Exhibit 10.2


 


EXECUTION COPY


 


 


 




 





 


$6,500,000,000


 


SENIOR UNSECURED INTERIM LOAN AGREEMENT


 


Dated as of September 24, 2007


 


among


 


FIRST DATA CORPORATION,

as the Borrower,


 


The Several Lenders

from Time to Time Parties Hereto,


 


CITIBANK, N.A.,

as Administrative Agent,


 


CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

as Syndication Agent,


 


and


 


CITIGROUP GLOBAL MARKETS INC.,

CREDIT SUISSE SECURITIES (USA) LLC,

DEUTSCHE BANK SECURITIES INC.,

GOLDMAN SACHS CREDIT PARTNERS L.P.,

HSBC SECURITIES (USA) INC.,

LEHMAN BROTHERS INC. and

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Joint Lead Arrangers and Bookrunners


 


 




 


 





 


Cahill Gordon & Reindel LLP


80 Pine Street


New York, New York  10005


 


 


887122


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  DEFINITIONS

  	
  2

  
	
  1.1.

  	
  Defined Terms

  	
  2

  
	
  1.2.

  	
  Other Interpretive Provisions

  	
  49

  
	
  1.3.

  	
  Accounting Terms

  	
  50

  
	
  1.4.

  	
  [Reserved]

  	
  50

  
	
  1.5.

  	
  References to Agreements, Laws, Etc.

  	
  50

  
	
  1.6.

  	
  [Reserved]

  	
  50

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  AMOUNT AND TERMS OF CREDIT

  	
  51

  
	
  2.1.

  	
  Commitments

  	
  51

  
	
  2.2.

  	
  Maximum Number of Borrowings

  	
  52

  
	
  2.3.

  	
  Notice of Borrowing

  	
  52

  
	
  2.4.

  	
  Disbursement of Funds

  	
  52

  
	
  2.5.

  	
  Repayment of Loans; Evidence of Debt

  	
  53

  
	
  2.6.

  	
  Conversions and Continuations

  	
  54

  
	
  2.7.

  	
  Pro Rata Borrowings

  	
  54

  
	
  2.8.

  	
  Interest

  	
  55

  
	
  2.9.

  	
  Interest Periods

  	
  56

  
	
  2.10.

  	
  Increased Costs, Illegality, Etc.

  	
  57

  
	
  2.11.

  	
  Compensation

  	
  59

  
	
  2.12.

  	
  Change of Lending Office

  	
  59

  
	
  2.13.

  	
  Notice of Certain Costs

  	
  59

  
	
  2.14.

  	
  Permanent Refinancing

  	
  59

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  [RESERVED]

  	
  61

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  FEES; COMMITMENTS

  	
  62

  
	
  4.1.

  	
  Administrative Agent’s Fees

  	
  62

  
	
  4.2.

  	
  [Reserved]

  	
  62

  
	
  4.3.

  	
  Mandatory Termination of Commitments

  	
  62

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  PAYMENTS

  	
  62

  
	
  5.1.

  	
  Voluntary Prepayments

  	
  62

  
	
  5.2.

  	
  Mandatory Prepayments

  	
  63

  
	
  5.3.

  	
  Method and Place of Payment

  	
  64

  
	
  5.4.

  	
  Net Payments

  	
  65

  
	
  5.5.

  	
  Computations of Interest

  	
  68

  
	
  5.6.

  	
  Limit on Rate of Interest

  	
  68

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  CONDITIONS PRECEDENT TO INITIAL BORROWING

  	
  68

  
	
  6.1.

  	
  Loan Documents

  	
  68

  
	
  6.2.

  	
  Guarantee

  	
  69

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  6.3.

  	
  Legal Opinions

  	
  69

  
	
  6.4.

  	
  Notice of Borrowing

  	
  69

  
	
  6.5.

  	
  Equity Investments

  	
  69

  
	
  6.6.

  	
  Closing Certificates

  	
  69

  
	
  6.7.

  	
  Authorization of Proceedings of Each Loan Party

  	
  69

  
	
  6.8.

  	
  Fees

  	
  69

  
	
  6.9.

  	
  Representations and Warranties

  	
  69

  
	
  6.10.

  	
  Solvency Certificate

  	
  70

  
	
  6.11.

  	
  Merger

  	
  70

  
	
  6.12.

  	
  Patriot Act

  	
  70

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  [RESERVED]

  	
  70

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  REPRESENTATIONS, WARRANTIES AND AGREEMENTS

  	
  70

  
	
  8.1.

  	
  Corporate Status

  	
  70

  
	
  8.2.

  	
  Corporate Power and Authority

  	
  70

  
	
  8.3.

  	
  No Violation

  	
  71

  
	
  8.4.

  	
  Litigation

  	
  71

  
	
  8.5.

  	
  Margin Regulations

  	
  71

  
	
  8.6.

  	
  Governmental Approvals

  	
  71

  
	
  8.7.

  	
  Investment Company Act

  	
  71

  
	
  8.8.

  	
  True and Complete Disclosure

  	
  72

  
	
  8.9.

  	
  Financial Condition; Financial Statements

  	
  72

  
	
  8.10.

  	
  Tax Matters

  	
  72

  
	
  8.11.

  	
  Compliance with ERISA

  	
  73

  
	
  8.12.

  	
  Subsidiaries

  	
  74

  
	
  8.13.

  	
  Intellectual Property

  	
  74

  
	
  8.14.

  	
  Environmental Laws

  	
  74

  
	
  8.15.

  	
  Properties

  	
  74

  
	
  8.16.

  	
  Solvency

  	
  74

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  COVENANTS

  	
  74

  
	
  9.1.

  	
  Reports and Other Information

  	
  74

  
	
  9.2.

  	
  Compliance Certificate

  	
  76

  
	
  9.3.

  	
  Taxes

  	
  76

  
	
  9.4.

  	
  Stay, Extension and Usury Laws

  	
  76

  
	
  9.5.

  	
  Limitation on Restricted Payments

  	
  76

  
	
  9.6.

  	
  Dividend and Other Payment Restrictions Affecting Restricted
  Subsidiaries

  	
  84

  
	
  9.7.

  	
  Limitation on Incurrence of Indebtedness and Issuance of Disqualified
  Stock and Preferred Stock

  	
  86

  
	
  9.8.

  	
  Asset Sales

  	
  93

  
	
  9.9.

  	
  Transactions with Affiliates

  	
  95

  
	
  9.10.

  	
  Liens

  	
  98

  
	
  9.11.

  	
  Corporate Existence

  	
  98

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  9.12.

  	
  Offer to Repurchase upon Change of Control

  	
  99

  
	
  9.13.

  	
  Limitation on Guarantees of Indebtedness by Restricted Subsidiaries

  	
  100

  
	
  9.14.

  	
  Merger, Consolidation or Sale of All or Substantially All Assets

  	
  101

  
	
  9.15.

  	
  Successor Corporation Substituted

  	
  103

  
	
  9.16.

  	
  [Reserved]

  	
  103

  
	
  9.17.

  	
  [Reserved]

  	
  103

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  [RESERVED]

  	
  103

  
	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  DEFAULTS AND REMEDIES

  	
  104

  
	
  11.1.

  	
  Event of Default

  	
  104

  
	
  11.2.

  	
  [Reserved]

  	
  106

  
	
  11.3.

  	
  [Reserved]

  	
  106

  
	
  11.4.

  	
  [Reserved]

  	
  106

  
	
  11.5.

  	
  [Reserved]

  	
  106

  
	
  11.6.

  	
  [Reserved]

  	
  106

  
	
  11.7.

  	
  [Reserved]

  	
  106

  
	
  11.8.

  	
  [Reserved]

  	
  106

  
	
  11.9.

  	
  [Reserved]

  	
  106

  
	
  11.10.

  	
  [Reserved]

  	
  106

  
	
  11.11.

  	
  [Reserved]

  	
  106

  
	
  11.12.

  	
  [Reserved]

  	
  106

  
	
  11.13.

  	
  [Reserved]

  	
  106

  
	
  11.14.

  	
  [Reserved]

  	
  107

  
	
  11.15.

  	
  [Reserved]

  	
  107

  
	
  11.16.

  	
  Remedies upon Event of Default, Waivers of Past Defaults

  	
  107

  
	
  11.17.

  	
  Application of Proceeds

  	
  107

  
	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  THE AGENTS

  	
  108

  
	
  12.1.

  	
  Appointment

  	
  108

  
	
  12.2.

  	
  Delegation of Duties

  	
  108

  
	
  12.3.

  	
  Exculpatory Provisions

  	
  108

  
	
  12.4.

  	
  Reliance by Agents

  	
  109

  
	
  12.5.

  	
  Notice of Default

  	
  109

  
	
  12.6.

  	
  Non-Reliance on Administrative Agent and Other Lenders

  	
  110

  
	
  12.7.

  	
  Indemnification

  	
  110

  
	
  12.8.

  	
  Agents in Their Individual Capacities

  	
  111

  
	
  12.9.

  	
  Successor Agents

  	
  111

  
	
  12.10.

  	
  Withholding Tax

  	
  112

  
	
  12.11.

  	
  [Reserved]

  	
  112

  
	
  12.12.

  	
  Agents under Guarantee

  	
  112

  
	
  12.13.

  	
  Right to Enforce Guarantee

  	
  112

  
	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
  MISCELLANEOUS

  	
  113

  
	
  13.1.

  	
  Amendments, Waivers and Releases

  	
  113

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  13.2.

  	
  Notices

  	
  115

  
	
  13.3.

  	
  No Waiver; Cumulative Remedies

  	
  115

  
	
  13.4.

  	
  Survival of Representations and Warranties

  	
  115

  
	
  13.5.

  	
  Payment of Expenses; Indemnification

  	
  116

  
	
  13.6.

  	
  Successors and Assigns; Participations and Assignments

  	
  117

  
	
  13.7.

  	
  Replacements of Lenders Under Certain Circumstances

  	
  121

  
	
  13.8.

  	
  Adjustments; Set-off

  	
  122

  
	
  13.9.

  	
  Counterparts

  	
  123

  
	
  13.10.

  	
  Severability

  	
  123

  
	
  13.11.

  	
  Integration

  	
  123

  
	
  13.12.

  	
  GOVERNING LAW

  	
  123

  
	
  13.13.

  	
  Submission to Jurisdiction; Waivers

  	
  123

  
	
  13.14.

  	
  Acknowledgments

  	
  124

  
	
  13.15.

  	
  WAIVERS OF JURY TRIAL

  	
  125

  
	
  13.16.

  	
  Confidentiality

  	
  125

  
	
  13.17.

  	
  Direct Website Communications

  	
  126

  
	
  13.18.

  	
  USA PATRIOT Act

  	
  127

  
	
  13.19.

  	
  Judgment Currency

  	
  127

  
	
  13.20.

  	
  Payments Set Aside

  	
  128

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1.1(b)

  	
  Commitments

  	
   

  
	
  Schedule 1.1(g)

  	
  Debt Repayment

  	
   

  
	
  Schedule 6.3

  	
  Local Counsels

  	
   

  
	
  Schedule 8.3

  	
  Conflicts

  	
   

  
	
  Schedule 8.4

  	
  Litigation

  	
   

  
	
  Schedule 8.12

  	
  Subsidiaries

  	
   

  
	
  Schedule 13.2

  	
  Notice Addresses

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Senior Unsecured Guarantee

  	
   

  
	
  Exhibit B

  	
  Form of Senior Refinancing Indenture

  	
   

  
	
  Exhibit C

  	
  Form of Senior Refinancing Registration Rights Agreement

  	
   

  
	
  Exhibit D-1

  	
  Form of Exchange Notice for Senior Cash Pay Loans

  	
   

  
	
  Exhibit D-2

  	
  Form of Exchange Notice for Senior PIK Loans

  	
   

  
	
  Exhibit E-1

  	
  Form of Legal Opinion of Simpson Thacher & Bartlett LLP

  	
   

  
	
  Exhibit E-2

  	
  Form of Legal Opinion of General Counsel

  	
   

  
	
  Exhibit F

  	
  Form of Loan Party Closing Certificate

  	
   

  
	
  Exhibit G

  	
  Form of Assignment and Acceptance

  	
   

  
	
  Exhibit H-1

  	
  Form of Promissory Note (Cash Pay)

  	
   

  
	
  Exhibit H-2

  	
  Form of Promissory Note (PIK)

  	
   

  



 


iv

















 


SENIOR UNSECURED LOAN AGREEMENT dated as of
September 24, 2007, among FIRST DATA CORPORATION, a Delaware corporation (the “Company” or the “Borrower”), the
lending institutions from time to time parties hereto (each a “Lender” and, collectively, the “Lenders”),
CITIBANK, N.A., as Administrative Agent (such terms and each other capitalized
term used but not defined in this preamble having the meaning provided in Section
1), CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Syndication Agent, and CITIGROUP
GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES (USA) LLC, DEUTSCHE BANK
SECURITIES INC., GOLDMAN SACHS CREDIT PARTNERS L.P., HSBC SECURITIES (USA)
INC., LEHMAN BROTHERS INC. and MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED, as Joint Lead Arrangers and Bookrunners.


 


WHEREAS, pursuant to the Agreement and Plan
of Merger (as amended from time to time in accordance therewith, the “Acquisition Agreement”), dated as of April 1, 2007, by and
among the Borrower, Holdings and Merger Sub, Merger Sub will merge with and
into the Borrower (the “Merger”), with
the Borrower surviving the Merger as a wholly-owned Subsidiary of Holdings;


 


WHEREAS, to fund, in part, the Merger, it is
intended that Affiliates of Kohlberg Kravis Roberts & Co., L.P. and certain
other investors will contribute an amount in cash to Holdings and/or a direct
or indirect parent thereof in exchange for Stock and Stock Equivalents (which
cash will be contributed to the Borrower in exchange for common Stock of the
Borrower) (such contribution, the “Equity Investment”),
which shall be no less than 22.5% of the aggregate pro forma
capitalization of the Borrower on the Closing Date (the “Minimum
Equity Amount”);


 


WHEREAS, in connection with the foregoing,
the Borrower has requested that the Lenders extend credit in the form of Senior
Interim Loans to the Borrower on the Closing Date, in Dollars, in an aggregate
principal amount of $6,500,000,000, which shall initially consist of (a)
$3,750,000,000 of Senior Interim Cash Pay Loans and (b) $2,750,000,000 of
Senior Interim PIK Loans;


 


WHEREAS, to consummate the transactions
contemplated by the Acquisition Agreement, it is intended that the Borrower
will enter into (a) a senior secured credit agreement, dated as of the Closing
Date, by and among the Borrower, the lenders from time to time parties thereto,
Credit Suisse, Cayman Islands Branch, as administrative agent, swingline lender
and letter of credit issuer, Citibank, N.A., as syndication agent, and Credit
Suisse Securities (USA) LLC, Citigroup Global Markets Inc., Deutsche Bank
Securities Inc., Goldman Sachs Credit Partners L.P., HSBC Securities (USA)
Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated,
as joint lead arrangers and bookrunners, and the other agents party thereto (as
the same may be amended, supplemented or otherwise modified from time to time
in accordance therewith, the “Senior Secured Credit
Agreement”), pursuant to which (i)(1) the Borrower will borrow term
loans in an aggregate principal amount of $11,775,000,000 and (2) a euro
tranche term loan in an aggregate principal amount of  €709,219,858.16 (together, the “Senior Secured Closing Date Term Loans”), (ii) the Borrower
may borrow term loans in an aggregate principal amount of up to $225,000,000
(the “Senior Secured Delayed Draw Term Loans”),
(iii) the Borrower may borrow revolving credit loans (the “Senior
Secured Revolving Credit Loans”) in an aggregate principal amount of
up to $2,000,000,000 (not to exceed 


 

















 


$200,000,000
on the Closing Date), (iv) the Borrower may request letters of credit in an
aggregate amount not to exceed $500,000,000 (which will reduce amounts
available for Senior Secured Revolving Credit Loans), and (b) a senior
subordinated interim loan agreement, dated as of the Closing Date, by and among
the Borrower, the lenders from time to time parties thereto, Citibank, N.A., as
administrative agent, Credit Suisse, Cayman Islands Branch, as syndication
agent, and Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC,
Deutsche Bank Securities Inc., Goldman Sachs Credit Partners L.P., HSBC Securities
(USA) Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as joint lead arrangers and bookrunners (as the same may be
amended, supplemented or otherwise modified from time to time in accordance
therewith, the “Senior Subordinated Interim Loan Agreement”),
pursuant to which the Borrower will borrow senior subordinated loans in an
aggregate principal amount of $2,500,000,000 (the “Senior
Subordinated Interim Loans”); and


 


WHEREAS, the net proceeds of the Senior
Interim Loans will be used by the Borrower, together with (a) the net proceeds
of the Senior Secured Closing Date Term Loans, the Senior Secured Revolving
Credit Loans (not to exceed $200,000,000) and the Senior Subordinated Interim
Loans and (b) the net proceeds of the Equity Investments, on the Closing Date
(or, in the case of the Debt Repayment, such later date as may be necessary to
effect the Debt Repayments in accordance with the tender offers therefor)
solely to effect the Merger, to effect the Debt Repayments and to pay
Transaction Expenses.


 


NOW, THEREFORE, in consideration of the
premises and the covenants and agreements contained herein, the parties hereto
hereby agree as follows:


 


SECTION 1.           Definitions


 


1.1.          Defined
Terms.


 


(a)           As used herein, the following terms
shall have the meanings specified in this Section 1.1 unless the context
otherwise requires (it being understood that defined terms in this Agreement
shall include in the singular number the plural and in the plural the
singular):


 


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


 


“ABR Loan” shall
mean each Loan bearing interest based on the ABR.


 


“Acceptable Commitment”
shall have the meaning provided in Section 9.8(b).


 


2

















 


“Acquired Indebtedness”
shall mean, with respect to any specified Person,


 


(1)           Indebtedness of any other Person
existing at the time such other Person is merged with or into or became a Restricted
Subsidiary of such specified Person, including Indebtedness incurred in
connection with, or in contemplation of, such other Person merging with or into
or becoming a Restricted Subsidiary of such specified Person, and


 


(2)           Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.


 


“Acquisition Agreement”
shall have the meaning provided in the preamble to this Agreement.


 


“Administrative Agent”
shall mean Citibank, N.A., as the administrative agent for the Lenders under
this Agreement and the other Loan Documents, or any successor administrative
agent pursuant to Section 12.


 


“Administrative Agent’s
Office” shall mean the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 13.2 or such other address or account
as the Administrative Agent may from time to time notify to the Borrower and
the Lenders.


 


“Administrative
Questionnaire” shall have the meaning provided in Section
13.6(b)(ii)(D).


 


“Affiliate”
shall mean, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with
such Person. A Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power to direct or cause the direction
of the management and policies of such other Person, whether through the
ownership of voting securities, by contract or otherwise.


 


“Agent Parties”
shall have the meaning provided in Section 13.17(c).


 


“Agents” shall
mean the Administrative Agent, the Syndication Agent and each Joint Lead
Arranger and Bookrunner.


 


“Agreement”
shall mean this Senior Unsecured Loan Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.


 


“Agreement Currency”
shall have the meaning provided in Section 13.19.


 


“AHYDO redemption date”
shall have the meaning provided in Section 5.1(b).


 


“Applicable ABR Margin”
shall mean at any date, with respect to each ABR Loan, (a) 2.50% per annum with respect to Senior Cash Pay Loans and (b)
3.50% per annum with respect to Senior PIK
Loans. If the Loans are not paid within the six-month period following the
Closing Date, the Applicable ABR Margin will increase by 0.50% per annum at the end of such six-month period and shall increase
by an additional 0.50% per annum at
the end of each 


 


3

















 


three-month
period thereafter until the Interim Loan Conversion Date. At the Interim Loan
Conversion Date the Applicable ABR Margin will increase by 0.25% per annum and shall increase by an additional 0.25% per annum at the end of each three-month period thereafter
until the Term Loan Maturity Date. Notwithstanding the foregoing, the
Applicable ABR Margin shall be capped such that the applicable interest rate
(i) in the case of Senior Cash Pay Loans, shall not exceed the Senior Cash Pay
Fixed Rate and (ii) in the case of Senior PIK Loans, shall not exceed the
Senior PIK Fixed Rate.


 


“Applicable Commitment”
shall have the meaning provided in Section 9.8(b).


 


“Applicable LIBOR Margin”
shall mean at any date, with respect to each LIBOR Loan, (a) 3.50% per annum with respect to Senior Cash Pay Loans and (b)
4.50% per annum with respect to Senior PIK
Loans. If the Loans are not paid within the six-month period following the Closing
Date, the Applicable LIBOR Margin will increase by 0.50% per annum
at the end of such six-month period and shall increase by an additional 0.50% per annum at the end of each three-month period thereafter
until the Interim Loan Conversion Date. At the Interim Loan Conversion Date,
the Applicable LIBOR Margin will increase by 0.25% per annum
and shall increase by an additional 0.25% per annum at
the end of each three-month period thereafter until the Term Loan Maturity Date.
Notwithstanding the foregoing, the Applicable LIBOR Margin shall be capped such
that the applicable interest rate (i) in the case of Senior Cash Pay Loans,
shall not exceed the Senior Cash Pay Fixed Rate and (ii) in the case of Senior
PIK Loans, shall not exceed the Senior PIK Fixed Rate.


