each Loan Document shall be
interpreted, and all accounting determinations and computations thereunder (including under
Section 7.2.4 and the definitions used in such calculations) shall be made, in accordance
with those generally accepted accounting principles (“GAAP”) applied in the preparation of
the financial statements referred to in clause (a) of Section 5.1.6. In the event
that any Accounting Change (as defined below) shall occur and such change results in a change in
the method of calculation of financial covenants, standards or terms in this Agreement, then the
Borrower and the Administrative Agent agree to enter into good faith negotiations in order to amend
such provisions of this Agreement so as to equitably reflect such Accounting Change with the
desired result that the criteria for evaluating the Borrower and its Subsidiaries consolidated
financial condition shall be the same after such Accounting Change as if such Accounting Change had
not been made. Until such time as such an amendment shall have been executed and delivered by the
Borrower, the Administrative Agent and the Required Lenders, all financial covenants, standards and
terms in this Agreement shall continue to be calculated or construed as if such Accounting Change
had not occurred. “Accounting Change” refers to any change in accounting principles
required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC. Unless otherwise expressly provided, all financial covenants and defined
financial terms shall be computed on a consolidated basis for the Borrower and its Subsidiaries, in
each case without



34









 




duplication. Notwithstanding any other provision contained herein, all
computations of amounts and ratios referred to in this Agreement shall be made without giving
effect to any election under Statement of Financial Accounting Standards 159 (or any other
Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other
liabilities of the Borrower at “fair value” as defined therein.




     (b) As of any date of determination, for purposes of determining the Interest Coverage Ratio
or Leverage Ratio (and any financial calculations required to be made or included within such
ratios, or required for purposes of preparing any Compliance Certificate to be delivered pursuant
to the definition of “Permitted Acquisition”), the calculation of such ratios and other
financial calculations shall include or exclude, as the case may be, the effect of any assets or
businesses that have been acquired or Disposed of by the Borrower or any of its Subsidiaries
pursuant to the terms hereof (including through mergers or consolidations) as of such date of
determination, as determined by the Borrower on a pro forma basis in accordance with GAAP, which
determination may include one-time adjustments or reductions in costs, if any, directly
attributable to any such permitted Disposition or Permitted Acquisition, as the case may be, in
each case (i) calculated in accordance with Regulation S-X and any successor statute, for the
period of four Fiscal Quarters ended on or immediately prior to the date of determination of any
such ratios (after giving effect to any cost-savings or adjustments relating to synergies resulting
from a Permitted Acquisition which have been realized or for which the steps necessary for
realization have been taken and certified in good faith by an officer of the Borrower or otherwise
as the Administrative Agent shall otherwise agree) and (ii) giving effect to any such Permitted
Acquisition or permitted Disposition as if it had occurred on the first day of such four Fiscal
Quarter period.



ARTICLE II

COMMITMENTS, BORROWING AND ISSUANCE

PROCEDURES, NOTES AND LETTERS OF CREDIT




               SECTION 2.1 Commitments. On the terms and subject to the conditions of this Agreement, the
Lenders and the Issuers severally agree to make Credit Extensions as set forth below.



     SECTION 2.1.1 Revolving Loan Commitment and Swing Line Loan Commitment. From time to time on any
Business Day occurring after the Restatement Effective Date but prior to the Revolving Loan
Commitment Termination Date,




     (a) each Lender that has a Revolving Loan Commitment (referred to as a “Revolving
Loan Lender”), agrees that it will make loans (relative to such Lender, its
“Revolving Loans”) to the Borrower denominated in Dollars equal to such Lender’s
Revolving Loan Percentage of the aggregate amount of each Borrowing of the Revolving Loans
requested by the Borrower to be made on such day; and




     (b) the Swing Line Lender agrees that it will make loans (its “Swing Line
Loans”) denominated in Dollars to the Borrower equal to the principal amount of the
Swing Line Loan requested by the Borrower to be made on such day. The commitment of



35









 






the Swing Line Lender described in this clause is herein referred to as its “Swing Line Loan
Commitment”.


On the terms and subject to the conditions hereof, the Borrower may from time to time borrow,
prepay and reborrow Revolving Loans and Swing Line Loans. No Revolving Loan Lender shall be
permitted or required to make any Revolving Loan if, after giving effect thereto, (i) such Lender’s
Revolving Exposure would exceed such Lender’s Revolving Loan Percentage of the then existing
Revolving Loan Commitment Amount or (ii) the aggregate amount of Revolving Loans and Swing Line
Loans outstanding together with the Letter of Credit Outstandings and the OA Payment Outstandings
would exceed the Revolving Loan Commitment Amount. Furthermore, the Swing Line Lender shall not be
permitted or required to make Swing Line Loans if, after giving effect thereto, (A) the aggregate
outstanding principal amount of all Swing Line Loans would exceed the then existing Swing Line Loan
Commitment Amount or (B) the sum of the aggregate amount of all Swing Line Loans and all Revolving
Loans outstanding plus the aggregate amount of Letter of Credit Outstandings and OA Payment
Outstandings would exceed the Revolving Loan Commitment Amount.




     SECTION 2.1.2 Letter of Credit Commitment; Open Account Agreements. (a) From time to
time on any Business Day occurring after the Restatement Effective Date but at least five Business
Days prior to the Revolving Loan CommitmentExtended Termination Date, the relevant Issuer
agrees that it will (subject to the terms hereof) (i) issue one or more Letters of Credit in
Dollars for the account of the Borrower, any Subsidiary Guarantor or any Foreign Subsidiary in the
Stated Amount requested by the Borrower on such day, or (ii) extend the Stated Expiry Date of a
Letter of Credit previously issued hereunder. No Issuer shall be permitted or required to issue
any Letter of Credit if, after giving effect thereto, (x) the sum of the aggregate
amount of (A) all Letter of Credit Outstandings plus (B) all OA Payment Outstandings would
exceed the then existing Letter of Credit Commitment Amount or (y) the sum of the aggregate amount
of all (A) Letter of Credit Outstandings plus (B) OA Payment Outstandings plus (C) the aggregate
principal amount of all Revolving Loans and Swing Line Loans then outstanding would exceed the then
existing Revolving Loan Commitment Amount.



     (b) From time to time on any day occurring after the Restatement Effective Date but prior to
the Revolving Loan CommitmentExtended Termination Date, an Obligor may enter into one or
more Open Account Paying Agreements with such Lenders or their respective Affiliates as it and they
shall so agree; provided that (i) no Lender will be required to enter into an Open Account
Paying Agreement and (ii) an Obligor shall not be permitted to enter into, or incur obligations
under, an Open Account Paying Agreement if, after giving effect thereto, (x) the sum of the
aggregate amount of (A) all OA Payment Outstandings plus (B) all Letter of Credit
Outstandings would exceed the then existing Letter of Credit Commitment Amount or (y) the sum of
the aggregate amount of all (A) Letter of Credit Outstandings plus (B) OA Payment
Outstandings plus (C) the aggregate principal amount of all Revolving Loans and Swing Line
Loans then outstanding would exceed the then existing Revolving Loan Commitment Amount.



     SECTION 2.1.3 Term Loan Commitments. In a single Borrowing made on the Restatement
Effective Date, occurring on or prior to the applicable Commitment Termination Date, each Lender
that has a New Term Loan Commitment agrees that it will make Loans (relative to such Lender, its “New Term Loans”)
to the Borrower denominated in Dollars equal to such



36









 




Lender’s New Term
Percentage of the aggregate amount of the Borrowing, which shall be for the full New Term Loan
Commitment Amount. No amounts paid or prepaid with respect to New Term Loans may be reborrowed.




               SECTION 2.2 Reduction of the Commitment Amounts. The Commitment Amounts are subject to reduction
from time to time as set forth below.



     SECTION 2.2.1 Optional. The Borrower may, from time to time on any Business Day
occurring after the Restatement Effective Date, voluntarily reduce any Commitment Amount on the
Business Day so specified by the Borrower; provided that, all such reductions shall require
at least one Business Day’s prior notice to the Administrative Agent and be permanent, and any
partial reduction of any Commitment Amount shall be in a minimum amount of $1,000,000 and in an
integral multiple of $500,000. Any optional or mandatory reduction of the Revolving Loan
Commitment Amount pursuant to the terms of this Agreement which reduces the Revolving Loan
Commitment Amount below the sum of (i) the Swing Line Loan Commitment Amount and (ii) the Letter of
Credit Commitment Amount shall result in an automatic and corresponding reduction of the Swing Line
Loan Commitment Amount and/or Letter of Credit Commitment Amount (as directed by the Borrower in a
notice to the Administrative Agent delivered together with the notice of such voluntary reduction
in the Revolving Loan Commitment Amount) to an aggregate amount not in excess of the Revolving Loan
Commitment Amount, as so reduced, without any further action on the part of the Swing Line Lender,
any Revolving Loan Lender or any Issuer.



     SECTION 2.2.2 [Reserved].



               SECTION 2.3 Borrowing Procedures. Loans (other than Swing Line Loans and New Term Loans) shall be
made by the Lenders in accordance with Section 2.3.1, and Swing Line Loans shall be made by
the Swing Line Lender in accordance with Section 2.3.2.



     SECTION 2.3.1 Borrowing Procedure. In the case of Loans (other than Swing Line
Loans), by delivering a Borrowing Request to the Administrative Agent on or before 10:00 a.m. on a
Business Day, the Borrower may from time to time irrevocably request, on such Business Day in the
case of Base Rate Loans or on not less than three Business Days’ notice and not more than five
Business Days’ notice, in the case of LIBO Rate Loans denominated in Dollars, that a Borrowing be
made, in the case of LIBO Rate Loans, in a minimum amount of $5,000,000 and an integral multiple of
$1,000,000, in the case of Base Rate Loans, in a minimum amount of $1,000,000 and an integral
multiple of $500,000 or, in either case, in the unused amount of the applicable Commitment. On the
terms and subject to the conditions of this Agreement, each Borrowing shall be comprised of the
type of Loans, and shall be made on the Business Day specified in such Borrowing Request. In the
case of other than Swing Line Loans, on or before 12:00 noon on such Business Day each Lender that
has a Commitment to make the Loans being requested shall deposit with the Administrative Agent same
day funds in an amount equal to such Lender’s Percentage of the requested Borrowing. Such deposit
will be made to an account which the Administrative Agent shall specify from time to time by notice
to the Lenders. To the extent funds are received from the Lenders, the Administrative Agent shall
make such funds available to the Borrower by wire transfer to the accounts the Borrower shall have
specified in its Borrowing Request. No Lender’s obligation to make any Loan shall be affected by
any other Lender’s failure to make any Loan.



37









 





     SECTION 2.3.2 Swing Line Loans; Participations, etc. (a) By telephonic notice to the
Swing Line Lender on or before 2:00 p.m. on a Business Day (followed (within one Business Day) by
the delivery of a confirming Borrowing Request), the Borrower may from time to time irrevocably
request that Swing Line Loans be made by the Swing Line Lender in an aggregate minimum principal
amount of $500,000 and an integral multiple of $100,000. All Swing Line Loans shall be made as
Base Rate Loans and shall not be entitled to be converted into LIBO Rate Loans. The proceeds of
each Swing Line Loan shall be made available by the Swing Line Lender to the Borrower by wire
transfer to the account the Borrower shall have specified in its notice therefor by the close of
business on the Business Day telephonic notice is received by the Swing Line Lender. Upon the
making of each Swing Line Loan, and without further action on the part of the Swing Line Lender or
any other Person, each Revolving Loan Lender (other than the Swing Line Lender) shall be deemed to
have irrevocably purchased, to the extent of its Revolving Loan Percentage, a participation
interest in such Swing Line Loan, and such Revolving Loan Lender shall, to the extent of its
Revolving Loan Percentage, be responsible for reimbursing within one Business Day the Swing Line
Lender for Swing Line Loans which have not been reimbursed by the Borrower in accordance with the
terms of this Agreement.



     (b) If (i) any Swing Line Loan shall be outstanding for more than four Business Days, (ii) any
Swing Line Loan is or will be outstanding on a date when the Borrower
requests that a Revolving Loan be made, or (iii) any Default shall occur and be continuing,
then each Revolving Loan Lender (other than the Swing Line Lender) irrevocably agrees that it will,
at the request of the Swing Line Lender, make a Revolving Loan (which shall initially be funded as
a Base Rate Loan) in an amount equal to such Lender’s Revolving Loan Percentage of the aggregate
principal amount of all such Swing Line Loans then outstanding (such outstanding Swing Line Loans
hereinafter referred to as the “Refunded Swing Line Loans”). On or before 11:00 a.m. on
the first Business Day following receipt by each Revolving Loan Lender of a request to make
Revolving Loans as provided in the preceding sentence, each Revolving Loan Lender shall deposit in
an account specified by the Swing Line Lender the amount so requested in same day funds and such
funds shall be applied by the Swing Line Lender to repay the Refunded Swing Line Loans. At the
time the Revolving Loan Lenders make the above referenced Revolving Loans the Swing Line Lender
shall be deemed to have made, in consideration of the making of the Refunded Swing Line Loans,
Revolving Loans in an amount equal to the Swing Line Lender’s Revolving Loan Percentage of the
aggregate principal amount of the Refunded Swing Line Loans. Upon the making (or deemed making, in
the case of the Swing Line Lender) of any Revolving Loans pursuant to this clause, the amount so
funded shall become an outstanding Revolving Loan and shall no longer be owed as a Swing Line Loan.
All interest payable with respect to any Revolving Loans made (or deemed made, in the case of the
Swing Line Lender) pursuant to this clause shall be appropriately adjusted to reflect the period of
time during which the Swing Line Lender had outstanding Swing Line Loans in respect of which such
Revolving Loans were made. Each Revolving Loan Lender’s obligation to make the Revolving Loans
referred to in this clause shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right which
such Lender may have against the Swing Line Lender, any Obligor or any Person for any reason
whatsoever; (ii) the occurrence or continuance of any Default; (iii) any adverse change in the
condition (financial or otherwise) of any Obligor; (iv) the acceleration or maturity of any
Obligations or the termination of any Commitment after the making of any Swing Line Loan; (v) any
breach of any Loan Document by



38









 




any Person; or (vi) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.




               SECTION 2.4 Continuation and Conversion Elections. By delivering a Continuation/Conversion Notice
to the Administrative Agent on or before 10:00 a.m. on a Business Day, the Borrower may from time
to time irrevocably elect on not less than three nor more than five Business Days’ notice (a) to
convert any Base Rate Loan into one or more LIBO Rate Loans or (b) before the last day of the then
current Interest Period with respect thereto, to continue any LIBO Rate Loan as a LIBO Rate Loan;
provided that (i) any portion of any Loan which is continued or converted hereunder shall
be in a minimum amount of $1,000,000 and in an integral multiple amount of $1,000,000 and (ii) in
the absence of prior notice as required above (which notice may be delivered telephonically
followed by written confirmation within 24 hours thereafter by delivery of a
Continuation/Conversion Notice), with respect to any LIBO Rate Loan at least three Business Days
before the last day of the then current Interest Period with respect thereto, such LIBO Rate Loan
shall, on such last day, automatically convert to a Base Rate Loan; provided
further that (A) each such conversion or continuation shall be pro rated among the
applicable outstanding Loans of all Lenders that have made such Loans, and (B) no portion of the
outstanding principal amount of any Loans may be
continued as, or be converted into, LIBO Rate Loans when any Event of Default has occurred and
is continuing.



               SECTION 2.5 Funding. Each Lender may, if it so elects, fulfill its obligation to make, continue
or convert LIBO Rate Loans hereunder by causing one of its foreign branches or Affiliates (or an
international banking facility created by such Lender) to make or maintain such LIBO Rate Loan;
provided that, such LIBO Rate Loan shall nonetheless be deemed to have been made and to be
held by such Lender, and the obligation of the Borrower to repay such LIBO Rate Loan shall
nevertheless be to such Lender for the account of such foreign branch, Affiliate or international
banking facility. Subject to Section 4.10, each Lender may, at its option, make any Loan
available to the Borrower by causing any foreign or domestic branch or Affiliate of such Lender to
make such Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay Loans in accordance with the terms of this Agreement.



               SECTION 2.6 Issuance Procedures. By delivering to the Administrative Agent and the relevant
Issuer an Issuance Request on or before 10:00 a.m. on a Business Day, the Borrower may from time to
time irrevocably request on not less than three nor more than ten Business Days’ notice, in the
case of an initial issuance of a Letter of Credit and not less than three Business Days’ prior
notice, in the case of a request for the extension of the Stated Expiry Date of a Standby Letter of
Credit (in each case, unless a shorter notice period is agreed to by the relevant Issuer, in its
sole discretion), that an Issuer issue a Letter of Credit, or extend the Stated Expiry Date of a
Standby Letter of Credit, in such form as may be requested by the Borrower and approved by such
Issuer, solely for the purposes described in Section 7.1.7. In connection with any
Issuance Request the Borrower and/or applicable Subsidiary shall have executed and delivered such
applications, agreements and other instruments relating to such Letter of Credit as such Issuer
shall have reasonably requested consistent with its then current practices and procedures with
respect to letters of credit of the same type, provided that in the event of any conflict
between any such application, agreement or other instrument and the provisions of this Agreement,
the provisions of this Agreement shall control. Each Standby Letter of Credit shall by its terms
be stated to expire on a date (its “Stated Expiry Date”) no later than the earlier to occur
of



39









 




(i) five Business Days prior to the Revolving Loan CommitmentExtended Termination Date
or (ii) unless otherwise agreed to by an Issuer, in its sole discretion, one year from the date of
its issuance (provided that each Standby Letter of Credit may, with the consent of the
Issuer thereof in its sole discretion, provide for automatic renewals for one year periods (which
in no event shall extend beyond the Revolving Loan CommitmentExtended Termination Date)).
Each Commercial Letter of Credit shall by its terms be stated to expire on a date no later than the
earlier to occur of
(i) five Business Days prior to the Revolving Loan CommitmentExtended
Termination Date or (ii) unless otherwise agreed to by an Issuer, in its sole discretion, 180 days
from the date of its issuance. Each Issuer will make available to the beneficiary thereof the
original of the Letter of Credit which it issues. Each Issuer shall provide periodic reporting of
Letters of Credit issued by such Issuer in a manner, and in time periods, mutually acceptable to
the Administrative Agent and such Issuer. Unless notified by the Administrative Agent in
writing prior to the issuance of a Letter of Credit, the applicable Issuer shall be entitled
to assume that the conditions precedent to such issuance have been met.




     SECTION 2.6.1 Other Lenders Participation.




     (a) Upon the issuance of each Letter of Credit, and without further action, each
Revolving Loan Lender (other than the applicable Issuer) shall be deemed to have irrevocably
purchased, to the extent of its Revolving Loan Percentage, a participation interest in such
Letter of Credit (including the Contingent Liability and any Reimbursement Obligation with
respect thereto), and such Revolving Loan Lender shall, to the extent of its Revolving Loan
Percentage, be responsible for reimbursing the applicable Issuer for Reimbursement
Obligations which have not been reimbursed by the Borrower in accordance with Section 2.6.3
in the applicable currency and at the times set forth in such Section (with the terms of
this Section surviving the termination of this Agreement). In addition, such Revolving Loan
Lender shall, to the extent of its Revolving Loan Percentage, be entitled to receive a
ratable portion of the Letter of Credit fees payable pursuant to Section 3.3.3 with respect
to each Letter of Credit (other than the issuance fees payable to the Issuer of such Letter
of Credit pursuant to the last sentence of Section 3.3.3) and of interest payable pursuant
to Section 3.2 with respect to any Reimbursement Obligation accruing on and after the date
(and to the extent) such Lender funds its participation interest in such Letter of Credit.
To the extent that any Revolving Loan Lender has reimbursed any Issuer for a Disbursement,
such Lender shall be entitled to receive its ratable portion of any amounts subsequently
received (from the Borrower or otherwise) in respect of such Disbursement. Upon any change
in the Revolving Loan Commitments pursuant to an assignment under Section 10.10 of this
Agreement, it is hereby agreed that with respect to all Letter of Credit Outstandings, there
shall be an automatic adjustment to the participations hereby created to reflect the new
Revolving Loan Percentage of the assigning and assignee Revolving Loan Lenders.




     (b) Upon the entry into each Open Account Discount Agreement, and without further
action, each Revolving Loan Lender (other than the applicable Open Account Discount
Purchaser) shall be deemed to have irrevocably purchased, to the extent of its Revolving
Loan Percentage, a participation interest in such Open Account Discount Agreement, and such
Revolving Loan Lender shall, to the extent of its Revolving Loan Percentage, be responsible
for reimbursing the applicable Open Account Discount



40









 






Purchaser for OA Payment Obligations
under the applicable Open Account Paying Agreement which have not been reimbursed by the
relevant Obligor in accordance with the terms thereof (with the terms of this Section
surviving the termination of this Agreement). In addition, such Revolving Loan Lender
shall, to the extent of its Revolving Loan Percentage, be entitled to receive a ratable
portion of the Open Account Agreement payments pursuant to Section 3.3.4 and of
interest payable pursuant to Section 3.2 with respect to any OA Payment Obligations
accruing on and after the date (and to the extent) such Lender funds its participation
interest in such OA Payment Obligations. To the extent that any Revolving Loan Lender has
reimbursed any Open Account Discount Purchaser for an Open Account Discount Purchase, such
Lender shall be entitled to receive its ratable portion of any amounts subsequently received
(from the Borrower or otherwise) in respect of such Open Account Discount Purchase. Upon
any change in the Revolving Loan Commitments pursuant to an assignment under Section 10.10
of this Agreement, it is hereby agreed that with respect to all OA Payment Outstandings,
there shall be an automatic adjustment to the participations hereby created to reflect the
new Revolving Loan Percentage of the assigning and assignee Revolving Loan Lenders. The
Borrower shall be required to reimburse each Open Account Discount Purchaser in accordance
with the terms set forth in the applicable Open Account Paying Agreement.



     SECTION 2.6.2 Disbursements. An Issuer will notify the Borrower and the
Administrative Agent promptly of the presentment for payment of any Letter of Credit issued by such
Issuer, together with notice of the date (the “Disbursement Date”) such payment shall be
made (each such payment, a “Disbursement”). Subject to the terms and provisions of such
Letter of Credit and this Agreement, the applicable Issuer shall make such payment to the
beneficiary (or its designee) of such Letter of Credit. Not later than 1:00 p.m. on (i) a
Disbursement Date, if the Borrower shall have received notice of such Disbursement prior to 10:00
a.m. on such Disbursement Date, or (ii) the Business Day immediately following a Disbursement Date,
if such notice is received after 10:00 a.m. on such Disbursement Date, the Borrower will reimburse
such Issuer directly in full for such Disbursement. Each such reimbursement shall be made in
immediately available funds together (in the case of a reimbursement made on such immediately
following Business Day, with interest thereon at a rate per annum equal to the rate per annum then
in effect for Base Rate Loans (with the then Applicable Margin for Revolving Loans accruing on such
amount) pursuant to Section 3.2 for the period from the Disbursement Date through the date
of such reimbursement, provided that if such reimbursement is not made when due pursuant to
this Section 2.6.2, then the interest rates set forth in Section 3.2.2 shall apply.
Without limiting in any way the foregoing and notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, the Borrower hereby acknowledges
and agrees that it shall be obligated to reimburse the applicable Issuer upon each Disbursement of
a Letter of Credit, and it shall be deemed to be the obligor for purposes of each such Letter of
Credit issued hereunder (whether the account party on such Letter of Credit is the Borrower or a
Subsidiary). In the event that an Issuer makes any Disbursement and the Borrower shall not have
reimbursed such amount in full to such Issuer pursuant to this Section 2.6.2, such Issuer
shall promptly notify the Administrative Agent which shall promptly notify each Revolving Loan
Lender of such failure, and each Revolving Loan Lender (other than such Issuer) shall promptly and
unconditionally pay in same day funds to the Administrative Agent for the account of such Issuer
the amount of such Revolving Loan Lender’s Revolving Loan Percentage of such unreimbursed
Disbursement. If an Issuer so notifies the Administrative Agent, and the Administrative Agent so
notifies the




41











 




Revolving Loan Lenders prior to 2:00 p.m., on any Business Day, each such Revolving Loan
Lender shall make available to such Issuer such Revolving Loan Lender’s Revolving Loan Percentage
of the amount of such payment on such Business Day in same day funds (or if such notice is received
by such Revolving Loan Lenders after 2:00 p.m. on the day of receipt, payment shall be made on the
immediately following Business Day). If and to the extent such Revolving Loan Lender shall not
have so made its Revolving Loan Percentage of the amount of such payment available to the
applicable Issuer, such Revolving Loan Lender agrees to pay to such Issuer forthwith on demand such
amount, together with interest thereon, for each day from such date until the date such amount is
paid to the Administrative Agent for the account of such Issuer, at the Federal Funds Rate.




     SECTION 2.6.3 Reimbursement. The obligation (a “Reimbursement Obligation”) of
the Borrower under Section 2.6.2 to reimburse an Issuer with respect to each Disbursement
(including interest thereon) and, upon the failure of the Borrower to reimburse an Issuer, each
Revolving Loan Lender’s obligation under Section 2.6.1 to reimburse an Issuer, shall be
absolute and unconditional under any and all circumstances and irrespective of (i) any setoff,
counterclaim or defense to payment which the Borrower or such Revolving Loan Lender, as the case
may be, may have or have had against such Issuer, any Lender or any other Person (including any
Subsidiary) for any reason whatsoever, including any defense based upon the failure of any
Disbursement to conform to the terms of the applicable Letter of Credit (if, in such Issuer’s good
faith opinion (absent such Issuer’s gross negligence or willful misconduct), such Disbursement is
determined to be appropriate) or any non-application or misapplication by the beneficiary of the
proceeds of such Letter of Credit; (ii) the occurrence or continuance of any Default; (iii) any
adverse change in the condition (financial or otherwise) of any Obligor; (iv) the acceleration or
maturity of any Obligations or the termination of any Commitment after the issuance of a Letter of
Credit; (v) any breach of any Loan Document by any Person; or (vi) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing (including any of the
events set forth in Section 2.6.5); provided that, after paying in full its
Reimbursement Obligation hereunder, nothing herein shall adversely affect the right of the Borrower
or such Lender, as the case may be, to commence any proceeding against an Issuer for any wrongful
Disbursement made by such Issuer under a Letter of Credit as a result of acts or omissions
constituting gross negligence, bad faith or willful misconduct on the part of such Issuer.