 


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


 


“Asset Sale”
shall mean:


 


(1)           the sale, conveyance, transfer or other
disposition, whether in a single transaction or a series of related transactions,
of property or assets (including by way of a Sale and Lease-Back Transaction)
of the Borrower or any of its Restricted Subsidiaries (each referred to in this
definition as a “disposition”); or


 


(2)           the issuance or sale of Equity
Interests of any Restricted Subsidiary, whether in a single transaction or a series
of related transactions (other than Preferred Stock of Restricted Subsidiaries
issued in compliance with Section 9.7 hereof);


 


in each case,
other than:


 


(a)           any disposition of Cash Equivalents
or Investment Grade Securities or obsolete or worn out equipment in the ordinary
course of business or any disposition of inventory or goods (or other assets)
no longer used in the ordinary course of business;


 


(b)           the disposition of all or
substantially all of the assets of the Borrower in a manner permitted pursuant
to the provisions described under Section 9.14 hereof or any disposition
that constitutes a Change of Control pursuant to this Agreement;


 


4

















 


(c)           the making of any Restricted Payment
or Permitted Investment that is permitted to be made, and is made, under Section
9.5 hereof;


 


(d)           any disposition of assets or issuance
or sale of Equity Interests of any Restricted Subsidiary in any transaction or
series of related transactions with an aggregate fair market value of less than
$50.0 million;


 


(e)           any disposition of property or assets
or issuance of securities by a Restricted Subsidiary of the Borrower to the
Borrower or by the Borrower or a Restricted Subsidiary of the Borrower to
another Restricted Subsidiary of the Borrower;


 


(f)            to the extent allowable under
Section 1031 of the Code or any comparable or successor provision, any exchange
of like property (excluding any boot thereon) for use in a Similar Business;


 


(g)           the lease, assignment or sublease of
any real or personal property in the ordinary course of business;


 


(h)           any issuance or sale of Equity
Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;


 


(i)            foreclosures, condemnation or
similar action on assets or the granting of Liens not prohibited by this
Agreement;


 


(j)            sales of accounts receivable, or
participations therein, in connection with any Receivables Facility;


 


(k)           the sale or discount of inventory,
accounts receivable or notes receivable in the ordinary course of business or
the conversion of accounts receivable to notes receivable;


 


(l)            any financing transaction with
respect to property built or acquired by the Borrower or any Restricted Subsidiary
after the Closing Date, including Sale and Lease-Back Transactions and asset
securitizations permitted by this Agreement;


 


(m)          dispositions in the ordinary course of
business, including disposition in connection with any Settlement and dispositions
of Settlement Assets and Merchant Agreements;


 


(n)           sales, transfers and other
dispositions of Investments in joint ventures and Merchant Acquisition and Processing
Alliances to the extent required by, or made pursuant to, customary buy/sell
arrangements between the joint venture parties set forth in joint venture arrangements
and similar binding arrangements;


 


(o)           sales, transfers and other
dispositions of Investments in Merchant Acquisition and Processing Alliances
(regardless of the form of legal entity) relating to any equity reallocation in
connection with an asset or equity contribution; and


 


5

















 


(p)           any issuance or sale of Equity
Interests of any Restricted Subsidiary to any Person operating in a Similar Business
for which such Restricted Subsidiary provides shared purchasing, billing,
collection or similar services in the ordinary course of business.


 


“Assignment and Acceptance”
shall mean an assignment and acceptance substantially in the form of Exhibit
G, or such other form as may be approved by the Administrative Agent.


 


“Authorized Officer”
shall mean the Chief Executive Officer, President, the Chief Financial Officer,
the Treasurer, the Vice President-Finance or any other senior officer of the
Borrower designated as such in writing to the Administrative Agent by the
Borrower.


 


“Bankruptcy Code”
shall mean Title 11 of the United States Code, as amended.


 


“Bankruptcy Law”
shall mean the Bankruptcy Code and any similar federal, state or foreign law
for the relief of debtors.


 


“benefited Lender”
shall have the meaning provided in Section 13.8(a).


 


“Board” shall
mean the Board of Governors of the Federal Reserve System of the United States
(or any successor).


 


“Borrower” shall
have the meaning provided in the preamble to this Agreement.


 


“Borrowing”
shall mean and include the incurrence of the Loans on the Closing Date (or
resulting from conversions on a given date after the Closing Date) having, in
the case of LIBOR Loans, the same Interest Period.


 


“Business Day”
shall mean any day excluding Saturday, Sunday and any other day on which
banking institutions in New York City are authorized by law or other governmental
actions to close, and, if such day relates to any interest rate settings as to
a LIBOR Loan, any fundings, disbursements, settlements and payments in Dollars
in respect of any such LIBOR Loan, or any other dealings in Dollars to be
carried out pursuant to this Agreement in respect of any such LIBOR Loan, such
day shall be a day on which dealings in deposits in Dollars are conducted by
and between banks in the London interbank eurodollar market.


 


“Capital Lease”
shall mean, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is,
or is required to be, accounted for as a capital lease on the balance sheet of
that Person.


 


“Capital Stock”
shall mean:


 


(1)           in the case of a corporation,
corporate stock;


 


(2)           in the case of an association or
business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;


 


6

















 


(3)           in the case of a partnership or
limited liability company, partnership or membership interests (whether general
or limited); and


 


(4)           any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person.


 


“Capitalized Lease
Obligations” shall mean, as applied to any Person, all obligations
under Capital Leases of such Person or any of its Subsidiaries, in each case
taken at the amount thereof accounted for as liabilities in accordance with
GAAP.


 


“Capitalized Software
Expenditures” shall mean, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities) by a Person and
its Restricted Subsidiaries during such period in respect of purchased software
or internally developed software and software enhancements that, in conformity
with GAAP, are or are required to be reflected as capitalized costs on the
consolidated balance sheet of a Person and its Restricted Subsidiaries.


 


“Cash Equivalents”
shall mean:


 


(1)           United States dollars;


 


(2)           euro or any national currency of any
participating member state of the EMU or such local currencies held by the
Borrower and its Restricted Subsidiaries from time to time in the ordinary
course of business;


 


(3)           securities issued or directly and
fully and unconditionally guaranteed or insured by the U.S. government (or any
agency or instrumentality thereof the securities of which are unconditionally
guaranteed as a full faith and credit obligation of the U.S. government) with
maturities of 24 months or less from the date of acquisition;


 


(4)           certificates of deposit, time
deposits and eurodollar time deposits with maturities of one year or less from
the date of acquisition, bankers’ acceptances with maturities not exceeding one
year and overnight bank deposits, in each case with any commercial bank having
capital and surplus of not less than $500.0 million in the case of U.S. banks
and $100.0 million (or the U.S. dollar equivalent as of the date of
determination) in the case of non-U.S. banks;


 


(5)           repurchase obligations for underlying
securities of the types described in clauses (3) and (4) entered
into with any financial institution meeting the qualifications specified in clause
(4) above;


 


(6)           commercial paper rated at least P-1
by Moody’s or at least A-1 by S&P and in each case maturing within 24
months after the date of creation thereof;


 


(7)           marketable short-term money market
and similar securities having a rating of at least P-2 or A-2 from either Moody’s
or S&P, respectively (or, if at any time neither Moody’s nor S&P shall
be rating such obligations, an equivalent rating from another Rating


 


7

















 


Agency), and
in each case maturing within 24 months after the date of creation thereof;


 


(8)           readily marketable direct obligations
issued by any state, commonwealth or territory of the United States or any
political subdivision or taxing authority thereof having an Investment Grade
Rating from either Moody’s or S&P with maturities of 24 months or less from
the date of acquisition;


 


(9)           Indebtedness or Preferred Stock
issued by Persons with a rating of A or higher from S&P or A2 or higher
from Moody’s with maturities of 24 months or less from the date of acquisition;


 


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


 


(11)         investment funds investing 95% of their
assets in securities of the types described in clauses (1) through (10)
above.


 


Notwithstanding the foregoing, Cash
Equivalents shall include amounts denominated in currencies other than those
set forth in clauses (1) and (2) above; provided that such
amounts are converted into any currency listed in clauses (1) and (2)
as promptly as practicable and in any event within ten Business Days following
the receipt of such amounts.


 


“Cash Interest”
shall have the meaning provided in Section 2.8(a)(ii).


 


“Casualty Event”
shall mean, with respect to any property of any Person, any loss of or damage
to, or any condemnation or other taking by a Governmental Authority of, such
property for which such Person or any of its Restricted Subsidiaries receives
insurance proceeds, or proceeds of a condemnation award or other compensation.


 


“Change in Law”
shall mean (a) the adoption of any law, treaty, order, policy, rule or
regulation after the date of this Agreement, (b) any change in any law, treaty,
order, policy, rule or regulation or in the interpretation or application
thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender with any guideline, request, directive or order issued
or made after the date hereof by any central bank or other governmental or
quasi-governmental authority (whether or not having the force of law).


 


“Change of Control”
shall mean the occurrence of any of the following:


 


(1)           the sale, lease or transfer, in one
or a series of related transactions, of all or substantially all of the assets
of the Borrower and its Subsidiaries, taken as a whole, to any Person other
than a Permitted Holder; or


 


(2)           the Borrower becomes aware (by way of
a report or any other filing pursuant to Section 13(d) of the Exchange Act,
proxy, vote, written notice or otherwise) of the acquisition by any Person or
group (within the meaning of Section 13(d)(3) or Section 


 


8

















 


14(d)(2) of
the Exchange Act, or any successor provision), including any group acting for
the purpose of acquiring, holding or disposing of securities (within the
meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor provision),
other than the Permitted Holders, in a single transaction or in a series of related
transactions, by way of merger, consolidation or other business combination or
purchase of beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act, or any successor provision) of 50% or more of the total voting
power of the Voting Stock of the Borrower or any of its direct or indirect
parent companies holding directly or indirectly 100% of the total voting power
of the Voting Stock of the Borrower.


 


“Change of Control Offer”
shall have the meaning provided in Section 9.12(a).


 


“Change of Control
Prepayment” shall have the meaning provided in Section 9.12(a).


 


“Change of Control
Prepayment Date” shall have the meaning provided in Section
9.12(a)(2).


 


“Class”, when
used in reference to any Loan or Borrowing, shall refer to whether such Loan,
or the Loans comprising such Borrowing, are Senior Cash Pay Loans or Senior PIK
Loans and, when used in reference to any Commitment, refers to whether such
Commitment is a Senior Interim Cash Pay Commitment or Senior Interim PIK
Commitment.


 


“Closing Date”
shall mean the date of the initial Borrowings hereunder.


 


“Code” shall
mean the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder. Section references to
the Code are to the Code, as in effect at the date of this Agreement, and any
subsequent provisions of the Code, amendatory thereof, supplemental thereto or
substituted therefor.


 


“Commitments”
shall mean, with respect to each Lender (to the extent applicable), such Lender’s
Senior Interim Loan Commitment.


 


“Committed Lenders”
shall mean Citicorp North America, Inc., Credit Suisse, Cayman Islands Branch,
Deutsche Bank AG Cayman Islands Branch, Goldman Sachs Credit Partners L.P.,
HSBC Bank USA, National Association, Lehman Brothers Commercial Bank, Lehman Commercial
Paper Inc. and Merrill Lynch, Capital Corporation.


 


“Communications”
shall have the meaning provided in Section 13.17(a).


 


“Confidential Information”
shall have the meaning provided in Section 13.16.


 


“Consolidated Depreciation
and Amortization Expense” shall mean with respect to any Person for
any period, the total amount of depreciation and amortization expense, including
the amortization of deferred financing fees, debt issuance costs, commissions,
fees and expenses and Capitalized Software Expenditures, customer acquisition
costs and incentive payments, conversion costs, contract acquisition costs, and
amortization of unrecognized prior service


 


9
















 


costs and
actuarial gains and losses related to pension and other post-employment
benefits, of such Person and its Restricted Subsidiaries for such period on a
consolidated basis and otherwise determined in accordance with GAAP.


 


“Consolidated Interest Expense” shall mean, with respect to
any Person for any period, without duplication, the sum of:


 


(1)           consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, to the extent such
expense was deducted (and not added back) in computing Consolidated Net Income
(including (a) amortization of original issue discount resulting from the
issuance of Indebtedness at less than par, (b) all commissions, discounts and
other fees and charges owed with respect to letters of credit or bankers’
acceptances, (c) non-cash interest expense (but excluding any non-cash interest
expense attributable to the movement in the mark to market valuation of Hedging
Obligations or other derivative instruments pursuant to GAAP), (d) the interest
component of Capitalized Lease Obligations, and (e) net payments, if any,
pursuant to interest rate Hedging Obligations with respect to Indebtedness, and
excluding (t) penalties and interest relating to taxes, (u) accretion or
accrual of discounted liabilities not constituting Indebtedness, (v) any
expense resulting from the discounting of obligations in connection with the
application of recapitalization accounting or purchase accounting, (w) “additional
interest” with respect to the Senior Refinancing Registration Rights Agreement
and any comparable “additional interest” with respect to other securities, (x)
amortization of deferred financing fees, debt issuance costs, commissions, fees
and expenses, (y) any expensing of bridge, commitment and other financing fees
and (z) commissions, discounts, yield and other fees and charges (including any
interest expense) related to any Receivables Facility); plus


 


(2)           consolidated capitalized interest of
such Person and its Restricted Subsidiaries for such period, whether paid or
accrued; less


 


(3)           interest income for such period.


 


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


 


“Consolidated Leverage Ratio,” with respect to any Person as
of any date of determination, shall mean the ratio of (x) Consolidated Total
Indebtedness of such Person, less the aggregate amount of cash and Cash
Equivalents held (free and clear of all Liens, other than Liens permitted under
Section 9.10 hereof, other than clause (20) of the definition of
Permitted Liens) by (A) the Borrower and its Restricted Subsidiaries (other
than settlement assets as shown on the balance sheet of such Person) and (B)
any Joint Venture (other than settlement assets as shown on the balance sheet
of such Person) in an amount corresponding to the Borrower’s or any Restricted
Subsidiary’s, as applicable, proportionate share thereof, based on its
ownership of such Joint Venture’s voting stock, computed as of the end of the
most recent fiscal quarter for which internal financial statements are
available immediately preceding the date on which such event


 


10

















 


for which such
calculation is being made shall occur to (y) the aggregate amount of EBITDA of
such Person for the period of the most recently ended four full consecutive
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such event for which such calculation
is being made shall occur, in each case with such pro forma
adjustments to Consolidated Total Indebtedness and EBITDA as are appropriate
and consistent with the pro forma
adjustment provisions set forth in the definition of “Fixed Charge Coverage
Ratio.”


 


“Consolidated Net Income” shall mean, with respect to any
Person for any period, the aggregate of the Net Income of such Person for such
period, on a consolidated basis, and otherwise determined in accordance with
GAAP; provided, however, that, without duplication,


 


(1)           any after-tax effect of
extraordinary, non-recurring or unusual gains or losses (less all fees and
expenses relating thereto) or expenses (including relating to the Transaction
to the extent incurred on or prior to September 30, 2008 and litigation and
regulatory settlements), severance, relocation costs, consolidation and closing
costs, integration and facilities opening costs, spin-off costs, business
optimization costs and expenses (including data center consolidation
initiatives and other costs relating to initiatives aimed at profitability
improvements), transition costs, restructuring costs, charges or reserves,
signing, retention or completion bonuses, and curtailments or modifications to
pension and post-retirement employee benefit plans shall be excluded,


 


(2)           the cumulative effect of a change in
accounting principles during such period shall be excluded,


 


(3)           any after-tax effect of income (loss)
from disposed, abandoned or discontinued operations and any net after-tax gains
or losses on disposal of disposed, abandoned, transferred, closed or discontinued
operations shall be excluded,


 


(4)           any after-tax effect of gains or
losses (less all fees and expenses relating thereto) attributable to asset
dispositions or abandonments other than in the ordinary course of business, as
determined in good faith by the Borrower, shall be excluded,


 


(5)           the Net Income for such period of any
Person that is an Unrestricted Subsidiary shall be excluded, and, solely for
the purpose of determining the amount available for Restricted Payments under clause
3(a) of Section 9.5(a) hereof, the Net Income for such period of any
Person that is not a Subsidiary or that is accounted for by the equity method
of accounting shall be excluded; provided that Consolidated Net Income
of the Borrower shall be increased by the amount of dividends or distributions
or other payments that are actually paid in cash (or to the extent converted
into cash) to the referent Person or a Restricted Subsidiary thereof in respect
of such period,


 


(6)           solely for the purpose of determining
the amount available for Restricted Payments under clause (3)(a) of Section
9.5(a) hereof, the Net Income for such period of any Restricted Subsidiary
(other than any Guarantor) shall be excluded to the extent that 


 


11

















 


the declaration or payment of dividends or similar distributions by
that Restricted Subsidiary of its Net Income is not at the date of
determination wholly permitted without any prior governmental approval (which
has not been obtained) or, directly or indirectly, by the operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule, or governmental regulation applicable to that Restricted
Subsidiary or its stockholders, unless such restriction with respect to the
payment of dividends or similar distributions has been legally waived; provided
that Consolidated Net Income of the Borrower will be increased by the amount of
dividends or other distributions or other payments actually paid in cash (or to
the extent converted into cash) or Cash Equivalents to the Borrower or a
Restricted Subsidiary thereof in respect of such period, to the extent not
already included therein,


 


(7)           effects of adjustments (including the
effects of such adjustments pushed down to the Borrower and its Restricted
Subsidiaries) in such Person’s consolidated financial statements pursuant to
GAAP resulting from the application of recapitalization accounting or purchase
accounting in relation to the Transaction or any consummated acquisition or the
amortization or write-off of any amounts thereof, net of taxes, shall be
excluded,


 


(8)           any effect of income (loss) from the
early extinguishment of Indebtedness shall be excluded,


 


(9)           the mark-to-market effects on Net
Income during the period of any derivatives or similar financial instruments,
including the ineffective portion of Hedging Obligations (other than such
effects settled in cash) shall be excluded,


 


(10)         any impairment charge or asset
write-off or write-down, including, without limitation, impairment charges or
asset write-offs related to intangible assets, long-lived assets or investments
in debt and equity securities, in each case, pursuant to GAAP and the
amortization of intangibles arising pursuant to GAAP shall be excluded,


 


(11)         any non-cash compensation charge or
expense, including any such charge arising from grants of stock appreciation or
similar rights, stock options, restricted stock or other rights, and any cash
charges associated with the rollover, acceleration or payout of Equity
Interests by management of the Borrower or any of its direct or indirect parent
companies in connection with the Transaction, shall be excluded,


 


(12)         any fees and expenses incurred during
such period, or any amortization thereof for such period, in connection with
any acquisition, Investment, Asset Sale, issuance or repayment of Indebtedness,
issuance of Equity Interests, refinancing transaction or amendment or
modification of any debt instrument (in each case, including any such
transaction consummated prior to the Closing Date and any such transaction
undertaken but not completed) and any charges or non-recurring merger costs
incurred during such period as a result of any such transaction shall be
excluded,


 


12

















 


(13)         accruals and reserves that are
established or adjusted within twelve months after the Closing Date that are so
required to be established as a result of the Transaction in accordance with
GAAP, or changes as a result of adoption or modification of accounting
policies, shall be excluded, and


 


(14)         to the extent covered by insurance and
actually reimbursed, or, so long as the Borrower has made a determination that
there exists reasonable evidence that such amount will in fact be reimbursed by
the insurer and only to the extent that such amount is (a) not denied by the
applicable carrier in writing within 180 days and (b) in fact reimbursed within
365 days of the date of such evidence (with a deduction for any amount so added
back to the extent not so reimbursed within 365 days), expenses with respect to
liability or casualty events or business interruption shall be excluded.


 


Notwithstanding
the foregoing, for the purpose of Section 9.5 hereof only (other than clause
(3)(d) of Section 9.5(a) hereof), there shall be excluded from
Consolidated Net Income any income arising from any sale or other disposition
of Restricted Investments made by the Borrower and its Restricted Subsidiaries,
any repurchases and redemptions of Restricted Investments from the Borrower and
its Restricted Subsidiaries, any repayments of loans and advances which
constitute Restricted Investments by the Borrower or any of its Restricted
Subsidiaries, any sale of the stock of an Unrestricted Subsidiary or any
distribution or dividend from an Unrestricted Subsidiary, in each case only to
the extent such amounts increase the amount of Restricted Payments permitted
under clause (3)(d) of Section 9.5(a) hereof. Furthermore, there
shall be excluded from Consolidated Net Income any net income (losses)
attributable to Integrated Payment Systems Inc. and Integrated Payment Systems
Canada Inc.


 


“Consolidated Secured Debt Ratio” as of any date of
determination, shall mean the ratio of (1) Consolidated Total Indebtedness of
the Borrower and its Restricted Subsidiaries that is secured by Liens on
collateral securing the Senior Secured Credit Agreement, less the aggregate
amount of cash and Cash Equivalents held (free and clear of all Liens, other
than Liens permitted under Section 9.10 hereof, other than clause (20)
of the definition of Permitted Liens) by (A) the Borrower and its Restricted
Subsidiaries (other than settlement assets as shown on the balance sheet of
such Person) and (B) any Joint Venture (other than settlement assets as shown
on the balance sheet of such Person) in an amount corresponding to the Borrower’s
or any Restricted Subsidiary’s, as applicable, proportionate share thereof,
based on its ownership of such Joint Venture’s voting stock, computed as of the
end of the most recent fiscal period for which internal financial statements
are available immediately preceding the date on which such event for which such
calculation is being made shall occur to (2) the Borrower’s EBITDA for the most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such event for
which such calculation is being made shall occur, in each case with such pro forma adjustments to Consolidated Total Indebtedness and
EBITDA as are appropriate and consistent with the pro forma
adjustment provisions set forth in the definition of “Fixed Charge Coverage
Ratio.”


 


“Consolidated Total Indebtedness” shall mean, as at any date
of determination, an amount equal to the sum of (1) the aggregate amount of all
outstanding Indebtedness of the Borrower and its Restricted Subsidiaries on a
consolidated basis consisting of Indebtedness for


 


13

















 


borrowed
money, Obligations in respect of Capitalized Lease Obligations and debt
obligations evidenced by promissory notes and similar instruments (and excluding,
for the avoidance of doubt, all obligations relating to Receivables Facilities)
and (2) the aggregate amount of all outstanding Disqualified Stock of the
Borrower and all Disqualified Stock and Preferred Stock of its Restricted
Subsidiaries on a consolidated basis, with the amount of such Disqualified
Stock and Preferred Stock equal to the greater of their respective voluntary or
involuntary liquidation preferences and maximum fixed repurchase prices, in
each case determined on a consolidated basis in accordance with GAAP. For
purposes hereof, the “maximum fixed repurchase
price” of any Disqualified Stock or Preferred Stock that does not
have a fixed repurchase price shall be calculated in accordance with the terms
of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or
Preferred Stock were purchased on any date on which Consolidated Total Indebtedness
shall be required to be determined pursuant to this Agreement, and if such
price is based upon, or measured by, the fair market value of such Disqualified
Stock or Preferred Stock, such fair market value shall be determined reasonably
and in good faith by the Borrower.


 


“Contingent Obligations” shall mean, with respect to any
Person, any obligation of such Person guaranteeing any leases, dividends or
other obligations that do not constitute Indebtedness (“primary
obligations”) of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,


 


(1)           to purchase any such primary
obligation or any property constituting direct or indirect security therefor,


 


(2)           to advance or supply funds


 


(a)           for the purchase or payment of any
such primary obligation, or


 


(b)           to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, or


 


(3)           to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation against loss in respect thereof.


 


“Contractual Requirement” shall have the meaning provided in Section
8.3.


 


“Credit Event” shall mean and include the making (but not the
conversion or continuation) of the Loans on the Closing Date.


 


“Credit Facilities” shall mean, with respect to the Borrower
or any of its Restricted Subsidiaries, one or more debt facilities, including
the Senior Secured Credit Agreement, or other financing arrangements
(including, without limitation, commercial paper facilities or indentures)
providing for revolving credit loans, term loans, letters of credit or other
long term indebtedness, including any notes, mortgages, guarantees, collateral
documents, instruments and agreements executed in connection therewith, and any
amendments, supplements, modifications, extensions, renewals, restatements or
refundings thereof and any indentures or credit facilities or 


 


14

















 


commercial
paper facilities that replace, refund or refinance any part of the loans,
notes, other credit facilities or commitments thereunder, including any such
replacement, refunding or refinancing facility or indenture that increases the
amount permitted to be borrowed thereunder or alters the maturity thereof (provided
that such increase in borrowings is permitted under Section 9.7 hereof)
or adds Restricted Subsidiaries as additional borrowers or guarantors
thereunder and whether by the same or any other agent, lender or group of
lenders.


 


“Credit Suisse” shall mean Credit Suisse, Cayman Islands
Branch and its successors.


 


“Debt Incurrence Prepayment Event” shall mean any issuance or
incurrence by the Borrower or any of the Restricted Subsidiaries of any
Indebtedness (excluding any Indebtedness permitted to be issued or incurred
under Section 9.7(b) other than in the case of Section 9.7(b)(2)
or 9.7(b)(13) with respect to any refinancing of Indebtedness incurred
under Section 9.7(b)(2), any Senior Notes.


 


“Debt Repayment” shall mean the repayment, prepayment,
repurchase or defeasance of the Indebtedness of the Borrower that is identified
on Schedule 1.1(g) and that is repaid, prepaid, repurchased or defeased
on the Closing Date (or such later date as may be necessary to effect the Debt
Repayment in accordance with the tender offers therefor).


 


“Declined Proceeds” shall have the meaning provided in Section
5.2(h).


 


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


 


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


 


“Deferred Net Cash Proceeds” shall have the meaning provided
such term in the definition of “Net Cash Proceeds.”


 


“Deferred Net Cash Proceeds Payment Date” shall have the
meaning provided such term in the definition of “Net Cash Proceeds.”


 


“Designated Non-cash Consideration” shall mean the fair
market value of non-cash consideration received by the Borrower or a Restricted
Subsidiary in connection with an Asset Sale that is so designated as Designated
Non-cash Consideration pursuant to an Officer’s Certificate, setting forth the
basis of such valuation, executed by the principal financial officer of the
Borrower, less the amount of cash or Cash Equivalents received in connection
with a subsequent sale of or collection on such Designated Non-cash
Consideration.


 


“Designated Preferred Stock” shall mean Preferred Stock of
the Borrower or any parent company thereof (in each case other than
Disqualified Stock) that is issued for cash (other than to a Restricted
Subsidiary or an employee stock ownership plan or trust established by the
Borrower or any of its Subsidiaries) and is so designated as Designated
Preferred Stock, pursuant to an Officer’s Certificate executed by the principal
financial officer of the Borrower or 


 


15

















 


the applicable
parent company thereof, as the case may be, on the issuance date thereof, the
cash proceeds of which are excluded from the calculation set forth in clause
(3) of Section 9.5(a) hereof.


 


“Disqualified Stock” shall mean, with respect to any Person,
any Capital Stock of such Person which, by its terms, or by the terms of any
security into which it is convertible or for which it is putable or
exchangeable, or upon the happening of any event, matures or is mandatorily
redeemable (other than solely as a result of a change of control or asset sale)
pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof (other than solely as a result of a change of
control or asset sale), in whole or in part, in each case prior to the date 91
days after the earlier of the Term Loan Maturity Date or the date the Loans are
no longer outstanding; provided, however, that if such Capital
Stock is issued to any plan for the benefit of employees of the Borrower or its
Subsidiaries or by any such plan to such employees, such Capital Stock shall
not constitute Disqualified Stock solely because it may be required to be
repurchased by the Borrower or its Subsidiaries in order to satisfy applicable
statutory or regulatory obligations.


 


“Dollars” and “$” shall mean
dollars in lawful currency of the United States of America.


 


“Domestic Subsidiary” shall mean each Subsidiary of the
Borrower that is organized under the laws of the United States, any state
thereof, or the District of Columbia.


 


“EBITDA” shall mean, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period


 


(1)           increased (without duplication) by:


 


(a)           provision for taxes based on income
or profits or capital gains, including, without limitation, foreign, federal,
state, franchise and similar taxes (such as the Pennsylvania capital tax) and
foreign withholding taxes (including penalties and interest related to such
taxes or arising from tax examinations) of such Person paid or accrued during
such period deducted (and not added back) in computing Consolidated Net Income;
plus


 


(b)           Fixed Charges of such Person for such
period (including (x) net losses on Hedging Obligations or other derivative
instruments entered into for the purpose of hedging interest rate risk and (y)
costs of surety bonds in connection with financing activities, in each case, to
the extent included in Fixed Charges), together with items excluded from the
definition of “Consolidated Interest Expense” pursuant to clauses (1)(t),
(u), (v), (w), (x), (y) and (z) of
the definition thereof, and, in each such case, to the extent the same were
deducted (and not added back) in calculating such Consolidated Net Income; plus


 


(c)           Consolidated Depreciation and
Amortization Expense of such Person for such period to the extent the same was
deducted (and not added back) in computing Consolidated Net Income; plus


 


16

















 


(d)           any expenses or charges (other than
depreciation or amortization expense) related to any Equity Offering, Permitted
Investment, acquisition, disposition, recapitalization or the incurrence of
Indebtedness(and any amendment or modification to any such transaction)
permitted to be incurred by this Agreement (including a refinancing thereof)
(whether or not successful), including (i) such fees, expenses or charges
related to the this Agreement, the Senior Subordinated Interim Loan Agreement
and the Senior Secured Credit Agreement and (ii) any amendment or other
modification of the Senior Interim Loans, and, in each case, deducted (and not
added back) in computing Consolidated Net Income; plus


 


(e)           any other non-cash charges, including
any write-offs or write-downs, reducing Consolidated Net Income for such period
(provided that if any such non-cash charges represent an accrual or
reserve for potential cash items in any future period, the cash payment in
respect thereof in such future period shall be subtracted from EBITDA to such
extent, and excluding amortization of a prepaid cash item that was paid in a
prior period); plus


 


(f)            the amount of any minority interest
expense consisting of income attributable to minority equity interests of third
parties deducted (and not added back) in such period in calculating Consolidated
Net Income; plus


 


(g)           the amount of management, monitoring,
consulting and advisory fees and related expenses paid in such period to the
Investors to the extent otherwise permitted under Section 9.9 hereof; plus


 


(h)           the amount of net cost savings and
net cash flow effect of revenue enhancements related to new agreements, or
amendments to existing agreements, with customers or joint ventures, projected
by the Borrower in good faith to be realized as a result of specified actions
taken or to be taken (calculated on a pro forma basis
as though such cost savings and revenue enhancements had been realized on the
first day of such period), net of the amount of actual benefits realized during
such period from such actions; provided that (x) such cost savings and
enhancements are reasonably identifiable and factually supportable, (y) such
actions have been taken or are to be taken within 12 months after the date of
determination to take such action and (z) no cost savings or revenue
enhancements shall be added pursuant to this clause (h) to the extent
duplicative of any expenses or charges relating to such cost savings that are
included in clause (e) above with respect to such period (which
adjustments may be incremental to pro forma
adjustments made pursuant to the second paragraph of the definition of “Fixed
Charge Coverage Ratio”); plus


 


(i)            the amount of loss on sales of
receivables and related assets to the Receivables Subsidiary in connection with
a Receivables Facility; plus


 


(j)            any costs or expense incurred by the
Borrower or a Restricted Subsidiary pursuant to any management equity plan or
stock option plan or any other


 


17

















 


management or
employee benefit plan or agreement or any stock subscription or shareholder
agreement, to the extent that such cost or expenses are funded with cash
proceeds contributed to the capital of the Borrower or net cash proceeds of an
issuance of Equity Interests of the Borrower (other than Disqualified Stock)
solely to the extent that such net cash proceeds are excluded from the
calculation set forth in clause (3) of Section 9.5(a) hereof; plus


 


(k)           an amount equal to the Borrower’s and
its Restricted Subsidiaries’ proportional share of the items described in clauses
(1)(a) and (b) of this definition relating to each Joint Venture, in
each case determined as if such Joint Venture was a Restricted Subsidiary;


 


(2)           decreased by (without duplication)
non-cash gains increasing Consolidated Net Income of such Person for such
period, excluding any non-cash gains to the extent they represent the reversal
of an accrual or reserve for a potential cash item that reduced EBITDA in any
prior period; and


 


(3)           increased or decreased by (without
duplication):


 


(a)           any net gain or loss resulting in
such period from Hedging Obligations and the application of Statement of
Financial Accounting Standards No. 133 and its related pronouncements and
interpretations; plus or minus,
as applicable,


 


(b)           any net gain or loss resulting in
such period from currency translation gains or losses related to currency
remeasurements of Indebtedness (including any net loss or gain resulting from
Hedging Obligations for currency exchange risk).


 


“EMU” shall mean the economic and monetary union as
contemplated in the Treaty on European Union.


 


“Engagement Letter” shall mean the Engagement Letter, dated
as of April 1, 2007, among Citigroup Global Markets Inc., Credit Suisse
Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman, Sachs & Co.,
HSBC Securities (USA) Inc., Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner
& Smith Incorporated  and Merger Sub.


 


“Environmental Claims” shall mean any and all actions, suits,
orders, decrees, demands, demand letters, claims, liens, notices of
noncompliance, violation or potential responsibility or investigation (other
than internal reports prepared by the Borrower or any of the Subsidiaries (a)
in the ordinary course of such Person’s business or (b) as required in
connection with a financing transaction or an acquisition or disposition of
real estate) or proceedings relating in any way to any Environmental Law or any
permit issued, or any approval given, under any such Environmental Law
(hereinafter, “Claims”), including, without
limitation, (i) any and all Claims by governmental or regulatory authorities
for enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law and (ii) any and all Claims by any
third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief relating to the presence, release or
threatened release of Hazardous


 


18

















 


Materials or
arising from alleged injury or threat of injury to health or safety (to the extent
relating to human exposure to Hazardous Materials), or the environment
including, without limitation, ambient air, surface water, groundwater, land
surface and subsurface strata and natural resources such as wetlands.


 


“Environmental Law” shall mean any applicable Federal, state,
foreign or local statute, law, rule, regulation, ordinance, code and rule of
common law now or hereafter in effect and in each case as amended, and any
binding judicial or administrative interpretation thereof, including any
binding judicial or administrative order, consent decree or judgment, relating
to the protection of environment, including, without limitation, ambient air,
surface water, groundwater, land surface and subsurface strata and natural
resources such as wetlands, or human health or safety (to the extent relating
to human exposure to Hazardous Materials), or Hazardous Materials.


 


“Equity Interests” shall mean Capital Stock and all warrants,
options or other rights to acquire Capital Stock, but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock.


 


“Equity Investments” shall have the meaning provided in the
preamble to this Agreement.


 


“Equity Offering” shall mean any public or private sale of
common stock or Preferred Stock of the Borrower or any of its direct or
indirect parent companies (excluding Disqualified Stock), other than:


 


(1)           public offerings with respect to the
Borrower’s or any direct or indirect parent company’s common stock registered
on Form S-8;


 


(2)           issuances to any Subsidiary of the
Borrower; and


 


(3)           any such public or private sale that
constitutes an Excluded Contribution.


 


“ERISA” shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time. Section references to ERISA are to
ERISA as in effect at the date of this Agreement and any subsequent provisions
of ERISA amendatory thereof, supplemental thereto or substituted therefor.


 


“ERISA Affiliate” shall mean each person (as defined in
Section 3(9) of ERISA) that together with the Borrower would be deemed to be a “single
employer” within the meaning of Section 414(b) or (c) of the Code or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as
a single employer under Section 414 of the Code.


 


“euro” shall mean the single currency of participating member
states of the EMU.


 


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


 


19

















 


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


 


“Exchange Date” shall have the meaning provided in Section
2.14(b)(i).


 


“Exchange Notice” shall have the meaning provided in Section
2.14(b)(ii).


 


“Excluded Contribution” shall mean net cash proceeds,
marketable securities or Qualified Proceeds received by the Borrower after the
Closing Date from


 


(1)           contributions to its common equity
capital, and


 


(2)           the sale (other than to a Subsidiary
of the Borrower or to any management equity plan or stock option plan or any
other management or employee benefit plan or agreement of the Borrower) of Capital
Stock (other than Disqualified Stock and Designated Preferred Stock) of the
Borrower,


 


in each case
designated as Excluded Contributions pursuant to an Officer’s Certificate
executed by the principal financial officer of the Borrower on the date such
capital contributions are made or the date such Equity Interests are sold, as
the case may be, which are excluded from the calculation set forth in clause
(3) of Section 9.5(a) hereof.


 


“Excluded Taxes” shall mean, with respect to any Agent or any
Lender, (a)(i) income taxes imposed on or measured by net income and franchise
and excise taxes (imposed in lieu of net income taxes) imposed on such Agent or
Lender, and (ii) any Taxes imposed on any Agent or any Lender as a result of
any current or former connection between such Agent or Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising from such Agent or Lender having executed, delivered or
performed its obligations or received a payment under, or having been a party
to or having enforced, this Agreement or any other Loan Document), and (b) in
the case of a Non-U.S. Lender any U.S. federal withholding tax that is imposed
on amounts payable to such Non-U.S. Lender under the law in effect at the time
such Non-U.S. Lender becomes a party to this Agreement (or, in the case of a
Non-U.S. Participant, on the date such Non-U.S. Participant became a
Participant hereunder); provided that this subclause (b) shall
not apply to the extent that (x) the indemnity payments or additional amounts
any Lender (or Participant) would be entitled to receive (without regard to
this subclause (b)) do not exceed the indemnity payment or additional
amounts that the person making the assignment, participation or transfer to
such Lender (or Participant) would have been entitled to receive in the absence
of such assignment, participation or transfer or (y) any Tax is imposed on a
Lender in connection with an interest or participation in any Loan or other
obligation that such Lender was required to acquire pursuant to Section
13.8(a) or that such Lender acquired pursuant to Section 13.7 (it
being understood and agreed, for the avoidance of doubt, that any U.S. federal
withholding tax imposed on a Non-U.S. Lender as a result of a Change in Law
occurring after the time such Non-U.S. Lender became a party to this Agreement
(or designates a new lending office) shall not be an Excluded Tax) and (c) any
Tax to the extent attributable to such Lender’s failure 


 


20

















 


to comply with
Section 5.4(d) (in the case of any Non-U.S. Lender) or Section 5.4(c)
(in the case of a U.S. Lender).


 


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


 


“Fee Letter” shall mean the Fee Letter, dated as of April 1,
2007, among Citigroup Global Markets Inc., Credit Suisse, Credit Suisse
Securities (USA) LLC, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank
Securities Inc., Goldman, Sachs & Co., Goldman Sachs Credit Partners L.P.,
HSBC Bank USA, National Association, HSBC Securities (USA) Inc., Lehman
Brothers Inc., Lehman Brothers Commercial Bank, Lehman Commercial Paper Inc.,
Merrill Lynch Capital Corporation and Merger Sub.


 


“Fees” shall mean all amounts payable pursuant to, or
referred to in, Section 4.1.


 


“Fixed Charge Coverage Ratio” shall mean, with respect to any
Person for any period, the ratio of EBITDA of such Person for such period to
the Fixed Charges of such Person for such period. In the event that the
Borrower or any Restricted Subsidiary incurs, assumes, guarantees, redeems,
retires or extinguishes any Indebtedness (other than Indebtedness incurred
under any revolving credit facility unless such Indebtedness has been
permanently repaid and has not been replaced) or issues or redeems Disqualified
Stock or Preferred Stock subsequent to the commencement of the period for which
the Fixed Charge Coverage Ratio is being calculated but prior to or
simultaneously with the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the “Fixed Charge Coverage
Ratio Calculation Date”), then the Fixed Charge Coverage Ratio shall
be calculated giving pro forma  effect to such incurrence, assumption,
guarantee, redemption, retirement or extinguishment of Indebtedness, or such
issuance or redemption of Disqualified Stock or Preferred Stock, as if the same
had occurred at the beginning of the applicable four-quarter period.


 


For purposes
of making the computation referred to above, Investments, acquisitions,
dispositions, mergers, consolidations and disposed operations (as determined in
accordance with GAAP) that have been made by the Borrower or any of its
Restricted Subsidiaries during the four-quarter reference period or subsequent
to such reference period and on or prior to or simultaneously with the Fixed
Charge Coverage Ratio Calculation Date shall be calculated on a pro forma  basis
assuming that all such Investments, acquisitions, dispositions, mergers,
consolidations and disposed operations (and the change in any associated fixed
charge obligations and the change in EBITDA resulting therefrom) had occurred
on the first day of the four-quarter reference period. If, since the beginning
of such period, any Person that subsequently became a Restricted Subsidiary or
was merged with or into the Borrower or any of its Restricted Subsidiaries 


 


21

















 


since the
beginning of such period shall have made any Investment, acquisition,
disposition, merger, consolidation or disposed operation that would have
required adjustment pursuant to this definition, then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma  effect thereto for such period as if such
Investment, acquisition, disposition, merger, consolidation or disposed
operation had occurred at the beginning of the applicable four-quarter period.


 


For purposes
of this definition, whenever pro forma  effect is to be given to a transaction, the pro forma 
calculations shall be made in good faith by a responsible financial or
accounting officer of the Borrower (and may include, for the avoidance of
doubt, cost savings and operating expense reductions resulting from such
Investment, acquisition, merger or consolidation which is being given pro forma effect that have been or are expected to be realized).
If any Indebtedness bears a floating rate of interest and is being given pro forma  effect, the
interest on such Indebtedness shall be calculated as if the rate in effect on
the Fixed Charge Coverage Ratio Calculation Date had been the applicable rate
for the entire period (taking into account any Hedging Obligations applicable
to such Indebtedness). Interest on a Capitalized Lease Obligation shall be
deemed to accrue at an interest rate reasonably determined by a responsible
financial or accounting officer of the Borrower to be the rate of interest
implicit in such Capitalized Lease Obligation in accordance with GAAP. For
purposes of making the computation referred to above, interest on any Indebtedness
under a revolving credit facility computed on a pro forma  basis shall be computed based upon the
average daily balance of such Indebtedness during the applicable period except
as set forth in the first paragraph of this definition. Interest on Indebtedness
that may optionally be determined at an interest rate based upon a factor of a
prime or similar rate, a eurocurrency interbank offered rate or other rate
shall be deemed to have been based upon the rate actually chosen, or, if none,
then based upon such optional rate chosen as the Borrower may designate. Any
such pro forma calculation may include
adjustments appropriate to exclude from EBITDA the results the results of
Integrated Payment Systems Inc. and Integrated Payment Systems Canada Inc.


 


“Fixed Charges” shall mean, with respect to any Person for
any period, the sum of:


 


(1)           Consolidated Interest Expense of such
Person for such period;


 


(2)           all cash dividends or other
distributions paid (excluding items eliminated in consolidation) on any series
of Preferred Stock of any Restricted Subsidiary during such period; and


 


(3)           all cash dividends or other
distributions paid (excluding items eliminated in consolidation) on any series
of Disqualified Stock during such period.


 


“Foreign Plan” shall mean any employee benefit plan, program,
policy, arrangement or agreement maintained or contributed to by the Borrower
or any of its Subsidiaries with respect to employees employed outside the
United States.


 


“Foreign Subsidiary” shall mean with respect to any Person,
any Restricted Subsidiary of such Person that is not organized or existing
under the laws of the United States, any 


 


22

















 


state thereof
or the District of Columbia and any Restricted Subsidiary of such Foreign
Subsidiary.


 


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


 


“GAAP” shall mean generally accepted accounting principles in
the United States which are in effect on the Closing Date.


 


“Governmental Authority” shall mean any nation, sovereign or
government, any state, province, territory or other political subdivision
thereof, and any entity or authority exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, including a central bank or stock exchange.


 


“Granting Lender” shall have the meaning provided in Section
13.6(g).