     SECTION 2.6.4 Deemed Disbursements. Upon the occurrence and during the continuation
of any Event of Default under Section 8.1.9 or upon notification by the Administrative
Agent (acting at the direction of the Required Lenders) to the Borrower of its obligations under
this Section, following the occurrence and during the continuation of any other Event of Default,




     (a) the aggregate Stated Amount of all Letters of Credit shall, without demand upon or
notice to the Borrower or any other Person, be deemed to have been paid or disbursed by the
Issuers of such Letters of Credit (notwithstanding that such amount may not in fact have
been paid or disbursed); and




     (b) the Borrower shall be immediately obligated to reimburse the Issuers for the amount
deemed to have been so paid or disbursed by such Issuers.



42









 




Amounts payable by the Borrower pursuant to this Section shall be deposited in immediately
available funds with the Collateral Agent and held as cash collateral security for the
Reimbursement Obligations. When all Defaults giving rise to the deemed disbursements under this
Section have been cured or waived the Collateral Agent shall return to the Borrower all amounts
then on deposit with the Collateral Agent pursuant to this Section which have not been applied to
the satisfaction of the Reimbursement Obligations.




     SECTION 2.6.5 Nature of Reimbursement Obligations. The Borrower, each other Obligor
and, to the extent set forth in Section 2.6.1, each Revolving Loan Lender shall assume all
risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. No
Issuer (except to the extent of its own gross negligence, bad faith or willful misconduct) shall be
responsible for:




     (a)
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
Letter of Credit or any document submitted by any party in connection with the application
for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged;




     (b)
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or the proceeds thereof in whole or in part, which may
prove to be invalid or ineffective for any reason;




     (c)
failure of the beneficiary to comply fully with conditions required in order to
demand payment under a Letter of Credit;




     (d)
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise or errors in interpretation of
technical terms or any consequence arising from causes beyond the control of such Issuer; or




     (e)
any loss or delay in the transmission or otherwise of any document or draft
required in order to make a Disbursement under a Letter of Credit.


In furtherance of the foregoing and without limiting the generality thereof, the parties agree that
with respect to documents presented which appear on their face to be in substantial compliance with
the terms of a Letter of Credit, an Issuer may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation or refuse to accept
and make payment upon such documents if such documents are not in strict compliance with the terms
of such Letter of Credit. None of the foregoing shall affect, impair or prevent the vesting of any
of the rights or powers granted to any Issuer or any Revolving Loan Lender hereunder. In
furtherance and not in limitation or derogation of any of the foregoing, any action taken or
omitted to be taken by an Issuer in good faith (and not constituting gross negligence or willful
misconduct) shall be binding upon each Obligor and each such Secured Party, and shall not put such
Issuer under any resulting liability to any Obligor or any Secured Party, as the case may be.







43









 








     SECTION 2.6.6 Existing Letters of Credit. On the Effective Date, all Existing Letters
of Credit shall be deemed to have been issued hereunder and shall for all purposes be deemed to be
“Letters of Credit” hereunder.



               SECTION 2.7 Register; Notes. The Register shall be maintained on the following terms.



     (a)
The Borrower hereby designates the Administrative Agent to serve as the Borrower’s agent,
solely for the purpose of this clause, to maintain a register (the “Register”) on which the
Administrative Agent will record each Lender’s Commitment, the Loans made by each Lender and each
repayment in respect of the principal amount of the Loans, annexed to which the Administrative
Agent shall retain a copy of each Lender Assignment Agreement delivered to the Administrative Agent
pursuant to Section 10.11. Failure to make any recordation, or any error in such
recordation, shall not affect any Obligor’s Obligations. The entries in the Register shall
constitute prima facie evidence and shall be binding, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders shall treat each Person in whose name a Loan is
registered (or, if applicable, to which a Note has been issued) as the owner thereof for the
purposes of all Loan Documents, notwithstanding notice or any provision herein to the contrary.
Any assignment or transfer of a Commitment or the Loans made pursuant hereto shall be registered in
the Register only upon delivery to the Administrative Agent of a Lender Assignment Agreement that
has been executed by the requisite parties pursuant to Section 10.11. No assignment or
transfer of a Lender’s Commitment or Loans shall be effective unless such assignment or transfer
shall have been recorded in the Register by the Administrative Agent as provided in this Section.



     (b)
The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the
Borrower will execute and deliver to such Lender a Note evidencing the Loans made by, and payable
to the order of, such Lender in a maximum principal amount equal to such Lender’s Percentage of the
original applicable Commitment Amount. The Borrower hereby irrevocably authorizes each Lender to
make (or cause to be made) appropriate notations on the grid attached to such Lender’s Note (or on
any continuation of such grid), which notations, if made, shall evidence, inter
alia, the date of, the outstanding principal amount of, and the interest rate and Interest
Period applicable to the Loans evidenced thereby. Such notations shall, to the extent not
inconsistent with notations made by the Administrative Agent in the Register, constitute prima
facie evidence and shall be binding on each Obligor absent manifest error; provided that,
the failure of any Lender to make any such notations shall not limit or otherwise affect any
Obligations of any Obligor.



               SECTION 2.8 [Reserved].



               SECTION 2.9 Incremental Facilities. (a) AfterAt any time or from time to time after the
Restatement Effective Date and before the Stated MaturityExtended Termination Date, the
Borrower, by written notice to Administrative Agent, may request (i) the establishment of one or
more additional tranches of
term loans (the commitments thereto, the “Incremental Term Loan
CommitmentsLoans”) and/or (ii) increases in the Revolving Loan Commitments (the
“Incremental Revolving Commitments” and, together with the Incremental Term Loan
CommitmentsLoans, the “Incremental Loan Commitments”), byCredit Increases”);
provided that



44









 







each Incremental Credit Increase shall be in an aggregate principal
amount not in excess of $300,000,000 in the aggregate and not less than $50,000,000
individually (or such lesser amount as shall constitute the difference between $300,000,000 and the
aggregate amount of all such Incremental Loan Commitments obtained on or prior to such
date).that is not less than $50,000,000. Each such notice shall specify the date (each, an
“Increased Amount Date”) on which the Borrower proposes that the Incremental Loan
CommitmentsCredit Increases shall be effective, which shall be a date not less than 10
Business Days after the date on which such notice is delivered to the Administrative Agent. The
Borrower may approach any Lender or any Person (other than an Ineligible Assignee) to provide all
or a portion of the Incremental Loan CommitmentsCredit Increases; provided that (i)
no Lender will be required to provide such Incremental Loan CommitmentCredit Increase and
(ii) any entity providing all or a portion of the Incremental Loan CommitmentsCredit
Increase that is not a Lender, an Affiliate of a Lender or an Approved Fund shall not be an
Ineligible Assignee and shall be reasonably acceptable to the Administrative Agent (with such
acceptance by the Administrative Agent to not be unreasonably withheld or delayed).



     (b)
 In each case, such Incremental Loan CommitmentsCredit Increase shall become
effective as of the applicable Increased Amount Date, provided that (i) no Default or Event
of Default shall exist on such Increased Amount Date before or after giving effect to such
Incremental Loan CommitmentsCredit Increase, (ii) the Borrower shall be in compliance with
Section 7.2.4 both before and after giving effect to such Incremental Loan
CommitmentsCredit Increases, (iii) the weighted average life to maturity of any Incremental
Term Loan shall be greater than or equal to the then-remaining weighted average life to maturity of
the New Term Loansmature on or after the Extended Termination Date, (iv) the interest rate
margin in respect of any Incremental Term Loans or Incremental Revolving Loans (including original
issue discount (“OID”) or upfront fees in connection therewith in excess of any upfront
fees issued or paid in respect of any then outstanding Revolving Loans) shall not exceed the
Applicable Margin for the New Term Loans or Revolving Loans, as applicable,Revolving Loans of
any Extending Revolving Loan Lender or Non-Extending Revolving Loan Lender or if it does so
exceed either such Applicable Margin, such the Applicable Margin for the New Term
Loans or Revolving Loans, as applicable,so exceeded shall be increased so that the interest
rate margin in respect of such Incremental Term Loan or Incremental Revolving Loan (giving effect
to any OID issued or upfront fees in connection therewith in excess of any upfront fees issued
or paid in respect of any then outstanding Loans) is no greater than the Applicable Margin for
the New Term Loans orsuch Revolving Loan, as applicableLoans and (v) the
Incremental Loan CommitmentsCredit Increases shall be effected pursuant to one or more
joinder agreements in a form reasonably acceptable to the Administrative Agent (each, a
“Joinder Agreement”) executed and delivered by the Borrower, the applicable Incremental
Term Loan Lender and the Administrative Agent pursuant to which such Incremental Term Loan Lender
agrees to be bound to the terms of this Agreement as a Lender. Any Incremental Term Loans made on
an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all
purposes of this Agreement.



     (c)
On any Increased Amount Date on which Incremental Revolving Commitments are effected,
subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with
Revolving Loan Commitments shall assign to each Person with an Incremental Revolving Commitment
(each, a “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders
shall purchase from each of the Lenders with Revolving Loan



45









 







Commitments, at the principal amount
thereof, such interests in the Revolving Loans outstanding on such Increased Amount Date as shall
be necessary in order that, after giving effect to all such assignments and purchases, the
Revolving Loans will be held by existing Revolving Loan Lenders and Incremental Revolving
Lenders ratably in accordance with their Revolving Loan Commitments after giving effect to the
addition of such Incremental Revolving Commitments to the Revolving Loan Commitments, (b) the
participations held by the Revolving Loan Lenders in the Revolving Exposure immediately prior to
such Increased Amount Date shall be automatically reallocated so as to held by existing Revolving
Loan Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Loan
Commitments after giving effect to the addition of such Incremental Revolving Commitments to the
Revolving Loan Commitments, (c) each Incremental Revolving Commitment shall be deemed for all
purposes a Revolving Loan Commitment and each Loan made thereunder (an “Incremental
Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (cd) each
Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving
Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving
Loans and Incremental Revolving Commitments shall be identical to the Revolving Loans and the
Revolving Loan Commitments.



     (d)
On any Increased Amount Date on which any Incremental Term Loan CommitmentsLoans
are effectedto be made, subject to the satisfaction of the foregoing terms and conditions,
(i) each Person with a commitment to make an Incremental Term Loan Commitment (each, an
“Incremental Term Loan Lender”) shall make aan Incremental Term Loan to the
Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan
Commitmentsuch commitment amount, and (ii) each Incremental Term Loan Lender shall become a
Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term
Loans made pursuant thereto.



     (e)
Each Joinder Agreement 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 opinion of the Administrative Agent, to effect the provisions of this Section 2.9.



ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES




      
         SECTION 3.1  Repayments and Prepayments; Application. The Borrower agrees that the Loans shall be
repaid and prepaid pursuant to the following terms.



     SECTION 3.1.1
Repayments and Prepayments. The Borrower shall repay in full the unpaid
principal amount of each Loan upon the applicable Stated Maturity Date therefor. Prior thereto,
payments and prepayments of the Loans shall or may be made as set forth below.



     (a)
From time to time on any Business Day, the Borrower may make a voluntary prepayment, in
whole or in part, of the outstanding principal amount of any




     (i)
Loans (other than Swing Line Loans); provided that, (A) any such voluntary
prepayment of the New Term Loans shall be made of the same type and, if applicable, having
the same Interest Period of all Lenders that have made such New Term




46











 







Loans (applied to the remaining amortization payments for the New Term Loans in such
amounts as the Borrower shall determine) and any such prepayment of Revolving Loans shall be
made pro rata among the Revolving Loans of the same type, having the same
Interest Period of all Lenders that have made such Revolving Loans; (B) all such voluntary
prepayments shall require at least (1) in the case of Base Rate Loans, one but no more than
five Business Days’ prior notice to the Administrative Agent and (2) in the case of LIBO
Rate Loans, three but no more than five Business Days’ prior notice to the Administrative
Agent; and (C) all such voluntary partial prepayments shall be in an aggregate minimum
amount of $1,000,000 and an integral multiple of $500,000; and




     (ii)
 Swing Line Loans; provided that, (A) all such voluntary prepayments shall
require prior telephonic notice to the Swing Line Lender on or before 1:00 p.m. on the day
of such prepayment (such notice to be confirmed in writing within 24 hours thereafter); and
(B) all such voluntary partial prepayments shall be in an aggregate minimum amount of
$200,000 and an integral multiple of $100,000.



     (b)
On each date when the aggregate Revolving Exposure of all Revolving Loan Lenders exceeds
the Revolving Loan Commitment Amount (as it may be reduced from time to time pursuant to this
Agreement), the Borrower shall make a mandatory prepayment of Revolving Loans or Swing Line Loans
(or both) and, if necessary, Cash Collateralize all Letter of Credit Outstandings, in an aggregate
amount equal to such excess.



     (c)
On each Quarterly Payment Date (beginning with the Quarterly Payment Date on March 31,
2010), the Borrower shall make a scheduled repayment of the aggregate outstanding principal amount,
if any, of all New Term Loans in an amount equal to 0.25% of the original principal amount of all
New Term Loans, with the remaining amount of New Term Loans due and payable in full on the Stated
Maturity Date for New Term Loans.



     (d)
[Reserved].



     (e)
The Borrower shall (subject to the next proviso) within 10 days after receipt of any Net
Disposition Proceeds or Net Casualty Proceeds in excess of $2,000,000 by the Borrower or any of its
U.S. Subsidiaries, deliver to the Administrative Agent a calculation of the amount of such
proceeds, and, to the extent the aggregate amount of such (i) Net Disposition Proceeds received by
the Borrower and its U.S. Subsidiaries in any period of twelve consecutive calendar months since
the Original Closing Date exceeds $10,000,000 and (ii) Net Casualty Proceeds received by the
Borrower and its U.S. Subsidiaries in any period of twelve consecutive calendar months since the
Original Closing Date exceeds $50,000,000, the Borrower shall make a mandatory prepayment of the
New Term Loans in an amount equal to 100% of such excess Net Disposition Proceeds or Net Casualty
Proceeds, as applicable; provided that, so long as (i) no Event of Default has occurred and
is continuing, such proceeds may be retained by the Borrower and its U.S. Subsidiaries (and be
excluded from the prepayment requirements of this clause) to be invested or reinvested within one
year or, subject to immediately succeeding clause (ii), 18 months or 36 months, as
applicable, to the acquisition or construction of other assets or properties consistent with the
businesses permitted to be conducted pursuant to Section 7.2.1 (including by way of merger
or Investment), and (ii) within one year following the receipt of such Net Disposition Proceeds or
Net Casualty Proceeds, such proceeds are (A) applied or (B) committed to



47









 




be, and actually are, applied within (I) 18 months following the receipt of such
Net Disposition Proceeds or (II) 36 months following the receipt of such Net Casualty Proceeds, in
each case to such acquisition or construction plan. The amount of such Net Disposition Proceeds or
Net Casualty Proceeds unused or uncommitted after such one year, 18 months or 36 months, as
applicable, period shall be applied to prepay the New Term Loans as set forth in Section
3.1.2. At any time after receipt of any such Net Casualty Proceeds in excess of $25,000,000
but prior to the application thereof to such mandatory prepayment or the acquisition of other
assets or properties as described above, upon the request by the Administrative Agent (acting at
the direction of the Required Lenders) to the Borrower, the Borrower shall deposit an amount equal
to such excess Net Casualty Proceeds into a cash collateral account maintained with (and subject to
documentation reasonably satisfactory to) the Collateral Agent for the benefit of the Secured
Parties (and over which the Collateral Agent shall have a first priority perfected Lien) pending
application as a prepayment or to be released as requested by the Borrower in respect of such
acquisition. Amounts deposited in such cash collateral account shall be invested in Cash
Equivalent Investments, as directed by the Borrower.




     (f)
Within 100 days after the close of each Fiscal Year (beginning with the Fiscal Year ending
2009) the Borrower shall make a mandatory prepayment of the New Term Loans in an amount equal to
(i) the product of (A) the Excess Cash Flow (if any) for such Fiscal Year multiplied by (B)
the Applicable Percentage minus (ii) the aggregate amount of all voluntary prepayments of
Loans (but including Revolving Loans and Swing Line Loans only to the extent of a corresponding
reduction of the Revolving Loan Commitment Amount pursuant to Section 2.2.1) made during
such Fiscal Year, to be applied as set forth in Section 3.1.2;



     (g)
Concurrently with the receipt by the Borrower or any of its U.S. Subsidiaries of any Net
Debt Proceeds, the Borrower shall make a mandatory prepayment of the New Term Loans in an amount
equal to 100% of such Net Debt Proceeds, to be applied as set forth in Section 3.1.2.



     (h)
Immediately upon any acceleration of the Stated Maturity Date of any Loans pursuant to
Section 8.2 or Section 8.3, the Borrower shall repay all the Loans, unless,
pursuant to Section 8.3, only a portion of all the Loans is so accelerated (in which case
the portion so accelerated shall be so repaid).


Each prepayment of any Loans made pursuant to this Section shall be without premium or penalty,
except as may be required by Section 4.4.




     SECTION 3.1.2
Application. Amounts prepaid pursuant to Section 3.1.1 shall be
applied as set forth in this Section.



     (a)
 Subject to clause (b), each prepayment or repayment of the principal of the Loans
shall be applied, to the extent of such prepayment or repayment, first, to the principal
amount thereof being maintained as Base Rate Loans, and second, subject to the terms of
Section 4.4, to the principal amount thereof being maintained as LIBO Rate Loans.



     (b)
 Each prepayment of the New Term Loans made pursuant to clauses (e), (f),
and (g) of Section 3.1.1 shall be applied first, pro rata
to a mandatory prepayment of the outstanding



48









 




principal amount of all New Term Loans (with the amount of such prepayment of the New Term
Loans being applied (A) first to the remaining New Term Loans to reduce in direct order of
maturity the amortization payments that are due and payable within 24 calendar months from the date
of such prepayment, and (B) second, to the extent in excess of the amounts to be applied
pursuant to the preceding clause (A), to reduce the then remaining New Term Loan
amortization payments on a pro rata basis).




     (c)
So long as the Administrative Agent has received prior written notice from the Borrower of
a mandatory prepayment pursuant to clauses (e), (f) and (g) of Section
3.1.1, the Administrative Agent shall provide notice of such mandatory prepayment to the
Lenders with New Term Loans. It is understood and agreed by the Borrower that, notwithstanding
receipt by the Administrative Agent of any such mandatory prepayment, the New Term Loans shall not
be deemed repaid, unless otherwise consented to by the Administrative Agent, until five Business
Days have elapsed from the delivery to the Administrative Agent of the notice described above in
this clause (c).




               SECTION 3.2
Interest Provisions. Interest on the outstanding principal amount of the Loans shall
accrue and be payable in accordance with the terms set forth below.



     
SECTION 3.2.1  Rates. Subject to Section 2.3.2, pursuant to an appropriately
delivered Borrowing Request or Continuation/Conversion Notice, the Borrower may elect that the
Loans comprising a Borrowing accrue interest at a rate per annum:





     (a)
on that portion maintained from time to time as a Base Rate Loan, equal to the sum
of the Alternate Base Rate from time to time in effect plus the Applicable Margin;
provided that, Swing Line Loans shall always accrue interest at the Alternate Base
Rate plus the then effective Applicable Margin for Revolving Loans maintained as
Base Rate Loans; and




     (b)
 on that portion maintained as a LIBO Rate Loan, during each Interest Period
applicable thereto, equal to the sum of the LIBO Rate (Reserve Adjusted) plus the Applicable
Margin.


All LIBO Rate Loans shall bear interest from and including the first day of the applicable Interest
Period to (but not including) the last day of such Interest Period at the interest rate determined
as applicable to such LIBO Rate Loan.




     SECTION 3.2.2 Post-Default Rates. If all or any portion of the Obligations shall not
be paid when due (whether at the Stated Maturity, by acceleration or otherwise), the Borrower shall
pay, but only to the extent permitted by law, interest (after as well as before judgment) on all
such unpaid Obligations at a rate per annum equal to (a) in the case of principal on any Loan, the
rate of interest that otherwise would be applicable to such Loan plus 2% per annum; and (b)
in the case of overdue interest, fees, and other monetary Obligations, the Alternate Base Rate from
time to time in effect, plus the Applicable Margin for the New Term Loans accruing interest at the
Alternate Base Rate, plus 2% per annum.



     SECTION 3.2.3
Payment Dates. Interest accrued on each Loan shall be payable, without
duplication:



49









 






     (a) on the Stated Maturity Date therefor;




     (b) on the date of any payment or prepayment, in whole or in part, of principal
outstanding on such Loan on the principal amount so paid or prepaid;




     (c) with respect to Base Rate Loans, on each Quarterly Payment Date occurring after the
Restatement Effective Date;




     (d) with respect to LIBO Rate Loans, on the last day of each applicable Interest Period
(and, if such Interest Period shall exceed three months, on the date occurring on each
three-month interval occurring after the first day of such Interest Period);




     (e) with respect to any Base Rate Loans converted into LIBO Rate Loans on a day when
interest would not otherwise have been payable pursuant to clause (c), on the date
of such conversion; and




     (f) on that portion of any Loans the Stated Maturity Date of which is accelerated
pursuant to Section 8.2 or Section 8.3, immediately upon such acceleration.


Interest accrued on Loans or other monetary Obligations after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise) shall be payable upon
demand.




               SECTION 3.3 Fees. The Borrower agrees to pay the fees set forth below. All such fees shall be
non-refundable when earned and paid.



     SECTION 3.3.1 Commitment Fee. The Borrower agrees to pay to the Administrative Agent
for the account of each Non-Defaulting Lender, for the period (including any portion thereof when
its Revolving Loan Commitments are suspended by reason of the Borrower’s inability to satisfy any
condition of Article V) commencing on the Restatement Effective Date and continuing through
the Revolving Loan Commitment Termination Date, a commitment fee in an amount equal to the
Applicable Commitment Fee Margin, in each case on such Revolving Loan Lender’s Revolving Loan
Percentage of the sum of the average daily unused portion of the Revolving Loan Commitment Amount
(net of Letter of Credit Outstandings). All commitment fees payable pursuant to this Section shall
be calculated on a year comprised of 360 days and payable by the Borrower in arrears on each
Quarterly Payment Date, commencing with the first Quarterly Payment Date following the Restatement
Effective Date, and on the Revolving Loan Commitment Termination Date. The making of Swing Line
Loans shall not constitute usage of the Revolving Loan Commitment with respect to the calculation
of commitment fees to be paid by the Borrower to the Revolving Loan Lenders.



     SECTION 3.3.2 Agents’ Fees. The Borrower agrees to pay to each of the Agents the fees
in the amounts and on the dates set forth in any fee agreements with any of the Agents and to
perform any other obligations contained therein.



     SECTION 3.3.3  Letter of Credit Fee. The Borrower agrees to pay to the Administrative
Agent, for the pro rata account of the applicable Issuer and each Revolving Loan
Lender, a Letter of Credit fee in a per annum amount equal to the then effective Applicable
Margin



50









 




for Revolving Loans maintained as LIBO Rate Loans, multiplied by the average daily Stated
Amount of each such Letter of Credit, such fees being payable quarterly in arrears on each
Quarterly Payment Date following the date of issuance of each Letter of Credit and on the Revolving
Loan Commitment Termination Date. The Borrower further agrees to pay to the applicable Issuer,
quarterly in arrears on each Quarterly Payment Date, a fronting fee of 0.25% per annum on the
average daily Stated Amount of each such Letter of Credit and such other reasonable fees and
charges in connection with the issuance, negotiation, settlement, amendment and processing of each
Letter of Credit as agreed to by the Borrower and such Issuer.




     SECTION 3.3.4
 Open Account Agreement Payments. Each Open Account Discount Purchaser
agrees to pay (and in the case of any Open Account Discount Purchaser that is an affiliate of a
Lender, such Lender agrees to cause such Open Account Discount Purchaser to pay) to the
Administrative Agent, for the pro rata account of each Revolving Loan Lender, an
amount with respect to any Open Account Paying Agreement to which it is a party equal to, on a per
annum basis, the then effective Applicable Margin for Revolving Loans maintained as LIBO Rate Loans
multiplied by the aggregate amount of OA Payment Obligations actually paid to such Open Account
Discount Purchaser by the relevant Obligor under the relevant Open Account Paying Agreement, such
amounts being payable quarterly in arrears on each Quarterly Payment Date following the date of the
entry into such Open Account Discount Agreement and on the Revolving Loan Commitment Termination
Date.



ARTICLE IV

CERTAIN LIBO RATE AND OTHER PROVISIONS




         
      SECTION 4.1 LIBO Rate Lending Unlawful. If any Lender shall determine (which determination shall,
upon notice thereof to the Borrower and the Administrative Agent, constitute prima facie evidence
thereof and shall be binding on the Borrower absent manifest error) that the introduction of or any
change in or in the interpretation of any law makes it unlawful, or any Governmental Authority
asserts that it is unlawful, for such Lender to make or continue any Loan as, or to convert any
Loan into, a LIBO Rate Loan, the obligations of such Lender to make, continue or convert any such
LIBO Rate Loan shall, upon such determination, forthwith be suspended until such Lender shall
notify the Administrative Agent that the circumstances causing such suspension no longer exist, and
all outstanding LIBO Rate Loans payable to such Lender shall automatically convert into Base Rate
Loans at the end of the then current Interest Periods with respect thereto or sooner, if required
by such law or assertion.



               SECTION 4.2     Deposits Unavailable. If the Administrative Agent shall have determined that




     (a)
 Dollar deposits in the relevant amount and for the relevant Interest Period are not
available to it in its relevant market; or




     (b)
 by reason of circumstances affecting it’s relevant market, adequate means do not
exist for ascertaining the interest rate applicable hereunder to LIBO Rate Loans;



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then, upon notice from the Administrative Agent to the Borrower and the Lenders, the obligations of
all Lenders under Section 2.3 and Section 2.4 to make or continue any Loans as, or
to convert any Loans into, LIBO Rate Loans shall forthwith be suspended until the Administrative
Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no
longer exist.