 


“Guarantee” shall mean (a) the Guarantee made by each
Guarantor in favor of the Administrative Agent for the benefit of the
Guaranteed Parties, substantially in the form of Exhibit A, and (b) any
other guarantee of the Obligations made by a Restricted Subsidiary that is a
Domestic Subsidiary in form and substance reasonably acceptable to the
Administrative Agent, in each case as the same may be amended, supplemented or
otherwise modified from time to time.


 


“Guarantee Obligations” shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness of any other Person (the “primary obligor”)
in any manner, whether directly or indirectly, including any obligation of such
Person, whether or not contingent, (a) to purchase any such Indebtedness or any
property constituting direct or indirect security therefor, (b) to advance or
supply funds (i) for the purchase or payment of any such Indebtedness or (ii)
to maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the
owner of any such Indebtedness of the ability of the primary obligor to make
payment of such Indebtedness or (d) otherwise to assure or hold harmless the
owner of such Indebtedness against loss in respect thereof; provided, however,
that the term “Guarantee Obligations” shall not include endorsements of
instruments for deposit or collection in the ordinary course of business or
customary and reasonable indemnity obligations in effect on the Closing Date or
entered into in connection with any acquisition or disposition of assets
permitted under this Agreement (other than such obligations with respect to
Indebtedness). The amount of any Guarantee Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the Indebtedness in
respect of which such Guarantee Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.


 


“Guaranteed Parties” shall mean the Administrative Agent, any
other Agent and each Lender, in each case, with respect to the Obligations or
any Guarantee, and each sub-agent 


 


23

















 


appointed by
the Administrative Agent pursuant to Section 13 with respect to matters
relating to the Obligations.


 


“Guarantors” shall mean each Restricted Subsidiary that
provides a Guarantee hereunder pursuant to Section 9.13 or otherwise.


 


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


 


“Hedging Obligations” shall mean, with respect to any Person,
the obligations of such Person under any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement, commodity swap agreement,
commodity cap agreement, commodity collar agreement, foreign exchange contract,
currency swap agreement or similar agreement providing for the transfer or
mitigation of interest rate or currency risks either generally or under
specific contingencies.


 


“Historical Financial Statements” shall mean the audited
consolidated balance sheets of the Borrower as of December 31, 2006 and
December 31, 2005 and the audited consolidated statements of income,
stockholders’ equity and cash flows of the Borrower for each of the fiscal
years in the three year period ending on December 31, 2006.


 


“Holdco Indenture” shall mean the indenture dated as of the
Closing Date entered into between Holdings and The Bank of New York, as
trustee, relating to the Holdco Notes.


 


“Holdco Notes” shall mean the $1,000,000,000 aggregate
principal amount of 111⁄2% Senior PIK Notes due 2016 issued by Holdings on the
Closing Date.


 


“Holdings” shall mean New Omaha Holdings Corporation, a
Delaware corporation, and its successors.


 


“Indebtedness” shall mean, with respect to any Person,
without duplication:


 


(1)           any indebtedness
(including principal and premium) of such Person, whether or not contingent:


 


(a)           in respect of borrowed money;


 


24
















 


(b)           evidenced
by bonds, notes, debentures or similar instruments or letters of credit or
bankers’ acceptances (or, without duplication, reimbursement agreements in
respect thereof);


 


(c)           representing
the balance deferred and unpaid of the purchase price of any property
(including Capitalized Lease Obligations), except (i) any such balance that
constitutes an obligation in respect of a commercial letter of credit, a trade
payable or similar obligation to a trade creditor, in each case accrued in the
ordinary course of business and (ii) any earn-out obligations until such
obligation, within 60 days of becoming due and payable, has not been paid and becomes
a liability on the balance sheet of such Person in accordance with GAAP; or


 


(d)           representing
any Hedging Obligations;


 


if and to the
extent that any of the foregoing Indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet
(excluding the footnotes thereto) of such Person prepared in accordance with
GAAP;


 


(2)           to the extent not otherwise included,
any obligation by such Person to be liable for, or to pay, as obligor, guarantor
or otherwise on, the obligations of the type referred to in clause (1)
of a third Person (whether or not such items would appear upon the balance
sheet of the such obligor or guarantor), other than by endorsement of
negotiable instruments for collection in the ordinary course of business; provided
that the amount of Indebtedness of any Person for purposes of this clause
(2) shall be deemed to be equal to the lesser of (i) the aggregate unpaid
amount of such Indebtedness and (ii) the fair market value of the property
encumbered thereby as determined by such Person in good faith; and


 


(3)           to the extent not otherwise included,
the obligations of the type referred to in clause (1) of a third Person
secured by a Lien on any asset owned by such first Person, whether or not such
Indebtedness is assumed by such first Person;


 


provided,
however, that notwithstanding the foregoing, Indebtedness shall be
deemed not to include (a) Contingent Obligations incurred in the ordinary
course of business, (b) obligations under or in respect of Receivables
Facilities or (c) Settlement Indebtedness.


 


“indemnified liabilities”
shall have the meaning provided in Section 13.5.


 


“Indemnified Taxes”
shall mean all Taxes (including Other Taxes) other than (i) Excluded Taxes
and (ii) any interest, penalties or expenses caused by an Agent’s or Lender’s
gross negligence or willful misconduct.


 


“Indentures”
shall mean the Senior Refinancing Indenture and/or the Senior Subordinated
Refinancing Indenture, as the context requires.


 


“Independent Financial
Advisor” shall mean an accounting, appraisal, investment banking
firm or consultant to Persons engaged in Similar Businesses of nationally recognized



 


25

















 


standing that
is, in the good faith judgment of the Borrower, qualified to perform the task
for which it has been engaged.


 


“Insolvency or Liquidation
Proceeding” shall mean:


 


(a)           any voluntary or involuntary case or
proceeding under the Bankruptcy Code with respect to any Loan Party;


 


(b)           any other voluntary insolvency,
reorganization or bankruptcy case or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding with respect to any Loan
Party or with respect to a material portion of their respective assets;


 


(c)           any liquidation, dissolution,
reorganization or winding-up of any Loan Party whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy; or


 


(d)           any assignment for the benefit of
creditors or any other marshalling of assets and liabilities of any Loan Party.


 


“Interest Period”
shall mean, with respect to any Loan, the interest period applicable thereto,
as determined pursuant to Section 2.9.


 


“Interim Loan Conversion
Date” shall mean September 24, 2008 or, if such date is not a
Business Day, the next succeeding Business Day.


 


“Investment Grade Rating”
shall mean a rating equal to or higher than Baa3 (or the equivalent) by Moody’s
and BBB  (or the equivalent) by S&P,
or an equivalent rating by any other Rating Agency.


 


“Investment Grade
Securities” shall mean:


 


(1)           securities issued or directly and
fully guaranteed or insured by the United States government or any agency or
instrumentality thereof (other than Cash Equivalents);


 


(2)           debt securities or debt instruments
with an Investment Grade Rating, but excluding any debt securities or instruments
constituting loans or advances among the Borrower and its Subsidiaries;


 


(3)           investments in any fund that invests
exclusively in investments of the type described in clauses (1) and (2)
which fund may also hold immaterial amounts of cash pending investment or
distribution; and


 


(4)           corresponding instruments in
countries other than the United States customarily utilized for high quality investments.


 


26

















 


“Investments”
shall mean, with respect to any Person, all investments by such Person in other
Persons (including Affiliates) in the form of loans (including guarantees),
advances or capital contributions (excluding accounts receivable, trade credit,
advances to customers, commissions, travel and similar advances to officers and
employees, in each case made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities issued by any other Person and investments that are required by GAAP
to be classified on the balance sheet (excluding the footnotes) of the Borrower
in the same manner as the other investments included in this definition to the
extent such transactions involve the transfer of cash or other property. For
purposes of the definition of “Unrestricted Subsidiary” and Section 9.5
hereof:


 


(1)           “Investments” shall include the
portion (proportionate to the Borrower’s equity interest in such Subsidiary) of
the fair market value of the net assets of a Subsidiary of the Borrower at the
time that such Subsidiary is designated an Unrestricted Subsidiary; provided,
however, that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Borrower shall be deemed to continue to have a permanent “Investment”
in an Unrestricted Subsidiary in an amount (if positive) equal to:


 


(a)           the
Borrower’s “Investment” in such Subsidiary at the time of such redesignation;
less


 


(b)           the
portion (proportionate to the Borrower’s equity interest in such Subsidiary) of
the fair market value of the net assets of such Subsidiary at the time of such
redesignation; and


 


(2)           any
property transferred to or from an Unrestricted Subsidiary shall be valued at
its fair market value at the time of such transfer, in each case fair market
value as determined in good faith by the Borrower.


 


“Investors”
shall mean Kohlberg Kravis Roberts & Co. L.P., KKR 2006 Fund L.P.,
Citigroup Global Markets Inc., Credit Suisse Management LLC, Deutsche Bank
Investment Partners, Inc., HSBC Bank plc, LB I Group Inc., GMI Investments,
Inc., Citigroup Capital Partners II 2007 Citigroup Investment, L.P., Citigroup
Capital Partners II Employee Master Fund, L.P., Citigroup Capital Partners II Onshore,
L.P., Citigroup Capital Partners II Cayman Holdings, L.P., CGI CPE LLC, GS
Capital Partners VI Parallel, L.P., GS Capital Partners VI GmbH & Co. KG,
GS Capital Partners VI Fund, L.P., GS Capital Partners VI Offshore Fund, L.P.
GS Mezzanine Partners 2006 Fund, L.P. and Goldman Sachs Investments Ltd. and
each of their respective Affiliates but not including, however, any portfolio
companies of any of the foregoing.


 


“Joint Lead Arrangers and
Bookrunners” shall mean Citigroup Global Markets Inc., Credit Suisse
Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman Sachs Credit
Partners L.P., HSBC Securities (USA) Inc., Lehman Brothers Inc. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated.


 


27

















 


“Joint Venture”
shall mean, at any date of determination, each joint venture accounted for as
an equity method investee of the Borrower and its Subsidiaries, determined in accordance
with GAAP.


 


“Judgment Currency”
shall have the meaning provided in Section 13.19.


 


“Lender” shall
have the meaning provided in the preamble to this Agreement.


 


“Lender Default”
shall mean (a) the failure (which has not been cured) of a Lender to make
available its portion of any Borrowing or (b) a Lender having notified the
Administrative Agent and/or the Borrower that it does not intend to comply with
the obligations under Section 2.1(a), or (c) a Lender becoming the subject
of a bankruptcy or insolvency proceeding.


 


“LIBOR Loan”
shall mean any Loan bearing interest at a rate determined by reference to the
LIBOR Rate.


 


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


 


“Lien” shall
mean, with respect to any asset, any mortgage, lien (statutory or otherwise),
pledge, hypothecation, charge, security interest, preference, priority or
encumbrance of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law, including any conditional
sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction; provided that in no
event shall an operating lease be deemed to constitute a Lien.


 


“Loan” shall
mean any Senior Interim Loan or Senior Term Loan made by any Lender hereunder
and any Loan made as a result of the accrual of PIK Interest.


 


“Loan Documents”
shall mean this Agreement, the Guarantees and any promissory notes issued by
the Borrower hereunder.


 


28

















 


“Loan Party”
shall mean the Borrower, the Guarantors and each other Subsidiary of the Borrower
that is a party to a Loan Document.


 


“Material Adverse Effect”
shall mean a circumstance or condition affecting the business, assets,
operations, properties or financial condition of the Borrower and the
Subsidiaries, taken as a whole, that would, individually or in the aggregate,
materially adversely affect (a) the ability of the Borrower and the other Loan
Parties, taken as a whole, to perform their payment obligations under this
Agreement or any of the other Loan Documents or (b) the rights and remedies of
the Administrative Agent and the Lenders under this Agreement or any of the
other Loan Documents.


 


“Material Subsidiary”
shall mean, at any date of determination, (i) each Restricted Subsidiary of the
Borrower (a) whose total assets at the last day of the Test Period ending on
the last day of the most recent fiscal period for which Section 9.1 Financials
have been delivered were equal to or greater than 5% of the Consolidated Total
Assets of the Borrower and the Restricted Subsidiaries at such date or (b)
whose revenues during such Test Period were equal to or greater than 5% of the
consolidated revenues of the Borrower and the Restricted Subsidiaries for such
period, in each case determined in accordance with GAAP; provided that
if, at any time and from time to time after the Closing Date, Restricted
Subsidiaries that are not Material Subsidiaries have, in the aggregate, (x)
total assets at the last day of such Test Period equal to or greater than 10%
of the Consolidated Total Assets of the Borrower and the Restricted Subsidiaries
at such date or (y) revenues during such Test Period equal to or greater than
10% of the consolidated revenues of the Borrower and the Restricted
Subsidiaries for such period, in each case determined in accordance with GAAP,
then the Borrower shall, on the date on which financial statements for such
quarter are delivered pursuant to this Agreement, designate in writing to the
Administrative Agent one or more of such Restricted Subsidiaries as “Material
Subsidiaries.”


 


“Maturity Date”
shall mean (a) if the Loans have not been converted to Senior Term Loans,
September 24, 2008 or, if such date is not a Business Day, the next succeeding
Business Day, or (b) if the Loans have been converted to Senior Term Loans,
September 24, 2015 or, if such date is not a Business Day, the next succeeding
Business Day (with respect to clause (b) only, the “Term Loan
Maturity Date”).


 


“Merchant Acquisition and
Processing Alliance” shall mean any joint venture or other strategic
alliance entered into with any financial institution or other third party
primarily entered into to offer Merchant Services.


 


“Merchant Agreement”
shall mean any contract entered into with a merchant relating to the provision
of Merchant Services.


 


“Merchant Services”
shall mean services provided to merchants relating to the authorization,
transaction capture, settlement, chargeback handling and internet-based transaction
processing of credit, debit, stored-value and loyalty card and other payment
transactions (including provision of point of service devices and other
equipment necessary to capture merchant transactions and other ancillary
services).


 


29

















 


“Merger” shall
have the meaning provided in the preamble to this Agreement.


 


“Merger Sub”
shall mean Omaha Acquisition Corporation, a Delaware corporation.


 


“Minimum Borrowing Amount”
shall mean (a) with respect to a Borrowing of LIBOR Loans, $5,000,000 and (b)
with respect to a Borrowing of ABR Loans, $1,000,000.


 


“Minimum Equity Amount”
shall have the meaning provided in the preamble to this Agreement.


 


“Moody’s” shall
mean Moody’s Investors Service, Inc. and any successor to its rating agency
business.


 


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


 


“Net Asset Sale Proceeds”
shall mean the aggregate cash proceeds received by the Borrower or any of its Restricted
Subsidiaries in respect of any Asset Sale, including any cash received upon the
sale or other disposition of any Designated Non-cash Consideration received in
any Asset Sale, net of the direct costs relating to such Asset Sale and the
sale or disposition of such Designated Non-cash Consideration, including legal,
accounting and investment banking fees, and brokerage and sales commissions,
any relocation expenses incurred as a result thereof, taxes paid or payable as
a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts required to be applied to
the repayment of principal, premium, if any, and interest on Senior Indebtedness
required (other than required by clause (1) of Section 9.8(b)
hereof) to be paid as a result of such transaction and any deduction of
appropriate amounts to be provided by the Borrower or any of its Restricted
Subsidiaries as a reserve in accordance with GAAP against any liabilities
associated with the asset disposed of in such transaction and retained by the
Borrower or any of its Restricted Subsidiaries after such sale or other
disposition thereof, including pension and other post-employment benefit
liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with such transaction.


 


“Net Cash Proceeds”
shall mean, with respect to any Prepayment Event, (a) the gross cash proceeds
(including payments from time to time in respect of installment obligations, if
applicable) received by or on behalf of the Borrower or any of the Restricted
Subsidiaries in respect of such Prepayment Event, as the case may be, less (b)
the sum of:


 


(i)            the amount, if any, of all taxes
paid or estimated to be payable by the Borrower or any of the Restricted
Subsidiaries in connection with such Prepayment Event,


 


(ii)           the amount of any reasonable reserve
established in accordance with GAAP against any liabilities (other than any
taxes deducted pursuant to clause (i) above) (x) associated with the
assets that are the subject of such Prepayment Event and (y) retained by the
Borrower or any of the Restricted Subsidiaries, provided that the amount
of any subsequent reduction of such reserve (other than in connection with a
payment in 


 


30

















 


respect of any
such liability) shall be deemed to be Net Cash Proceeds of such a Prepayment
Event occurring on the date of such reduction,


 


(iii)          the amount of any Indebtedness secured
by a Lien on the assets that are the subject of such Prepayment Event to the
extent that the instrument creating or evidencing such Indebtedness requires that
such Indebtedness be repaid upon consummation of such Prepayment Event, and


 


(iv)          reasonable and customary fees paid by
the Borrower or a Restricted Subsidiary in connection with any of the
foregoing,


 


in each case
only to the extent not already deducted in arriving at the amount referred to
in clause (a) above.


 


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


 


“Non-Consenting Lender”
shall have the meaning provided in Section 13.7(b).


 


“Non-Defaulting Lender”
shall mean and include each Lender other than a Defaulting Lender.


 


“Non-U.S. Lender”
shall mean any Agent or Lender that is not, for United States federal income
tax purposes, (a) an individual who is a citizen or resident of the United
States, (b) a corporation, partnership or entity treated as a corporation or
partnership created or organized in or under the laws of the United States, or
any political subdivision thereof, (c) an estate whose income is subject to
U.S. federal income taxation regardless of its source or (d) a trust if a court
within the United States is able to exercise primary supervision over the
administration of such trust and one or more United States persons have the
authority to control all substantial decisions of such trust or a trust that
has a valid election in effect under applicable U.S. Treasury regulations to be
treated as a United States person.


 


“Non-U.S. Participant”
shall mean any Participant that if it were a Lender would qualify as a Non-U.S.
Lender.


 


“Notice of Borrowing”
shall have the meaning provided in Section 2.3(a).


 


“Notice of Conversion or
Continuation” shall have the meaning provided in Section 2.6(a).


 


“Obligations”
shall mean any principal, interest (including any interest accruing subsequent
to the filing of a petition in bankruptcy, reorganization or similar proceeding
at the rate provided for in the documentation with respect thereto, whether or
not such interest is an allowed claim under applicable state, federal or
foreign law), premium, penalties, fees, indemnifications, reimbursements
(including reimbursement obligations with respect to letters of credit and
bankers’ acceptances), damages and other liabilities, and guarantees of payment
of such


 


31

















 


principal,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities, payable under the documentation governing any Indebtedness.


 


“Officer” shall
mean the Chairman of the Board, the Chief Executive Officer, the President, any
Executive Vice President, Senior Vice President or Vice President, the
Treasurer or the Secretary of the Borrower.


 


“Officer’s Certificate”
shall mean a certificate signed on behalf of the Borrower by an Officer of the
Borrower, who must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of the Borrower,
that meets the requirements set forth in this Agreement.


 


“Opinion of Counsel”
shall mean a written opinion from legal counsel who is acceptable to the
Administrative Agent. The counsel may be an employee of or counsel to the Borrower
or the Administrative Agent.


 


“Optional Principal
Redemption” shall have the meaning provided in Section 5.1(b).


 


“Optional Principal
Redemption Amount” shall have the meaning provided in Section
5.1(b).


 


“Other Taxes”
shall mean any and all present or future stamp, registration, documentary or
any other excise, property or similar taxes (including interest, fines,
penalties, additions to tax and related expenses with regard thereto) arising
from any payment made or required to be made under this Agreement or any other
Loan Document or from the execution or delivery of, registration or enforcement
of, consummation or administration of, or otherwise with respect to, this
Agreement or any other Loan Document.


 


“Overnight Rate”
shall mean, for any day the greater of (i) the Federal Funds Effective Rate and
(ii) an overnight rate determined by the Administrative Agent, as the case may
be, in accordance with banking industry rules on interbank compensation.


 


“Participant”
shall have the meaning provided in Section 13.6(c).


 


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


 


“Pension Act”
shall mean the Pension Protection Act of 2006, as it presently exists or as it
may be amended from time to time.


 


“Permitted Asset Swap”
shall mean the concurrent purchase and sale or exchange of Related Business
Assets or a combination of Related Business Assets and cash or Cash Equivalents
between the Borrower or any of its Restricted Subsidiaries and another Person; provided
that any cash or Cash Equivalents received must be applied in accordance with Section
9.8 hereof.


 


32

















 


“Permitted Holders”
shall mean each of the Investors, members of management of the Borrower (or its
direct or indirect parent) and any group (within the meaning of Section
13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of
which any of the foregoing are members; provided that, in the case of
such group and without giving effect to the existence of such group or any
other group, such Investors, and members of management, collectively, have
beneficial ownership of more than 50% of the total voting power of the Voting
Stock of the Borrower or any of its direct or indirect parent companies. Any
Person or group whose acquisition of beneficial ownership constitutes a Change
of Control in respect of which a Change of Control Offer is made in accordance
with the requirements of this Agreement will thereafter, together with its
Affiliates, constitute an additional Permitted Holder.


 


“Permitted Investments”
shall mean:


 


(1)           any Investment in the Borrower or any
of its Restricted Subsidiaries;


 


(2)           any Investment in cash and Cash
Equivalents or Investment Grade Securities;


 


(3)           any Investment by the Borrower or any
of its Restricted Subsidiaries in a Person that is engaged in a Similar
Business if as a result of such Investment:


 


(a)           such
Person becomes a Restricted Subsidiary; or


 


(b)           such
Person, in one transaction or a series of related transactions, is merged or
consolidated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Borrower or a Restricted Subsidiary,


 


and, in each
case, any Investment held by such Person; provided that such Investment
was not acquired by such Person in contemplation of such acquisition, merger,
consolidation or transfer;


 


(4)           any Investment in securities or other
assets not constituting cash, Cash Equivalents or Investment Grade Securities
and received in connection with an Asset Sale made pursuant to the provisions
described under Section 9.8 hereof or any other disposition of assets
not constituting an Asset Sale;


 


(5)           any Investment existing on the
Closing Date or made pursuant to a binding commitment as in effect on the Closing
Date;


 


(6)           any
Investment acquired by the Borrower or any of its Restricted Subsidiaries:


 


(a)           in
exchange for any other Investment or accounts receivable held by the Borrower
or any such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer of such
other Investment or accounts receivable; or


 


33

















 


(b)           as
a result of a foreclosure by the Borrower or any of its Restricted Subsidiaries
with respect to any secured Investment or other transfer of title with respect
to any secured Investment in default;


 


(7)           Hedging Obligations permitted under clause
(10) of Section 9.7(b) hereof;


 


(8)           any Investment in a Similar Business
having an aggregate fair market value, taken together with all other Investments
made pursuant to this clause (8) that are at that time outstanding, not
to exceed (x) prior to the Interim Loan Conversion Date, $750.0 million and (y)
thereafter, 2.5% of Total Assets, in each case at the time of such Investment
(with the fair market value of each Investment being measured at the time made
and without giving effect to subsequent changes in value);


 


(9)           Investments the payment for which
consists of Equity Interests (exclusive of Disqualified Stock) of the Borrower
or any of its direct or indirect parent companies; provided, however,
that such Equity Interests will not increase the amount available for
Restricted Payments under clause (3) of Section 9.5(a) hereof;


 


(10)         guarantees of Indebtedness permitted
under Section 9.7 hereof;


 


(11)         any transaction to the extent it
constitutes an Investment that is permitted and made in accordance with the provisions
of Section 9.9(b) hereof (except transactions described in clauses
(2), (5) and (9) of Section 9.9(b) hereof);


 


(12)         Investments consisting of purchases and
acquisitions of inventory, supplies, material or equipment;


 


(13)         additional Investments having an
aggregate fair market value, taken together with all other Investments made
pursuant to this clause (13) that are at that time outstanding (without
giving effect to the sale of an Unrestricted Subsidiary to the extent the
proceeds of such sale do not consist of cash or marketable securities), not to
exceed (x) prior to the Interim Loan Conversion Date, $600.0 million and (y)
thereafter, 3.5% of Total Assets, in each case at the time of such Investment
(with the fair market value of each Investment being measured at the time made
and without giving effect to subsequent changes in value);


 


(14)         Investments relating to a Receivables
Subsidiary that, in the good faith determination of the Borrower, is necessary
or advisable to effect any Receivables Facility;


 


(15)         advances to, or guarantees of
Indebtedness of, employees not in excess of $50.0 million outstanding at any
one time, in the aggregate;


 


(16)         loans and advances to officers,
directors and employees for business-related travel expenses, moving expenses
and other similar expenses, in each case incurred in the ordinary course of
business or consistent with past practices or to fund such Person’s purchase of
Equity Interests of the Borrower or any direct or indirect parent company
thereof;


 


34

















 


(17)         any Investment in any joint venture
existing on the Closing Date to the extent contemplated by the organizational
documents of such joint venture as in existence on the Closing Date;


 


(18)         any Investment in any Subsidiary or any
joint venture in connection with intercompany cash management arrangements or
related activities arising in the ordinary course of business;


 


(19)         any Investment arising in the ordinary
course of business as a result of any Settlement, including Investments in and
of Settlement Assets; and


 


(20)         Investments of assets made pursuant to
any non-qualified deferred compensation plan sponsored by the Borrower or its
Restricted Subsidiaries.


 


“Permitted Liens”
shall mean, with respect to any Person:


 


(1)           pledges or deposits by such Person
under workmen’s compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids, tenders, contracts
(other than for the payment of Indebtedness) or leases to which such Person is
a party, or deposits to secure public or statutory obligations of such Person
or deposits of cash or U.S. government bonds to secure surety or appeal bonds
to which such Person is a party, or deposits as security for contested taxes or
import duties or for the payment of rent, in each case incurred in the ordinary
course of business;


 


(2)           Liens imposed by law, such as
carriers’, warehousemen’s and mechanics’ Liens, in each case for sums not yet
overdue for a period of more than 30 days or being contested in good faith by
appropriate proceedings or other Liens arising out of judgments or awards
against such Person with respect to which such Person shall then be proceeding
with an appeal or other proceedings for review if adequate reserves with
respect thereto are maintained on the books of such Person in accordance with
GAAP;


 


(3)           Liens for taxes, assessments or other
governmental charges not yet overdue for a period of more than 30 days or
payable or subject to penalties for nonpayment or which are being contested in
good faith by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of such Person in
accordance with GAAP;


 


(4)           Liens in favor of issuers of
performance and surety bonds or bid bonds or with respect to other regulatory requirements
or letters of credit issued pursuant to the request of and for the account of
such Person in the ordinary course of its business;


 


(5)           minor survey exceptions, minor
encumbrances, easements or reservations of, or rights of others for, licenses,
rights-of-way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions as to the use of real
properties or Liens incidental to the conduct of the business of such Person or
to the ownership of its properties which were not incurred in connection with
Indebtedness and


 


35
















 


which do not
in the aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such Person;


 


(6)           Liens securing Indebtedness permitted
to be incurred pursuant to clause (4), (12), (13), (18)
or (19) of Section 9.7(b) hereof; provided that (a) Liens
securing Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred
pursuant to clause (13) relate only to Refinancing Indebtedness that
serves to refund or refinance Indebtedness, Disqualified Stock or Preferred
Stock incurred under clause (4) or (12) of Section 9.7(b)
hereof, (b) Liens securing Indebtedness permitted to be incurred pursuant to clause
(18) extend only to the assets of Foreign Subsidiaries, (c) Liens securing
Indebtedness permitted to be incurred pursuant to clause (19) are solely
on acquired property or the assets of the acquired entity, as the case may be
and (d) Liens securing Indebtedness, Disqualified Stock or Preferred Stock
permitted to be incurred pursuant to clause (4) of Section 9.7(b)
hereof extend only to the assets so financed, purchased, constructed or improved;


 


(7)           Liens existing on the Closing Date
(other than Liens in favor of the lenders under the Senior Secured Credit
Agreement);


 


(8)           Liens on property or shares of stock
of a Person at the time such Person becomes a Subsidiary; provided, however,
such Liens are not created or incurred in connection with, or in contemplation
of, such other Person becoming such a Subsidiary; provided, further,
however, that such Liens may not extend to any other property owned by
the Borrower or any of its Restricted Subsidiaries;


 


(9)           Liens on property at the time the
Borrower or a Restricted Subsidiary acquired the property, including any acquisition
by means of a merger or consolidation with or into the Borrower or any of its
Restricted Subsidiaries; provided, however, that such Liens are
not created or incurred in connection with, or in contemplation of, such
acquisition; provided, further, however, that the Liens
may not extend to any other property owned by the Borrower or any of its
Restricted Subsidiaries;


 


(10)         Liens securing Indebtedness or other
obligations of a Restricted Subsidiary owing to the Borrower or another
Restricted Subsidiary permitted to be incurred in accordance with Section
9.7 hereof;


 


(11)         Liens securing Hedging Obligations so
long as the related Indebtedness is, and is permitted to be under this
Agreement, secured by a Lien on the same property securing such Hedging Obligations;


 


(12)         Liens on specific items of inventory or
other goods and proceeds of any Person securing such Person’s obligations in
respect of bankers’ acceptances issued or created for the account of such
Person to facilitate the purchase, shipment or storage of such inventory or
other goods;


 


(13)         leases, subleases, licenses or
sublicenses granted to others in the ordinary course of business which do not materially
interfere with the ordinary conduct of the 


 


36

















 


business of
the Borrower or any of its Restricted Subsidiaries and do not secure any Indebtedness;


 


(14)         Liens arising from Uniform Commercial
Code financing statement filings regarding operating leases entered into by the
Borrower and its Restricted Subsidiaries in the ordinary course of business;


 


(15)         Liens in favor of the Borrower or any
Guarantor;


 


(16)         Liens on equipment of the Borrower or
any of its Restricted Subsidiaries granted in the ordinary course of business;


 


(17)         Liens on accounts receivable and
related assets incurred in connection with a Receivables Facility;


 


(18)         Liens to secure any refinancing,
refunding, extension, renewal or replacement (or successive refinancings, refundings,
extensions, renewals or replacements), as a whole or in part, of any Indebtedness
secured by any Lien referred to in the foregoing clauses (6), (7),
(8) and (9); provided, however, that (a) such new
Lien shall be limited to all or part of the same property that secured the
original Lien (plus improvements on such property), and (b) the Indebtedness
secured by such Lien at such time is not increased to any amount greater than
the sum of (i) the outstanding principal amount or, if greater, committed
amount of the Indebtedness described under clauses (6), (7), (8)
and (9) at the time the original Lien became a Permitted Lien under this
Agreement, and (ii) an amount necessary to pay any fees and expenses, including
premiums, related to such refinancing, refunding, extension, renewal or replacement;


 


(19)         deposits made in the ordinary course of
business to secure liability to insurance carriers;


 


(20)         other Liens securing obligations
incurred in the ordinary course of business which obligations do not exceed
$100.0 million at any one time outstanding;


 


(21)         Liens securing judgments for the
payment of money not constituting an Event of Default under clause (f)
under Section 11.1 hereof so long as such Liens are adequately bonded
and any appropriate legal proceedings that may have been duly initiated for the
review of such judgment have not been finally terminated or the period within
which such proceedings may be initiated has not expired;


 


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


 


(23)         Liens (i) of a collection bank arising
under Section 4-210 of the Uniform Commercial Code, or any comparable or
successor provision, on items in the course of collection, (ii) attaching to commodity
trading accounts or other commodity brokerage accounts incurred in the ordinary
course of business, and (iii) in favor of banking institutions 


 


37

















 


arising as a
matter of law encumbering deposits (including the right of set-off) and which
are within the general parameters customary in the banking industry;


 


(24)         Liens deemed to exist in connection
with Investments in repurchase agreements permitted under Section 9.7
hereof; provided that such Liens do not extend to any assets other than
those that are the subject of such repurchase agreements;


 


(25)         Liens encumbering reasonable customary
initial deposits and margin deposits and similar Liens attaching to commodity
trading accounts or other brokerage accounts incurred in the ordinary course of
business and not for speculative purposes;


 


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


 


(27)         Liens arising out of conditional sale,
title retention, consignment or similar arrangements for the sale or purchase
of goods entered into by the Borrower or any Restricted Subsidiary in the
ordinary course of business; and


 


(28)         Settlement Liens.


 


For purposes of this definition, the term “Indebtedness”
shall be deemed to include interest on such Indebtedness.


 


“Person” shall
mean any individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.


 


“PIK Interest”
shall have the meaning provided in Section 2.8(a)(ii).


 


“PIK Interest Amount”
shall mean the aggregate principal amount of all increases in outstanding
principal amount of PIK Notes (as defined in the Senior Refinancing Indenture)
and issuances of additional “PIK Notes” (as defined in the Senior Refinancing
Indenture) in connection with an election by the Borrower to pay interest on
the PIK Notes in kind.


 


“PIK Interest Termination
Date” shall have the meaning provided in Section 2.8(a)(ii).


 


“Plan” shall
mean any multiemployer or single-employer plan, as defined in Section 4001 of
ERISA and subject to Title IV of ERISA, that is or was within any of the
preceding six plan years maintained or contributed to by (or to which there is
or was an obligation to contribute or to make payments to) the Borrower or an
ERISA Affiliate.


 


38

















 


“Platform” shall
have the meaning provided in Section 13.17(b).


 


“Preferred Stock”
shall mean any Equity Interest with preferential rights of payment of dividends
or upon liquidation, dissolution or winding up.


 


“Prepayment Event”
shall mean any Debt Incurrence Prepayment Event.


 


“prime rate”
shall mean the “prime rate” referred to in the definition of “ABR.”


 


“Qualified Proceeds”
shall mean assets that are used or useful in, or Capital Stock of any Person
engaged in, a Similar Business; provided that the fair market value of
any such assets or Capital Stock shall be determined by the Borrower in good
faith.


 


“Rating Agencies”
shall mean Moody’s and S&P or if Moody’s or S&P or both shall not make
a rating on the applicable security or other investment publicly available, a nationally
recognized statistical rating agency or agencies, as the case may be, selected
by the Borrower which shall be substituted for Moody’s or S&P or both, as
the case may be.


 


“Real Estate”
shall mean land, buildings and improvements owned or leased by the Borrower or
any Guarantors, but excluding all operating fixtures and equipment, whether or
not incorporated into improvements.


 


“Receivables Facility”
shall mean any of one or more receivables financing facilities as amended,
supplemented, modified, extended, renewed, restated or refunded from time to
time, the Obligations of which are non recourse (except for customary
representations, warranties, covenants and indemnities made in connection with
such facilities) to the Borrower or any of its Restricted Subsidiaries (other
than a Receivables Subsidiary) pursuant to which the Borrower or any of its
Restricted Subsidiaries purports to sell its accounts receivable to either
(a) a Person that is not a Restricted Subsidiary or (b) a Receivables
Subsidiary that in turn funds such purchase by purporting to sell its accounts
receivable to a Person that is not a Restricted Subsidiary or by borrowing from
such Person or from another Receivables Subsidiary that in turn funds itself by
borrowing from such Person.


 


“Receivables Fees”
shall mean distributions or payments made directly or by means of discounts
with respect to any accounts receivable or participation interest therein
issued or sold in connection with, and other fees paid to a Person that is not
a Restricted Subsidiary in connection with any Receivables Facility.


 


“Receivables Subsidiary”
shall mean any Subsidiary formed for the purpose of facilitating or entering
into one or more Receivables Facilities, and in each case engages only in
activities reasonably related or incidental thereto.


 


“Refinancing Indebtedness”
shall have the meaning provided in Section 9.7(b)(13).


 


“Register” shall
have the meaning provided in Section 13.6(b)(iv).


 


39

















 


“Registration Rights
Agreement” shall mean any registration rights agreement related to
the Senior Notes or the Senior Subordinated Notes, as may be executed in
connection with the refinancing or exchange of the Senior Interim Loans and/or
the Senior Term Loans, and the Senior Subordinated Interim Loans and/or the
Senior Subordinated Term Loans, respectively, by and among the Borrower, the
Guarantors and the financial institutions parties thereto, as such agreement
may be amended, modified or supplemented from time to time and, with respect to
any additional notes issued pursuant to the Indentures, one or more
registration rights agreements among the Borrower, the Guarantors and the other
parties thereto, as such agreement(s) may be amended, modified or supplemented
from time to time, relating to rights given by the Borrower and the Guarantors
to the holders of such additional notes to register such additional notes under
the Securities Act.


 


“Regulation T”
shall mean Regulation T of the Board as from time to time in effect and any successor
to all or a portion thereof establishing margin requirements.


 


“Regulation U”
shall mean Regulation U of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.


 


“Regulation X”
shall mean Regulation X of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.


 


“Rejection Notice”
shall have the meaning provided in Section 5.2(h).


 


“Related Business Assets”
shall mean assets (other than cash or Cash Equivalents) used or useful in a
Similar Business; provided that any assets received by the Borrower or a
Restricted Subsidiary in exchange for assets transferred by the Borrower or a Restricted
Subsidiary will not be deemed to be Related Business Assets if they consist of
securities of a Person, unless upon receipt of the securities of such Person,
such Person would become a Restricted Subsidiary.


 


“Related Parties”
shall mean, with respect to any specified Person, such Person’s Affiliates and
the directors, officers, employees, agents, trustees and advisors of such
Person and any Person that possesses, directly or indirectly, the power to
direct or cause the direction of the management or policies of such Person,
whether through the ability to exercise voting power, by contract or otherwise.


 


“Reportable Event”
shall mean an event described in Section 4043 of ERISA and the regulations
thereunder, other than any event as to which the thirty day notice period has
been waived.


 


“Required Lenders”
shall mean, at any date, Non-Defaulting Lenders having or holding a majority of
(i) the Loans (excluding the Loans of Defaulting Lenders) in the aggregate at
such date, or (ii) after issuance of any Senior Notes, a majority of the
outstanding principal amount of the Loans (excluding the Loans of Defaulting
Lenders) and the Senior Notes in the aggregate at such date, voting as a single
class.


 


40

















 


“Requirement of Law”
shall mean, as to any Person, the certificate of incorporation and by-laws or
other organizational or governing documents of such Person, and any law,
treaty, rule or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or assets or to which such Person or any of its
property or assets is subject.


 


“Restricted Investment”
shall mean an Investment other than a Permitted Investment.


 


“Restricted Subsidiary”
shall mean, at any time, any direct or indirect Subsidiary of the Borrower
(including any Foreign Subsidiary) that is not then an Unrestricted Subsidiary;
provided, however, that upon an Unrestricted Subsidiary’s ceasing
to be an Unrestricted Subsidiary, such Subsidiary shall be included in the
definition of “Restricted Subsidiary.”


 


“S&P” shall
mean Standard & Poor’s Ratings Services or any successor by merger or
consolidation to its business.


 


“Sale and Lease Back
Transaction” shall mean any arrangement providing for the leasing by
the Borrower or any of its Restricted Subsidiaries of any real or tangible
personal property, which property has been or is to be sold or transferred by
the Borrower or such Restricted Subsidiary to a third Person in contemplation
of such leasing.


 


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


 


“Second Commitment”
shall have the meaning provided in Section 9.8(b).


 


“Section 9.1 Financials”
shall mean the financial statements delivered, or required to be delivered,
pursuant to Section 9.1(i) or (ii).


 


“Secured Indebtedness”
shall mean any Indebtedness of the Borrower or any of its Restricted
Subsidiaries secured by a Lien.


 


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


 


“Securitization”
shall mean a public or private offering by a Lender or any of its Affiliates or
their respective successors and assigns of securities or notes which represent
an interest in, or which are collateralized, in whole or in part, by the Loans
and the Lender’s rights under the Loan Documents.


 


“Senior Cash Pay Fixed Rate”
shall mean 9.875% per annum.


 


“Senior Cash Pay Loans”
shall mean Senior Interim Cash Pay Loans and/or Senior Cash Pay Term Loans, as
the context requires.


 


41

















 


“Senior Cash Pay Notes”
shall mean senior notes due 2015, to be issued in connection with the exchange
for the Senior Cash Pay Term Loans under the Senior Refinancing Indenture, in
an aggregate principal amount of up to $3,750,000,000 (less the amount of any
Senior Interim Cash Pay Loans and Senior Cash Pay Term Loans that remain
outstanding after the issuance of the Senior Cash Pay Notes), together with
interest, fees and all other amounts payable in connection therewith.


 


“Senior Cash Pay Term Loans”
shall have the meaning provided in Section 2.14(a)(i).


 


“Senior Indebtedness”
shall mean:


 


(1)           all Indebtedness of the Borrower or
any Guarantor outstanding under the Senior Secured Credit Agreement, this
Agreement and related Guarantees (including interest accruing on or after the
filing of any petition in bankruptcy or similar proceeding or for
reorganization of the Borrower or any Guarantor (at the rate provided for in
the documentation with respect thereto, regardless of whether or not a claim
for post filing interest is allowed in such proceedings)), and any and all
other fees, expense reimbursement obligations, indemnification amounts,
penalties, and other amounts (whether existing on the Closing Date or
thereafter created or incurred) and all obligations of the Borrower or any
Guarantor to reimburse any bank or other Person in respect of amounts paid
under letters of credit, acceptances or other similar instruments;


 


(2)           all Hedging Obligations (and
guarantees thereof) owing to a Lender or any Affiliate of such Lender (or any
Person that was a Lender or an Affiliate of such Lender at the time the
applicable agreement giving rise to such Hedging Obligation was entered into); provided
that such Hedging Obligations are permitted to be incurred under the terms of
this Agreement;


 


(3)           any other Indebtedness of the
Borrower or any Guarantor permitted to be incurred under the terms of this Agreement,
unless the instrument under which such Indebtedness is incurred expressly
provides that it is subordinated in right of payment to Indebtedness
outstanding under the Senior Secured Credit Agreement, this Agreement or any
related Guarantee; and


 


(4)           all Obligations with respect to the
items listed in the preceding clauses (1), (2) and (3);


 


provided,
however, that Senior Indebtedness shall not include:


 


(a)           any obligation of such Person to the
Borrower or any of its Subsidiaries;


 


(b)           any liability for federal, state,
local or other taxes owed or owing by such Person;


 


(c)           any accounts payable or other
liability to trade creditors arising in the ordinary course of business;


 


42

















 


(d)           any Indebtedness or other Obligation
of such Person which is subordinate or junior in any respect to any other
Indebtedness or other Obligation of such Person; or


 


(e)           that portion of any Indebtedness
which at the time of incurrence is incurred in violation of this Agreement.


 


“Senior Interim Cash Pay
Loan” shall have the meaning provided in Section 2.1(a)(i).


 


“Senior Interim Cash Pay
Loan Commitment” shall mean (a) in the case of each Lender that is a
Lender on the date hereof, the amount set forth opposite such Lender’s name on Schedule
1.1(b) as such Lender’s “Senior Interim Cash Pay Loan Commitment” and
(b) in the case of any Lender that becomes a Lender after the date hereof,
the amount specified as such Lender’s “Senior Interim Cash Pay Loan Commitment”
in the Assignment and Acceptance pursuant to which such Lender assumed a
portion of the Total Senior Interim Loan Commitment, in each case as the same
may be changed from time to time pursuant to the terms hereof. The aggregate
amount of the Senior Interim Cash Pay Loan Commitments as of the Closing Date
is $3,750,000,000.


 


“Senior Interim Cash Pay
Loans Requested Amount” shall have the meaning provided in Section
2.3(a).


 


“Senior Interim Loan
Commitment” shall mean, with respect to each Lender, such Lender’s
Senior Interim Cash Pay Loan Commitment and Senior Interim PIK Loan Commitment.