               SECTION
4.3 Increased LIBO Rate Loan Costs, etc. The Borrower agrees to reimburse each Lender and
each Issuer for any increase in the cost to such Lender or Issuer of, or any reduction in the
amount of any sum receivable by such Secured Party in respect of, such Secured Party’s Commitments
and the making of Credit Extensions hereunder (including the making, continuing or maintaining (or
of its obligation to make or continue) any Loans as, or of converting (or of its obligation to
convert) any Loans into, LIBO Rate Loans) that arise in connection with any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in after the
Restatement Effective Date of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any Governmental Authority, except for such changes
with respect to increased capital costs and Taxes which are governed by Sections 4.5 and 4.6,
respectively. Each affected Secured Party shall promptly notify the Administrative Agent and the
Borrower in writing of the occurrence of any such event, stating the reasons therefor and the
additional amount required fully to compensate such Secured Party for such increased cost or
reduced amount. Such additional amounts shall be payable by the Borrower directly to such Secured
Party within five Business Days of its receipt of such notice, and such notice shall, in the
absence of manifest error, constitute prima facie evidence thereof and shall be binding on the
Borrower.



               SECTION 4.4
Funding Losses. In the event any Lender shall incur any actual loss or expense
(including any actual loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender (if any) to make or continue any portion of the
principal amount of any Loan as, or to convert any portion of the principal amount of any Loan
into, a LIBO Rate Loan) as a result of




     (a)
any conversion or repayment or prepayment of the principal amount of any LIBO Rate
Loan on a date other than the scheduled last day of the Interest Period applicable thereto,
whether pursuant to Article III or otherwise;




     (b)
 any Loans not being made continued or converted as LIBO Rate Loans in accordance
with the Borrowing Request or other notice therefor;




     (c)  any Loans not being continued as, or converted into, LIBO Rate Loans in accordance
with the Continuation/Conversion Notice therefor; or




     (d) the assignment of any LIBO Rate Loan other than on the last day of an Interest
Period therefor as a result of a request by the Borrower pursuant to Section 4.11;


then, upon the written notice of such Lender to the Borrower (with a copy to the Administrative
Agent), the Borrower shall, within five days of its receipt thereof, pay directly to such Lender
such amount as will (in the reasonable determination of such Lender) reimburse such Lender for such






52









 







actual loss or expense. Such written notice shall, in the absence of manifest error,
constitute prima facie evidence thereof and shall be binding on the Borrower.




               SECTION 4.5 Increased Capital Costs. If any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive,
guideline, decision or request (whether or not having the force of law) of any Governmental
Authority after the Restatement Effective Date affects or would affect the amount of capital
required or expected to be maintained by any Secured Party or any Person controlling such Secured
Party, and such Secured Party determines (in good faith but in its sole and absolute discretion)
that as a result thereof the rate of return on its or such controlling Person’s capital as a
consequence of the Commitments or the Credit Extensions made, or the Letters of Credit participated
in, by such Secured Party is reduced to a level below that which such Secured Party or such
controlling Person could have achieved but for the occurrence of any such circumstance, then upon
notice (together with reasonably detailed supporting documentation) from time to time by such
Secured Party to the Borrower, the Borrower shall within five Business Days following receipt of
such notice pay directly to such Secured Party additional amounts sufficient to compensate such
Secured Party or such controlling Person for such reduction in rate of return. A statement in
reasonable detail of such Secured Party as to any such additional amount or amounts shall, in the
absence of manifest error, constitute prima facie evidence thereof and shall be binding on the
Borrower. In determining such amount, such Secured Party may use any method of averaging and
attribution that it (in its sole and absolute discretion) shall deem applicable.



               SECTION 4.6 Taxes. The Borrower covenants and agrees as follows with respect to Taxes.



     (a) Any and all payments by the Borrower under each Loan Document shall be made without
setoff, counterclaim or other defense, and free and clear of, and without deduction or withholding
for or on account of, any Taxes. In the event that any Taxes are imposed and required to be
deducted or withheld from any payment required to be made by any Obligor to or on behalf of any
Secured Party under any Loan Document, then:




     (i) subject to clause (f), if such Taxes are Non-Excluded Taxes, the amount of
such payment shall be increased as may be necessary so that such payment is made, after
withholding or deduction for or on account of such Taxes, in an amount that is not less than
the amount provided for in such Loan Document; and




     (ii) the Borrower shall withhold the full amount of such Taxes from such payment (as
increased pursuant to clause (a)(i)) and shall pay such amount to the Governmental
Authority imposing such Taxes in accordance with applicable law.



     (b) In addition, the Borrower shall pay all Other Taxes imposed to the relevant Governmental
Authority imposing such Other Taxes in accordance with applicable law.



     (c) Upon the written request of the Administrative Agent, as promptly as practicable after the
payment of any Taxes or Other Taxes, and in any event within 45 days of any such written request,
the Borrower shall furnish to the Administrative Agent a copy of an official receipt (or a
certified copy thereof) evidencing the payment of such Taxes or Other Taxes.



53









 




The Administrative Agent shall make copies thereof available to any Lender upon
request therefor.




     (d) Subject to clause (f), the Borrower shall indemnify each Secured Party for any
Non-Excluded Taxes and Other Taxes levied, imposed or assessed on (and whether or not paid directly
by) such Secured Party whether or not such Non-Excluded Taxes or Other Taxes are correctly or
legally asserted by the relevant Governmental Authority; provided that if the Borrower
reasonably believes that such Taxes were not correctly or legally asserted, such Secured Party will
use reasonable efforts to cooperate with the Borrower to obtain a refund of such Taxes so long as
such efforts would not, in the sole determination of such Secured Party, result in any additional
costs, expenses or risks or be otherwise disadvantageous to it. Promptly upon having knowledge
that any such Non-Excluded Taxes or Other Taxes have been levied, imposed or assessed, and promptly
upon notice thereof by any Secured Party, the Borrower shall pay such Non-Excluded Taxes or Other
Taxes directly to the relevant Governmental Authority (provided that, no Secured Party
shall be under any obligation to provide any such notice to the Borrower). In addition, the
Borrower shall indemnify each Secured Party for any incremental Taxes that may become payable by
such Secured Party as a result of any failure of the Borrower to pay any Taxes when due to the
appropriate Governmental Authority or to deliver to the Administrative Agent, pursuant to
clause (c), documentation evidencing the payment of Taxes or Other Taxes (other than
incidental taxes resulting directly as a result of the willful misconduct or gross negligence of
the Administrative Agent or a respective Secured Party); provided that if the Secured Party
or Administrative Agent, as applicable, fails to give notice to the Borrower of the imposition of
any Non-Excluded Taxes or Other Taxes within 120 days following its receipt of actual written
notice of the imposition of such Non-Excluded Taxes or Other Taxes, there will be no obligation for
the Borrower to pay interest or penalties attributable to the period beginning after such 120th day
and ending seven days after the Borrower receives notice from the Secured Party or the
Administrative Agent as applicable. With respect to indemnification for Non-Excluded Taxes and
Other Taxes actually paid by any Secured Party or the indemnification provided in the immediately
preceding sentence, such indemnification shall be made within 30 days after the date such Secured
Party makes written demand therefor (together with supporting documentation in reasonable detail).
The Borrower acknowledges that any payment made to any Secured Party or to any Governmental
Authority in respect of the indemnification obligations of the Borrower provided in this clause
shall constitute a payment in respect of which the provisions of clause (a) and this clause
shall apply.



     (e) Each Non-U.S. Lender, on or prior to the date on which such Non-U.S. Lender becomes a
Lender hereunder (and from time to time thereafter upon the request of the Borrower or the
Administrative Agent, but only for so long as such non-U.S. Lender is legally entitled to do so),
shall deliver to the Borrower and the Administrative Agent either (i) two duly completed copies of
either (x) Internal Revenue Service Form W-8BEN claiming eligibility of the Non-U.S. Lender for
benefits of an income tax treaty to which the United States is a party or (y) Internal Revenue
Service Form W-8ECI, or in either case an applicable successor form; or (ii) in the case of a
Non-U.S. Lender that is not legally entitled to deliver either form listed in clause
(e)(i), (x) a certificate to the effect that such Non-U.S. Lender is not (A) a “bank” within
the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower
within the meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled foreign corporation
receiving interest from a related person within the meaning of Section 881(c)(3)(C) of the Code



54









 




(referred to as an “Exemption Certificate”) and (y)
two duly completed copies of Internal Revenue Service Form W-8BEN or applicable successor form.




     (f) Any Lender that is a United States Person, as defined in Section 7701(a)(30) of the Code,
shall (unless such Lender may be treated as an exempt recipient based on the indicators described
in Treasury Regulation Section 1.6049-4(c)(1)(ii)(A)) deliver to the Borrower and the
Administrative Agent, at the times specified in clause (e), two duly completed copies of Internal
Revenue Service Form W-9, or any successor form that such Person is entitled to provide at such
time, in order to qualify for an exemption from United States back-up withholding requirements.



     (g) The Borrower shall not be obligated to pay any additional amounts to any Lender pursuant
to clause (a)(i), or to indemnify any Lender pursuant to clause (d), in respect of
United States federal withholding taxes to the extent imposed as a result of (i) the failure of
such Lender to deliver to the Borrower the form or forms and/or an Exemption Certificate, as
applicable to such Lender, pursuant to clause (e) or clause (f), (ii) such form or
forms and/or Exemption Certificate not establishing a complete exemption from U.S. federal
withholding tax or the information or certifications made therein by the Lender being untrue or
inaccurate on the date delivered in any material respect, or (iii) the Lender designating a
successor lending office at which it maintains its Loans which has the effect of causing such
Lender to become obligated for tax payments in excess of those in effect immediately prior to such
designation; provided that the Borrower shall be obligated to pay additional amounts to any
such Lender pursuant to clause (a)(i) and to indemnify any such Lender pursuant to
clause (d), in respect of United States federal withholding taxes if (i) any such failure
to deliver a form or forms or an Exemption Certificate or the failure of such form or forms or
Exemption Certificate to establish a complete exemption from U.S. federal withholding tax or
inaccuracy or untruth contained therein resulted from a change in any applicable statute, treaty,
regulation or other applicable law or any interpretation of any of the foregoing occurring after
the Restatement Effective Date, which change rendered such Lender no longer legally entitled to
deliver such form or forms or Exemption Certificate or otherwise ineligible for a complete
exemption from U.S. federal withholding tax, or rendered the information or certifications made in
such form or forms or Exemption Certificate untrue or inaccurate in a material respect, (ii) the
redesignation of the Lender’s lending office was made at the request of the Borrower or (iii) the
obligation to pay any additional amounts to any such Lender pursuant to clause (a)(i) or to
indemnify any such Lender pursuant to clause (d) is with respect to an Eligible Assignee
that becomes an assignee Lender as a result of an assignment made at the request of the Borrower.



     (h) If the Administrative Agent or a Lender determines in its sole, good faith discretion that
amounts recovered or refunded are a recovery or refund of any Non-Excluded Taxes or Other Taxes as
to which it has been indemnified by the Borrower pursuant to clause (d), or to which the
Borrower has paid additional amounts pursuant to clause (a)(i), it shall pay over such
refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section 4.6 with respect to the Non-Excluded Taxes or
Other Taxes that give rise to such refund), net of all reasonable out-of-pocket expenses of the
Administrative Agent or such Lender and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided that in no event
will any Lender be required to pay an amount to the Borrower that would place such Lender in a less



55









 




favorable net after-tax position than such Lender would have been in if the
additional amounts giving rise to such refund of any Non-Excluded Taxes or Other Taxes had never
been paid, and provided further that the Borrower, upon the written request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest, or other charges imposed by the relevant Governmental Authority unless the
Governmental Authority assessed such penalties, interest, or other charges due to the gross
negligence or willful misconduct of the Administrative Agent or such Lender) to the Administrative
Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such
refund to the Governmental Authority. Nothing in this Section 4.6(h) shall require any
Lender to make available its tax returns or any other information related to its taxes that it
deems confidential.




               SECTION 4.7 Payments, Computations; Proceeds of Collateral, etc. (a) Unless otherwise expressly
provided in a Loan Document, all reductions of the Revolving Loan Commitments and all payments by
the Borrower pursuant to each Loan Document shall be made by the Borrower to the Administrative
Agent for the pro rata account of the Secured Parties entitled to receive such reduction or
payment. All payments shall be made without setoff, deduction or counterclaim not later than 11:00
a.m. on the date due in same day or immediately available funds to such account as the
Administrative Agent (or in the case of a reimbursement obligation, the applicable Issuer) shall
specify from time to time by notice to the Borrower. Funds received after that time shall be
deemed to have been received by the Administrative Agent on the next succeeding Business Day. The
Administrative Agent shall promptly remit in same day funds to each Secured Party its share, if
any, of such payments received by the Administrative Agent for the account of such Secured Party.
All interest (including interest on LIBO Rate Loans) and fees shall be computed on the basis of the
actual number of days (including the first day but excluding the last day) occurring during the
period for which such interest or fee is payable over a year comprised of 360 days (or, in the case
of interest on a Base Rate Loan (calculated at other than the Federal Funds Rate), 365 days or, if
appropriate, 366 days). Payments due on other than a Business Day shall be made on the next
succeeding Business Day and such extension of time shall be included in computing interest and fees
in connection with that payment.



     (b)  All amounts received as a result of the exercise of remedies under the Loan Documents
(including from the proceeds of collateral securing the Obligations) or under applicable law shall
be applied upon receipt to the Obligations as follows: (i) first, to the payment of all Obligations
owing to the Agents, in their capacity as Agents (including the fees and expenses of counsel to the
Agents), (ii) second, after payment in full in cash of the amounts specified in clause
(b)(i), to the ratable payment of all interest (including interest accruing after the
commencement of a proceeding in bankruptcy, insolvency or similar law, whether or not permitted as
a claim under such law) and fees owing under the Loan Documents (including all amounts owing under
Section 3.3.4), and all costs and expenses owing to the Secured Parties pursuant to the terms of
the Loan Documents, until paid in full in cash, (iii) third, after payment in full in cash of the
amounts specified in clauses (b)(i) and (b)(ii), to the ratable payment of the
principal amount of the Loans then outstanding, the aggregate Reimbursement Obligations then owing,
the aggregate amount of OA Payment Obligations then owing, the Cash Collateralization for
contingent liabilities under Letter of Credit Outstandings, amounts owing to Secured Parties under
Rate Protection Agreements and the aggregate amount of Cash Management Obligations then owing, (iv)
fourth, after payment in full in cash of the amounts specified in clauses (b)(i)
through (b)(iii), to the ratable payment of all other Obligations owing to the Secured
Parties, and (v) fifth, after



56









 




payment in full in cash of the amounts specified in clauses
(b)(i) through (b)(iv), and following the Termination Date, to each applicable Obligor
or any other Person lawfully entitled to receive such surplus. For purposes of clause
(b)(iii), the “amounts owing” at any time to any Secured Party with respect to a Rate
Protection Agreement to which such Secured Party is a party shall be determined at such time by the
terms of such Rate Protection Agreement or, if not set forth therein, in accordance with the
customary methods of calculating credit exposure under similar arrangements by the counterparty to
such arrangements, taking into account potential interest rate (or, if applicable, currency or
commodities) movements and the respective termination provisions and notional principal amount and
term of such Rate Protection Agreement.




               SECTION 4.8 Sharing of Payments. If any Secured Party shall obtain any payment or other recovery
(whether voluntary, involuntary, by application of setoff or otherwise) on account of any Credit
Extension or Reimbursement Obligation (other than pursuant to the terms of Sections 4.3,
4.4, 4.5 or 4.6) in excess of its pro rata share of
payments obtained by all Secured Parties, such Secured Party shall purchase (in Dollars) from the
other Secured Parties such participations in Credit Extensions made by them as shall be necessary
to cause such purchasing Secured Party to share the excess payment or other recovery ratably (to
the extent such other Secured Parties were entitled to receive a portion of such payment or
recovery) with each of them; provided that, if all or any portion of the excess payment or
other recovery is thereafter recovered from such purchasing Secured Party, the purchase shall be
rescinded and each Secured Party which has sold a participation to the purchasing Secured Party
shall repay to the purchasing Secured Party the purchase price to the ratable extent of such
recovery together with an amount equal to such selling Secured Party’s ratable share (according to
the proportion of (a) the amount of such selling Secured Party’s required repayment to the
purchasing Secured Party to (b) total amount so recovered from the purchasing Secured
Party) of any interest or other amount paid or payable by the purchasing Secured Party in respect
of the total amount so recovered. The Borrower agrees that any Secured Party purchasing a
participation from another Secured Party pursuant to this Section may, to the fullest extent
permitted by law, exercise all its rights of payment (including pursuant to Section 4.9)
with respect to such participation as fully as if such Secured Party were the direct creditor of
the Borrower in the amount of such participation. If under any applicable bankruptcy, insolvency
or other similar law any Secured Party receives a secured claim in lieu of a setoff to which this
Section applies, such Secured Party shall, to the extent practicable, exercise its rights in
respect of such secured claim in a manner consistent with the rights of the Secured Parties
entitled under this Section to share in the benefits of any recovery on such secured claim.



               SECTION 4.9 Setoff. Each Secured Party shall, upon the occurrence and during the continuance of
any Event of Default described in clauses (a) through (d) of Section 8.1.9
or, with the consent of the Required Lenders, upon the occurrence and during the continuance of any
other Event of Default, have the right to appropriate and apply to the payment of the Obligations
owing to it (if then due and payable), and (as security for such Obligations) the Borrower hereby
grants to each Secured Party a continuing security interest in, any and all balances, credits,
deposits, accounts or moneys of the Borrower then or thereafter maintained with such Secured Party
(other than payroll, trust or tax accounts); provided that, any such appropriation and
application shall be subject to the provisions of Section 4.8. Each Secured Party agrees
promptly to notify the Borrower and the Administrative Agent after any such appropriation and
application made by such Secured Party; provided that, the failure to give such notice
shall not



57









 




affect the validity of such setoff and application. The rights of each Secured Party
under this Section are in addition to other rights and remedies (including other rights of setoff
under applicable law or otherwise) which such Secured Party may have.




               SECTION 4.10 Mitigation. Each Lender agrees that if it makes any demand for payment under
Sections 4.3 or 4.6, it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, as determined in its sole discretion) to designate a different lending
office if the making of such a designation would reduce or obviate the need for the Borrower to
make payments under Section 4.3 or 4.6.



               SECTION 4.11 Removal of Lenders. If any Lender (an “Affected Lender”) (i) fails to consent
to an election, consent, amendment, waiver or other modification to this Agreement or other Loan
Document (a “Non-Consenting Lender”) that requires the consent of a greater percentage of
the Lenders than the Required Lenders and such election, consent, amendment, waiver or other
modification is otherwise consented to by Non-Defaulting Lenders holding more than 50% of the Total
Exposure Amount of all Non-Defaulting Lenders, (ii) makes a demand upon the Borrower for (or if the
Borrower is otherwise required to pay) amounts pursuant to Section 4.3, 4.5 or
4.6, or gives notice pursuant to Section 4.1 requiring a conversion of such
Affected Lender’s LIBO Rate Loans to Base Rate Loans or any change in the basis upon which interest
is to accrue in respect of such Affected Lender’s LIBO Rate Loans or suspending such Lender’s
obligation to make Loans as, or to convert Loans into, LIBO Rate Loans or (iii) becomes a
Defaulting Lender the Borrower may, at its sole cost and expense, within 90 days of receipt by the
Borrower of such demand or notice (or the occurrence of such other event causing Borrower to be
required to pay such compensation) or within 90 days of such Lender becoming a Non-Consenting
Lender or a Defaulting Lender, as the case may be, give notice (a “Replacement Notice”) in
writing to the Administrative Agent and such Affected Lender of its intention to cause such
Affected Lender to sell all or any portion of its Loans, Commitments and/or Notes to another
financial institution or other Person (a “Replacement Lender”) designated in such
Replacement Notice; provided that no Replacement Notice may be given by the Borrower if (A)
such replacement conflicts with any applicable law or regulation or (B) prior to any such
replacement, such Lender shall have taken any necessary action under Section 4.5 or
4.6 (if applicable) so as to eliminate the continued need for payment of amounts owing
pursuant to Section 4.5 or 4.6 and withdrew its request for compensation under
Section 4.3, 4.5 or 4.6. If the Administrative Agent shall, in the
exercise of its reasonable discretion and within 30 days of its receipt of such Replacement Notice,
notify the Borrower and such Affected Lender in writing that the Replacement Lender is reasonably
satisfactory to the Administrative Agent (such consent not being required where the Replacement
Lender is already a Lender), then such Affected Lender shall, subject to the payment of any amounts
due pursuant to Section 4.4, assign, in accordance with Section 10.11, the portion
of its Commitments, Loans, Notes (if any) and other rights and obligations under this Agreement and
all other Loan Documents (including Reimbursement Obligations, if applicable) designated in the
Replacement Notice to such Replacement Lender; provided that (A) such assignment shall be
without recourse, representation or warranty and shall be on terms and conditions reasonably
satisfactory to such Affected Lender and such Replacement Lender, and (B) the purchase price paid
by such Replacement Lender shall be in the amount of such Affected Lender’s Loans designated in the
Replacement Notice and/or its Percentage of outstanding Reimbursement Obligations, as applicable,
together with all accrued and unpaid



58









 




interest and fees in respect thereof, plus all other amounts
(including the amounts demanded and unreimbursed under Sections 4.3, 4.5 and
4.6), owing to such Affected Lender hereunder. Upon the effective date of an assignment
described above, the Replacement Lender shall become a “Lender” for all purposes under the Loan
Documents. 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 agreement necessary to effectuate any assignment of such Lender’s
interests hereunder in the circumstances contemplated by this Section.




               SECTION 4.12 Limitation on Additional Amounts, etc. Notwithstanding anything to the contrary
contained in Sections 4.3 or 4.5 of this Agreement, unless a Lender gives notice to
the Borrower that it is obligated to pay an amount under any such Section within 90 days after the
later of (i) the date the Lender incurs the respective increased costs, loss, expense or liability,
reduction in amounts received or receivable or reduction in return on capital or (ii) the date such
Lender has actual knowledge of its incurrence of their respective increased costs, loss, expense or
liability, reductions in amounts received or receivable or reduction in return on capital, then
such Lender shall only be entitled to be compensated for such amount by the Borrower pursuant to
Sections 4.3 or 4.5, as the case may be, to the extent the costs, loss, expense or
liability, reduction in amounts received or receivable or reduction in return on capital are
incurred or suffered on or after the date which occurs 90 days prior to such Lender giving notice
to the Borrower that it is obligated to pay the respective amounts pursuant to Sections 4.3
or 4.5, as the case may be. This Section shall have no applicability to any Section of
this Agreement other than Sections 4.3 and 4.5.



               SECTION 4.13 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary,
if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as
such Lender is a Defaulting Lender:




     (a) if any Swing Line Exposure, Letter of Credit Outstandings or any OA Payment
Outstandings exists at the time a Lender becomes a Defaulting Lender then:




     (i) all or any part of such Swing Line Exposure, Letter of Credit Outstandings
and OA Payment Outstandings shall be reallocated among the Non Defaulting Lenders in
accordance with their respective Revolving Loan Percentages but only to the extent
(x) the sum of all Non Defaulting Lenders’ Revolving Exposures plus such
Defaulting Lender’s Revolving Loan Percentage of (A) Swing Line Exposure, (B) Letter
of Credit Outstandings and (C) OA Payment Outstandings does not exceed the total of
all Non Defaulting Lenders’ Commitments and (y) the conditions set forth in
Section 5.2 are satisfied at such time; and




     (ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall within one Business Day following notice
by the Administrative Agent (x) first, prepay such Swing Line Exposure and (y)
second, Cash Collateralize such Defaulting Lender’s Revolving Loan
Percentage of the Letter of Credit Outstandings and OA Payment Outstandings
(after giving



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effect to any partial reallocation pursuant to clause (i) above) for
so long as such Letter of Credit Outstandings is outstanding.




     (iii) if the Borrower Cash Collateralizes any portion of such Defaulting
Lender’s Revolving Loan Percentage of the Letter of Credit Outstandings or OA
Payment Outstandings pursuant to this paragraph (a), the Borrower shall not be
required to pay any fees to such Defaulting Lender pursuant to Section 3.3.3
or Section 3.3.4 with respect to such Defaulting Lender’s Revolving Loan
Percentage of the Letter of Credit Outstandings and OA Payment Outstandings during
the period such Defaulting Lender’s Revolving Loan Percentage of the Letter of
Credit Outstandings or OA Payment Outstandings is cash collateralized;




     (iv)  if the Revolving Loan Percentages of the Letter of Credit Outstandings and
OA Payment Outstandings of the Non Defaulting Lenders is reallocated pursuant to
this paragraph (a), then the fees payable to the Lenders pursuant to Section
3.3.3 and Section 3.3.4 shall be adjusted in accordance with such Non
Defaulting Lenders’ Revolving Loan Percentages; or




     (v) if any Defaulting Lender’s Letter of Credit Outstandings and OA Payment
Outstandings is neither cash collateralized nor reallocated pursuant to this
paragraph (a), then, without prejudice to any rights or remedies of the Issuers or
any Lender hereunder, all Letter of Credit fees and Open Account Agreement payments
payable under Section 3.3.3 and Section 3.3.4 with respect to such
Defaulting Lender’s Revolving Loan Percentage of the Letter of Credit Outstandings
and OA Payment Outstandings shall be payable to the Issuer or applicable Open
Account Discount Purchaser, as the case may be, until such Letter of Credit
Outstandings and OA Payment Outstandings are cash collateralized and/or reallocated.




     (b) so long as any Lender is a Defaulting Lender, the Swing Line Lender shall not be
required to fund any Swing Line Loans and the Issuer shall not be required to issue, amend
or increase any Letter of Credit, unless it is satisfied that the related exposure will be
100% covered by the Commitments of the Non Defaulting Lenders and/or cash collateral will
be provided by the Borrower in accordance with paragraph (a) of this Section, and
participating interests in any such newly issued or increased Letter of Credit or newly made
Swing Line Loan shall be allocated among Non Defaulting Lenders in a manner consistent with
clause (i) of paragraph (a) of this Section (and Defaulting Lenders shall not participate
therein); and




     (c) any amount otherwise payable to such Defaulting Lender hereunder (whether on
account of principal, interest, fees or otherwise and including any amount that would
otherwise be payable to such Defaulting Lender pursuant to Section 4.8 but excluding
Section 4.11) shall, in lieu of being distributed to such Defaulting Lender, be
retained by the Administrative Agent in a segregated account and, subject to any applicable
requirements of law, be applied at such time or times as may be determined by the
Administrative Agent (i) first, to the payment of any amounts owing by such
Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata,
to the payment of any amounts owing by such Defaulting Lender to the Issuer or Swing Line
Lender or any Open



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Account Discount Purchaser hereunder, (iii) third, if so
determined by the Administrative Agent or requested by the Issuer or Swing Line Lender or
any Open Account Discount Purchaser, held in such account as cash collateral for future
funding obligations of the Defaulting Lender in respect of any existing or future
participating interest in any Swing Line Loan or Letter of Credit or Open Account Discount
Agreement, (iv) fourth, to the funding of any Loan in respect of which such
Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as
determined by the Administrative Agent, (v) fifth, if so determined by the
Administrative Agent and the Borrower, held in such account as cash collateral for future
funding obligations of the Defaulting Lender in respect of any Loans under this Agreement,
(vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Bank or
Swing Line Lender or Open Account Discount Purchaser as a result of any judgment of a court
of competent jurisdiction obtained by any Lender or such Issuer or Swing Line Lender or Open
Account Discount Purchaser against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement, (vii) seventh, to the
payment of any amounts owing to the Borrower as a result of any judgment of a court of
competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result
of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii)
eighth, to such Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided, with respect to this clause (viii), that if such payment is
(x) a prepayment of the principal amount of any Loans or Reimbursement Obligations in which
a Defaulting Lender has funded its participation obligations and (y) made at a time when the
conditions set forth in Section 5.02 are satisfied, such payment shall be applied solely to
prepay the Loans of, and Reimbursement Obligations owed to, all Non Defaulting Lenders pro
rata prior to being applied to the prepayment of any Loans, or Reimbursement Obligations
owed to, any Defaulting Lender.




     (d) In the event that the Administrative Agent, the Borrower, the Issuer, the Swing
Line Lender and any Open Account Discount Purchaser each agrees that a Defaulting Lender has
adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the
Revolving Loan Percentages of the Non -Defaulting Lenders shall be readjusted to
reflect the inclusion of such Lender’s Commitment and on such date such Lender shall
purchase at par such of the Loans of the other Lenders as the Administrative Agent shall
determine may be necessary in order for such Lender to hold such Loans in accordance with
its Revolving Loan Percentage.



ARTICLE V

CONDITIONS TO CREDIT EXTENSIONS




               SECTION 5.1 Initial Credit Extension. Subject to Section 7.1.11, the obligations of the
Lenders to make the initial Credit Extension shall be subject to the prior or concurrent
satisfaction (or waiver) in all material respects of each of the conditions precedent set forth in
this Article.



     SECTION 5.1.1 Resolutions, etc. The Agents shall have received from each Obligor, as
applicable, (i) a copy of a good standing certificate, dated a date reasonably close to the
Restatement Effective Date, for each such Obligor from its jurisdiction of organization and (ii) a
certificate, dated as of the Restatement Effective Date, duly executed and delivered by such



61









 






Obligor’s Secretary or Assistant Secretary, managing member or general partner, as applicable, as
to




     (a) resolutions of each such Obligor’s Board of Directors (or other managing body, in
the case of other than a corporation) then in full force and effect authorizing, to the
extent relevant, all aspects of the Transaction applicable to such Obligor and the
execution, delivery and performance of each Loan Document to be executed by such Obligor and
the transactions contemplated hereby and thereby;




     (b) the incumbency and signatures of those of its officers, managing member or general
partner, as applicable, authorized to act with respect to each Loan Document to be executed
by such Obligor; and




     (c)  the full force and validity of each Organic Document of such Obligor and copies
thereof;


upon which certificates each Secured Party may conclusively rely until it shall have received a
further certificate of the Secretary, Assistant Secretary, managing member or general partner, as
applicable, of any such Obligor canceling or amending the prior certificate of such Obligor.




     SECTION 5.1.2  Closing Date Certificate. The Agents shall have received the Closing
Date Certificate, dated as of the Restatement Effective Date and duly executed and delivered by an
Authorized Officer of the Borrower, in which certificate the Borrower shall agree and acknowledge
and certify that the statements made therein are, true and correct representations and warranties
of the Borrower as of such date, and, at the time each such certificate is delivered, such
statements shall in fact be true and correct. All documents and agreements (including Transaction
Documents) required to be appended to the Closing Date Certificate shall be in form and substance
reasonably satisfactory to the Lead Arrangers, shall have been executed and delivered by the
requisite parties, and shall be in full force and effect.



     SECTION 5.1.3 Consummation of Transaction. The Agents shall have received evidence
reasonably satisfactory to it that all actions necessary to consummate the Transaction shall have
been taken in accordance in all material respects with all applicable law and in accordance with
the terms of each applicable Transaction Document, without amendment or waiver of any material
provision thereof, unless approved by the Lead Arrangers in their reasonable discretion.



     SECTION 5.1.4  PATRIOT Act Disclosures. Within five Business Days’ prior to the
Restatement Effective Date, the Lenders or the Agents shall have received copies of all PATRIOT Act
Disclosures as reasonably requested by the Lenders or the Lead Arrangers.



     SECTION 5.1.5 Delivery of Notes. The Administrative Agent shall have received, for
the account of each Lender that has requested a Note, such Lender’s Notes duly executed and
delivered by an Authorized Officer of the Borrower.



     SECTION 5.1.6 Financial Information, etc. The Agents shall have received,



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     (a) audited consolidated balance sheets and related statements of income, stockholders’
equity and cash flows of the Borrower and its Subsidiaries for the stub period of 2006 (from
July 2, 2006 to December 30, 2006) and Fiscal Years 2007 and 2008;




     (b) unaudited consolidated balance sheets and related statements of income,
stockholders’ equity and cash flows for each of the first three Fiscal Quarters of 2008 and
of 2009;




     (c) all other financial statements for completed or pending acquisitions that may be
required under Regulation S-X of the Securities Act of 1933, as amended (“Regulation
S-X”); and




     (d) detailed projected financial statements of the Borrower and its Subsidiaries for
the five Fiscal Years ended after the Restatement Effective Date, which projections shall
include quarterly projections for the first Fiscal Year after the Restatement Effective
Date.



     SECTION 5.1.7  Solvency Certificate. The Agents shall have received a Solvency
Certificate dated the date of the initial Credit Extension, duly executed (and with all schedules
thereto duly completed) and delivered by the chief financial or accounting Authorized Officer of
the Borrower.



     SECTION 5.1.8 Guaranty. The Agents shall have received counterparts of the Guaranty,
dated as of the Restatement Effective Date, duly executed and delivered by an Authorized Officer of
each U.S. Subsidiary.



     SECTION 5.1.9 Security Agreement. The Administrative Agent shall have received
executed counterparts of the Security Agreement, dated as of the Restatement Effective Date, duly
executed, authorized or delivered by each Obligor, as applicable, together with




     (a)  certificates (in the case of Capital Securities that are securities (as defined in
the UCC)) evidencing all of the issued and outstanding Capital Securities owned by each
Obligor in its U.S. Subsidiaries and, subject to Section 7.1.11, 65% of the issued
and outstanding Voting Securities (to the extent certificated and permitted by applicable
law to be removed from any particular jurisdiction) of each Foreign Subsidiary (together
with all the issued and outstanding non-voting Capital Securities (to the extent
certificated and permitted by applicable law to be removed from any particular jurisdiction)
of such Foreign Subsidiary) directly owned by each Obligor, which certificates in each case
shall be accompanied by undated instruments of transfer duly executed in blank, or, if any
Capital Securities (in the case of Capital Securities that are uncertificated securities (as
defined in the UCC)), confirmation and evidence reasonably satisfactory to the Lead
Arrangers that the security interest therein has been transferred to and perfected by the
Collateral Agent for the benefit of the Secured Parties in accordance with Articles 8 and 9
of the UCC and all U.S. laws otherwise applicable to the perfection of the pledge of such
Capital Securities;




     (b)  Filing Statements suitable in form and naming each Obligor as a debtor and the
Collateral Agent as the secured party, or other similar instruments or documents to be



63









 







filed
under the UCC of all jurisdictions as may be necessary or, in the opinion of the Lead
Arrangers, desirable to perfect the security interests of the Collateral Agent pursuant to
the Security Agreement;




     (c)  UCC Form UCC-3 termination statements, if any, necessary to release all Liens and
other rights of any Person in any collateral described in any security agreement previously
granted by any Person, together with such other UCC Form UCC-3 termination statements as the
Lead Arrangers may reasonably request from such Obligors; and




     (d)  certified copies of UCC Requests for Information or Copies (Form UCC-11), or a
similar search report certified by a party reasonably acceptable to the Lead Arrangers,
dated a date reasonably near to the Closing Date, listing all effective financing statements
which name any Obligor (under its present legal name) as the debtor, together with copies of
such financing statements (none of which shall evidence a Lien on any collateral described
in any Loan Document, other than a Permitted Lien).



     SECTION 5.1.10  Intellectual Property Security Agreements. The Administrative Agent
shall have received a Patent Security Agreement, a Copyright Security Agreement and a Trademark
Security Agreement, as applicable, each dated as of the Closing Date, duly executed and delivered
by each Obligor that, pursuant to the Security Agreement, is required to provide such intellectual
property security agreements to the Collateral Agent.



     SECTION 5.1.11 Filing Agent, etc. All Uniform Commercial Code financing statements or
other similar financing statements and Uniform Commercial Code (Form UCC-3) termination statements
(collectively, the “Filing Statements”) required pursuant to the Loan Documents shall have
been delivered by counsel to the Lead Arrangers to CT Corporation System or another similar filing
service company acceptable to the Lead Arrangers (the “Filing Agent”). The Filing Agent
shall have acknowledged in a writing satisfactory to the Lead Arrangers and their counsel (i) the
Filing Agent’s receipt of all Filing Statements, (ii) that the Filing Statements required pursuant
to the Loan Documents have either been submitted for filing in the appropriate filing offices or
will be submitted for filing in the appropriate offices within ten days following the Restatement
Effective Date and (iii) that the Filing Agent will notify the Agents and their counsel of the
results of such submissions and will provide recorded copies of the same within 30 days following
the Restatement Effective Date.



     SECTION 5.1.12 Insurance. The Collateral Agent shall have received, certificates of
insurance in form and substance reasonably satisfactory to the Collateral Agent, evidencing
coverage required to be maintained pursuant to each Loan Document and naming the Collateral Agent
as loss payee or additional insured, as applicable.



     SECTION 5.1.13  Opinions of Counsel. The Agents shall have received opinions, dated
the Restatement Effective Date and addressed to the Lead Arrangers, the Agents and all Lenders,
from




     (a) Kirkland & Ellis LLP, counsel to the Obligors, in form and substance reasonably
satisfactory to the Lead Arrangers; and



64









 






     (b)  Maryland counsel to the Borrower, in form and substance, and from counsel,
reasonably satisfactory to the Lead Arrangers.



     SECTION 5.1.14  Closing Fees, Expenses, etc. Each Lead Arranger and each Agent shall
have received for its own account, or for the account of each Lender, as the case may be, all fees,
costs and expenses due and payable pursuant to Sections 3.3 and, if then invoiced,
10.3.



     SECTION 5.1.15 [Reserved].



     SECTION 5.1.16  Litigation. There shall exist no action, suit, investigation or other
proceeding pending or threatened in writing in any court or before any arbitrator or governmental
or regulatory agency or authority that could reasonably be expected to have a Material Adverse
Effect.



     SECTION 5.1.17 Approval. All material and necessary governmental and third party
consents and approvals shall have been obtained (without the imposition of any material and adverse
conditions that are not reasonably acceptable to the Lenders) and shall remain in effect and all
applicable waiting periods shall have expired without any material and adverse action being taken
by any competent authority. The Agents shall be reasonably satisfied that the 2016 Senior Notes
shall be issued and will be in accordance with applicable laws and governmental regulations.



     SECTION 5.1.18 Debt Rating. The Borrower shall have obtained a senior secured debt
rating (of any level) in respect of the Loans from each of S&P and Moody’s, which ratings (of any
level) shall remain in effect on the Restatement Effective Date.



     SECTION 5.1.19 Satisfactory Legal Form. All documents executed or submitted pursuant
hereto by or on behalf of any Obligor on or before the Restatement Effective Date shall be
reasonably satisfactory in form and substance to the Agents, and the Agents shall have received all
information, approvals, opinions, documents or instruments as the Lead Arrangers or their counsel
may reasonably request.



               SECTION 5.2 All Credit Extensions. The obligation of each Lender and each Issuer to make any
Credit Extension shall be subject to the satisfaction of each of the conditions precedent set forth
below.



     SECTION 5.2.1 Compliance with Warranties, No Default, etc. Both before and after
giving effect to any Credit Extension (but, if any Default of the nature referred to in Section
8.1.5 shall have occurred with respect to any other Indebtedness, without giving effect to the
application, directly or indirectly, of the proceeds thereof) the following statements shall be
true and correct:




     (a)  the representations and warranties set forth in each Loan Document shall, in each
case, be true and correct in all material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such earlier
date); and




     (b)  no Default shall have then occurred and be continuing.



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     SECTION 5.2.2
 Credit Extension Request, etc. Subject to Section 2.3.2, the
Administrative Agent shall have received a Borrowing Request if Loans are being requested, or an
Issuance Request if a Letter of Credit is being requested or extended. Each of the delivery of a
Borrowing Request or Issuance Request and the acceptance by the Borrower of the proceeds of such
Credit Extension shall constitute a representation and warranty by the Borrower that on the date of
such Credit Extension (both immediately before and after giving effect to such Credit Extension and
the application of the proceeds thereof) the statements made in Section 5.2.1 are true and
correct.



ARTICLE VI

REPRESENTATIONS AND WARRANTIES




     In order to induce the Secured Parties to enter into this Agreement and to make Credit
Extensions hereunder, the Borrower represents and warrants to each Secured Party as set forth in
this Article.



         
      SECTION 6.1
Organization, etc. Each Obligor (i) is validly organized and existing and in good
standing under the laws of the state or jurisdiction of its incorporation or organization, (ii) is
duly qualified to do business and is in good standing as a foreign entity in each jurisdiction
where the nature of its business requires such qualification, except where the failure to be so
qualified or in good standing could not reasonably be expected to have a Material Adverse Effect
and (iii) has full organizational power and authority and holds all requisite governmental
licenses, permits and other approvals to enter into and perform its Obligations under each Loan
Document to which it is a party, and except to the extent the failure to do so could not reasonably
be expected to have a Material Adverse Effect, to (a) own and hold under lease its property and (b)
to conduct its business substantially as currently conducted by it.



          
     SECTION 6.2
Due Authorization, Non-Contravention, etc. The execution, delivery and performance by
each Obligor of each Loan Document executed or to be executed by it, each Obligor’s participation
in the consummation of all aspects of the Transaction, and the execution, delivery and performance
by the Borrower or (if applicable) any Obligor of the agreements executed and delivered by it in
connection with the Transaction are in each case within such Person’s powers, have been duly
authorized by all necessary action, and do not




     (a) contravene any (i) Obligor’s Organic Documents, (ii) court decree or order binding
on or affecting any Obligor or (iii) law or governmental regulation binding on or affecting
any Obligor; or




     (b) result in (i) or require the creation or imposition of, any Lien on any Obligor’s
properties (except as permitted by this Agreement) or (ii) a default under any material
contractual restriction binding on or affecting any Obligor.



               SECTION 6.3
Government Approval, Regulation, etc. No authorization or approval or other action
by, and no notice to or filing with, any Governmental Authority or other Person (other than those
that have been, or on the Restatement Effective Date will be, duly obtained or made and which are,
or on the Restatement Effective Date will be, in full force and effect) is required for the
consummation of the Transaction or the due execution, delivery or



66









 







performance by any Obligor of any
Loan Document to which it is a party, or for the due execution, delivery and/or performance of
Transaction Documents, in each case by the parties thereto or the consummation of the Transaction.
Neither the Borrower nor any of its Subsidiaries is an “investment company” within the meaning of
the Investment Company Act of 1940, as amended.



               SECTION 6.4
Validity, etc. Each Obligor has duly executed and delivered each of the Loan
Documents and each of the Transaction Documents to which it is a party, and each Loan Document and
each Transaction Document to which any Obligor is a party constitutes the legal, valid and binding
obligations of such Obligor, enforceable against such Obligor in accordance with their respective
terms (except, in any case, as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights generally and by principles
of equity).



         
      SECTION 6.5
Financial Information. The financial statements of the Borrower and its Subsidiaries
furnished to the Administrative Agent and each Lender pursuant to Section 5.1.6 (other than
forecasts, projections, budgets and forward-looking information) have been prepared in accordance
with GAAP consistently applied (except where specifically so noted on such financial statements),
and present fairly in all material respects the consolidated financial condition of the Persons
covered thereby as at the dates thereof and the results of their operations for the periods then
ended. All balance sheets, all statements of income and of cash flow and all other financial
information of each of the Borrower and its Subsidiaries furnished pursuant to Section
7.1.1 have been and will for periods following the Restatement Effective Date be prepared in
accordance with GAAP consistently applied with the financial statements delivered pursuant to
Section 5.1.6, and do or will present fairly in all material respects the consolidated
financial condition of the Persons covered thereby as at the dates thereof and the results of their
operations for the periods then ended. Notwithstanding anything contained herein to the contrary,
it is hereby acknowledged and agreed by the Administrative Agent, each Lead Arranger and each
Lender that (i) any financial or business projections furnished to the Administrative Agent, any
Lead Arranger or any Lender by the Borrower or any of its Subsidiaries under any Loan Document are
subject to significant uncertainties and contingencies, which may be beyond the Borrower’s and/or
its Subsidiaries’ control, (ii) no assurance is given by any of the Borrower or its Subsidiaries
that the results forecast in any such projections will be realized and (iii) the actual results may
differ from the forecast results set forth in such projections and such differences may be
material.



               SECTION 6.6
No Material Adverse Change. There has been no material adverse change in the
business, financial condition, operations, performance or assets of the Borrower and its
Subsidiaries, taken as a whole, since January 3, 2009.



          
     SECTION 6.7
Litigation, Labor Controversies, etc. There is no pending or, to the knowledge of the
Borrower or any of its Subsidiaries, threatened (in writing) litigation, action, proceeding, labor
controversy or investigation:




     (a)
affecting the Borrower any of its Subsidiaries or any other Obligor, or any of
their respective properties, businesses, assets or revenues, which could reasonably be
expected to have a Material Adverse Effect; or



67









 







     (b) which purports to affect the legality, validity or enforceability of any Loan
Document, the Transaction Documents or the Transaction.



               SECTION
6.8 Subsidiaries. The Borrower has no Subsidiaries, except those Subsidiaries which are
(a) identified in Item 6.8 of the Disclosure Schedule or (b) permitted to have been organized or
acquired in accordance with Sections 7.2.5 or 7.2.10.



               SECTION 6.9  Ownership of Properties. The Borrower and each of its Subsidiaries (other than a
Receivables Subsidiary) owns (a) in the case of owned real property, good and legal title to, (b)
in the case of owned personal property, good and valid title to, and (c) in the case of leased real
or personal property, valid and enforceable (subject to bankruptcy, insolvency, reorganization or
similar laws) leasehold interests (as the case may be) in, all of its properties and assets,
tangible and intangible, of any nature whatsoever, free and clear in each case of all Liens or
claims, except for Permitted Liens. Set forth in Item 6.9(a) of the Disclosure Schedule is a true
and complete list of each Mortgaged Property. Set forth in Item 6.9(b) of the Disclosure Schedule
is a true and complete list of each parcel of real property owned by any Obligor in the United
States on the Restatement Effective Date with a fair market value (as determined by the Borrower in
good faith) in excess of $2,000,000 on the Restatement Effective Date.



               SECTION
6.10 Taxes. The Borrower and each of its Subsidiaries has filed all material tax returns
and reports required by law to have been filed by it and has paid all Taxes thereby shown to be due
and owing, except any such Taxes which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on
its books or except to the extent such failure could not reasonably be expected to result in a
Material Adverse Effect.



               SECTION 6.11 Pension and Welfare Plans. During the twelve-consecutive-month period prior to the
Restatement Effective Date and prior to the date of any Credit Extension hereunder, no steps have
been taken to terminate any Pension Plan which has caused or could reasonably be expected to cause
Borrower or any Subsidiary to incur any liability, and no contribution failure has occurred with
respect to any Pension Plan sufficient to give rise to a Lien under Section 302(f) of ERISA with
respect to any assets of Borrower or any Subsidiary. No condition exists or event or transaction
has occurred with respect to any Pension Plan which might result in the incurrence by the Borrower
of any material liability, fine or penalty.



               SECTION 6.12 Environmental Warranties.




     (a) All facilities and property (including underlying groundwater) owned or leased by
the Borrower or any of its Subsidiaries have been, and continue to be, owned or leased by
the Borrower and its Subsidiaries in compliance with all Environmental Laws,
except for any such noncompliance which could not reasonably be expected to have a
Material Adverse Effect;




     (b) there have been no past, and there are no pending or, to the Borrower’s knowledge
(after due inquiry), threatened (in writing) (i) claims, complaints, notices or requests for
information received by the Borrower or any of its Subsidiaries with respect to



68









 







any alleged
violation of any Environmental Law, or (ii) complaints, notices or inquiries to the Borrower
or any of its Subsidiaries regarding potential liability under any Environmental Law except
for claims, complaints, notices, requests for information or inquiries with respect to
violations of or potential liability under any Environmental Laws that could not reasonably
be expected to have a Material Adverse Effect;




     (c)  there have been no Releases of Hazardous Materials at, on or under any property now
or previously owned, operated or leased by the Borrower or any of its Subsidiaries that have
had, or could reasonably be expected to have, a Material Adverse Effect;




     (d)  the Borrower and its Subsidiaries have been issued and are in compliance with all
permits, certificates, approvals, licenses and other authorizations relating to
environmental matters, except for any such non-issuance or any such noncompliance which
could not reasonably be expected to have a Material Adverse Effect;




     (e)  no property now or, to the Borrower’s knowledge (after due inquiry), previously
owned, operated or leased by the Borrower or any of its Subsidiaries is listed or proposed
for listing (with respect to owned, operated property only) on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar state list of sites requiring
investigation or clean-up, which listing could reasonably be expected to have a Material
Adverse Effect;




     (f)  there are no underground storage tanks, active or abandoned, including petroleum
storage tanks, on or under any property now or previously owned, operated or leased by the
Borrower or any of its Subsidiaries that, singly or in the aggregate, have, or could
reasonably be expected to have, a Material Adverse Effect;




     (g)  neither the Borrower nor any Subsidiary has directly transported or directly
arranged for the transportation of any Hazardous Material to any location which is listed or
proposed for listing on the National Priorities List pursuant to CERCLA, on the CERCLIS or
on any similar state list or which is the subject of federal, state or local enforcement
actions or other investigations which could reasonably be expected to lead to material
claims against the Borrower or such Subsidiary for any remedial work, damage to natural
resources or personal injury, including claims under CERCLA which, if adversely resolved
could, in any of the foregoing cases, reasonably be expected to have a Material Adverse
Effect;




     (h) there are no polychlorinated biphenyls or friable asbestos present at any property
now or previously owned, operated or leased by the Borrower or any Subsidiary
that, singly or in the aggregate, have, or could reasonably be expected to have, a
Material Adverse Effect; and




     (i)  no conditions exist at, on or under any property now or, to the knowledge of the
Borrower (after due inquiry), previously owned, operated or leased by the Borrower which,
with the passage of time, or the giving of notice or both, would give rise to liability



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under any Environmental Law, except for such liability that could not reasonably be expected
to have a Material Adverse Effect.



               SECTION 6.13 Accuracy of Information. None of the factual information (other than projections,
forecasts, budgets and forward-looking information) heretofore or contemporaneously furnished in
writing to any Secured Party by or on behalf of any Obligor in connection with any Loan Document or
any transaction contemplated hereby (including the Transaction) (taken as a whole) contains any
untrue statement of a material fact, or omits to state any material fact necessary to make any such
information not materially misleading as of the date such information was furnished;
provided, however (i) any financial or business projections furnished to the
Administrative Agent, any Lead Arranger or any Lender by the Borrower or any of its Subsidiaries
under any Loan Document are subject to significant uncertainties and contingencies, which may be
beyond the Borrower’s and/or its Subsidiaries’ control, (ii) no assurance is given by any of the
Borrower or its Subsidiaries that the results forecast in any such projections will be realized and
(iii) the actual results may differ from the forecast results set forth in such projections and
such differences may be material.



               SECTION 6.14 Regulations U and X. No Obligor is engaged in the business of extending credit for
the purpose of buying or carrying margin stock, and no proceeds of any Credit Extensions will be
used to purchase or carry margin stock or otherwise for a purpose which violates, or would be
inconsistent with, F.R.S. Board Regulation U or Regulation X. Terms for which meanings are
provided in F.R.S. Board Regulation U or Regulation X or any regulations substituted therefor, as
from time to time in effect, are used in this Section with such meanings.



               SECTION 6.15 Compliance with Contracts, Laws, etc. The Borrower and each of its Subsidiaries have
performed their obligations under agreements to which the Borrower or a Subsidiary is a party and
have complied with all applicable laws, rules, regulations and orders except were the failure to do
so could not reasonably be expected to have a Material Adverse Effect. The Borrower and each of
its Subsidiaries (a) are not listed on the “Specially Designated Nationals and Blocked Person List”
maintained by the Office of Foreign Assets Control (“OFAC”), the Department of the
Treasury, or included in any executive orders relating thereto and (b) have used the proceeds of
the Credit Extensions without violating in any material respect any of the foreign asset control
regulations of OFAC or any enabling statute or executive order relating thereto having the force of
law.



               SECTION 6.16 Solvency. The Borrower and its Subsidiaries (taken as a whole), both before and after
giving effect to any Credit Extensions, are Solvent.



ARTICLE VII

COVENANTS




               SECTION 7.1 Affirmative Covenants. The Borrower agrees with each Lender, each Issuer and each
Agent that until the Termination Date has occurred, the Borrower will, and will cause its
Subsidiaries to, perform or cause to be performed the obligations set forth below.