 


“Senior Interim Loans”
shall mean the Senior Interim Cash Pay Loans and/or Senior Interim PIK Loans,
as the context requires.


 


“Senior Interim PIK Loan”
shall have the meaning provided in Section 2.1(a)(ii).


 


“Senior Interim PIK Loan
Commitment” shall mean (a) in the case of each Lender that is a
Lender on the date hereof, the amount set forth opposite such Lender’s name on Schedule
1.1(b) as such Lender’s “Senior Interim PIK Loan Commitment” and (b) in the
case of any Lender that becomes a Lender after the date hereof, the amount
specified as such Lender’s “Senior Interim PIK Loan Commitment” in the
Assignment and Acceptance pursuant to which such Lender assumed a portion of
the Total Senior Interim Loan Commitment, in each case as the same may be
changed from time to time pursuant to the terms hereof. The aggregate amount of
the Senior Interim PIK Loan Commitments as of the Closing Date is
$2,750,000,000.


 


“Senior Interim PIK Loans
Requested Amount” shall have the meaning provided in Section
2.3(a).


 


“Senior Notes”
shall mean Senior Cash Pay Notes and/or Senior PIK Notes, as the context
requires, and for purposes of Section 5.2, any senior debt securities issued in
connection with the refinancing of the Senior Interim Loans.


 


43

















 


“Senior PIK Fixed Rate”
shall mean 10.550% per annum.


 


“Senior PIK Loans”
shall mean Senior Interim PIK Loans and/or Senior PIK Term Loans, as the
context requires.


 


“Senior PIK Notes”
shall mean senior PIK notes due 2015, to be issued in connection with the
exchange for the Senior PIK Term Loans under the Senior Refinancing Indenture,
in an aggregate principal amount of up to $2,750,000,000 (less the amount of
any Senior Interim PIK Loans and Senior PIK Term Loans that remain outstanding
after the issuance of the Senior PIK Notes), together with interest (including
any PIK Interest Amount), fees and all other amounts payable in connection
therewith.


 


“Senior PIK Term Loans”
shall have the meaning provided in Section 2.14(a)(ii).


 


“Senior Refinancing
Indenture” shall mean the indenture substantially in the form
attached as Exhibit B to be entered into in connection with the exchange
of the Senior Term Loans, among the Borrower, the Guarantors and a trustee,
pursuant to which the Senior Notes shall be issued, as the same may be amended,
supplemented or otherwise modified from time to time in accordance therewith.


 


“Senior Refinancing
Registration Rights Agreement” shall mean the registration rights
agreement substantially in the form attached as Exhibit C to be entered
into in connection with the exchange of the Senior Term Loans, among the
Borrower, the Guarantors and the Administrative Agent, relating to rights given
by the Borrower and the Guarantors to the holders of Senior Notes to register
such notes under the Securities Act.


 


“Senior Secured Closing
Date Term Loans” shall have the meaning provided in the recitals to
this Agreement.


 


“Senior Secured Credit
Agreement” shall have the meaning provided in the recitals to this
Agreement.


 


“Senior Secured Delayed
Draw Term Loans” shall have the meaning provided in the recitals to
this Agreement.


 


“Senior Secured Revolving
Credit Loans” shall have the meaning provided in the recitals to
this Agreement.


 


“Senior Subordinated
Interim Loan Agreement” shall have the meaning provided in the
recitals to this Agreement.


 


“Senior Subordinated
Interim Loans” shall mean the Senior Subordinated Interim Loans
defined in the recitals to this Agreement.


 


“Senior Subordinated Notes”
shall mean senior subordinated notes due 2016, to be issued in exchange for the
Senior Subordinated Term Loans under the Senior Subordinated 


 


44

















 


Refinancing Indenture,
in an aggregate principal amount of up to $2,500,000,000 (less the amount of
any Senior Subordinated Interim Loans and Senior Subordinated Term Loans that
remain outstanding after the issuance of the Senior Subordinated Notes),
together with interest, fees and all other amounts payable in connection
therewith.


 


“Senior Subordinated
Refinancing Indenture” shall mean the indenture to be entered into
in connection with the exchange of the Senior Subordinated Term Loans, among
the Borrower, the Guarantors and a trustee, pursuant to which the Senior Subordinated
Notes shall be issued, as the same may be amended, supplemented or otherwise
modified from time to time in accordance therewith.


 


“Senior Subordinated Term
Loans” shall mean term loans outstanding under the Senior
Subordinated Interim Loan Agreement after conversion, on the Interim Loan Conversion
Date, of the Senior Subordinated Interim Loans outstanding on such date.


 


“Senior Term Loans”
shall mean Senior Cash Pay Term Loans and/or Senior PIK Term Loans, as the
context requires.


 


“Settlement”
shall mean the transfer of cash or other property with respect to any credit or
debit card charge, check or other instrument, electronic funds transfer, or
other type of paper-based or electronic payment, transfer, or charge
transaction for which a Person acts as a processor, remitter, funds recipient
or funds transmitter in the ordinary course of its business.


 


“Settlement Asset”
shall mean any cash, receivable or other property, including a Settlement Receivable,
due or conveyed to a Person in consideration for a Settlement made or arranged,
or to be made or arranged, by such Person or an Affiliate of such Person.


 


“Settlement Indebtedness”
shall mean any payment or reimbursement obligation in respect of a Settlement
Payment.


 


“Settlement Lien”
shall mean any Lien relating to any Settlement or Settlement Indebtedness (and
may include, for the avoidance of doubt, the grant of a Lien in or other assignment
of a Settlement Asset in consideration of a Settlement Payment, Liens securing
intraday and overnight overdraft and automated clearing house exposure, and
similar Liens).


 


“Settlement Payment”
shall mean the transfer, or contractual undertaking (including by automated
clearing house transaction) to effect a transfer, of cash or other property to
effect a Settlement.


 


“Settlement Receivable”
shall mean any general intangible, payment intangible, or instrument
representing or reflecting an obligation to make payments to or for the benefit
of a Person in consideration for a Settlement made or arranged, or to be made
or arranged, by such Person.


 


“Significant Subsidiary”
shall mean any Restricted Subsidiary that would be a “significant subsidiary”
as defined in Article 1, Rule 1 02 of Regulation S X, promulgated pursuant to
the Securities Act, as such regulation is in effect on the Closing Date.


 


45

















 


“Similar Business”
shall mean any business conducted or proposed to be conducted by the Borrower
and its Restricted Subsidiaries on the Closing Date or any business that is
similar, reasonably related, incidental or ancillary thereto.


 


“Solvent” shall
mean, with respect to any Person, that as of the Closing Date, (a) (i) the sum
of such Person’s debt (including contingent liabilities) does not exceed the
present fair saleable value of such Person’s present assets; (ii) such Person’s
capital is not unreasonably small in relation to its business as contemplated
on the Closing Date; and (iii) such Person has not incurred and does not intend
to incur, or believe that it will incur, debts including current obligations
beyond its ability to pay such debts as they become due (whether at maturity or
otherwise); and (b) such Person is “solvent” within the meaning given that term
and similar terms under applicable laws relating to fraudulent transfers and
conveyances. For purposes of this definition, the amount of any contingent
liability at any time shall be computed as the amount that, in light of all of
the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability
(irrespective of whether such contingent liabilities meet the criteria for
accrual under Statement of Financial Accounting Standard No. 5).


 


“Sponsor Management
Agreement” shall mean the management agreement between certain of
the management companies associated with the Investors and the Borrower.


 


“Stock” shall
mean shares of capital stock or shares in the capital, as the case may be
(whether denominated as common stock or preferred stock or ordinary shares or
preferred shares, as the case may be), beneficial, partnership or membership
interests, participations or other equivalents (regardless of how designated)
of or in a corporation, partnership, limited liability company or equivalent
entity, whether voting or non-voting.


 


“Stock Equivalents”
shall mean all securities convertible into or exchangeable for Stock and all
warrants, options or other rights to purchase or subscribe for any Stock,
whether or not presently convertible, exchangeable or exercisable.


 


“Subordinated Indebtedness”
shall mean, with respect to the Senior Interim Loans,


 


(1)           any Indebtedness of the Borrower
which is by its terms subordinated in right of payment to the Senior Interim
Loans, and


 


(2)           any Indebtedness of any Guarantor
which is by its terms subordinated in right of payment to the Guarantee of such
entity of the Senior Interim Loans.


 


“Subsidiary”
shall mean, with respect to any Person:


 


(1)           any corporation, association, or
other business entity (other than a partnership, joint venture, limited liability
company or similar entity) of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time of determination owned or controlled, directly or indirectly, by
such Person 


 


46

















 


or one or more
of the other Subsidiaries of that Person or a combination thereof or is consolidated
under GAAP with such Person at such time; and


 


(2)           any
partnership, joint venture, limited liability company or similar entity of
which


 


(x)            more
than 50% of the capital accounts, distribution rights, total equity and voting
interests or general or limited partnership interests, as applicable, are owned
or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person or a combination thereof whether in the form
of membership, general, special or limited partnership or otherwise, and


 


(y)           such
Person or any Restricted Subsidiary of such Person is a controlling general
partner or otherwise controls such entity.


 


“Successor Borrower”
shall have the meaning provided in Section 9.14(a)(1).


 


“Syndication Agent”
shall mean Credit Suisse together with its Affiliates, as syndication agent for
the Lenders under this Agreement and the other Loan Documents.


 


“Taxes” shall
mean any and all present or future taxes, duties, levies, imposts, assessments,
deductions, withholdings or other similar charges imposed by any Governmental Authority
whether computed on a separate, consolidated, unitary, combined or other basis
and any interest, fines, penalties or additions to tax with respect to the
foregoing.


 


“Test Period”
shall mean, for any determination under this Agreement, the four consecutive
fiscal quarters of the Borrower then last ended.


 


“Total Assets”
shall mean the total assets of the Borrower and its Restricted Subsidiaries on
a consolidated basis, as shown on the most recent consolidated balance sheet of
the Borrower or such other Person as may be expressly stated (excluding settlement
assets, as shown on such balance sheet).


 


“Total Credit Exposure”
shall mean, at any date, the aggregate outstanding principal amount of all
Loans at such date.


 


“Transaction Expenses”
shall mean any fees or expenses incurred or paid by the Borrower or any of its
Subsidiaries in connection with the Transactions, this Agreement and the other
Loan Documents and the transactions contemplated hereby and thereby.


 


“Transactions”
shall mean, collectively, the transactions contemplated by this Agreement, the
Senior Secured Credit Agreement, the Senior Subordinated Interim Loan
Agreement, the Merger, the Equity Investments, the Debt Repayment and any
repayment, repurchase, prepayment or defeasance of Indebtedness of the Borrower
or any of its Subsidiaries in connection therewith.


 


“Transferee”
shall have the meaning provided in Section 13.6(e).


 


47

















 


“Trustee” shall
have the meaning provided in Section 2.14(b)(iv).


 


“Type” shall
mean as to any Loan, its nature as an ABR Loan or a LIBOR Loan.


 


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


 


“Unrestricted Subsidiary”
shall mean:


 


(1)           any
Subsidiary of the Borrower which at the time of determination is an
Unrestricted Subsidiary (as designated by the Borrower, as provided below); and


 


(2)           any
Subsidiary of an Unrestricted Subsidiary.


 


The Borrower
may designate any Subsidiary of the Borrower (including any existing Subsidiary
and any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity
Interests or Indebtedness of, or owns or holds any Lien on, any property of,
the Borrower or any Subsidiary of the Borrower (other than solely any Subsidiary
of the Subsidiary to be so designated); provided that


 


(1)           any
Unrestricted Subsidiary must be an entity of which the Equity Interests
entitled to cast at least a majority of the votes that may be cast by all
Equity Interests having ordinary voting power for the election of directors or
Persons performing a similar function are owned, directly or indirectly, by the
Borrower;


 


(2)           such
designation complies with Section 9.5 hereof; and


 


(3)           each
of:


 


(a)           the
Subsidiary to be so designated; and


 


(b)           its
Subsidiaries


 


has not at the
time of designation, and does not thereafter, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets of
the Borrower or any Restricted Subsidiary.


 


The Borrower may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that, immediately
after giving effect to such designation, no Default shall have occurred and be
continuing and either:


 


(1)           the
Borrower could incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test described in Section 9.7(a) hereof; or


 


48

















 


(2)           the Fixed Charge Coverage Ratio for
the Borrower and its Restricted Subsidiaries would be greater than such ratio
for the Borrower and its Restricted Subsidiaries immediately prior to such
designation,


 


in each case on a pro forma  basis taking into account such designation.


 


Any such designation by the Borrower shall be
notified by the Borrower to the Administrative Agent by promptly filing with
the Administrative Agent a copy of the resolution of the board of directors of
the Borrower or any committee thereof giving effect to such designation and an
Officer’s Certificate certifying that such designation complied with the
foregoing provisions.


 


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


 


“U.S. Lender”
shall have the meaning provided in Section 5.4(i).


 


“Voting Stock”
of any Person as of any date shall mean the Capital Stock of such Person that
is at such date entitled to vote in the election of the board of directors of
such Person.


 


“Weighted Average Life to
Maturity” shall mean, when applied to any Indebtedness, Disqualified
Stock or Preferred Stock, as the case may be, at any date, the quotient obtained
by dividing:


 


(1)           the sum of the products of the number
of years from the date of determination to the date of each successive
scheduled principal payment of such Indebtedness or redemption or similar
payment with respect to such Disqualified Stock or Preferred Stock multiplied
by the amount of such payment; by


 


(2)           the sum of all such payments.


 


“Wholly-Owned Subsidiary”
of any Person shall mean a Subsidiary of such Person, 100% of the outstanding Equity
Interests of which (other than directors’ qualifying shares) shall at the time
be owned by such Person or by one or more Wholly Owned Subsidiaries of such
Person.


 


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


 


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


 


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


 


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


 


49

















 


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


 


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


 


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


 


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


 


(h)           To the extent any
provision of the Senior Refinancing Indenture is deemed to be incorporated and
set forth in this Agreement, (i) any reference to the “Issuer” or the “Company”
in the Senior Refinancing Indenture shall be deemed to be a reference to the
Borrower, (ii) any reference to a “Holder” in the Senior Refinancing Indenture
shall be deemed to be a reference to a Lender, (iii) any reference to the “Trustee”
in the Senior Refinancing Indenture shall be deemed to be a reference to the
Administrative Agent, (iv) any reference to the “Notes” in the Senior
Refinancing Indenture shall be deemed to be a reference to the Loans and (v)
any reference to “this Indenture” in the Senior Refinancing Indenture shall be
deemed to be a reference to this Agreement and the other Loan Documents, in
each case as the context may require.


 


1.3.          Accounting
Terms. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted
pursuant to this Agreement shall be prepared in conformity with, GAAP.


 


1.4.          [Reserved]


 


1.5.          References
to Agreements, Laws, Etc. Unless otherwise expressly provided herein, (a)
references to organizational documents, agreements (including the Loan
Documents) and other Contractual Requirements shall be deemed to include all
subsequent amendments, restatements, amendment and restatements, extensions,
supplements and other modifications thereto, but only to the extent that such
amendments, restatements, amendment and restatements, extensions, supplements
and other modifications are permitted by any Loan Document; and (b) references
to any Requirement of Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such
Requirement of Law.


 


1.6.          [Reserved]


 


50

















 


SECTION 2.           Amount and Terms of Credit


 


2.1.          Commitments.


 


(a)           Subject to and upon the terms and
conditions herein set forth,


 


(i)            each Lender having
a Senior Interim Cash Pay Loan Commitment severally agrees to make a loan or
loans (each a “Senior Interim Cash Pay Loan”) in
a single draw on the Closing Date to the Borrower in Dollars, which Senior Interim
Cash Pay Loans shall not exceed for any such Lender the Senior Interim Cash Pay
Loan Commitment of such Lender and in the aggregate shall not exceed
$3,750,000,000; and


 


(ii)           each Lender having
a Senior Interim PIK Loan Commitment severally agrees to make a loan or loans
(each a “Senior Interim PIK Loan”) in a single
draw on the Closing Date to the Borrower in Dollars, which Senior Interim PIK
Loans shall not exceed for any such Lender the Senior Interim PIK Loan
Commitment of such Lender and in the aggregate shall not exceed $2,750,000,000.


 


Such Senior
Interim Loans (i) shall be incurred and maintained (except as provided in Section
2.6 and Section 2.10) as LIBOR Loans, (ii) may be repaid or prepaid
in accordance with the provisions hereof, but once repaid or prepaid, may not
be reborrowed, (iii) shall not exceed for any such Lender the Senior Interim
Loan Commitment of such Lender and (iv) shall not exceed in the aggregate the
Total Senior Interim Loan Commitment.


 


On the
applicable interest payment dates with respect to Borrowings under Senior PIK
Loans closest to March 31, 2015, the Borrower shall repay in full in Dollars an
amount of Senior PIK Loans equal to the product of (x) $50,000,000 and (y) the
percentage equal to the aggregate principal amount of outstanding Senior PIK
Loans divided by the aggregate principal amount of outstanding Senior PIK Loans
and Senior PIK Notes on such date, as determined in good faith by the
Borrower  rounded to the nearest $1,000. Prepayments
of Senior PIK Loans made pursuant to the preceding sentence shall be made on a pro rata basis based on the aggregate principal amount of
Senior PIK Loans.


 


On the
Maturity Date, the Borrower shall repay all then unpaid Loans in full in
Dollars.


 


(b)           Each Lender may at its option make
any LIBOR Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan, provided that (A) any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan and (B) in
exercising such option, such Lender shall use its reasonable efforts to
minimize any increased costs to the Borrower resulting therefrom (which
obligation of the Lender shall not require it to take, or refrain from taking,
actions that it determines would result in increased costs for which it will
not be compensated hereunder or that it determines would be otherwise disadvantageous
to it and in the event of such request for costs for which compensation is
provided under this Agreement, the provisions of Section 2.10 shall
apply).


 


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2.2.          Maximum
Number of Borrowings. More than one Borrowing may be incurred on any date, provided
that at no time shall there be outstanding more than 30 Borrowings of LIBOR
Loans under this Agreement.


 


2.3.          Notice
of Borrowing.


 


(a)           The Borrower shall give the
Administrative Agent at the Administrative Agent’s Office prior to 9:00 a.m.
(New York City time) at least two Business Days’ prior written notice (or
telephonic notice promptly confirmed in writing) of the Borrowing of the Senior
Interim Loans. Such notice (a “Notice of Borrowing”)
shall specify (i) the aggregate principal amount of the Senior Interim Loans to
be borrowed, $3,750,000,000 of which shall be allocated to the Senior Interim
Cash Pay Loans (the “Senior Interim Cash Pay
Loans Requested Amount”) (such Senior Interim Cash Pay Loans
Requested Amount not to exceed the aggregate Senior Interim Cash Pay Loan
Commitments of all Lenders) and $2,750,000,000 of which shall be allocated to
the Senior Interim PIK Loans (the “Senior Interim PIK Loans
Requested Amount”) (such Senior Interim PIK Loans Requested Amount
not to exceed the aggregate Senior Interim PIK Loan Commitments of all
Lenders), (ii) the date of the Borrowing (which shall be the Closing Date) and
(iii) the Interest Period to be initially applicable thereto. The Administrative
Agent shall promptly give each Lender written notice (or telephonic notice
promptly confirmed in writing) of the proposed Borrowing of Senior Interim
Loans, of such Lender’s proportionate share thereof and of the other matters
covered by the related Notice of Borrowing.


 


(b)           Without in any way limiting the
obligation of the Borrower to confirm in writing any notice it may give
hereunder by telephone, the Administrative Agent may act prior to receipt of
written confirmation without liability upon the basis of such telephonic notice
believed by the Administrative Agent in good faith to be from an Authorized
Officer of the Borrower.


 


2.4.          Disbursement
of Funds.


 


(a)           No later than 2:00 p.m. (New York
City time) on the date specified in the Notice of Borrowing, each Lender will
make available its pro rata
portion, if any, of each Borrowing requested to be made on such date in the
manner provided below; provided that such funds may be made available at
such earlier time as may be agreed among the Lenders, the Borrower and the
Administrative Agent for the purpose of consummating the Transactions.


 


(b)           Each Lender shall make available all
amounts it is to fund to the Borrower under the Borrowing for its applicable
Commitments, and in immediately available funds to the Administrative Agent at
the Administrative Agent’s Office and the Administrative Agent will make
available to the Borrower, by depositing to an account designated by the
Borrower to the Administrative Agent the aggregate of the amounts so made
available in Dollars. Unless the Administrative Agent shall have been notified
by any Lender prior to the date of the Borrowing that such Lender does not
intend to make available to the Administrative Agent its portion of the
Borrowing to be made on such date, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent on the
date of the Borrowing, and the Administrative Agent, in reliance upon such
assumption, may (in its sole discretion and without any obligation to do so)
make available to the Borrower a corresponding amount. If such


 


52




















 


corresponding amount is not in fact made
available to the Administrative Agent by such Lender and the Administrative
Agent has made available such amount to the Borrower, the Administrative Agent
shall be entitled to recover such corresponding amount from such Lender. If
such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent’s demand therefor the Administrative Agent shall promptly
notify the Borrower and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent in Dollars. The Administrative Agent shall
also be entitled to recover from such Lender or the Borrower interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative Agent, at a
rate per annum equal to (i) if paid by such
Lender, the Overnight Rate or (ii) if paid by the Borrower, the then-applicable
rate of interest or fees, calculated in accordance with Section 2.8, for
the respective Loans.


 


(c)           Nothing in this Section 2.4
shall be deemed to relieve any Lender from its obligation to, fulfill its commitments
hereunder or to prejudice any rights that the Borrower may have against any
Lender as a result of any default by such Lender hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to fulfill its commitments hereunder).


 


2.5.          Repayment
of Loans; Evidence of Debt.


 


(a)           The Borrower shall repay to the
Administrative Agent, for the benefit of the Lenders, on the Term Loan Maturity
Date, the then-outstanding Loans, in Dollars.