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     SECTION 7.1.1 Financial Information, Reports, Notices, etc. The Borrower will furnish
each Lender and the Administrative Agent copies of the following financial statements, reports,
notices and information:




     (a) within the earlier of (i) 45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year and (ii) so long as the Borrower is a public reporting company
at such time, such earlier date as the SEC requires the filing of such information (or if
the Borrower is required to file such information on a Form 10-Q with the SEC, promptly
following such filing), an unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Quarter and consolidated statements of income and
cash flow of the Borrower and its Subsidiaries for such Fiscal Quarter and for the period
commencing at the end of the previous Fiscal Year and ending with the end of such Fiscal
Quarter, and including (in each case), in comparative form, the figures for the
corresponding Fiscal Quarter in, and year to date portion of, the immediately preceding
Fiscal Year, certified as complete and correct in all material respects (subject to audit,
normal year-end adjustments and the absence of footnote disclosure) by the chief financial
officer, chief executive officer, president, treasurer or assistant treasurer of the
Borrower;




     (b) within the earlier of (i) 90 days after the end of each Fiscal Year and (ii) so
long as the Borrower is a public reporting company at such time, such earlier date as the
SEC requires the filing of such information (or if the Borrower is required to file such
information on a Form 10-K with the SEC, promptly following such filing), (i) a copy of the
consolidated balance sheet of the Borrower and its Subsidiaries, and the related
consolidated statements of income and cash flow of the Borrower and its Subsidiaries for
such Fiscal Year, setting forth in comparative form the figures for the immediately
preceding Fiscal Year, audited (without any Impermissible Qualification) by Pricewaterhouse
Coopers LLP or such other independent public accountants selected by the Borrower and
reasonably acceptable to the Administrative Agent, which shall include a calculation of the
financial covenants set forth in Section 7.2.4 and stating that, in performing the
examination necessary to deliver the audited financial statements of the Borrower, no
knowledge was obtained of any Event of Default with respect to financial matters and (ii) a
consolidated budget (within level of detail comparable to the quarterly financial statements
delivered pursuant to clause (a)) for the following Fiscal Year including a
projected consolidated balance sheet and related statements of projected operations and cash
flows as of the end of and for such following Fiscal Year;




     (c) promptly following the delivery of the financial information pursuant to
clauses (a) and (b) of this Section 7.1.1, a Compliance Certificate,
executed by the chief financial officer, chief executive officer, president, treasurer or
assistant treasurer of the
Borrower, (i) showing compliance with the financial covenants set forth in Section
7.2.4 and stating that no Default has occurred and is continuing (or, if a Default has
occurred, specifying the details of such Default and the action that the Borrower or an
Obligor has taken or proposes to take with respect thereto), (ii) stating that no Subsidiary
has been formed or acquired since the delivery of the last Compliance Certificate (or, if a
Subsidiary has been formed or acquired since the delivery of the last Compliance
Certificate, a statement that such Subsidiary has complied with Section 7.1.8 if
applicable) and (iii) in the case of a Compliance Certificate delivered concurrently with
the financial information




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pursuant to clause (b), a calculation of Excess Cash Flow; provided
that such Compliance Certificate shall be furnished no later than seven days following, and
within the time periods required for, delivery of the financial information pursuant to
clauses (a) and (b) of this Section 7.1.1.




     (d) as soon as possible and in any event within three Business Days after the Borrower
or any other Obligor obtains knowledge of the occurrence of a Default, a statement of an
Authorized Officer on behalf of the Borrower setting forth details of such Default and the
action which the Borrower or such Obligor has taken and proposes to take with respect
thereto;




     (e) as soon as possible and in any event within three Business Days after the Borrower
or any other Obligor obtains knowledge of (i) the commencement of any litigation, action,
proceeding or labor controversy of the type and materiality described in Section 6.7
or (ii) any other event, change or circumstance that has had, or could reasonably be
expected to have, a Material Adverse Effect, notice thereof and, to the extent the
Administrative Agent requests, copies of all documentation relating thereto, if any;




     (f) promptly upon becoming aware of (i) the institution of any steps by any Person to
terminate any Pension Plan, (ii) the failure to make a required contribution to any Pension
Plan if such failure is sufficient to give rise to a Lien under Section 302(f) of ERISA,
(iii) the taking of any action with respect to a Pension Plan which could result in the
requirement that any Obligor furnish a bond or other security to the PBGC or such Pension
Plan, or (iv) the occurrence of any event with respect to any Pension Plan which could
reasonably be expected to result in the incurrence by any Obligor of any material liability,
fine or penalty, notice thereof and copies of all documentation relating thereto;




     (g) promptly upon receipt thereof, copies of all final “management letters” submitted
to the Borrower or any other Obligor by the independent public accountants referred to in
clause (b) in connection with each audit made by such accountants;




     (h) promptly following the mailing or receipt of any notice or report (other than
identical reports or notices delivered hereunder) delivered under the terms of theany
Pro Forma Unsecured Indebtedness Documents, the 2020 Senior Note Documents, 2016 Senior
Note Documents or the 2014 Senior Note Documents, copies of such notice or report;




     (i) all PATRIOT Act Disclosures, to the extent reasonably requested by the
Administrative Agent or any Lender; and




     (j) such other financial and other information as any Lender or Issuer through the
Administrative Agent may from time to time reasonably request (including information and
reports in such detail as the Administrative Agent may request with respect to the terms of
and information provided pursuant to the Compliance Certificate).




Information required to be delivered pursuant to this Section 7.1.1 shall be deemed
to have been delivered to the Administrative Agent on the date on which such information is
available on the Internet via the EDGAR system of the SEC. Information required to be



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delivered pursuant to this Section 7.1.1 may also be delivered by electronic
communication pursuant to procedures approved by the Administrative Agent pursuant to
Section 9.11.



     SECTION 7.1.2 Maintenance of Existence; Material Obligations; Compliance with Contracts,
Laws, etc. The Borrower will, and will cause each of its Subsidiaries to, preserve and
maintain its legal existence, rights (charter and statutory), franchises, permits, licenses and
approvals (in each case, except as otherwise permitted by Section 7.2.10), perform in all
respects their obligations, including obligations under agreements to which the Borrower or a
Subsidiary is a party, and comply in all respects with all applicable laws, rules, regulations and
orders, including the payment (before the same become delinquent), of all obligations, including
all Taxes imposed upon the Borrower or its Subsidiaries or upon their property except to the extent
being diligently contested in good faith by appropriate proceedings and for which adequate reserves
in accordance with GAAP have been set aside on the books of the Borrower or its Subsidiaries, as
applicable except, in each case, where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.



     SECTION 7.1.3 Maintenance of Properties. Except to the extent that the failure to do
so could not reasonably be expected to have a Material Adverse Effect the Borrower will, and will
cause each of its Subsidiaries to, maintain, preserve, protect and keep its and their respective
properties in good repair, working order and condition (ordinary wear and tear, casualty and
condemnation excepted), and make necessary repairs, renewals and replacements so that the business
carried on by the Borrower and its Subsidiaries may be properly conducted at all times, unless the
Borrower or such Subsidiary determines in good faith that the continued maintenance of such
property is no longer economically desirable, necessary or useful to the business of the Borrower
or any of its Subsidiaries or the Disposition of such property is otherwise permitted by
Section 7.2.10 or Section 7.2.11.



     SECTION 7.1.4 Insurance. The Borrower will, and will cause each of its Subsidiaries
to maintain:




     (a) insurance on its property with financially sound and reputable insurance companies
against loss and damage in at least the amounts (and with only those deductibles)
customarily maintained, and against such risks as are typically insured against in the same
general area, by Persons of comparable size engaged in the same or similar business as the
Borrower and its Subsidiaries; and




     (b) all worker’s compensation, employer’s liability insurance or similar insurance as
may be required under the laws of any state or jurisdiction in which it may be engaged in
business.


Without limiting the foregoing, all insurance policies required pursuant to this Section shall (i)
name the Collateral Agent on behalf of the Secured Parties as mortgagee (in the case of property
insurance) or additional insured (in the case of liability insurance), as applicable, and provide
that no cancellation or modification of the policies will be made without thirty days’ prior
written notice to the Collateral Agent and (ii) without duplication, be in addition to any
requirements to maintain specific types of insurance contained in the other Loan Documents.





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     SECTION 7.1.5 Books and Records. The Borrower will, and will cause each of its
Subsidiaries to, keep books and records in accordance with GAAP which accurately reflect in all
material respects all of its business affairs and transactions and permit each Secured Party or any
of their respective representatives, at reasonable times during normal business hours and intervals
upon reasonable notice to the Borrower and except after the occurrence and during the continuance
of an Event of Default not more frequently than once per Fiscal Year, to visit each Obligor’s
offices, to discuss such Obligor’s financial matters with its officers and employees, and its
independent public accountants (provided that management of the Borrower shall be notified
and allowed to be present at all such meetings and the Borrower hereby authorizes such independent
public accountant to discuss each Obligor’s financial matters with each Secured Party or their
representatives) and to examine (and photocopy extracts from) any of its books and records. The
Borrower shall pay any reasonable fees of such independent public accountant incurred in connection
with any Secured Party’s exercise of its rights pursuant to this Section.



     SECTION 7.1.6 Environmental Law Covenant. The Borrower will, and will cause each of
its Subsidiaries to:




     (a) use and operate all of its and their facilities and properties in compliance with
all Environmental Laws, keep all permits, approvals, certificates, licenses and other
authorizations required under Environmental Laws in effect and remain in compliance
therewith, and handle all Hazardous Materials in compliance with all applicable
Environmental Laws, in each case except where failure to do so could not reasonably be
expected to have a Material Adverse Effect; and




     (b) promptly notify the Administrative Agent and provide copies upon receipt of all
written claims, complaints, notices or inquiries relating to the condition of its facilities
and properties in respect of, or as to compliance with, Environmental Laws, the subject
matter of which could reasonably be expected to have a Material Adverse Effect, and shall
promptly resolve any non-compliance with Environmental Laws (except as could not reasonably
be expected to have a Material Adverse Effect) and keep its property free of any Lien
imposed by any Environmental Law, unless such Lien is a Permitted Lien.



     SECTION 7.1.7 Use of Proceeds. The Borrower will apply the proceeds of the Credit
Extensions as follows:




     (a) to finance, in part, the Transaction and to pay the fees, costs and expenses
related to the Transaction;




     (b) for working capital and general corporate purposes of the Borrower and its
Subsidiaries; and




     (c) for issuing Letters of Credit for the account of the Borrower and its Subsidiaries
for purposes referred to in clause (b) above.



     SECTION 7.1.8 Future Guarantors, Security, etc. Subject to Section 7.1.11,
the Borrower will, and will cause each U.S. Subsidiary (other than HBI Playtex Bath LLC, a Delaware
limited liability company “Playtex Bath”) to, execute any documents, authorize the filing
of Filing Statements, execute agreements and instruments, and take all commercially reasonable
further



74









 




action (including filing Mortgages to the extent required hereby) that may be required
under applicable law, or that the Administrative Agent may reasonably request, in order to
effectuate the transactions contemplated by the Loan Documents and in order to grant, preserve,
protect and perfect the validity and first priority (subject to Permitted Liens) of the Liens
created or intended to be created by the Loan Documents. The Borrower will cause any subsequently
acquired or organized U.S. Subsidiary (other than Playtex Bath) to execute a supplement (in form
and substance reasonably satisfactory to the Administrative Agent) to the Guaranty and each other
applicable Loan Document in favor of the Secured Parties. In addition, from time to time, the
Borrower will, at its own cost and expense, promptly secure the Obligations by pledging or
creating, or causing to be pledged or created, perfected Liens with respect to such of its assets
and properties as the Administrative Agent or the Required Lenders shall designate, it being agreed
that it is the intent of the parties that the Obligations shall be secured by, among other things,
substantially all the assets of the Borrower and its U.S. Subsidiaries (other than Playtex Bath)
and personal property acquired subsequent to the Restatement Effective Date; provided that
(a) neither the Borrower nor its U.S. Subsidiaries shall be required to pledge more than 65% of the
Voting Securities of any Foreign Subsidiary that is directly owned by any Obligor, (b) neither the
Borrower nor any U.S. Subsidiary shall be required to create or perfect any security interest in
any leased real property or any owned real property with a fair market value (as determined by the
Borrower in good faith) less than $2,000,000, (c) to the extent the Organic Documents of a Foreign
Subsidiary prohibit the creation or perfection of a security interest in the Capital Securities of
such Foreign Subsidiary, no Obligor will be required to create or perfect a security interest in
such Capital Securities and (d) the Borrower will not be required to execute and deliver any
Foreign Pledge Agreement with respect to any Foreign Subsidiary (i) whose assets are valued (as
reasonably determined by the Borrower) at less than $25,000,000 or (ii) if the Borrower and the
Administrative Agent reasonably determine that it is commercially impractical to deliver a Foreign
Pledge Agreement in such jurisdiction. Such Liens will be created under the Loan Documents in form
and substance reasonably satisfactory to the Agents, and the Borrower shall deliver or cause to be
delivered to the Agents all such instruments and documents (including legal opinions, title
insurance policies and lien searches) as the Administrative Agent shall reasonably request to
evidence compliance with this Section.




     SECTION 7.1.9 Rate Protection Agreements. Within 60 days following the Restatement
Effective Date, the Borrower will enter into interest rate swap, cap, collar or similar
arrangements with a Lender or any other Person reasonably acceptable to the Lenders designed to
protect the Borrower against fluctuations in interest rates for a period of at least three years
from the Restatement Effective Date, in an amount reasonably satisfactory to the Agents and in any
event that would cause an amount equal to not less than 50% of the Indebtedness outstanding under
the Loan Documents, the 2016 Senior Note Documents and the 2014 Senior Note Documents to bear
interest at a fixed rate.



     SECTION 7.1.10 Maintenance of Ratings. The Borrower will use its commercially
reasonable efforts to cause (a) a senior secured credit rating with respect to the Loans from each
of S&P and Moody’s and (b) a corporate credit rating and corporate family rating from S&P and
Moody’s respectively, to be available at all times until the Stated Maturity Date for the New Term
Loans.



     SECTION 7.1.11 Post-Closing Obligations.



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     (a) Foreign Pledge Agreement Amendments. Within 90 days after the Restatement
Effective Date (or such later dates from time to time as consented to by the Administrative
Agent in its reasonable discretion), the Agents shall have received amendments to each
Foreign Pledge Agreement (giving effect to the appointment of JPMorgan Chase Bank, N.A., as
successor Collateral Agent and the entering into of this Agreement) and each Foreign Pledge
Agreement shall remain in full force and effect, and all Liens granted to the Collateral
Agent thereunder shall be duly perfected to provide the Collateral Agent with a security
interest in and Lien on all collateral granted thereunder free and clear of other Liens,
except to the extent reasonably consented to by the Administrative Agent; provided
that the Administrative Agent may waive the requirement to perfect a pledge on the Capital
Securities of any Foreign Subsidiary otherwise required to be pledged hereunder if they
determine, in their reasonable discretion, that the value of the assets owned by such
Foreign Subsidiary or the EBITDA generated by such Foreign Subsidiary, is immaterial when
taken as a whole.




     (b) Mortgage Amendments. Subject to the limitation in clause (d) of
Section 7.1.8, within 90 days after the Restatement Effective Date (or such later
dates from time to time as consented to by the Administrative Agent in its reasonable
discretion), the Agents shall have received amendments to each Mortgage (giving effect to
the appointment of JPMorgan Chase Bank, N.A., as successor Collateral Agent and the entering
into of this Agreement) with respect to a Mortgaged Property, duly executed and delivered by
the applicable Obligor, together with:




     (i) evidence of the completion (or reasonably satisfactory arrangements for the
completion) of all recordings and filings of each Mortgage amendment as necessary to
continue a valid, perfected first priority (subject to Permitted Liens) Lien against
the properties purported to be covered thereby;




     (ii) down-dated mortgagee’s title insurance policies in favor of the Collateral
Agent for the benefit of the Secured Parties in amounts not exceeding the fair
market value of the insured property and in form and substance and issued by
insurers, reasonably satisfactory to the Lead Arrangers, with respect to the
property purported to be covered by each Mortgage, insuring that title to such
property is marketable and that the interests created by each Mortgage continue to
constitute valid first Liens thereon (subject to Permitted Liens), and shall be
accompanied by evidence of the payment in full of all premiums thereon; and




     (iii) mortgage releases releasing any mortgage in favor of any other Person on
any Mortgaged Property (except to the extent the same constitute a Permitted Lien
pursuant to Section 7.2.3);




     (c) Mortgages on Excluded Properties. To the extent the Excluded Properties
have not been sold by the Obligors within 120 days after the Restatement Effective Date, the
Agents shall receive Mortgages with respect to the Excluded Properties within 150 days of
the Restatement Effective Date, duly executed and delivered by the applicable Obligor,
together with such other customary documents and evidence as the Agents may reasonably
request (including local opinions, maps or plats of an as-built survey of the sites



76









 




of such Excluded Properties, a mortgagee’s title insurance policy (or policies) or marked up
unconditional binder for such insurance and flood insurance policies).





     (d) Foreign Stock Certificates. Within 30 Business Days following the
Restatement Effective Date (or such later dates from time to time as consented to by the
Administrative Agent in its reasonable discretion), the Borrower agrees to deliver to the
Collateral Agent certificates (in each case accompanied by undated instruments of transfer
duly executed in blank) evidencing 65% of the issued and outstanding Voting Securities (to
the extent certificated and permitted by applicable law to be removed from any particular
jurisdiction) of each Foreign Subsidiary (together with all the issued and outstanding
non-voting Capital Securities (to the extent certificated and permitted by applicable law to
be removed from any particular jurisdiction) of such Foreign Subsidiary) directly owned by
each Obligor to the extent not previously delivered, together with a revised Schedule I to
the Security Agreement accurately reflecting the newly delivered certificates.



               SECTION 7.2 Negative Covenants. The Borrower covenants and agrees with each Lender, each Issuer
and each Agent that until the Termination Date has occurred, the Borrower will, and will cause its
Subsidiaries to, perform or cause to be performed the obligations set forth below.



     SECTION 7.2.1 Business Activities; Fiscal Year. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any business activity except those business activities
engaged in on the date of this Agreement and activities reasonably related, supportive,
complementary, ancillary or incidental thereto or reasonable extensions thereof (each, a
“Permitted Business”). The Borrower will not change the ending dates with respect to its
Fiscal Year.



     SECTION 7.2.2 Indebtedness. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, other than:




     (a) Indebtedness in respect of the Obligations;




     (b) unsecured Indebtedness of the Obligors (i) under the 2016 Senior Note Documents in
an aggregate principal amount not to exceed $500,000,000, as such amount is reduced on or
after the Restatement Effective Date in accordance with the terms hereof, (ii) under the
2014 Senior Note Documents in a net aggregate principal amount not to exceed $493,680,000
and (iii) under senior notes whether issued pursuant to a supplement to the 2014 Senior Note
Indenture, the 2016 Senior Note Indenture or any other senior note indenture, the terms of
which are reasonably satisfactory to the
Administrative Agent, so long as (x) thethe 2020 Senior Note Documents in an
aggregate principal amount
 allowed thereunder does
not to exceed $1,000,000,000 and (y) the proceeds therefore are applied to repay Loans in accordance with clause (g) of
Section 3.1.1;




     (c) Indebtedness existing as of the Restatement Effective Date which is identified in
Item 7.2.2(c) of the Disclosure Schedule, and refinancings, refundings,
reallocations, renewals or extensions of such Indebtedness in a principal amount not in



77









 






excess of that which is outstanding on the Restatement Effective Date (as such amount has
been reduced following the Restatement Effective Date);




     (d) unsecured Indebtedness (i) incurred in the ordinary course of business of the
Borrower and its Subsidiaries (including open accounts extended by suppliers on normal trade
terms in connection with purchases of goods and services which are not overdue for a period
of more than 90 days or, if overdue for more than 90 days, as to which a dispute exists and
adequate reserves in conformity with GAAP have been established on the books of the Borrower
or such Subsidiary) and (ii) in respect of performance, surety or appeal bonds provided in
the ordinary course of business, but excluding (in each case), Indebtedness incurred through
the borrowing of money or Contingent Liabilities of borrowed money;




     (e) Indebtedness (i) in respect of industrial revenue bonds or other similar
governmental or municipal bonds, (ii) evidencing the deferred purchase price of newly
acquired property or incurred to finance the acquisition of equipment of the Borrower and
its Subsidiaries (pursuant to purchase money mortgages or otherwise, whether owed to the
seller or a third party) used in the ordinary course of business of the Borrower and its
Subsidiaries (provided that, such Indebtedness is incurred within 270 days of the
acquisition of such property) and (iii) in respect of Capitalized Lease Liabilities;
provided that, the aggregate amount of all Indebtedness outstanding pursuant to this
clause shall not at any time exceed $150,000,000;




     (f) Indebtedness of an Obligor owing to any other Obligor;




     (g) unsecured Indebtedness of an Obligor owing to a Subsidiary that is not a Subsidiary
Guarantor; provided that, in each case, all such Indebtedness of any Obligor owed to
a Subsidiary that is not a Subsidiary Guarantor shall be subordinated to the Obligations of
such Obligor on customary terms.




     (h) Indebtedness of a Foreign Subsidiary to the Borrower or any other Obligor in an
aggregate amount (when aggregated with the amount of Investments made by the Borrower and
the Subsidiary Guarantors in Foreign Subsidiaries under clause (l) of Section 7.2.5) not to
exceed $300,000,000 plusthe greater of (i) $400,000,000 and (ii) the sum of (A)
10.0% of Total Tangible Assets plus (B) Available Retained Excess Cash Flow,
determined as of the date of incurrence of such Indebtedness;




     (i) Indebtedness of a Person existing at the time such Person became a Subsidiary of
the Borrower, but only if such Indebtedness was not created or incurred in
contemplation of such Person becoming a Subsidiary and the aggregate amount of all
Indebtedness incurred pursuant to this clause does not exceed $250,000,000 over the term of
this Agreement;




     (j) Indebtedness incurred pursuant to a Permitted Securitization and Standard
Securitization Undertakings and Permitted Factoring Facilities;




     (k)
unsecured Indebtedness of the Borrower and its Subsidiaries incurred to (i) finance
Permitted Acquisitions (including obligations of the Borrower and its Subsidiaries



78









 








under indemnification, adjustment of purchase price, earn-out, incentive, non-compete, consulting,
deferred compensation or other similar arrangements incurred by such Person in connection
therewith) or (ii) refinance any other Indebtedness permitted to be incurred under
clauses (a), (b), (e), (i), (j) and (n) of
this Section 7.2.2;




		 	     (l) Indebtedness in respect of Hedging Obligations entered into in the ordinary course
of business and not for speculative purposes;






		 	     (m) Indebtedness of any Foreign Subsidiary owing to any other Foreign Subsidiary;






		 	     (n) Indebtedness (whether unsecured or secured by Liens) of Foreign Subsidiaries in an
aggregate outstanding principal amount not to exceed $300,000,000 at any one time
outstanding and Contingent Liabilities of any Obligor in respect thereof; provided
that Foreign Subsidiaries shall be permitted to incur an additional $75,000,000 of
Indebtedness over the term of this Agreement to the extent such Indebtedness is incurred in
connection with a Permitted Acquisition.






		 	     (o) Indebtedness incurred in the ordinary course of business in connection with cash
pooling arrangements, cash management and other Indebtedness incurred in the ordinary course
of business in respect of netting services, overdraft protections and similar arrangements
in each case in connection with cash management and deposit accounts;






		 	     (p) Indebtedness consisting of the financing of insurance premiums in the ordinary
course of business;






		 	     (q) unsecured Indebtedness of the Borrower and its Subsidiaries representing
the obligation of such Person to make payments with respect to the cancellation or
repurchase of Capital Securities of officers, employees or directors (or their estates) of
the Borrower or such Subsidiaries; and





     (r) other Indebtedness of the Borrower and its Subsidiaries (other than Indebtedness of
Foreign Subsidiaries owing to the Borrower or Subsidiary Guarantors or of a Receivables
Subsidiary) in an aggregate amount at any time outstanding not to exceed $150,000,000;
and



     (s) unsecured Indebtedness of the Borrower and its Subsidiaries so long as
(i) the Borrower shall be in compliance with Section 7.2.4 for the Measurement Period after
giving pro forma effect thereto as if such Indebtedness had been incurred on the
last day of such Measurement Period and (ii) such Indebtedness matures after the Extended 
Termination Date (such Indebtedness permitted by this clause (s), “Pro Forma Unsecured
Indebtedness”).  


provided that, no Indebtedness otherwise permitted by clauses (c), (e),
(i), (k)(i) or, (r) or (s) shall be assumed, created or
otherwise incurred if an Event of Default has occurred and is then continuing.





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     SECTION 7.2.3 Liens. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Lien upon any of its property
(including Capital Securities of any Person), revenues or assets, whether now owned or hereafter
acquired, except the following (collectively “Permitted Liens”):




     (a)
Liens securing payment of the Obligations;




     (b)
Liens in connection with a Permitted Securitization or a Permitted Factoring
Facility;




     (c)
Liens existing as of the Restatement Effective Date and disclosed in Item
7.2.3(c) of the Disclosure Schedule securing Indebtedness described in clause
(c) of Section 7.2.2, and refinancings, refundings, reallocations, renewals or
extensions of such Indebtedness; provided that, no such Lien shall encumber any
additional property (except for accessions to such property and the products and proceeds
thereof) and the amount of Indebtedness secured by such Lien is not increased from that
existing on the Restatement Effective Date;




     (d)
Liens securing Indebtedness of the type permitted under clause (e) of
Section 7.2.2; provided that, (i) such Lien is granted within 270 days after
such Indebtedness is incurred, (ii) the Indebtedness secured thereby does not exceed the
lesser of the cost or the fair market value of the applicable property, improvements or
equipment at the time of such acquisition (or construction) and (iii) such Lien secures only
the assets that are the subject of the Indebtedness referred to in such clause;




     (e)
Liens securing Indebtedness permitted by clause (i) of Section
7.2.2; provided that, such Liens existed prior to such Person becoming a
Subsidiary, were not created in anticipation thereof and attach only to specific tangible
assets of such Person;




     (f)
Liens in favor of carriers, warehousemen, mechanics, repairmen, materialmen,
customs and revenue authorities and landlords and other similar statutory Liens and Liens in
favor of suppliers (including sellers of goods pursuant to customary reservations or
retention of title, in each case) granted in the ordinary course of business for amounts not
overdue for a period of more than 60 days or are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books or with respect to which the failure to make payment could not
reasonably be expected to have a Material Adverse Effect;




     (g)
(i) Liens incurred or deposits made in the ordinary course of business in
connection with worker’s compensation, unemployment insurance or other forms of governmental
insurance or benefits, or to secure performance of tenders, statutory obligations, bids,
leases, trade contracts or other similar obligations (other than for borrowed money) entered
into in the ordinary course of business or to secure obligations on surety and appeal bonds
or performance bonds, performance and completion guarantees and other obligations of a like
nature (including those to secure health, safety and environmental obligations) incurred in
the ordinary course of business and (ii) obligations



80









 






in respect of letters of credit or bank guarantees that have been posted to
support payment of the items set forth in the immediately preceding clause (i);





     (h) judgment Liens that are being appealed in good faith or with respect to which
execution has been stayed or the payment of which is covered in full (subject to a customary
deductible) by insurance maintained with responsible insurance companies and which do not
otherwise result in an Event of Default under Section 8.1.6;




     (i) easements, rights-of-way, covenants, conditions, building codes, restrictions,
reservations, minor defects or irregularities in title and other similar encumbrances and
matters that would be disavowed by a full survey of real property not interfering in any
material respect with the value or use of the affected or encumbered real property to which
such Lien is attached;




     (j) Liens securing Indebtedness permitted by clauses (n), or
(o) of Section 7.2.2 or clause (l) of Section 7.2.5;




     (k) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or
other funds maintained with a creditor depository institution and Liens attaching to
commodity trading accounts or other commodities brokerage accounts incurred in the ordinary
course of business;




     (l) (i) licenses, sublicenses, leases or subleases granted to third Persons in the
ordinary course of business not interfering in any material respect with the business of the
Borrower or any of its Subsidiaries, (ii) other agreements with respect to the use and
occupancy of real property entered into in the ordinary course of business or in connection
with a Disposition permitted under the Loan Documents or (iii) the rights reserved or vested
in any Person by the terms of any lease, license, franchise, grant or permit held by
Borrower or any of its Subsidiaries or by a statutory provision, to terminate any such
lease, license, franchise, grant or permit, or to require annual or periodic payments as a
condition to the continuance thereof;




     (m) Liens on the property of the Borrower or any of its Subsidiaries securing (i) the
non-delinquent performance of bids, trade contracts (other than for borrowed money), leases,
licenses and statutory obligations, (ii) Contingent Obligations on surety and appeal bonds,
and (iii) other non-delinquent obligations of a like nature; in each case, incurred in the
ordinary course of business;




     (n) Liens on Receivables transferred to a Receivables Subsidiary under a Permitted
Securitization or to a Subsidiary who is party to a Permitted Factoring Facility under a
Permitted Factoring Facility;




     (o) Liens upon specific items or inventory or other goods and proceeds of the Borrower
or any of its Subsidiaries securing such Person’s obligations in respect of bankers’
acceptances or documentary letters of credit issued or created for the account of such
Person to facilitate the shipment or storage of such inventory or other goods;



81









 






     (p) Liens (i) (A) on advances of cash or Cash Equivalent Investments in favor of the
seller of any property to be acquired in an Investment permitted pursuant to Section
7.2.5 to be applied against the purchase price for such Investment and (B) consisting of
an agreement to Dispose of any property in a Disposition permitted under Section
7.2.11, in each case under this clause (i), 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 and (ii) on earnest money deposits of cash or Cash Equivalent Investments made by
the Borrower or any of its Subsidiaries in connection with any letter of intent or purchase
agreement permitted hereunder;




     (q) Liens arising from precautionary Uniform Commercial Code financing statement
filings (or similar filings under other applicable Law) regarding leases entered into by the
Borrower or any of its Subsidiaries in the ordinary course of business;




     (r) Liens (i) arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods (including under Article 2 of the UCC) and Liens that are
contractual rights of set-off relating to purchase orders and other similar agreements
entered into by the Borrower or any of its Subsidiaries and (ii) relating to the
establishment of depository relations with banks not given in connection with the issuance
of Indebtedness and (iii) relating to pooled deposit or sweep accounts of the Borrower or
any Subsidiary to permit satisfaction of overdraft or similar obligations in each case in
the ordinary course of business and not prohibited by this Agreement;




     (s) other Liens securing Indebtedness or other obligations permitted under this
Agreement and outstanding in an aggregate principal amount not to exceed $75,000,000;




     (t) ground leases in respect of real property on which facilities owned or leased by
the Borrower or any of its Subsidiaries are located or any Liens senior to any lease,
sub-lease or other agreement under which the Borrower or any of its Subsidiaries uses or
occupies any real property;




     (u) Liens constituting security given to a public or private utility or any
Governmental Authority as required in the ordinary course of business;




     (v) pledges or deposits of cash and Cash Equivalent Investments securing deductibles,
self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of
insurance in the ordinary course of business;




     (w) Liens on (A) incurred premiums, dividends and rebates which may become payable
under insurance policies and loss payments which reduce the incurred premiums on such
insurance policies and (B) rights which may arise under State insurance guarantee funds
relating to any such insurance policy, in each case securing Indebtedness permitted to be
incurred pursuant to clause (p) of Section 7.2.2;




     (x)
 Liens for Taxes not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books



82









 








  or with respect to which the failure to make payment could not reasonably be expected
to have a Material Adverse Effect;




     (y) Liens in respect of Hedging Obligations; and




     (z)  non-exclusive licenses of intellectual property rights in the ordinary course of
business.



     SECTION 7.2.4 Financial Condition and Operations. The Borrower will not permit any of
the events set forth below to occur.




     (a) The Borrower will not permit the Leverage Ratio as of the last day of any Fiscal Quarter
occurring during any period set forth below to be greater than the ratio set forth opposite such
period:



	 	 	 
	Period	 	Leverage Ratio
	Each Fiscal Quarter ending between October 16, 2009 and
JulyOctober 15, 20102012

	 	4.50:1.00
	Each Fiscal Quarter ending between JulyOctober 16, 20102012
and October 15, 20102013

	 	4.25:1.00
	Each
Fiscal Quarter ending between October 16,
20102013
and AprilOctober 15, 20112014

	 	4:00:1.00
	Each Fiscal Quarter ending AprilOctober 16, 20112014 and
thereafter

	 	3.75:1.00







     (b) The Borrower will not permit the Senior Secured Leverage Ratio as of the last
day of any Fiscal Quarter occurring during any period set forth below to be greater than the ratio
set forth opposite such period:



	 	 	 
	Period	 	Leverage Ratio
	Each Fiscal Quarter ending between October 16, 2009 and
October 15,
2012
 

	 	2.50:1.00
	Each Fiscal Quarter ending between October 16, 2012 and

October 15, 2014

	 	2.25:1.00
	Each Fiscal Quarter ending October 16, 2014 and 
thereafter

	 	2.00:1.00






83









 








     (c)
(b) The Borrower will not permit the Interest Coverage Ratio as of the last day of
any Fiscal Quarter occurring during any period set forth below to be less than the ratio set forth
opposite such period:



	 	 	 
	Period	 	Interest Coverage Ratio
	Each Fiscal Quarter ending between October 16,
2009 and JulyOctober 15, 20102012

	 	2.503.00:1.00
	Each Fiscal Quarter ending between July 16, 2010
and October 15, 2010

	 	2.75:1.00
	Each Fiscal Quarter ending between October 16,
2010 and July 15, 2011

	 	3.00:1.00
	Each Fiscal Quarter ending JulyOctober 16,
20112012 and thereafter

	 	3.25:1.00






     SECTION 7.2.5 Investments. The Borrower will not, and will not permit any of its
Subsidiaries to, purchase, make, incur, assume or permit to exist any Investment in any other
Person, except:




     (a) Investments existing on the Restatement Effective Date and identified in Item
7.2.5(a) of the Disclosure Schedule, and any amendment, modification, restatement,
extension, renewal, refunding, replacement or refinancing, in whole or in part thereof,
provided that the principal amount of any Investment following any such amendment,
modification, restatement, extension, renewal, refunding, replacement or refinancing
pursuant to this Section 7.2.5(a) shall not exceed the principal amount of such
Investment on the date hereof;




     (b) Cash Equivalent Investments;




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




     (d)  Investments consisting of any deferred portion (including promissory notes and
non-cash consideration) of the sales price received by the Borrower or any Subsidiary in
connection with any Disposition permitted under Section 7.2.11;




     (e)  Investments by way of contributions to capital or purchases of Capital Securities
by an Obligor in any other Obligor;



84









 






     (f)
Investments constituting (i) accounts receivable arising or acquired, (ii) trade
debt granted, or (iii) deposits made in connection with the purchase price of goods or
services, in each case in the ordinary course of business;




     (g)
 Investments by way of the acquisition of Capital Securities or the purchase or
other acquisition of all or substantially all of the assets or business of any Person, or of
assets constituting a business unit, or line of business or division of, such Person, in
each case constituting Permitted Acquisitions; provided that if such Person is not
incorporated or organized under the laws of the United States, the amount expended in such
transaction, when aggregated with the amount expended under clause (b) of
Section 7.2.10, shall not exceed the amount set forth in clause (b) of
Section 7.2.10 during the term of this Agreement;




     (h)
Investments constituting Capital Expenditures permitted pursuant to Section
7.2.7;




     (i)
 Investments in a Receivables Subsidiary or a Subsidiary who is party to a Permitted
Factoring Facility or any Investment by a Receivables Subsidiary or a Subsidiary who is
party to a Permitted Factoring Facility in any other Person under a Permitted Securitization
or a Permitted Factoring Facility; provided that any Investment in a Receivables
Subsidiary is in the form of a Purchase Money Note, contribution of additional receivables
and related assets or any equity interests;




     (j)
Investments constituting loans or advances to officers, directors or employees made
in the ordinary course of business (including for travel, entertainment and relocation
expenses) in an aggregate amount not to exceed $10,000,000;




     (k)
 Investments by any Subsidiary that is not a Subsidiary Guarantor in the Borrower or
any other Subsidiary; provided that any intercompany loan made by a any Subsidiary
that is not a Subsidiary Guarantor to an Obligor shall meet the requirements of clause (g)
of Section 7.2.2;




     (l)
Investments in Foreign Subsidiaries in an aggregate amount not to exceed
$300,000,000 over the term of this Agreement plus(when aggregated with the
amount of Indebtedness incurred by Foreign Subsidiaries under clause (h) of Section 7.2.2)
the greater of (i) $400,000,000 and (ii) the sum of (A) 10.0% of Total Tangible Assets plus
(B) Available Retained Excess Cash Flow;, determined as of the date of such
Investment;




     (m)
 Investments in the ordinary course of business consisting of (i) endorsements for
collection or deposit, (ii) customary arrangements with customers or (iii) Hedging
Obligations not for speculative purposes;




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




     (o)
Investments in any Person engaged in one or more Permitted Businesses and
supporting ongoing business operations of the Borrower or its Subsidiaries (including



85









 






without limitation Persons that are not Subsidiaries of the Borrower) in an aggregate
amount not to exceed $75,000,000 over the term of this Agreement;




     (p)
other Investments in an amount not to exceed $125,000,000 over the term of this
Agreement plusthe greater of (i) $150,000,000 and (ii) the sum of (A) 3.5% of
Total Tangible Assets plus (B) Available Retained Excess Cash Flow, determined as of the
date of such Investment; and




     (q)
 Investments incurred in the ordinary course of business in connection with cash
pooling arrangements, cash management and other Investments incurred in the ordinary course
of business in respect of netting services, overdraft protections and similar arrangement in
each case in connection with cash management.



provided that (I) any Investment which when made complies with the requirements of the
definition of the term “Cash Equivalent Investment” may continue to be held notwithstanding that
such Investment if made thereafter would not comply with such requirements; and (II) no Investment
otherwise permitted by clauses (e) (to the extent such Investment relates to an Investment
in a Foreign Subsidiary), (g) or (n) shall be permitted to be made if any Event of
Default has occurred and is continuing.




     SECTION 7.2.6
Restricted Payments, etc. The Borrower will not, and will not permit
any of its Subsidiaries (other than a Receivables Subsidiary) to, declare or make a Restricted
Payment, or make any deposit for any Restricted Payment, other than (a) Restricted Payments made by
Subsidiaries to the Borrower or wholly owned Subsidiaries, (b) cashless exercises of stock options,
(c) cash payments by Borrower in lieu of the issuance of fractional shares upon exercise or
conversion of Equity Equivalents, (d) Restricted Payments in connection with the share repurchases
required by the employee stock ownership programs or required under employee agreements
and, (e) so long as (i) no Specified Default has occurred and is continuing or would result
therefrom, and (ii) both before and after giving effect to such Restricted Payment as if
such Restricted Payment had been made on the last day of the Measurement Period, the
Borrower is in pro
forma compliance with
Section 7.2.4,7.2.4 for such Measurement
Period, Restricted Payments not otherwise permitted by this Section 7.2.6 in an
aggregate amount not to exceed $75,000,000, together with the aggregate amount of Indebtedness
under any Pro Forma Unsecured Indebtedness Documents, the 2014 Senior Note Documents, the 2016
Senior Note Documents or the 2020 Senior Note Documents paid or prepaid in any Fiscal Year pursuant
to clause (1)(B) of the proviso to Section 7.2.8(a), not to exceed $150,000,000 in any Fiscal
Year plus Available Retained Excess Cash Flow.  and (f) so long as no Specified Default
has occurred and is continuing or would result therefrom, Restricted Payments not otherwise
permitted by this Section 7.2.6 to the extent that, both before and after giving effect to such
Restricted Payment as if such Restricted Payment had been made on the last day of the
Measurement Period, the Leverage Ratio for such Measurement Period would not exceed
3.00:1.00.



     SECTION 7.2.7
 Capital Expenditures.




     (a)
Subject (in the case of Capitalized Lease Liabilities), to clause (e) of
Section 7.2.2, the Borrower will not, and will not permit any of its Subsidiaries
to, make or



86









 






commit to make Capital Expenditures except Capital Expenditures in an aggregate
amount not to exceed $130,000,000150,000,000 in any Fiscal Year plus
Available Retained Excess Cash Flow; provided that, to the extent that the amount of
Capital Expenditures made by the Borrower and its Subsidiaries during any Fiscal Year is
less than the aggregate amount permitted (including after giving effect to this proviso) for
such Fiscal Year, then such unutilized amount may be carried forward and utilized by the
Borrower and its Subsidiaries to make Capital Expenditures in any succeeding Fiscal Year,
provided further that it is understood and agreed that the Borrower shall be
permitted to carry forward all unused amounts for the 2009 Fiscal Year accumulated pursuant
to Section 7.2.7 of the Original Credit Agreement for usage in any succeeding Fiscal
Year. Notwithstanding anything to the contrary with respect to any Fiscal Year of the
Borrower during which a Permitted Acquisition is consummated and for each Fiscal Year
subsequent thereto, the amount of Capital Expenditures permitted under the preceding
sentence applicable to each such Fiscal Year shall be increased by an amount equal to 5% of
the purchase price of each Permitted Acquisition (the “Acquired Permitted Capital
Expenditure Amount”); provided, however, with respect to the Fiscal Year
during which any such Permitted Acquisition occurs, the amount of additional Capital
Expenditures permitted as a result of this sentence shall be an amount equal to the product
of (x) the Acquired Permitted Capital Expenditure Amount and (y) a fraction, the numerator
of which is the number of days remaining in such Fiscal Year after the date such Permitted
Acquisition is consummated and the denominator of which is the actual number of days in such
Fiscal Year.




     (b) Notwithstanding anything to the contrary contained in clause (a) above, for
any Fiscal Year, the amount of Capital Expenditures that would otherwise be permitted in
such Fiscal Year pursuant to this Section 7.2.7 (including as a result of the
carry-forward described in the proviso to the first sentence of clause (a) above)
may be increased by an amount not to exceed $10,000,000 (the “CapEx Pull-Forward
Amount”). The actual CapEx Pull-Forward Amount in respect of any such Fiscal Year shall
reduce, on a dollar-for-dollar basis, the amount of Capital Expenditures that would have
been permitted to be made in the immediately succeeding Fiscal Year (provided that
the Borrower and its Subsidiaries may apply the CapEx Pull-Forward Amount in such
immediately succeeding Fiscal Year).



     SECTION 7.2.8
 Payments With Respect to Certain Indebtedness. The Borrower will not,
and will not permit any of its Subsidiaries to,




     (a)
 make any payment or prepayment of principal of, or premium or interest on, any
Indebtedness incurred under
Pro Forma Unsecured Indebtedness Documents, the 2014
Senior Note
Documents, the 2016 Senior Note Documents or the 20162020 Senior
Note Documents (including, in each case, any redemption or retirement thereof) (i)
other than on (or after) the stated, scheduled date for payment of interest set forth in the
applicable Pro Forma Unsecured Indebtedness Documents, 2014 Senior Note Documents

or
the,

 2016 Senior Note Documents or 2020 Senior Note Documents, respectively,
or (ii) which would violate the terms of this Agreement, the applicable Pro Forma
Unsecured Indebtedness Documents, 2014 Senior Note Documents or the, 2016
Senior Note Documents or 2020 Senior Note Documents; provided, however,
that the Borrower may, so long as no Specified Default has occurred and is continuing or
would result therefrom, the Borrower



87









 






 may (1) if, both before and after giving effect to such
payment or prepayment as if such payment or prepayment had been made on the last day
of the Measurement Period, the Borrower is in compliance with Section 7.2.4 for such
Measurement Period, pay or prepay Indebtedness incurred under any Pro Forma
Unsecured Indebtedness Documents, the 2014 Senior Note Documents or, the 2016
Senior Note Documents in an amount up to $50,000,000 in the aggregate during the term of
this Agreement plus anyor the 2020 Senior Note Documents (A) with the proceeds
of (x) Pro Forma Unsecured Indebtedness or (y) solely with respect to the payment or
prepayment of Indebtedness incurred under the 2014 Senior Note Documents, an Incremental
Credit Increase permitted under Section 2.9, in each case without limitation or (B) in an
aggregate amount, together with the aggregate amount of Restricted Payments made pursuant to
Section 7.2.6(e), not to exceed $150,000,000 in any Fiscal Year plus Available Retained
Excess Cash Flow, and (2) if, both before and after giving effect to such payment or
prepayment as if such payment or prepayment had been made on the last day of the
Measurement Period, the Leverage Ratio for such Measurement Period would not exceed
3.00:1.00, pay or prepay Indebtedness incurred under any Pro Forma Unsecured Indebtedness
Documents, the 2014 Senior Note Documents, the 2016 Senior Note Documents or the 2020 Senior
Note Documents without limitation;




     (b)
except as otherwise permitted by clause (a) above, prior to the Termination
Date, redeem, retire, purchase, defease or otherwise acquire any Indebtedness under any
Pro Forma Unsecured Indebtedness Documents, the 2014 Senior Note
Documents, the 2016
Senior Note Documents or the 20162020 Senior Note Documents (other than (i)
 with proceeds from the issuance of the Borrower’s Capital Securities or (ii) with
the proceeds of Pro Forma Unsecured Indebtedness, in each
case, permitted to be used to
redeem
Pro Forma Unsecured Indebtedness, 2014 Senior Notes or, 2016
Senior Notes or 2020 Senior Notes in accordance with the terms of the applicable Pro
Forma Unsecured Indebtedness Documents, the 2014 Senior Note Documents or, the
2016 Senior Note Documents or the 2020 Senior Note Documents, respectively);




     (c)
 make any deposit (including the payment of amounts into a sinking fund or other
similar fund) for any of the foregoing purposes; or




     (d)
 make any payment or prepayment of principal of, or premium or interest on, any
Indebtedness (other than intercompany Indebtedness) that is by its express written terms
subordinated to the payment of the Obligations at any time when an Event of Default has
occurred and is continuing.



     SECTION 7.2.9
Issuance of Capital Securities. The Borrower will not permit any of its
Subsidiaries (other than a Receivables Subsidiary and any Foreign Subsidiary) to issue any Capital
Securities (whether for value or otherwise) to any Person other than to the Borrower or another
wholly owned Subsidiary (other than any director’s qualifying shares or investments by foreign
nationals mandated by applicable laws).



     SECTION 7.2.10
Consolidation, Merger; Permitted Acquisitions, etc. The Borrower will
not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or



88









 





merge into or with, any other Person, or purchase or otherwise acquire all or substantially all of
the assets of any Person (or any division or line of business thereof), except





     (a) any Subsidiary may liquidate or dissolve voluntarily into, and may merge with and
into, the Borrower or any other Subsidiary (provided that a Subsidiary Guarantor may
only (i) liquidate or dissolve into, or merge with and into, the Borrower or another
Subsidiary Guarantor or (ii) liquidate or dissolve into, or merge with and into a Subsidiary
that is not a Subsidiary Guarantor to the extent such disposition of assets is otherwise
permitted by Section 7.2.11), and the assets or Capital Securities of any Subsidiary may be
purchased or otherwise acquired by the Borrower or any other Subsidiary (provided
that the assets or Capital Securities of any Subsidiary Guarantor may only (i) be purchased
or otherwise acquired by the Borrower or another Subsidiary Guarantor or (ii) be purchased
or otherwise acquired by a Subsidiary that is not a Subsidiary Guarantor to the extent such
disposition is otherwise permitted by Section 7.2.11); provided, further,
that in no event shall any Subsidiary consolidate with or merge with and into any other
Subsidiary (other than a merger that is otherwise permitted by Section 7.2.11) unless after
giving effect thereto, the Collateral Agent shall have a perfected pledge of, and security
interest in and to, at least the same percentage of the issued and outstanding interests of
Capital Securities (on a fully diluted basis) and other assets of the surviving Person as
the Collateral Agent had immediately prior to such merger or consolidation in form and
substance reasonably satisfactory to the Agents, pursuant to such documentation and opinions
as shall be necessary in the opinion of the Agents to create, perfect or maintain the
collateral position of the Secured Parties therein; and




     (b) so long as no Event of Default has occurred and is continuing or would occur after
giving effect thereto, the Borrower or any of its Subsidiaries may purchase the Capital
Securities of any Person, all or substantially all of the assets of any Person (or any
division or line of business thereof), or acquire such Person by merger, in each case, if
such purchase or acquisition constitutes a Permitted Acquisition; provided that, if
such Person is not incorporated or organized under the laws of the United States, the cash
amount expended in connection with such transaction, when aggregated with the cash amount
expended under clause (g) of Section 7.2.5, shall not exceed $100,000,000 in
the aggregate during the term of this Agreement plus Available Retained Excess Cash
Flow; provided further that any Capital Securities of the Borrower issued to the
seller in connection with any Permitted Acquisition shall not result in a deduction of
amounts available to consummate Permitted Acquisitions hereunder.



     SECTION 7.2.11 Permitted Dispositions. The Borrower will not, and will not permit any
of its Subsidiaries to, Dispose of any of the Borrower’s or such Subsidiaries’ assets (including
accounts receivable and Capital Securities of Subsidiaries) to any Person in one transaction or
series of transactions unless such Disposition is:




     (a)
inventory or obsolete, no longer used or useful, damaged, worn out or surplus
property Disposed of in the ordinary course of its business (including, the
abandonment of intellectual property which is obsolete, no longer used or useful or
that in the Borrower’s good faith judgment is no longer material in the conduct of the
Borrower and is Subsidiaries’ business taken as a whole):



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     (b) permitted by Section 7.2.10;




     (c) accounts receivable or any related asset Disposed of pursuant to a Permitted
Securitization or a Permitted Factoring Facility;




     (d) 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;




     (e) of property by the Borrower or any Subsidiary; provided that if the
transferor of such property is an Obligor (i) the transferee must be an Obligor or (ii) to
the extent such transaction constitutes an Investment such transaction is permitted under
Section 7.2.5;




     (f) of cash or Cash Equivalent Investments;




     (g) of accounts receivable in connection with compromise, write down or collection
thereof in the ordinary course of business;




     (h) constituting leases, subleases, licenses or sublicenses of property (including
intellectual property) in the ordinary course of business and which do not materially
interfere with the business of the Borrower and its Subsidiaries;




     (i) constituting a transfer of property subject to a Casualty Event (i) upon receipt of
Net Casualty Proceeds of such Casualty Event or (ii) to a Governmental Authority as a result
of condemnation;




     (j) sales of a non-core assets acquired in connection with a Permitted Acquisition
which are not used or useful or are duplicative in the business of the Borrower or its
Subsidiaries;




     (k) a grant of options to purchase, lease or acquire real or personal property in the
ordinary course of business, so long as the Disposition resulting from the exercise of such
option would otherwise be permitted under this Section 7.2.11;




     (l) Dispositions of Investments in Foreign Subsidiaries, to the extent required by, or
made pursuant to buy/sell arrangements between, Foreign Subsidiaries;




     (m) Dispositions of the property described on Item 7.2.11(m) of the Disclosure
Schedule; or




     (n) Dispositions of assets not otherwise permitted pursuant to preceding clauses
(a) — (m) of this Section 7.2.11 so long as (i) each such Disposition is for
fair market value and the consideration received consists of no less than 75% in cash and
Cash Equivalent Investments, (ii) the ratio of Total Senior Secured Leverage
RatioDebt on such day to Total Tangible Assets as of such day would not exceed
0.50:1.00 after giving pro forma effect thereto and (iii) the Net
Disposition Proceeds from such Disposition are applied pursuant to Sections 3.1.1
and 3.1.2.



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     SECTION 7.2.12  Modification of Certain Agreements. The Borrower will not, and will
not permit any of its Subsidiaries to, consent to any amendment, supplement, waiver or other
modification of, or enter into any forbearance from exercising any rights with respect to the terms
or provisions contained in,




     (a)  the Transaction Documents, the 2020 Senior Note Documents or Pro Forma
Unsecured Indebtedness Documents other than any amendment, supplement, waiver or
modification which would not be materially adverse to the Secured Parties; or




     (b)  the Organic Documents of the Borrower or any of its Subsidiaries (other than a
Receivables Subsidiary) other than any amendment, supplement, waiver or modification which
would not be materially adverse to the Secured Parties.



     SECTION 7.2.13  Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into or cause or permit to exist any arrangement,
transaction or contract (including for the purchase, lease or exchange of property or the rendering
of services) with any of its other Affiliates, unless such arrangement, transaction or contract is
on fair and reasonable terms not materially less favorable to the Borrower or such Subsidiary than
it could obtain in an arm’s-length transaction with a Person that is not an Affiliate other than
arrangements, transactions or contracts (a) between or among the Borrower and any Subsidiaries, (b)
in connection with the cash management of the Borrower and its Subsidiaries in the ordinary course
of business, (c) in connection with a Permitted Securitization including Standard Securitization
Undertakings or a Permitted Factoring Facility or (d) that is a Transaction Document or an Original
Transaction Document.