 


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


 


(c)           The Administrative Agent shall
maintain the Register pursuant to Section 13.6(b), and a subaccount for
each Lender, in which Register and subaccounts (taken together) shall be
recorded (i) the amount of each Loan made hereunder, the Type of each Loan made
and the Interest Period, if any, applicable thereto, (ii) the amount of any
principal (including any PIK Interest Amounts) or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder from the
Borrower and each Lender’s share thereof.


 


(d)           The entries made in the Register and
accounts and subaccounts maintained pursuant to clauses (b) and (c)
of this Section 2.5 shall, to the extent permitted by applicable law, be
prima facie evidence of the existence and amounts of the obligations of the
Borrower therein recorded; provided, however, that the failure of
any Lender or the Administrative Agent to maintain such account, such Register
or subaccount, as applicable, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable interest) the
Loans made to the Borrower by such Lender in accordance with the terms of this
Agreement.


 


53





















 


2.6.          Conversions
and Continuations.


 


(a)           Subject to the penultimate sentence
of this clause (a), (x) the Borrower shall have the option, subject to Section
2.10, on any Business Day to convert all or a portion equal to at least
$5,000,000 of the outstanding principal amount of one Type into a Borrowing or
Borrowings of another Type and (y) the Borrower shall have the option on any
Business Day to continue the outstanding principal amount of any LIBOR Loans as
LIBOR Loans for an additional Interest Period, provided that (i) ABR
Loans may not be converted into LIBOR Loans if a Default or Event of Default is
in existence on the date of the conversion and the Administrative Agent has or
the Required Lenders have determined in its or their sole discretion not to
permit such conversion, (ii) LIBOR Loans may not be continued as LIBOR Loans
for an additional Interest Period if a Default or Event of Default is in existence
on the date of the proposed continuation and the Administrative Agent has or
the Required Lenders have determined in its or their sole discretion not to
permit such continuation and (iii) Borrowings resulting from conversions
pursuant to this Section 2.6 shall be limited in number as provided in Section
2.2. Each such conversion or continuation shall be effected by the Borrower
by giving the Administrative Agent at the Administrative Agent’s Office prior
to 1:00 p.m. (New York City time) at least (i) three Business Days’ prior written
notice (or telephonic notice promptly confirmed in writing), in the case of a
continuation of or conversion to LIBOR Loans (other than in the case of a
notice delivered on the Closing Date pursuant to clause (c), which shall be
deemed to be effective on the Closing Date) or (ii) one Business Day’s prior
written notice (or telephonic notice promptly confirmed in writing) in the case
of a conversion into ABR Loans (each, a “Notice of Conversion or
Continuation”) specifying the Loans to be so converted or continued,
the Type of Loans to be converted or continued into and, if such Loans are to
be converted into or continued as LIBOR Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall give each applicable Lender
notice as promptly as practicable of any such proposed conversion or
continuation affecting any of its Loans.


 


(b)           If any Default or Event of Default is
in existence at the time of any proposed continuation of any LIBOR Loans
denominated in Dollars and the Administrative Agent has or the Required Lenders
have determined in its or their sole discretion not to permit such
continuation, such LIBOR Loans shall be automatically converted on the last day
of the current Interest Period into ABR Loans. If upon the expiration of any
Interest Period in respect of LIBOR Loans, the Borrower has failed to elect a
new Interest Period to be applicable thereto as provided in clause (a),
the Borrower shall be deemed to have elected to convert such Borrowing of LIBOR
Loans into a Borrowing of ABR Loans, effective as of the expiration date of
such current Interest Period.


 


(c)           Notwithstanding anything to the
contrary herein, the Borrower may deliver a Notice of Conversion or Continuation
pursuant to which the Borrower elects to irrevocably continue the outstanding
principal amount of any Loans subject to an interest rate Hedge Agreement as
LIBOR Loans for each Interest Period until the expiration of the term of such applicable
Hedge Agreement.


 


2.7.          Pro
Rata Borrowings. Each Borrowing of Senior Interim Cash Pay Loans under this
Agreement shall be made by the Lenders pro rata on the
basis of their then-applicable 


 


54

















 


Senior Interim
Cash Pay Commitments. Each Borrowing of Senior Interim PIK Loans under this
Agreement shall be made by the Lenders pro rata on the
basis of their then-applicable Senior Interim PIK Commitments. It is understood
that (a) no Lender shall be responsible for any default by any other Lender in
its obligation to make Loans hereunder and that each Lender severally but not
jointly shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to fulfill its
commitments hereunder and (b) other than as expressly provided herein with
respect to a Defaulting Lender, failure by a Lender to perform any of its
obligations under any of the Loan Documents shall not release any Person from
performance of its obligation under any Loan Document.


 


2.8.          Interest.


 


(a)           (i) 
The unpaid principal amount of each Senior Cash Pay Loan that is an ABR
Loan shall bear interest from the date of the Borrowing thereof until maturity
thereof (whether by acceleration or otherwise) at a rate per annum
that shall at all times be the Applicable ABR Margin plus the ABR, in effect
from time to time.


 


(ii)           The
unpaid principal amount of each Senior PIK Loan that is an ABR Loan shall bear
interest (A) for any Interest Period from the date of the Borrowing thereof
until but not including the fourth anniversary of the Closing Date (the “PIK Interest Termination Date”) entirely by increasing the
principal amount of the outstanding Senior PIK Loans (“PIK Interest”)
and (B) for any Interest Period from the PIK Interest Termination Date until
the Term Loan Maturity Date (whether by acceleration or otherwise) entirely in
cash (“Cash Interest”). Any Cash Interest
shall accrue for each day during such Interest Period at a rate per annum that shall at all times be the Applicable ABR
Margin plus the ABR, in effect from time to time. Any PIK Interest shall accrue
for each day during such Interest Period at a rate per annum
that shall at all times be the Applicable ABR Margin plus the ABR, in each case
in effect from time to time.


 


(b)           (i) 
The unpaid principal amount of each Senior Cash Pay Loan that is a LIBOR
Loan shall bear interest from the date of the Borrowing thereof until maturity
thereof (whether by acceleration or otherwise) at a rate per annum
that shall at all times be the Applicable LIBOR Margin plus the relevant LIBOR
Rate.


 


(ii)           The
unpaid principal amount of each Senior PIK Loan that is a LIBOR Loan shall bear
interest (A) for any Interest Period from the date of the Borrowing thereof
until but not including the PIK Interest Termination Date entirely as PIK Interest
and (B) for any Interest Period from the PIK Interest Termination Date until
maturity (whether by acceleration or otherwise) entirely as Cash Interest. Any
Cash Interest shall accrue for each day during such Interest Period at a rate per annum that shall at all times be the Applicable LIBOR
Margin plus the relevant LIBO Rate, in effect from time to time. Any PIK
Interest shall accrue for each day during such Interest Period at a rate per annum that shall at all times be the Applicable LIBOR Margin
plus the relevant LIBO Rate, in each case in effect from time to time.


 


(c)           If all or a portion of (i) the
principal amount of any Loan or (ii) any interest payable thereon shall not be
paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum
that is (the “Default 


 


55





















 


Rate”) (x) in the
case of overdue principal, the rate that would otherwise be applicable thereto
plus 2% or (y) in the case of any overdue interest, to the extent permitted by
applicable law, the rate described in Section 2.8(a) plus 2% from the
date of such non-payment to the date on which such amount is paid in full
(after as well as before judgment).


 


(d)           Interest on each Loan shall accrue
from and including the date of any Borrowing to but excluding the date of any
repayment thereof and shall be payable in Dollars; provided that any
Loan that is repaid on the same date on which it is made shall bear interest
for one day. Except as provided below, interest shall be payable (i) in respect
of each ABR Loan, quarterly in arrears on the last Business Day of each March,
June, September and December (provided that the first such payment shall be on
December 31, 2007), (ii) in respect of each LIBOR Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three-month intervals after
the first day of such Interest Period, (iii) in respect of each Loan, (A) on
any prepayment, (B) at maturity (whether by acceleration or otherwise) and (C)
after such maturity, on demand.


 


(e)           All computations of interest
hereunder shall be made in accordance with Section 5.5.


 


(f)            The Administrative Agent, upon
determining the interest rate for any Borrowing of LIBOR Loans, shall promptly
notify the Borrower and the Lenders thereof. Each such determination shall, absent
clearly demonstrable error, be final and conclusive and binding on all parties
hereto.


 


2.9.          Interest
Periods. At the time the Borrower gives a Notice of Borrowing or Notice of
Conversion or Continuation in respect of the making of, or conversion into or
continuation as, a Borrowing of LIBOR Loans in accordance with Sections
2.3(a) and 2.6(a), the Borrower shall give the Administrative Agent
written notice (or telephonic notice promptly confirmed in writing) of the
Interest Period applicable to such Borrowing, which Interest Period shall, at
the option of the Borrower be a one, two, three or six month period.


 


Notwithstanding anything to the contrary
contained above:


 


(a)           the initial Interest
Period for any Borrowing of LIBOR Loans shall commence on the date of such
Borrowing (including the date of any conversion from a Borrowing of ABR Loans)
and each Interest Period occurring thereafter in respect of such Borrowing
shall commence on the day on which the next preceding Interest Period expires;


 


(b)           if any Interest
Period relating to a Borrowing of LIBOR Loans begins on the last Business Day
of a calendar month or begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period,
such Interest Period shall end on the last Business Day of the calendar month
at the end of such Interest Period;


 


(c)           if any Interest
Period would otherwise expire on a day that is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day, provided 


 


56

















 


that if any Interest Period in respect of a LIBOR Loan would otherwise
expire on a day that is not a Business Day but is a day of the month after
which no further Business Day occurs in such month, such Interest Period shall
expire on the next preceding Business Day; and


 


(d)           the Borrower shall
not be entitled to elect any Interest Period in respect of any LIBOR Loan if
such Interest Period would extend beyond the Maturity Date of such Loan.


 


2.10.        Increased
Costs, Illegality, Etc.


 


(a)           In the event that (x) in the case of clause
(i) below, the Administrative Agent or (y) in the case of clauses (ii)
and (iii) below, any Lender shall have reasonably determined (which
determination shall, absent clearly demonstrable error, be final and conclusive
and binding upon all parties hereto):


 


(i)            on any date for
determining the LIBOR Rate for any Interest Period that (x) deposits in the
principal amounts and currencies of the Loans comprising such LIBOR Borrowing
are not generally available in the relevant market or (y) by reason of any
changes arising on or after the Closing Date affecting the interbank LIBOR
market, adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of LIBOR Rate; or


 


(ii)           at any time, that
such Lender shall incur increased costs or reductions in the amounts received
or receivable hereunder with respect to any LIBOR Loans (other than any
increase or reduction attributable to Taxes, described in paragraph (d) of this
Section 2.10) because of (x) any change since the date hereof in any
applicable law, governmental rule, regulation, guideline or order (or in the
interpretation or administration thereof and including the introduction of any
new law or governmental rule, regulation, guideline or order), such as, for
example, without limitation, a change in official reserve requirements, and/or
(y) other circumstances affecting the interbank LIBOR market or the position of
such Lender in such market; or


 


(iii)          at any time, that
the making or continuance of any LIBOR Loan has become unlawful by compliance
by such Lender in good faith with any law, governmental rule, regulation,
guideline or order (or would conflict with any such governmental rule, regulation,
guideline or order not having the force of law even though the failure to comply
therewith would not be unlawful), or has become impracticable as a result of a
contingency occurring after the date hereof that materially and adversely
affects the interbank LIBOR market;


 


then, and in
any such event, such Lender (or the Administrative Agent, in the case of clause
(i) above) shall within a reasonable time thereafter give notice (if by
telephone, confirmed in writing) to the Borrower and to the Administrative
Agent of such determination (which notice the Administrative Agent shall
promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause
(i) above, LIBOR Loans shall no longer be available until such time as the
Administrative 


 


57

















 


Agent notifies
the Borrower and the Lenders that the circumstances giving rise to such notice
by the Administrative Agent no longer exist (which notice the Administrative
Agent agrees to give at such time when such circumstances no longer exist), and
any Notice of Borrowing or Notice of Conversion or Continuation given by the
Borrower with respect to LIBOR Loans that have not yet been incurred shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii) above,
the Borrower shall pay to such Lender, promptly after receipt of written demand
therefor such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
reasonable discretion shall determine) as shall be required to compensate such
Lender for such increased costs or reductions in amounts receivable hereunder
(it being agreed that a written notice as to the additional amounts owed to
such Lender, showing in reasonable detail the basis for the calculation
thereof, submitted to the Borrower by such Lender shall, absent clearly
demonstrable error, be final and conclusive and binding upon all parties
hereto) and (z) in the case of subclause (iii) above, the Borrower shall
take one of the actions specified in subclause (x) or (y), as
applicable, of Section 2.10(b) as promptly as possible and, in any
event, within the time period required by law.


 


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


 


(c)           If, after the date
hereof, any Change in Law relating to capital adequacy of any Lender or
compliance by any Lender or its parent with any Change in Law relating to
capital adequacy occurring after the date hereof, has or would have the effect
of reducing the rate of return on such Lender’s or its parent’s or its
Affiliate’s capital or assets as a consequence of such Lender’s commitments or
obligations hereunder to a level below that which such Lender or its parent or
its Affiliate could have achieved but for such Change in Law (taking into
consideration such Lender’s or its parent’s policies with respect to capital
adequacy), then from time to time, promptly after demand by such Lender (with a
copy to the Administrative Agent), the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or its parent for
such reduction, it being understood and agreed, however, that a Lender shall
not be entitled to such compensation as a result of such Lender’s compliance
with, or pursuant to any request or directive to comply with, any law, rule or
regulation as in effect on the date hereof. Each Lender, upon determining in
good faith that any additional amounts will be payable pursuant to this Section
2.10(c), will give prompt written notice thereof to the Borrower, which
notice shall set forth in reasonable detail the basis of the calculation of
such additional amounts, although the failure to give any such notice shall
not, subject to Section 2.13, release or diminish the Borrower’s
obligations to pay additional amounts pursuant to this Section 2.10(c)
upon receipt of such notice.


 


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(d)           It is understood
that this Section 2.10 shall not apply to (i) Taxes indemnifiable under Section
5.4, (ii) net income taxes and franchise and excise taxes (imposed in lieu
of net income taxes) imposed on any Agent or Lender or (iii) Taxes described under
clauses (b) and (c) of the definition of Excluded Taxes.


 


2.11.        Compensation. If (a) any payment
of principal of any LIBOR Loan is made by the Borrower to or for the account of
a Lender other than on the last day of the Interest Period for such LIBOR Loan
as a result of a payment or conversion pursuant to Section 2.5, 2.6,
2.10, 5.1, 5.2 or 13.7, as a result of acceleration
of the maturity of the Loans pursuant to Section 11 or for any other reason,
(b) any Borrowing of LIBOR Loans is not made as a result of a withdrawn Notice
of Borrowing, (c) any ABR Loan is not converted into a LIBOR Loan as a result
of a withdrawn Notice of Conversion or Continuation, (d) any LIBOR Loan is not
continued as a LIBOR Loan, as the case may be, as a result of a withdrawn
Notice of Conversion or Continuation or (e) any prepayment of principal of any
LIBOR Loan is not made as a result of a withdrawn notice of prepayment pursuant
to Section 5.1 or 5.2, the Borrower shall, after receipt of a
written request by such Lender (which request shall set forth in reasonable
detail the basis for requesting such amount), pay to the Administrative Agent
for the account of such Lender any amounts required to compensate such Lender
for any additional losses, costs or expenses that such Lender may reasonably
incur as a result of such payment, failure to convert, failure to continue or
failure to prepay, including any loss, cost or expense (excluding loss of
anticipated profits) actually incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by any Lender to fund or maintain such
LIBOR Loan.


 


2.12.        Change of Lending Office. Each
Lender agrees that, upon the occurrence of any event giving rise to the operation
of Section 2.10(a)(ii), 2.10(a)(iii), 2.10(b) or 5.4
with respect to such Lender, it will, if requested by the Borrower use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event, provided
that such designation is made on such terms that such Lender and its lending
office suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of any such
Section. Nothing in this Section 2.12 shall affect or postpone any of
the obligations of the Borrower or the right of any Lender provided in Section
2.10 or 5.4.


 


2.13.        Notice of Certain Costs. Notwithstanding
anything in this Agreement to the contrary, to the extent any notice required
by Section 2.10, 2.11 or 5.4 is given by any Lender more
than 120 days after such Lender has knowledge (or should have had knowledge) of
the occurrence of the event giving rise to the additional cost, reduction in
amounts, loss, tax or other additional amounts described in such Sections, such
Lender shall not be entitled to compensation under Section 2.10, 2.11
or 5.4, as the case may be, for any such amounts incurred or accruing
prior to the 121st day prior to the giving of such notice to the Borrower.


 


2.14.        Permanent Refinancing.


 


(a)           On the Interim Loan Conversion Date:


 


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(i)            all outstanding
Senior Interim Cash Pay Loans shall be converted into term loans (each, a “Senior Cash Pay Term Loan”) having an aggregate principal
amount equal to the unpaid principal amount of such Senior Interim Cash Pay
Loans, in each case to the extent such Loans are not repaid in whole or in part
in cash on or prior to such date; and


 


(ii)           all outstanding
Senior Interim PIK Loans shall be converted into term loans (each, a “Senior PIK Term Loan”) having an aggregate principal amount
equal to the unpaid principal amount of such Senior Interim PIK Loans, in each
case to the extent such Loans are not repaid in whole or in part in cash on or
prior to such date.


 


(b)           (i)  On the fifteenth (15th) day of each calendar
month (each, an “Exchange Date”), or if such day is
not a Business Day, the preceding Business Day, on or after the Interim Loan
Conversion Date, at the option of the applicable Lender, (A) the Senior Cash
Pay Term Loans may be exchanged in whole or in part for one or more Senior Cash
Pay Notes having an aggregate principal amount equal to the unpaid principal
amount of such Senior Cash Pay Term Loans and (B) the Senior PIK Term Loans may
be exchanged in whole or in part for one or more Senior PIK Notes having an
aggregate principal amount equal to the unpaid principal amount of such Senior
PIK Term Loans; provided, however, that the Borrower shall not be
required to issue Senior Cash Pay Notes or Senior PIK Notes, as the case may
be, until the Borrower shall have received requests to issue at least
$150,000,000 in aggregate principal amount of Senior Notes and that the amount
of Term Loans exchanged for Senior Notes must be in excess of $1,000,000 in principal
amount.


 


(ii)           Such
Lender shall provide the Borrower prior irrevocable written notice of such
election (each such notice, an “Exchange Notice”),
substantially in the form of Exhibit D-1 or Exhibit D-2, as
applicable, at least five Business Days prior to the date of exchange. The Exchange
Notice shall specify the principal amount of Senior Term Loans to be exchanged
and, subject to the terms of the Senior Refinancing Indenture, the name of the
proposed registered holder and the amount of each Senior Note requested. Senior
Term Loans exchanged for Senior Notes pursuant to this Section 2.14
shall be deemed repaid and canceled, and the Senior Notes so issued shall be
governed by and construed in accordance with the provisions of the Senior Refinancing
Indenture. The Senior Notes shall be issued in the form set forth in the Senior
Refinancing Indenture.


 


(iii)          As
more particularly provided in the Senior Refinancing Indenture, (A) Senior Cash
Pay Notes issued pursuant to the Senior Refinancing Indenture shall bear
interest at the rate applicable to Senior Cash Pay Term Loans (unless a Lender
shall elect to have the interest rate fixed at the rate applicable to Senior
Cash Pay Term Loans in effect on the date of such exchange if necessary to
effect an actual bona fide sale of such Senior Cash Pay Notes on such date to a
third party that is not an Affiliate of such Lender), (B) Senior PIK Notes
issued pursuant to the Senior Refinancing Indenture shall bear interest at the
rate applicable to Senior PIK Term Loans (unless a Lender shall elect to have
the interest rate fixed at the rate applicable to Senior PIK Term Loans in
effect on the date of such exchange if necessary to effect an actual bona fide
sale of such Senior PIK Notes on such date to a third party that is not an Affiliate
of such Lender), and (C) Senior Notes issued pursuant to the Senior Refinancing
Indenture (I) shall 


 


60

















 


mature on September 24, 2015 and (II) shall be redeemable as set forth
in the Senior Refinancing Indenture and the applicable form of Senior Notes
attached thereto.


 


(iv)          Not
later than five Business Days after the Exchange Date following delivery of any
Exchange Notice, the Borrower shall (A) deliver a written notice to the trustee
under the Senior Refinancing Indenture (the “Trustee”),
directing such Trustee to authenticate and deliver Senior Cash Pay Notes and/or
Senior PIK Notes as specified in the Exchange Notice and (B) use all commercially
reasonable efforts to effect delivery of such Senior Cash Pay Notes and/or
Senior PIK Notes to the requesting Lender.


 


(c)           The Borrower agrees
that as a condition to the effectiveness of the exchange of Senior Term Loans
for Senior Notes:


 


(i)            The Borrower shall
have selected a bank or trust company reasonably acceptable to the Lenders to
act as Trustee.


 


(ii)           The Borrower shall
have issued the Senior Notes pursuant to the Senior Refinancing Indenture
substantially in the applicable form set forth therein, and the Borrower and
each Guarantor shall have executed and delivered the Senior Refinancing Indenture.


 


(iii)          The Borrower and
each Guarantor shall have provided to the Administrative Agent copies of
resolutions of its board of directors approving the execution and delivery of
the Senior Refinancing Indenture and, in the case of the Borrower, the issuance
of the Senior Notes, together with a customary certificate of the secretary of
the Borrower or such Guarantor certifying such resolutions.


 


(iv)          The Borrower and
each Guarantor shall have executed and delivered the Senior Refinancing Registration
Rights Agreement.


 


(v)           The Borrower and
each Guarantor shall have provided to the Lenders copies of resolutions of its
Board of Directors approving the execution and delivery of the Senior
Refinancing Registration Rights Agreement, together with a customary
certificate of the secretary of the Borrower or such Guarantor certifying such
resolutions.


 


(d)           If the foregoing
conditions set forth in Section 2.14(c) are not satisfied on the Interim
Loan Conversion Date, then the Lenders shall retain all of their rights and
remedies with respect to the Senior Term Loans pursuant to this Agreement until
such conditions are satisfied and the Senior Term Loans are so exchanged for
Senior Notes. The Borrower agrees to satisfy the conditions set forth in Section
2.14(c) no later than ten Business Days after receipt of the first Exchange
Notice.


 


(e)           Nothing in this Section
2.14 shall prevent or limit the ability of the Borrower from repaying or
refinancing the Loans in any other manner not otherwise prohibited by this Agreement.


 


SECTION 3.           [Reserved]


 


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SECTION 4.           Fees; Commitments


 


4.1.          Administrative
Agent’s Fees. The Borrower agrees to pay, or cause to be paid, to the
Administrative Agent, solely for its own account, an annual administrative fee
equal to $100,000 per annum, payable annually in advance
on the Closing Date for the twelve-month period following the Closing Date and
on each anniversary thereof until all Loans and all Obligations with respect
thereto have been paid in full.


 


4.2.          [Reserved]


 


4.3.          Mandatory
Termination of Commitments. The Senior Interim Loan Commitments shall
terminate at 5:00 p.m. (New York City time) on the Closing Date.


 


SECTION 5.           Payments


 


5.1.          Voluntary
Prepayments.


 


(a)           The Borrower shall have the right to
prepay Loans without premium or penalty, in whole or in part from time to time
on the following terms and conditions: 
(a) the Borrower shall give the Administrative Agent at the
Administrative Agent’s Office written notice (or telephonic notice promptly
confirmed in writing) of its intent to make such prepayment, the amount of such
prepayment and (in the case of LIBOR Loans) the specific Borrowing(s) pursuant
to which made, which notice shall be given by the Borrower no later than 1:00
p.m. (New York City time) (i) in the case of LIBOR Loans, three Business Days
prior to or (ii) in the case of ABR Loans, one Business Day prior to, the date
of such prepayment; (b) each partial prepayment of (i) any Borrowing of LIBOR
Loans shall be in a minimum amount of $5,000,000 and in multiples of $1,000,000
in excess thereof and (ii) any ABR Loans shall be in a minimum amount of
$1,000,000 and in multiples of $100,000 in excess thereof, provided that
no partial prepayment of LIBOR Loans made pursuant to a single Borrowing shall
reduce the outstanding LIBOR Loans made pursuant to such Borrowing to an amount
less than $5,000,000 and (c) any prepayment of LIBOR Loans pursuant to this Section
5.1 on any day other than the last day of an Interest Period applicable
thereto shall be subject to compliance by the Borrower with the applicable
provisions of Section 2.11. Each prepayment in respect of any Loans
pursuant to this Section 5.1 shall be applied to the Cash Pay or PIK
Loans, as specified by the Borrower on a pro rata basis
based on the aggregate principal amount of Cash Pay Loans or PIK Loans, as
applicable, outstanding at such time. At the Borrower’s election in connection
with any prepayment pursuant to this Section 5.1, such prepayment shall
not be applied to any Loan of a Defaulting Lender.


 


(b)           At the end of any “accrual period”
(as defined in Section 1272(a)(5) of the Code) ending after the fifth anniversary
of the Closing Date (each, an “AHYDO redemption date”),
the Borrower may pay in cash all accrued but unpaid interest and all accrued
but unpaid “original issue discount” (as defined in Section 1273(a)(1) of the
Code) on each Senior PIK Term Loan and/or Senior PIK Note then outstanding up
to the Optional Interest Repayment Amount, minus $50,000,000 (each such
redemption, an “Optional Interest Repayment”). The
“Optional Interest Repayment Amount”
shall mean, as of each AHYDO redemption date, the excess, if any, of (a) the
aggregate amount of accrued and unpaid interest and all accrued and 


 


62





















 


unpaid “original issue discount” (as defined
in Section 1273(a)(1) of the Code) with respect to the applicable Senior PIK
Term Loan or Senior PIK Note, over (b) an amount equal to the product of (i)
the “issue price” (as defined in Sections 1273(b) and 1274(a) of the Code) of
the applicable Senior PIK Term Loan or Senior PIK Note multiplied by (ii) the “yield
to maturity” (as defined in the Treasury Regulation Section 1.1272-1(b)(1)(i))
of such Senior PIK Term Loan or Senior PIK Note.


 


5.2.          Mandatory
Prepayments.


 


(a)           Loan Prepayments. (i)  Prior to Interim Loan Conversion Date, on
each occasion that a Prepayment Event occurs, the Borrower shall, within three
Business Days after its receipt of the Net Cash Proceeds of a Debt Incurrence
Prepayment Event, prepay, in accordance with clause (c) below Loans with
principal amount equal to 100% of the Net Cash Proceeds from such Prepayment
Event; provided that the Borrower may, to the extent required by the
Senior Secured Credit Agreement, apply such Net Cash Proceeds to prepay, repay
or repurchase Indebtedness outstanding under the Senior Secured Credit
Agreement within three Business Days after receipt thereof, prior to the
application of such Net Cash Proceeds to prepay Loans.


 


(ii)           At
any time on or after the Interim Loan Conversion Date, the provisions of Section
5.2(a)(i) shall no longer be operative.


 


(b)           [Reserved]


 


(c)           Application to Repayment Amounts.
Subject to Section 5.2(h), each prepayment of Senior Interim Loans
required by Section 5.2(a)(i) (except for Debt Incurrence Prepayment
Events resulting from the incurrence of Senior Notes) shall be applied on a pro rata basis based on the aggregate principal amount of
Senior Interim Loans and Senior Subordinated Interim Loans outstanding at such
time. Subject to Section 5.2(h), each prepayment of Senior Interim Loans
required by Section 5.2(a)(i) solely resulting from the incurrence of
Senior Notes shall be applied on a pro rata basis
based on the aggregate principal amount of Senior Interim Loans. Subject to Section
5.2(h), with respect to each such prepayment, the Borrower will, not later
than the date specified in Section 5.2(a) for making such prepayment,
give the Administrative Agent telephonic notice (promptly confirmed in writing)
requesting that the Administrative Agent provide notice of such prepayment to
each Lender.


 


(d)           Application to Loans. With
respect to each prepayment of Loans required by Section 5.2(a) or
required or permitted by Section 9.8(b) the Borrower may, if applicable,
designate the Types of Loans that are to be prepaid and the specific Borrowing(s)
pursuant to which made. In the absence of a designation by the Borrower as
described in the preceding sentence, the Administrative Agent shall, subject to
the above, make such designation in its reasonable discretion with a view, but
no obligation, to minimize breakage costs owing under Section 2.11.


 


(e)           [Reserved]


 


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(f)            LIBOR Interest Periods. In
lieu of making any payment pursuant to this Section 5.2 or pursuant to Section
9.8(b) in respect of any LIBOR Loan other than on the last day of the
Interest Period therefor so long as no Event of Default shall have occurred and
be continuing, the Borrower at its option may deposit with the Administrative
Agent an amount in Dollars equal to the amount of the LIBOR Loan to be prepaid
and such LIBOR Loan shall be repaid on the last day of the Interest Period
therefor in the required amount. Such deposit shall be held by the
Administrative Agent in a corporate time deposit account established on terms
reasonably satisfactory to the Administrative Agent, earning interest at the
then-customary rate for accounts of such type. Such deposit shall constitute
cash collateral for the LIBOR Loans to be so prepaid, provided that the
Borrower may at any time direct that such deposit be applied to make the applicable
payment required pursuant to this Section 5.2.


 


(g)           [Reserved]


 


(h)           Rejection Right. The Borrower
shall notify the Administrative Agent in writing of any mandatory prepayment of
Loans required to be made pursuant to Section 5.2(a) at least three
Business Days prior to the date of such prepayment. Each such notice shall
specify the date of such prepayment and provide a reasonably detailed
calculation of the amount of such prepayment. The Administrative Agent will
promptly notify each Lender holding Loans of the contents of the Borrower’s
prepayment notice and of such Lender’s pro rata share
of the prepayment. Each Lender may reject all or a portion of its pro rata share of any mandatory prepayment (such declined
amounts, the “Declined Proceeds”) of Loans
required to be made pursuant to Section 5.2(a) by providing written
notice (each, a “Rejection Notice”) to the Administrative
Agent and the Borrower no later than 5:00 p.m. (New York time) one Business Day
after the date of such Lender’s receipt of notice from the Administrative Agent
regarding such prepayment. Each Rejection Notice from a given Lender shall specify
the principal amount of the mandatory repayment of Loans to be rejected by such
Lender. If a Lender fails to deliver a Rejection Notice to the Administrative
Agent within the time frame specified above or such Rejection Notice fails to
specify the principal amount of the Loans to be rejected, any such failure will
be deemed an acceptance of the total amount of such mandatory prepayment of
Loans. Any Declined Proceeds remaining thereafter shall be retained by the Borrower.


 


5.3.          Method
and Place of Payment.


 


(a)           Except as otherwise specifically
provided herein, all payments under this Agreement shall be made by the Borrower,
without set-off, counterclaim or deduction of any kind, to the Administrative
Agent for the ratable account of the Lenders entitled thereto, not later than
2:00 p.m. (New York City time), in each case, on the date when due and shall be
made in immediately available funds at the Administrative Agent’s Office or at
such other office as the Administrative Agent shall specify for such purpose by
notice to the Borrower, it being understood that written or facsimile notice by
the Borrower to the Administrative Agent to make a payment from the funds in
the Borrower’s account at the Administrative Agent’s Office shall constitute
the making of such payment to the extent of such funds held in such account. All
repayments or prepayments of any Loans (whether of principal, interest or otherwise)
hereunder shall be made in Dollars and all other payments under each Loan
Document shall, unless otherwise specified in such Loan Document, be made in
Dollars. The Administrative Agent will


 


64




















 


thereafter cause to be distributed on the
same day (if payment was actually received by the Administrative Agent prior to
2:00 p.m. (New York City time) or, otherwise, on the next Business Day) like
funds relating to the payment of principal or interest ratably to the Lenders
entitled thereto.


 


(b)           Any payments under this Agreement
that are made later than 2:00 p.m. (New York City time) may be deemed to have
been made on the next succeeding Business Day in the Administrative Agent’s
sole discretion. Whenever any payment to be made hereunder shall be stated to
be due on a day that is not a Business Day, in the Administrative Agent’s sole
discretion, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable during such extension at the applicable rate in effect immediately
prior to such extension.


 


5.4.          Net
Payments.


 


(a)           Any and all payments made by or on
behalf of the Borrower or any Guarantor under this Agreement or any other Loan
Document shall be made free and clear of, and without deduction or withholding
for or on account of, any Indemnified Taxes; provided that if the
Borrower any Guarantor or the Administrative Agent shall be required by
applicable Requirements of Law to deduct or withhold any Indemnified Taxes from
such payments, then (i) the sum payable by the Borrower or Guarantor shall be
increased as necessary so that after making all required deductions and
withholdings (including deductions or withholdings applicable to additional
sums payable under this Section 5.4) the applicable Agent or Lender, as
the case may be, receives an amount equal to the sum it would have received had
no such deductions or withholdings been made, (ii) the Borrower, such Guarantor
or the Administrative Agent, as applicable, shall make such deductions or
withholdings and (iii) the Borrower, such Guarantor or the Administrative
Agent, as applicable, shall timely pay the full amount deducted or withheld to
the relevant Governmental Authority within the time allowed and in accordance
with applicable Requirements of Law. Whenever any Indemnified Taxes are payable
by the Borrower or any Guarantor, as promptly as possible thereafter, the Borrower
or such Guarantor shall send to the Administrative Agent for its own account or
for the account of a Lender or Agent, as the case may be, a certified copy of
an original official receipt (or other evidence acceptable to such Lender or
Agent, acting reasonably) received by the Borrower or such Guarantor showing payment
thereof.


 


(b)           The Borrower shall timely pay and
shall indemnify and hold harmless each Agent and Lender (whether or not such
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority) with regard to any Other Taxes.


 


(c)           The Borrower shall indemnify and hold
harmless each Agent and Lender within 20 Business Days after written demand
therefor, for the full amount of any Indemnified Taxes imposed on the Administrative
Agent or such Lender, as the case may be, on or with respect to any payment by
or on account of any obligation of the Borrower or any Guarantor hereunder or
under any other Loan Document (including Indemnified Taxes imposed or asserted
on or attributable to amounts payable under this Section 5.4) and any
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate setting forth 


 


65





















 


reasonable detail as to the amount of such
payment or liability delivered to the Borrower by a Lender or Agent (as
applicable) on its own behalf or on behalf of a Lender shall be conclusive
absent manifest error.


 


(d)     Each Non-U.S. Lender shall, to the extent
it is legally entitled to do so:


 


(i)      deliver to the Borrower
and the Administrative Agent prior to the date on which the first payment to
such Non-U.S. Lender is due hereunder 
two copies of either (x) in the case of a Non-U.S. Lender claiming
exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of “portfolio interest”, United States
Internal Revenue Service Form W-8BEN (together with a certificate representing
that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the
Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Code)), (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each
case properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or reduced rate of, U.S. Federal withholding tax on
payments by the Borrower under this Agreement or (z) Internal Revenue Service
Form W-8IMY and any attachments (including the forms described in subclauses
(x) and (y) above, as applicable); and


 


(ii)     deliver to the Borrower
and the Administrative Agent two further copies of any such form or
certification (or any applicable successor form) on or before the date that any
such form or certification expires or becomes obsolete, after the occurrence of
any event requiring a change in the most recent form previously delivered by it
to the Borrower and Administrative Agent and from time to time as reasonably
requested by the Borrower or the Administrative Agent;


 


unless in any
such case any Change in Law has occurred prior to the date on which any such
delivery would otherwise be required that renders any such form inapplicable or
would prevent such Non-U.S. Lender from duly completing and delivering any such
form with respect to it and such Non-U.S. Lender promptly so advises the
Borrower and the Administrative Agent. Each Person that shall become a
Participant pursuant to Section 13.6 or a Lender pursuant to Section
13.6 shall, upon the effectiveness of the related transfer, be required to
provide all the forms and statements required pursuant to this Section
5.4(d), provided that in the case of a Participant such Participant
shall furnish all such required forms and statements to the Administrative
Agent and to the Lender from which the related participation shall have been purchased.


 


(e)           [Reserved].


 


(f)            Each Lender and Agent that is
entitled to an exemption from or reduction of non-U.S. withholding tax under
the laws of the jurisdiction in which the Borrower is organized, or any treaty
to which such jurisdiction is a party, with respect to payments under this
Agreement or any other Loan Document by the Borrower or 


 


66





















 


Guarantor shall deliver to such Borrower or
Guarantor (with a copy to the applicable Administrative Agent), as applicable,
at the time or times prescribed by applicable law and as reasonably requested
by the Borrower or Guarantor, as applicable, such properly completed and
executed documentation prescribed by applicable law as will permit such
payments to be made without such withholding or at such reduced rate, provided
that such Lender or Agent is legally entitled to complete, execute and deliver
such documentation and such documentation is necessary in order for such
exemption or reduction to apply.


 


(g)           If any Lender or Agent, as applicable,
determines, in its sole discretion, that it has received and retained a refund
of an Indemnified Tax or Other Tax for which a payment has been made by the Borrower
pursuant to this Agreement, which refund in the good faith judgment of such
Lender or Agent, as the case may be, is attributable to such payment made by
the Borrower, then the Lender or the Administrative Agent, as the case may be,
shall reimburse the Borrower for such amount (together with any interest
received thereon) as the Lender or Administrative Agent, as the case may be,
determines in its sole discretion, exercised in good faith, to be the
proportion of the refund as will leave it, after such reimbursement, in no
better or worse after-tax financial position (taking into account expenses or
any taxes imposed on the refund) than it would have been in if the payment had
not been required; provided that the Borrower, upon the request of the
Lender or Agent, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Lender or Agent in the event the Lender or Agent is required
to repay such refund to such Governmental Authority. A Lender or Agent shall
claim any refund of Indemnified Taxes or Other Taxes that it determines in its
sole discretion, exercised in good faith, is available to it, unless it
concludes in its sole discretion that it would be adversely affected by making
such a claim. No Lender or Agent shall be obliged to disclose any information
regarding its tax affairs or computations or any other information it deems
confidential to any Loan Party in connection with this clause (h) or any
other provision of this Section 5.4.


 


(h)           If the Borrower determines that a
reasonable basis exists for contesting a Tax, each Lender or Agent, as the case
may be, shall use reasonable efforts to cooperate with the Borrower as the
Borrower may reasonably request in challenging such Tax. Subject to the provisions
of Section 2.12, each Lender and Agent agree to use reasonable efforts
to cooperate with the Borrower as the Borrower may reasonably request to minimize
any amount payable by the Borrower or any Guarantor pursuant to this Section
5.4. The Borrower shall indemnify and hold each Lender and Agent harmless
against any out-of-pocket expenses incurred by such Person in connection with
any request made by the Borrower pursuant to this Section 5.4(h). Nothing
in this Section 5.4(h) shall obligate any Lender or Agent to take any
action that such Person, in its sole judgment, determines may result in a
material detriment to such Person.


 


(i)            Each Lender and Agent that is a
United States person under Section 7701(a)(30) of the Code (each, a “U.S. Lender”) shall, to the extent it can legally do so,
deliver to the Borrower and the Administrative Agent two United States Internal
Revenue Service Forms W-9 (or substitute or successor form), properly completed
and duly executed, certifying that such Lender or Agent is exempt from United
States federal backup withholding tax (i) on or prior to the Closing Date (or
on or prior to the date it becomes a party to this Agreement), (ii) on or before
the date that such form expires or becomes obsolete, (iii) after the occurrence
of a change in the Agent’s or Lender’s circumstances requiring a change in the
most recent form 


 


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previously delivered by it to the Borrower
and the Administrative Agent, and (iv) from time to time thereafter if
reasonably requested by the Borrower or the Administrative Agent.


 


(j)            The agreements in this Section
5.4 shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.


 


5.5.          Computations
of Interest. Interest on LIBOR Loans and ABR Loans shall be calculated on
the basis of a 360-day year for the actual days elapsed and interest on overdue
interest shall be calculated on the basis of a 365- (or 366-, as the case may
be) day year for the actual days elapsed.


 


5.6.          Limit
on Rate of Interest.


 


(a)           No Payment Shall Exceed Lawful
Rate. Notwithstanding any other term of this Agreement, the Borrower shall
not be obliged to pay any interest or other amounts under or in connection with
this Agreement or otherwise in respect of the Obligations in excess of the
amount or rate permitted under or consistent with any applicable law, rule or
regulation.


 


(b)           Payment at Highest Lawful Rate.
If the Borrower is not obliged to make a payment that it would otherwise be required
to make, as a result of Section 5.6(a), the Borrower shall make such
payment to the maximum extent permitted by or consistent with applicable laws,
rules and regulations.


 


(c)           Adjustment if Any Payment Exceeds
Lawful Rate. If any provision of this Agreement or any of the other Loan
Documents would obligate the Borrower to make any payment of interest or other
amount payable to any Lender in an amount or calculated at a rate that would be
prohibited by any applicable law, rule or regulation, then notwithstanding such
provision, such amount or rate shall be deemed to have been adjusted with
retroactive effect to the maximum amount or rate of interest, as the case may
be, as would not be so prohibited by law, such adjustment to be effected, to
the extent necessary, by reducing the amount or rate of interest required to be
paid by the Borrower to the affected Lender under Section 2.8.


 


Notwithstanding the foregoing, and after
giving effect to all adjustments contemplated thereby, if any Lender shall have
received from the Borrower an amount in excess of the maximum permitted by any
applicable law, rule or regulation, then the Borrower shall be entitled, by
notice in writing to the Administrative Agent to obtain reimbursement from that
Lender in an amount equal to such excess, and pending such reimbursement, such
amount shall be deemed to be an amount payable by that Lender to the Borrower.


 


SECTION 6.           Conditions Precedent to Initial
Borrowing


 


The initial Borrowing under this Agreement is
subject to the satisfaction of the following conditions precedent, except as
otherwise agreed between the Borrower and the Administrative Agent.


 


6.1.          Loan
Documents. The Administrative Agent shall have received:


 


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(a)           this Agreement,
executed and delivered by a duly authorized officer of the Borrower and each
Lender; and


 


(b)           the Guarantee,
executed and delivered by a duly authorized officer of each Guarantor.


 


6.2.          Guarantee.
The Guarantee shall be in full force and effect.


 


6.3.          Legal
Opinions. The Administrative Agent shall have received the executed legal
opinions of (a) Simpson Thacher & Bartlett LLP, special New York counsel to
the Borrower, substantially in the form of Exhibit E-1, (b) David Money,
General Counsel of the Borrower, substantially in the form of Exhibit E-2,
and (c) local counsel to the Borrower and the Administrative Agent in the jurisdictions
listed on Schedule 6.3 in form and substance satisfactory to the
Administrative Agent. The Borrower, the other Loan Parties and the Administrative
Agent hereby instruct such counsel to deliver such legal opinions.


 


6.4.          Notice
of Borrowing. Prior to the making of each Senior Interim Loan, the
Administrative Agent shall have received a Notice of Borrowing (whether in
writing or by telephone) meeting the requirements of Section 2.3.


 


6.5.          Equity
Investments. Equity Investments, which, to the extent constituting Stock
other than common Stock, shall be on terms and conditions and pursuant to
documentation reasonably satisfactory to the Joint Lead Arrangers and