     SECTION 7.2.14  Restrictive Agreements, etc. The Borrower will not, and will not
permit any of its Subsidiaries (other than a Receivables Subsidiary or a Subsidiary who is party to
a Permitted Factoring Facility) to, enter into any agreement prohibiting




     (a)  the creation or assumption of any Lien upon its properties, revenues or assets,
whether now owned or hereafter acquired;




     (b)  the ability of any Obligor to amend or otherwise modify any Loan Document; or




     (c)  the ability of any Subsidiary (other than a Receivables Subsidiary) to make any
payments, directly or indirectly, to the Borrower, including by way of dividends, advances,
repayments of loans, reimbursements of management and other intercompany charges, expenses
and accruals or other returns on investments (it being understood that (i) the priority of
any preferred stock in receiving dividends or liquidating distributions prior to the
dividends or liquidating distributions being paid on common stock shall not be deemed a
restriction on the ability to make distributions on Capital Securities and (ii) the
subordination of advances or loans made to the Borrower or any
Subsidiary to other Indebtedness incurred by the Borrower or any Subsidiary shall not
be deemed a restriction on the ability to make advances or repay loans).



The foregoing prohibitions shall not apply to restrictions contained (i) in any Loan Document
(iii) in the cases of clause (a) and (c), in any Pro Forma Unsecured
Indebtedness Document, 2014




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Senior Note Document or, 2016 Senior Note Document or
2020 Senior Note Document, (iv) in the case of clause (a), any agreement governing any
Indebtedness permitted by clause (n) of Section 7.2.2 as to the assets financed with the
proceeds of such Indebtedness, (v) in the case of clauses (a) and (c), any
agreement of a Foreign Subsidiary governing the Indebtedness permitted to be incurred or permitted
to exist hereunder, (vi) with respect to any Receivables Subsidiary or other Subsidiary who is
party to a Permitted Factoring Facility, in the case of clauses (a) and (c), the
documentation governing any Securitization or Permitted Factoring Facility permitted hereunder,
(vii) solely with respect to clause (a), any arrangement or agreement arising in connection
with a Disposition permitted under this Agreement (but then only with respect to the assets being
so Disposed), (viii) solely with respect to clause (a) and (c), are already binding
on a Subsidiary when it is acquired and (ix) solely with respect to clause (a), customary
restrictions in leases, subleases, licenses and sublicenses.




     SECTION 7.2.15  Sale and Leaseback. The Borrower will not, and will not permit any of
its Subsidiaries to, directly or indirectly enter into any agreement or arrangement providing for
the sale or transfer by it of any property (now owned or hereafter acquired) to a Person and the
subsequent lease or rental of such property or other similar property from such Person, except for
agreements and arrangements with respect to property (a) the fair market value (as determined in
good faith by the chief financial officer of the Borrower) of which does not exceed $150,000,000 in
the aggregate following the Restatement Effective Date or (b) the term of which is less than one
year; provided that, in each case, the Net Disposition Proceeds of such agreements and
arrangements are applied pursuant to Sections 3.1.1 and 3.1.2.



ARTICLE VIII

EVENTS OF DEFAULT




               SECTION 8.1 Listing of Events of Default. Each of the following events or occurrences described
in this Article shall constitute an “Event of Default”.



     SECTION 8.1.1 Non-Payment of Obligations. The Borrower shall default in the payment
or prepayment when due of




     (a)  any principal of any Loan, or any Reimbursement Obligation or any deposit of cash
for collateral purposes pursuant to Section 2.6.4;




     (b)  any interest on any Loan or any fee described in Article III, and such
default shall continue unremedied for a period of three days after such interest or fee was
due; or




     (c) any other monetary Obligation, and such default shall continue unremedied for a
period of 10 Business Days after such amount was due.



     SECTION 8.1.2  Breach of Warranty. Any representation or warranty of any Obligor made
or deemed to be made in any Loan Document (including any certificates delivered pursuant to
Article V) is or shall be incorrect in any material respect when made or deemed to have
been made.




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     SECTION 8.1.3  Non-Performance of Certain Covenants and Obligations. The Borrower
shall default in the due performance or observance of any of its obligations under Section
7.1.1, Section 7.1.7, Section 7.1.11 or Section 7.2.



     SECTION 8.1.4  Non-Performance of Other Covenants and Obligations. Any Obligor shall
default in the due performance and observance of any other agreement contained in any Loan Document
executed by it, and such default shall continue unremedied for a period of 30 days after the
earlier to occur of (a) notice thereof given to the Borrower by any Agent or any Lender or (b) the
date on which any Obligor has knowledge of such default.



     SECTION 8.1.5  Default on Other Indebtedness. A default shall occur in the payment of
any amount when due (subject to any applicable grace period), whether by acceleration or otherwise,
of any principal or stated amount of, or interest or fees on, any Indebtedness (other than
Indebtedness described in Section 8.1.1) of the Borrower or any of its Subsidiaries (other
than a Receivables Subsidiary or a Subsidiary who is party to a Permitted Factoring Facility) or
any other Obligor having a principal or stated amount, individually or in the aggregate, in excess
of $50,000,000, or a default shall occur in the performance or observance of any obligation or
condition with respect to such Indebtedness if the effect of such default is to accelerate the
maturity of any such Indebtedness or such default shall continue unremedied for any applicable
period of time sufficient to permit the holder or holders of such Indebtedness, or any trustee or
agent for such holders, to cause or declare such Indebtedness to become due and payable or to
require such Indebtedness to be prepaid, redeemed, purchased or defeased, or require an offer to
purchase or defease such Indebtedness to be made, prior to its expressed maturity.



     SECTION 8.1.6  Judgments. Any (a) judgment or order for the payment of money
individually or in the aggregate in excess of $50,000,000 (exclusive of any amounts fully covered
by insurance (less any applicable deductible) or an indemnity by any other third party Person and
as to which the insurer or such Person has acknowledged its responsibility to cover such judgment
or order not denied in writing) shall be rendered against the Borrower or any of its Subsidiaries
(other than a Receivables Subsidiary) and such judgment shall not have been vacated or discharged
or stayed or bonded pending appeal within 45 days after the entry thereof or enforcement
proceedings shall have been commenced by any creditor upon such judgment or order or (b)
non-monetary judgment or order that has had, or could reasonably be expected to have, a Material
Adverse Effect.



     SECTION 8.1.7  Pension Plans. Any of the following events shall occur with respect to
any Pension Plan




     (a)  the institution of any steps by the Borrower, any member of its Controlled Group or
any other Person to terminate a Pension Plan if, as a result of such termination, the
Borrower or any such member could be required to make a contribution to such Pension Plan,
or could reasonably expect to incur a liability or obligation to such Pension Plan, in
excess of $50,000,000; or




     (b)  a contribution failure occurs with respect to any Pension Plan sufficient to give
rise to a Lien in excess of $50,000,000 under Section 302(f) of ERISA.



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     SECTION 8.1.8 Change in Control. Any Change in Control shall occur.



     SECTION 8.1.9 Bankruptcy, Insolvency, etc. The Borrower, any of its Subsidiaries
(other than a Receivables Subsidiary) or any other Obligor shall




     (a) become insolvent or generally fail to pay, or admit in writing its inability or
unwillingness generally to pay, debts as they become due;




     (b) apply for, consent to, or acquiesce in the appointment of a trustee, receiver,
sequestrator or other custodian for any substantial part of the property of any thereof, or
make a general assignment for the benefit of creditors;




     (c) in the absence of such application, consent or acquiescence in or permit or suffer
to exist the appointment of a trustee, receiver, sequestrator or other custodian for a
substantial part of the property of any thereof, and such trustee, receiver, sequestrator or
other custodian shall not be discharged, stayed, vacated or bonded pending appeal within 60
days; provided that, the Borrower, each Subsidiary and each other Obligor hereby
expressly authorizes each Secured Party to appear in any court conducting any relevant
proceeding during such 60-day period to preserve, protect and defend their rights under the
Loan Documents;




     (d) permit or suffer to exist the commencement of any bankruptcy, reorganization, debt
arrangement or other case or proceeding under any bankruptcy or insolvency law or any
dissolution, winding up or liquidation proceeding, in respect thereof, and, if any such case
or proceeding is not commenced by the Borrower, any Subsidiary or any Obligor, such case or
proceeding shall be consented to or acquiesced in by the Borrower, such Subsidiary or such
Obligor, as the case may be, or shall result in the entry of an order for relief or shall
remain for 60 days undismissed, undischarged, unstayed or unbonded pending appeal;
provided that, the Borrower, each Subsidiary and each Obligor hereby expressly
authorizes each Secured Party to appear in any court conducting any such case or proceeding
during such 60-day period to preserve, protect and defend their rights under the Loan
Documents; or




     (e) take any action authorizing, or in furtherance of, any of the foregoing.




          SECTION 8.1.10 Impairment of Security, etc. Any Loan Document or any Lien granted
thereunder (effecting a material portion of the Collateral, taken as a whole) shall (except in
accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be
the legally valid, binding and enforceable obligation of any Obligor party thereto (other than
pursuant to a failure of the Administrative Agent, any collateral agent appointed by the
Administrative Agent or the Lenders to take any action within the sole control of such Person); any
Obligor or any other party shall, directly or indirectly, contest in any manner such effectiveness,
validity, binding nature or enforceability; or, except as permitted under any Loan Document, any
Lien securing any Obligation shall, in whole or in part, cease to be a perfected first priority
Lien or any Obligor shall so assert (other than, in each case, pursuant to a failure of the
Administrative Agent, any collateral agent appointed by the Administrative Agent or the Lenders to
take any action within the sole control of such Person).



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          SECTION 8.2 Action if Bankruptcy. If any Event of Default described in clauses (a)
through (d) of Section 8.1.9 with respect to the Borrower shall occur, the Commitments (if
not theretofore terminated) shall automatically terminate and the outstanding principal amount of
all outstanding Loans and all other Obligations (including Reimbursement Obligations) shall
automatically be and become immediately due and payable, without notice or demand to any Person and
each Obligor shall automatically and immediately be obligated to Cash Collateralize all Letter of
Credit Outstandings.




          SECTION 8.3 Action if Other Event of Default. If any Event of Default (other than any Event of
Default described in clauses (a) through (d) of Section 8.1.9 with respect to the Borrower)
shall occur for any reason, whether voluntary or involuntary, and be continuing, the Administrative
Agent, upon the direction of the Required Lenders, shall by notice to the Borrower declare all or
any portion of the outstanding principal amount of the Loans and other Obligations (including
Reimbursement Obligations) to be due and payable and/or the Commitments (if not theretofore
terminated) to be terminated, whereupon the full unpaid amount of such Loans and other Obligations
which shall be so declared due and payable shall be and become immediately due and payable, without
further notice, demand or presentment, and/or, as the case may be, the Commitments shall terminate
and the Borrower shall automatically and immediately be obligated to Cash Collateralize all Letter
of Credit Outstandings.



ARTICLE IX

THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT; THE LEAD ARRANGERS,

THE SYNDICATION AGENT AND THE DOCUMENTATION AGENT




               SECTION 9.1 Actions. Each Lender hereby appoints JPMorgan as its Administrative Agent and as its
Collateral Agent, under and for purposes of each Loan Document. Each Lender authorizes each Agent
to act on behalf of such Lender under each Loan Document and, in the absence of other written
instructions from the Required Lenders received from time to time by such Agent (with respect to
which each Agent agrees that it will comply, except as otherwise provided in this Section or as
otherwise advised by counsel in order to avoid contravention of applicable law), to exercise such
powers hereunder and thereunder as are specifically delegated to or required of such Agent by the
terms hereof and thereof, together with such powers as may be incidental thereto (including the
release of Liens on assets Disposed of in accordance with the terms of the Loan Documents). Each
Lender hereby indemnifies (which indemnity shall survive any termination of this Agreement) each
Agent, pro rata according to such Lender’s proportionate Total Exposure Amount,
from and against any and all liabilities, obligations, losses, damages, claims, costs or expenses
of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted
against, such Agent in any way relating to or arising out of any Loan Document (including
reasonable attorneys’ fees and expenses), and as to which such Agent is not reimbursed by the
Borrower (and without limiting its obligation to do so); provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses, damages, claims,
costs or expenses which are determined by a court of competent jurisdiction in a final proceeding
to have resulted from such Agent’s gross negligence or willful misconduct. No Agent shall be
required to take any action under any Loan Document, or to prosecute or defend any suit in respect
of any Loan Document, unless it is indemnified hereunder to its reasonable satisfaction. If any
indemnity in favor of any Agent shall be or become, in such Agent’s determination, inadequate, such
Agent may call for additional



95









 




indemnification from the Lenders and cease to do the acts indemnified against hereunder until
such additional indemnity is given.




               SECTION 9.2 Funding Reliance, etc. Unless the Administrative Agent shall have been notified in
writing by any Lender by 3:00 p.m. on the Business Day prior to a Borrowing that such Lender will
not make available the amount which would constitute its Percentage of such Borrowing on the date
specified therefor, the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent and, in reliance upon such assumption, make available to the
Borrower a corresponding amount. If and to the extent that such Lender shall not have made such
amount available to the Administrative Agent, such Lender and the Borrower severally agree to repay
the Administrative Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date the Administrative Agent made such amount available to the
Borrower to the date such amount is repaid to the Administrative Agent, at the interest rate
applicable at the time to Loans comprising such Borrowing (in the case of the Borrower) and (in the
case of a Lender), at the Federal Funds Rate (for the first two Business Days after which such
amount has not been repaid), and thereafter at the interest rate applicable to Loans comprising
such Borrowing.



               SECTION 9.3 Exculpation. Neither any Lead Arranger, any Agent nor any of its directors, officers,
employees, agents or Affiliates shall be liable to any Secured Party for any action taken or
omitted to be taken by it under any Loan Document, or in connection therewith, except for its own
willful misconduct or gross negligence, nor responsible for any recitals or warranties herein or
therein, nor for the effectiveness, enforceability, validity or due execution of any Loan Document,
or the validity, genuineness, enforceability, existence, value or sufficiency of any collateral
security, nor to make any inquiry respecting the performance by any Obligor of its Obligations.
Any such inquiry which may be made by a Lead Arranger or an Agent shall not obligate it to make any
further inquiry or to take any action. Each Lead Arranger and each Agent shall be entitled to rely
upon advice of counsel concerning legal matters and upon any notice, consent, certificate,
statement or writing which such Lead Arranger or such Agent believes to be genuine and to have been
presented by a proper Person.



               SECTION 9.4 Successor. Any Agent may resign as such at any time upon at least 30 days’ prior
notice to the Borrower and all Lenders. If any Agent at any time shall resign, the Required
Lenders may appoint (subject to, so long as no Event of Default has occurred and is continuing, the
reasonable consent of the Borrower not to be unreasonably withheld or delayed) another Lender as
such Person’s successor Agent which shall thereupon become the applicable Agent hereunder. If no
successor Agent shall have been so appointed by the Required Lenders (and consented to by the
Borrower) and shall have accepted such appointment within 30 days after the retiring such Agent’s
giving notice of resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be one of the Lenders or a commercial banking institution organized
under the laws of the United States (or any State thereof) or a United States branch or agency of a
commercial banking institution, and having a combined capital and surplus of at least $250,000,000;
provided that, if, such retiring Agent is unable to find a commercial banking institution
which is willing to accept such appointment and which meets the qualifications set forth in above,
the retiring Agent’s resignation shall nevertheless thereupon become effective and the Lenders
shall assume and perform all of the duties of such Agent hereunder until such time, if any, as the
Required Lenders appoint a successor as provided for above. Upon the



96









 




acceptance of any appointment as an Agent hereunder by any successor Agent,
such successor Agent shall be entitled to receive from the retiring Agent such documents of
transfer and assignment as such successor Agent may reasonably request, and shall thereupon succeed
to and become vested with all rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under the Loan Documents. After
any retiring Agent’s resignation hereunder as an Agent, the provisions of this Article shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was an Agent under the
Loan Documents, and Section 10.3 and Section 10.4 shall continue to inure to its
benefit.




               SECTION 9.5 Loans by JPMorgan Chase Bank. JPMorgan Chase Bank shall have the same rights and
powers with respect to (a) the Credit Extensions made by it or any of its Affiliates, and (b) the
Notes held by it or any of its Affiliates as any other Lender and may exercise the same as if it
were not an Agent. JPMorgan Chase Bank and its Affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with the Borrower or any Subsidiary or Affiliate of
the Borrower as if JPMorgan Chase Bank were not an Agent hereunder.



               SECTION 9.6 Credit Decisions. Each Lender acknowledges that it has, independently of the
Administrative Agent and each other Lender, and based on such Lender’s review of the financial
information of the Borrower, the Loan Documents (the terms and provisions of which being
satisfactory to such Lender) and such other documents, information and investigations as such
Lender has deemed appropriate, made its own credit decision to extend its Commitments. Each Lender
also acknowledges that it will, independently of the Administrative Agent and each other Lender,
and based on such other documents, information and investigations as it shall deem appropriate at
any time, continue to make its own credit decisions as to exercising or not exercising from time to
time any rights and privileges available to it under the Loan Documents.



               SECTION 9.7 Copies, etc. Each Agent shall give prompt notice to each Lender of each notice or
request required or permitted to be given to such Agent by the Borrower pursuant to the terms of
the Loan Documents (unless concurrently delivered to the Lenders by the Borrower). Each Agent will
distribute to each Lender each document or instrument received for its account and copies of all
other communications received by such Agent from the Borrower for distribution to the Lenders by
such Agent in accordance with the terms of the Loan Documents. No Agent shall, except as expressly
set forth in the Loan Documents, have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Borrower or any of its Affiliates that is communicated
to or obtained by any Agent or any of its Affiliates in any capacity.



               SECTION 9.8 Reliance by Agents. The Agents shall be entitled to rely upon any certification,
notice or other communication (including any thereof by telephone, telecopy, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or on behalf of the
proper Person, and upon advice and statements of legal counsel, independent accountants and other
experts selected by such Agent. As to any matters not expressly provided for by the Loan
Documents, the Agents shall in all cases be fully protected in acting, or in refraining from
acting, thereunder in accordance with instructions given by the Required Lenders or all of the
Lenders as is required in such circumstance, and such instructions of



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such Lenders and any action
taken or failure to act pursuant thereto shall be binding on all Secured Parties.
For purposes of applying amounts in accordance with this Section, the Agents shall be entitled
to rely upon any Secured Party that has entered into a Rate Protection Agreement with any Obligor
for a determination (which such Secured Party agrees to provide or cause to be provided upon
request of any Agent) of the outstanding Obligations owed to such Secured Party under any Rate
Protection Agreement. Unless it has actual knowledge evidenced by way of written notice from any
such Secured Party and the Borrower to the contrary, the Agents, in acting in such capacity under
the Loan Documents, shall be entitled to assume that no Rate Protection Agreements or Obligations
in respect thereof are in existence or outstanding between any Secured Party and any Obligor.




               SECTION 9.9 Defaults. The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of a Default (other than a Default under Section 8.1.1) unless the
Administrative Agent has received a written notice from a Lender or the Borrower specifying such
Default and stating that such notice is a “Notice of Default”. In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the Administrative
Agent shall give prompt notice thereof to the Lenders. The Administrative Agent shall (subject to
Section 10.1) take such action with respect to such Default as shall be directed by the
Required Lenders; provided that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default as it shall deem advisable
in the best interest of the Secured Parties except to the extent that this Agreement expressly
requires that such action be taken, or not be taken, only with the consent or upon the
authorization of the Required Lenders or all Lenders.



               SECTION 9.10 Lead Arrangers, Syndication Agents and Documentation Agents. Notwithstanding anything
else to the contrary contained in this Agreement or any other Loan Document, the Lead Arrangers,
the Syndication Agents and the Documentation Agents, in their respective capacities as such, each
in such capacity, shall have no duties or responsibilities under this Agreement or any other Loan
Document nor any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise
exist against such Person in such capacity. Each Lead Arranger shall at all times have the right
to receive current copies of the Register and any other information relating to the Lenders and the
Loans that they may request from the Administrative Agent. Each Lead Arranger shall at all times
have the right to receive a current copy of the Register and any other information relating to the
Lenders and the Loans that they may request from the Administrative Agent.



               SECTION 9.11 Posting of Approved Electronic Communications.




     (a) The Borrower hereby agrees, unless directed otherwise by the Administrative Agent
or unless the electronic mail address referred to below has not been provided by the
Administrative Agent to the Borrower, that it will, or will cause its Subsidiaries to,
provide to the Administrative Agent all information, documents and other materials that it
is obligated to furnish to the Administrative Agent pursuant to the Loan Documents or to the
Lenders under Section 7.1.1, including all notices, requests, financial statements,
financial and other reports, certificates and other information materials, but



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excluding any
such communication that (i) is or relates to a Borrowing Request, a Continuation/Conversion Notice or an Issuance Request, (ii) relates to the
payment of any principal or other amount due under this Agreement prior to the scheduled
date therefor and (iii) provides notice of any Default (all such non-excluded communications
being referred to herein collectively as “Communications”), by transmitting the
Communications in an electronic/soft medium that is properly identified in a format
reasonably acceptable to the Administrative Agent to an electronic mail address as directed
by the Administrative Agent; provided for the avoidance of doubt the items described
in clauses (i) and (iii) above may be delivered via facsimile transmissions.
In addition, the Borrower agrees, and agrees to cause its Subsidiaries, to continue to
provide the Communications to the Administrative Agent or the Lenders, as the case may be,
in the manner specified in the Loan Documents but only to the extent requested by the
Administrative Agent.




     (b)  The Borrower further agrees that the Administrative Agent may make the
Communications available to the Lenders by posting the Communications on Intralinks or a
substantially similar secure electronic transmission system (the “Platform”).




     (c)  THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE INDEMNIFIED PARTIES DO
NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE
PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE INDEMNIFIED PARTIES IN CONNECTION
WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL ANY PARTY HERETO HAVE ANY
LIABILITY TO ANY OBLIGOR, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR
NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING
OUT OF ANY OBLIGOR’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH
THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF SUCH PERSON IS FOUND IN A FINAL RULING
BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH INDEMNIFIED
PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.




     (d)   The Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at the e-mail address set forth on Schedule II shall constitute
effective delivery of the Communications to the Administrative Agent for purposes of the
Loan Documents. Each Lender agrees that receipt of notice to it (as provided in the next
sentence) specifying that the Communications have been posted to the Platform shall
constitute effective delivery of the Communications to such Lender for purposes of the Loan
Documents. Each Lender agrees to notify the Administrative Agent in writing (including by
electronic communication) from time to time of such Lender’s e-mail



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address to which the foregoing notice may be sent by electronic transmission and that
the foregoing notice may be sent to such e-mail address.




     (e) Nothing herein shall prejudice the right of any Agent or any Lender to give any
notice or other communication pursuant to any Loan Document in any other manner specified in
such Loan Document.



ARTICLE X

MISCELLANEOUS PROVISIONS




          SECTION 10.1 Waivers, Amendments, etc. The provisions of each Loan Document (other than Rate
Protection Agreements or Letters of Credit, which shall be modified only in accordance with their
respective terms) may from time to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by the Borrower and the Required Lenders;
provided that, no such amendment, modification or waiver shall:




     (a)  modify Section 4.7, Section 4.8 (as it relates to sharing of
payments) or this Section, in each case, without the consent of each affected Lender;




     (b) increase the aggregate amount of any Loans required to be made by a Lender pursuant
to its Commitments, extend the final Commitment Termination Date of Loans made (or
participated in) by a Lender or extend the final Stated Maturity Date for any Lender’s Loan,
in each case without the consent of such Lender (it being agreed, however, that any vote to
rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of
amounts owing with respect to the Loans and other Obligations shall only require the vote of
the Required Lenders);




     (c) reduce (by way of forgiveness), the principal amount of or reduce the rate of
interest on any Lender’s Loan, reduce any fees described in Article III payable to
any Lender or extend the date on which interest, principal or fees are payable in respect of
such Lender’s Loans, in each case without the consent of such Lender (provided that,
the vote of Required Lenders shall be sufficient to waive the payment, or reduce the
increased portion, of interest accruing under Section 3.2.2 and such waiver shall
not constitute a reduction of the rate of interest hereunder);




     (d) reduce the percentage set forth in the definition of “Required Lenders” or modify
any requirement hereunder that any particular action be taken by all Lenders without the
consent of all Lenders;




     (e) increase the Stated Amount of any Letter of Credit unless consented to by the
Issuer of such Letter of Credit;




     (f) except as otherwise expressly provided in a Loan Document, release (i) the Borrower
from its Obligations under the Loan Documents or any Subsidiary Guarantor from its
obligations under the Guaranty or (ii) all or substantially all of the collateral under the
Loan Documents, in each case without the consent of all Lenders; or



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     (g) affect adversely the interests, rights or obligations of the Administrative Agent
(in its capacity as the Administrative Agent), the Collateral Agent (in its capacity as the
Collateral Agent) any Issuer (in its capacity as Issuer), or the Swing Line Lender (in its
capacity as Swing Line Lender) unless consented to by such Agent, such Issuer,or such Swing
Line Lender, as the case may be.


No failure or delay on the part of any Secured Party in exercising any power or right under any
Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any
such power or right preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on any Obligor in any case shall entitle it to any notice
or demand in similar or other circumstances. No waiver or approval by any Secured Party under any
Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar
waiver or approval thereafter to be granted hereunder.



Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the
written consent of the Required Lenders, and the Borrower (a) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of
this Agreement and the other Loan Documents with the Obligations and (b) to include appropriately
the Lenders holding such credit facilities in any determination of the Required Lenders.



Further, notwithstanding anything to the contrary contained in Section 10.1, if within
sixty days following the Restatement Effective Date, the Administrative Agent and the Borrower
shall have jointly identified an obvious error or any error or omission of a technical or
immaterial nature, in each case, in any provision of the Loan Documents, then the Administrative
Agent and the Borrower shall be permitted to amend such provision and such amendment shall become
effective without any further action or consent of any other party to any Loan Document if the same
is not objected to in writing by the Required Lenders within five Business Days following receipt
of notice thereof.





               SECTION 10.2 Notices; Time. All notices and other communications provided under each Loan Document
shall be in writing or by facsimile (except to the extent provided below in this Section
10.2 with respect to Issuance Requests and financial information) and addressed, delivered or
transmitted, if to the Borrower, an Agent, a Lender or an Issuer, to the applicable Person at its
address or facsimile number set forth on the signature pages hereto, Schedule II hereto or
set forth in the Lender Assignment Agreement, or at such other address or facsimile number as may
be designated by such party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall
be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when
the confirmation of transmission thereof is received by the transmitter. Except as set forth in
Section 9.11 and below, electronic mail and Internet and intranet websites may be used only
to distribute routine communications by the Administrative Agent to the Lender, such as financial
statements and other information as provided in Section 7.1.1, for the distribution and
execution of Loan Documents for execution by the parties thereto and (to the extent provided
herein, for the delivery of each Issuance Request) and may not be used for any other purpose.



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Notwithstanding the foregoing, the parties hereto agree that
delivery of an executed counterpart of a signature page to this Agreement and each other Loan
Document by facsimile (or other electronic) transmission shall be effective as delivery of an
original executed counterpart of this Agreement or such other Loan Document. Unless otherwise
indicated, all references to the time of a day in a Loan Document shall refer to New York time.




               SECTION 10.3 Payment of Costs and Expenses. The Borrower agrees to pay within 20 days of demand
(to the extent invoiced together with reasonably detailed supporting documentation) all reasonable
out-of-pocket expenses of each Lead Arranger and each Agent (including the reasonable fees and
reasonable out-of-pocket expenses of counsel to the Lead Arrangers and Agents and of local counsel,
if any, who may be retained by or on behalf of the Lead Arrangers and Agents) and each Issuer in
connection with




     (a) the negotiation, preparation, execution and delivery of each Loan Document,
including schedules and exhibits, and any amendments, waivers, consents, supplements or
other modifications to any Loan Document as may from time to time hereafter be required,
whether or not the transactions contemplated hereby are consummated; and




     (b) the filing or recording of any Loan Document (including any Filing Statements) and
all amendments, supplements, amendment and restatements and other modifications to any
thereof, searches made following the Restatement Effective Date in jurisdictions where
Filing Statements (or other documents evidencing Liens in favor of the Secured Parties) have
been recorded and any and all other documents or instruments of further assurance required
to be filed or recorded by the terms of any Loan Document; and




     (c) the preparation and review of the form of any document or instrument relevant to
any Loan Document.


The Borrower further agrees to pay, and to save each Secured Party harmless from all liability for,
any stamp or other taxes which may be payable in connection with the execution or delivery of each
Loan Document, the Credit Extensions or the issuance of the Notes. The Borrower also agrees to
reimburse the Agents and the Secured Parties upon demand for all reasonable out-of-pocket expenses
(including reasonable attorneys’ fees and legal out of pocket expenses of counsel to the Agents and
the Secured Parties) incurred by the Agents and the Secured Parties in connection with (A) the
negotiation of any restructuring or “work-out” with the Borrower, whether or not consummated, of
any Obligations and (B) the enforcement of any Obligations; provided that the Borrower
shall not be required to reimburse the legal fees and expenses of more than one outside counsel (in
addition to any local counsel) for all Persons indemnified under this Section 10.3 unless,
as reasonably determined by such Person seeking indemnification hereunder or its counsel,
representation of all such indemnified persons by the same counsel would be inappropriate due to
actual or potential differing interests between them.




               SECTION 10.4 Indemnification. In consideration of the execution and delivery of this Agreement by
each Secured Party, the Borrower hereby indemnifies, exonerates and holds each Secured Party, each
Co-Syndication Agent, each Co-Documentation Agent and each of their
respective officers, directors, employees, agents, trustees, fund advisors and



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Affiliates
(collectively, the “Indemnified Parties”) free and harmless from and against any and all
actions, causes of action, suits, losses, costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such Indemnified Party is a party to the action
for which indemnification hereunder is sought), including reasonable attorneys’ fees and
disbursements, whether incurred in connection with actions between or among the parties hereto or
the parties hereto and third parties (collectively, the “Indemnified Liabilities”),
incurred by the Indemnified Parties or any of them as a result of, or arising out of, or relating
to




     (a) any transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Credit Extension, including all Indemnified Liabilities
arising in connection with the Transaction;




     (b)  the entering into and performance of any Loan Document by any of the Indemnified
Parties (including any action brought by or on behalf of the Borrower as the result of any
determination by the Required Lenders pursuant to Article V not to fund any Credit
Extension, provided that, any such action is resolved in favor of such Indemnified
Party);




     (c)  any investigation, litigation or proceeding related to any acquisition or proposed
acquisition by any Obligor or any Subsidiary thereof of all or any portion of the Capital
Securities or assets of any Person, whether or not an Indemnified Party is party thereto;




     (d) any investigation, litigation or proceeding related to any environmental cleanup,
audit, compliance or other matter relating to the protection of the environment or the
Release by any Obligor or any Subsidiary thereof of any Hazardous Material;




     (e) the presence on or under, or the escape, seepage, leakage, spillage, discharge,
emission, discharging or releases from, any real property owned or operated by any Obligor
or any Subsidiary thereof of any Hazardous Material (including any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or arising under any Environmental
Law), regardless of whether caused by, or within the control of, such Obligor or Subsidiary;
or




     (f) each Lender’s Environmental Liability (the indemnification herein shall survive
repayment of the Obligations and any transfer of the property of any Obligor or its
Subsidiaries by foreclosure or by a deed in lieu of foreclosure for any Lender’s
Environmental Liability, regardless of whether caused by, or within the control of, such
Obligor or such Subsidiary);


except for Indemnified Liabilities arising for the account of any Indemnified Party by reason of
any Indemnified Party’s gross negligence, bad faith or willful misconduct as finally determined by
a court of competent jurisdiction. The Borrower shall not be required to reimburse the legal fees
and expenses of more than one outside counsel for all Indemnified Parties with respect to any
matter for which indemnification is sought unless, as reasonably determined by any such Indemnified
Party or its counsel, representation of all such Indemnified Parties would create an
actual conflict of interest. Each Obligor and its successors and assigns hereby waive, release and


103









 






agree not to make any claim or bring any cost recovery action against, any Indemnified Party under
CERCLA or any state equivalent, or any similar law now existing or hereafter enacted. It is
expressly understood and agreed that to the extent that any Indemnified Party is strictly liable
under any Environmental Laws, each Obligor’s obligation to such Indemnified Party under this
indemnity shall likewise be without regard to fault on the part of any Obligor with respect to the
violation or condition which results in liability of an Indemnified Party. If and to the extent
that the foregoing undertaking may be unenforceable for any reason, each Obligor agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which
is permissible under applicable law. To the extent that the Borrower fails to pay an amount
required to be paid by it to an Issuer under Section 10.3 or 10.4, each Revolving
Loan Lender severally agrees to pay to such Issuer such Revolving Loan Lender’s Revolving Loan
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that such unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against such Issuer in its capacity as such.




               SECTION 10.5 Survival. The obligations of the Borrower under Sections 4.3, 4.4,
4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders
under Section 9.1, shall in each case survive any assignment from one Lender to another (in
the case of Sections 10.3 and 10.4) and the occurrence of the Termination Date.
The representations and warranties made by each Obligor in each Loan Document shall survive the
execution and delivery of such Loan Document.



               SECTION 10.6 Severability. Any provision of any Loan Document which is prohibited or unenforceable
in any jurisdiction shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining provisions of such Loan
Document or affecting the validity or enforceability of such provision in any other jurisdiction.



               SECTION 10.7 Headings. The various headings of each Loan Document are inserted for convenience
only and shall not affect the meaning or interpretation of such Loan Document or any provisions
thereof.



               SECTION 10.8 Execution in Counterparts, Effectiveness, etc. This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be an original and all of which shall
constitute together but one and the same agreement. This Agreement shall become effective when
counterparts hereof executed on behalf of the Borrower, each Agent and each Lender (or notice
thereof satisfactory to the Administrative Agent), shall have been received by the Administrative
Agent.



               SECTION 10.9 Governing Law; Entire Agreement. EACH LOAN DOCUMENT (OTHER THAN THE LETTERS OF
CREDIT, TO THE EXTENT SPECIFIED BELOW AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN A LOAN
DOCUMENT) WILL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK). EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES



104









 




DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO LAWS OR RULES
ARE DESIGNATED, THE INTERNATIONAL STANDBY PRACTICES (ISP98—INTERNATIONAL CHAMBER OF COMMERCE
PUBLICATION NUMBER 590 (THE “ISP RULES”)) AND, AS TO MATTERS NOT GOVERNED BY THE ISP RULES,
THE INTERNAL LAWS OF THE STATE OF NEW YORK. The Loan Documents constitute the entire understanding
among the parties hereto with respect to the subject matter thereof and supersede any prior
agreements, written or oral, with respect thereto.




               SECTION 10.10 Successors and Assigns. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns; provided that,
the Borrower may not assign or transfer its rights or obligations hereunder without the consent of
all Lenders. Each Affiliate of HSBC or any other Lender that has issued a Letter of Credit
hereunder shall be an express third party beneficiary of this Agreement and entitled to enforce its
rights hereunder (and under any other applicable Loan Documents) to the same extent as if an Issuer
party hereto.



               SECTION 10.11 Sale and Transfer of Credit Extensions; Participations in Credit Extensions; Notes.
Each Lender may assign, or sell participations in, its Loans, Letters of Credit and Commitments to
one or more other Persons in accordance with the terms set forth below.



     (a) Subject to clause (b), any Lender may assign to one or more Eligible Assignees all
or a portion of its rights and obligations under the Loan Documents (including all or a portion of
its Commitments and the Loans at the time owing to it); provided that:




     (i) except in the case of (A) an assignment of the entire remaining amount of the
assigning Lender’s Commitments and the Loans at the time owing to it or (B) an assignment to
a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitments (which for this purpose includes Loans outstanding
thereunder) or principal outstanding balance of the Loans of the assigning Lender subject to
each such assignment (determined as of the date the Lender Assignment Agreement with respect
to such assignment is delivered to the Administrative Agent) shall not be less than
$1,000,000, unless the Administrative Agent and the Borrower, otherwise consent (which
consent shall not be unreasonably withheld or delayed);




     (ii) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with respect to the
Loans and the Commitments assigned except that this clause (a)(ii) shall not
prohibit any Lender from assigning all or a portion of its rights and obligations among
separate tranches of Revolving Loans and New Term Loans on a non-pro rata
basis; and




     (iii) the parties to each assignment shall execute and deliver to the Administrative
Agent a Lender Assignment Agreement, together with, if the Eligible
Assignee is not already Lender, administrative details information with respect to such
Eligible Assignee and applicable tax forms.



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     (b) Any assignment proposed pursuant to clause (a) to any Person shall be subject to
the prior written approval, not to be unreasonably withheld or delayed, of (i) the Administrative
Agent, unless the assignee is a Lender or an Affiliate of a Lender or an Approved Fund, and (ii) in
the case of any assignment of any Revolving Loan Commitment, the Borrower (unless (A) there is an
Event of Default that is continuing or (B) the assignee is a Lender or an Affiliate of a Lender or
an Approved Fund), the Swing Line Lender and each Issuer. If the consent of the Borrower to an
assignment or to an Eligible Assignee is required hereunder (including a consent to an assignment
which does not meet the minimum assignment thresholds specified in this Section), the Borrower
shall be deemed to have given its consent seven Business Days after the date notice thereof has
been delivered by the assigning Lender (through the Administrative Agent) to the Borrower, unless
such consent is expressly refused by the Borrower prior to such seventh Business Day.



     (c) Subject to acceptance and recording thereof by the Administrative Agent pursuant to
clause (d), from and after the effective date specified in each Lender Assignment
Agreement, (i) the Eligible Assignee thereunder shall (if not already a Lender) be a party hereto
and, to the extent of the interest assigned by such Lender Assignment Agreement, have the rights
and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender thereunder
shall (subject to Section 10.5) be released from its obligations under the Loan Documents,
to the extent of the interest assigned by such Lender Assignment Agreement (and, in the case of a
Lender Assignment Agreement covering all of the assigning Lender’s rights and obligations under the
Loan Documents, such Lender shall cease to be a party hereto, but shall (as to matters arising
prior to the effectiveness of the Lender Assignment Agreement) continue to be entitled to the
benefits of any provisions of the Loan Documents which by their terms survive the termination of
this Agreement). Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with the terms of this Section shall be treated for purposes of the
Loan Documents as a sale by such Lender of a participation in such rights and obligations in
accordance with clause (e).



     (d) The Administrative Agent shall record each assignment made in accordance with this Section
in the Register pursuant to clause (a) of Section 2.7. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time upon reasonable
prior notice to the Administrative Agent.



     (e) Any Lender may, without the consent of, or notice to, any Person, sell participations to
one or more Persons (other than individuals) (a “Participant”) in all or a portion of such
Lender’s rights or obligations under the Loan Documents (including all or a portion of its
Commitments or the Loans owing to it); provided that, (i) such Lender’s obligations under
the Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under the Loan Documents. Any
agreement or instrument pursuant to which a Lender sells a participation shall provide that such
Lender shall retain the sole right to enforce the rights and remedies of a
Lender under the Loan Documents and to approve any amendment, modification or waiver of any
provision of the Loan Documents; provided that, such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, take any action of the type
described



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in clauses (a) through (d) or clause (f) of Section 10.1
with respect to Obligations participated in by that Participant. Subject to clause (f),
the Borrower agrees that each Participant shall be entitled to the benefits of Sections
4.3, 4.4, 4.5, 4.6, 7.1.1, 10.3 and 10.4 to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to
clause (c). To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 4.9 as though it were a Lender, but only if such Participant agrees to
be subject to Section 4.8 as though it were a Lender.




     (f) A Participant shall not be entitled to receive any greater payment under Section
4.3, 4.4, 4.5, 4.6, 10.3 or 10.4 than the applicable
Lender would have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made with the Borrower’s
prior written consent. A Participant that would be a Non-U.S. Lender if it were a Lender shall not
be entitled to the benefits of Section 4.6 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with the requirements set forth in Section 4.6 as though it were a
Lender. Any Lender that sells a participating interest in any Loan, Commitment or other interest
to a Participant under this Section shall indemnify and hold harmless the Borrower and the
Administrative Agent from and against any taxes, penalties, interest or other costs or losses
(including reasonable attorneys’ fees and expenses) incurred or payable by the Borrower or the
Administrative Agent as a result of the failure of the Borrower or the Administrative Agent to
comply with its obligations to deduct or withhold any Taxes from any payments made pursuant to this
Agreement to such Lender or the Administrative Agent, as the case may be, which Taxes would not
have been incurred or payable if such Participant had been a Non-U.S. Lender that was entitled to
deliver to the Borrower, the Administrative Agent or such Lender, and did in fact so deliver, a
duly completed and valid Form W-8BEN or W-8ECI (or applicable successor form) entitling such
Participant to receive payments under this Agreement without deduction or withholding of any United
States federal taxes.



     (g) Any Lender may, without the consent of any other Person, at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or
any central bank; provided that no such pledge or assignment of a security interest shall
release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee
for such Lender as a party hereto.



               SECTION 10.12 Other Transactions. Nothing contained herein shall preclude any Agent, any Issuer or
any other Lender from engaging in any transaction, in addition to those contemplated by the Loan
Documents, with the Borrower or any of its Affiliates in which the Borrower or such Affiliate is
not restricted hereby from engaging with any other Person.



               SECTION 10.13 Forum Selection and Consent to Jurisdiction; Waivers. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING,STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE LENDERS, ANY ISSUER OR THE
BORROWER IN CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF THE
STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;
PROVIDED THAT, ANY SUIT SEEKING



107









 




ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE COLLATERAL AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL
OR OTHER PROPERTY MAY BE FOUND. THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT
THE ADDRESS FOR NOTICES SPECIFIED IN SECTION 10.2. EACH PERSON PARTY HERETO HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT
MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT ANY PERSON PARTY HERETO HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, SUCH PERSON HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS. EACH AGENT, EACH LENDER, EACH
ISSUER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE FULLEST EXTENT
PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING
REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.




               SECTION 10.14 Waiver of Jury Trial. EACH AGENT, EACH LENDER, EACH ISSUER AND THE BORROWER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, EACH LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF SUCH AGENT, SUCH LENDER, SUCH ISSUER OR THE
BORROWER IN CONNECTION THEREWITH. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL
AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH AGENT,
EACH LENDER AND EACH ISSUER ENTERING INTO THE LOAN DOCUMENTS.



               SECTION 10.15 Patriot Act. Each Lender that is subject to Section 326 of the Patriot Act and/or the
Agents and/or the Lead Arrangers (each of the foregoing acting for themselves and not acting on
behalf of any of the Lenders) hereby notify the Borrower that pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and
other information that will allow such Lender, the Agents or the Lead Arrangers, as the case may
be, to identify the Borrower in accordance with the Patriot Act.



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               SECTION 10.16 Judgment Currency. The Obligations of each Obligor in respect of any sum due to any
Secured Party under or in respect of any Loan Document shall, notwithstanding any judgment in a
currency (the “Judgment Currency”) other than the currency in which such sum was originally
denominated (the “Original Currency”), be discharged only to the extent that on the
Business Day following receipt by such Secured Party or any sum adjudged to be so due in the
Judgment Currency, such Secured Party, in accordance with normal banking procedures, purchases the
Original Currency with the Judgment Currency. If the amount of Original Currency so purchased is
less than the sum originally due to such Secured Party, the Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender, such Secured Party, as
the case may be, against such loss, and if the amount of Original Currency so purchased exceeds the
sum originally due to such Secured Party, as the case may be, such Secured Party, as the case may
be, agrees to remit such excess to the Borrower.



               SECTION 10.17 No Fiduciary Duty. Each Agent, each Co-Syndication Agent, each Co-Documentation Agent,
each Lead Arranger, each Lender and their Affiliates (collectively, solely for purposes of this
paragraph, the “Lenders”), may have economic interests that conflict with those of the
Borrower, its stockholders and/or its Affiliates. The Borrower agrees that nothing in the Loan
Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or
fiduciary or other implied duty between any Lender, on the one hand, and the Borrower, its
stockholders or its Affiliates, on the other. The Obligors acknowledge and agree that (i) the
transactions contemplated by the Loan Documents (including the exercise of rights and remedies
hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one
hand, and the Borrower, on the other, and (ii) in connection therewith and with the process leading
thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of the
Borrower, its stockholders or its Affiliates with respect to the transactions contemplated hereby
(or the exercise of rights or remedies with respect thereto) or the process leading thereto
(irrespective of whether any Lender has advised, is currently advising or will advise the Borrower,
its stockholders or its Affiliates on other matters) or any other obligation to the Borrower except
the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as
principal and not as the agent or fiduciary of the Borrower, its management, stockholders,
creditors or any other Person. The Borrower acknowledges and agrees that the Borrower has
consulted its own legal and financial advisors to the extent it deemed appropriate and that it is
responsible for making its own independent judgment with respect to such transactions and the
process leading thereto. The Borrower agrees that it will not claim that any Lender has rendered
advisory services of any nature or respect, or owes a fiduciary or similar duty to the Borrower, in
connection with such transaction or the process leading thereto.



               SECTION 10.18 Counsel Representation. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT IT HAS BEEN
REPRESENTED BY COMPETENT COUNSEL IN THE NEGOTIATION OF THIS AGREEMENT, AND THAT ANY RULE OR
CONSTRUCTION OF LAW ENABLING SUCH PERSON TO ASSERT THAT ANY AMBIGUITIES OR INCONSISTENCIES IN THE
DRAFTING OR PREPARATION OF THE TERMS OF THIS AGREEMENT SHOULD DIMINISH ANY RIGHTS OR REMEDIES OF ANY OTHER PERSON ARE HEREBY WAIVED.



               SECTION 10.19 Confidentiality. Each Secured Party agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a)




109









 







to its Affiliates and
to its Affiliates’ respective partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process (provided that except to the extent prohibited by such
subpoena or similar legal process, such Secured Party shall notify the Borrower of such request or
disclosure), (d) to any other party hereto, (e) to the extent reasonably necessary, in connection
with the exercise of any remedies hereunder or under any other Loan Document or any action or
proceeding relating to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder or in connection with the administration of any Loan Document, (f) to
market data collectors or other information services in relation to league table reporting, (g)
subject to an agreement containing provisions substantially the same as those of this Section, to
(i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (h)
with the written consent of the Borrower or (i) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section (or any other confidentiality
obligation owed to the Borrower or any Subsidiary or their Affiliates) or (ii) becomes available to
any Secured Party or any of their respective Affiliates on a nonconfidential basis from a source
other than the Borrower or any Subsidiary and not in violation of any confidentiality obligation
owed to the Borrower or any Subsidiary by any Secured Party or any Affiliate thereof. For purposes
of this Section, “Information” means all information received from the Borrower or any
Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses, other
than any such information that is available to any Secured Party on a nonconfidential basis prior
to disclosure by the Borrower or any Subsidiary. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential information
and in accordance with applicable law.



               SECTION 10.20 Resignation of Citi; Appointment of JPMorgan as Successor Swing Line Lender. (a)
Effective as of the Restatement Effective Date, Citi hereby resigns as Administrative Agent,
Collateral Agent and Swing Line Lender under the Original Credit Agreement and the other Loan
Documents (as defined in the Original Credit Agreement). The Required Lenders and the Borrower
hereby confirm that, on and after the Restatement Effective Date, Citi shall be discharged from all
of its duties and obligations as administrative agent and collateral agent under the Original
Credit Agreement and the other Loan Documents (as defined in the Original Credit Agreement). The
Borrower and the Lenders hereby waive any requirement for prior notice of such resignation pursuant
to Section 9.4 of the Original Credit Agreement. For the avoidance of doubt, the
provisions of Article IX of the Original Credit Agreement shall continue to inure to the benefit of each Agent (as defined in the Original
Credit Agreement) as to any actions taken or omitted to be taken by it while it was an Agent under
the Loan Documents (as defined in the Original Credit Agreement), and Section 10.3 and 10.4 of the
Original Credit Agreement shall continue to inure to the benefit of each such Agent, including with
respect to any actions taken or any costs and expenses incurred by Citi or its legal counsel on or




110









 





after the Restatement Effective Date (i) to deliver Collateral to the Administrative Agent and the
Collateral Agent under this Agreement and (ii) with respect to Section 7.1.11 of this Agreement.




     (b) Effective as of the Restatement Effective Date, JPMorgan shall replace and succeed to the
rights, duties and benefits of Citi as Swing Line Lender. The Borrower consents to such
appointment of JPMorgan as the successor Swing Line Lender under this Agreement and the other Loan
Documents. The Required Lenders and the Borrower hereby confirm that, on and after the Restatement
Effective Date, JPMorgan shall have all rights, protections, duties and powers of the Swing Line
Lender under this Agreement and the other Loan Documents, and Citi shall be discharged from all of
its duties and obligations as swing line lender under the Original Credit Agreement and the other
Loan Documents (as defined in the Original Credit Agreement).



               SECTION 10.21 Effect of Amendment and Restatement. On the Restatement Effective Date, the Original
Credit Agreement shall be amended, restated and superseded in its entirety. The parties hereto
acknowledge and agree that (a) this Agreement and the other Loan Documents, whether executed and
delivered in connection herewith or otherwise, do not constitute a novation, payment and
reborrowing, or termination of the “Obligations” (as defined in the Original Credit Agreement)
under the Original Credit Agreement as in effect prior to the Restatement Effective Date and (b)
such “Obligations” are in all respects continuing (as amended and restated hereby) with only the
terms thereof being modified as provided in this Agreement.



               SECTION 10.22 Consent of Required Lenders. By the execution of this Agreement, each Lender party to
this Agreement consents to this amendment and restatement of the Original Credit Agreement, as set
forth herein, and the amendment and restatement, replacement or other modification to any other
Loan Documents, in each case, as so amended, amended and restated, replaced or otherwise modified
on or after the Restatement Effective Date in the form entered into by the Obligors and the
applicable Agent (it being understood and agreed by each of the parties hereto that the “Revolving
Loan Commitments” under the Original Credit Agreement of each “Revolving Loan Lender” thereunder
that is not also a Revolving Loan Lender under this Agreement shall be terminated in full on and as
of the Restatement Effective Date). Upon the receipt of written consents from the Required Lenders
(as defined in the Original Credit Agreement) pursuant to this Section 10.22 and
notwithstanding any provision to the contrary contained in the Original Credit Agreement, the
Original Credit Agreement (including the schedules and exhibits thereto) shall be amended and
restated in its entirety.



111









 





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



	 	 	 	 	 
	 	HANESBRANDS INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	  	
Address:





Facsimile No.:





Attention: 	 



[Signature Page to Credit Agreement]

















 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

     as Administrative Agent, Collateral Agent and

     as a Lender

 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 
	 	J.P. MORGAN SECURITIES INC.,

     as a Joint Lead Arranger and Joint Bookrunner

 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 



[Signature Page to Credit Agreement]






 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

     as Co-Syndication Agent and as a Lender

 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 
	 	BANC OF AMERICA SECURITIES LLC,

     as a Joint Lead Arranger and Joint Bookrunner

 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Credit Agreement]






 









 








	 	 	 	 	 
	 	HSBC SECURITIES (USA) INC.,

     as a Joint Lead Arranger and Joint Bookrunner

     and a Co-Syndication Agent

 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION,

     as a Lender

 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Credit Agreement]






 









 








	 	 	 	 	 
	 	BARCLAYS BANK PLC,

     as a Joint Lead Arranger and Joint Bookrunner,

     a Co-Documentation Agent and as a Lender

 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 
	[Signature Page to Credit Agreement]

 
	 	 	 
	 	 	 
	 	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P.,

     as a Co-Documentation Agent and as a Lender

 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Credit Agreement]








 









 








	 	 	 	 	 
	 	[OTHER LENDERS]

 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Credit Agreement]








 









 








          Pursuant to Section 10.20 of the Agreement, the undersigned hereby resign as
Administrative Agent, Collateral Agent and Swing Line Lender.




	 	 	 	 	 
	 	CITICORP USA, INC.,

     as resigning Administrative Agent and resigning

     Swing Line Lender

 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 
	 	CITIBANK, N.A.,

     as resigning Collateral Agent

 	 

	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: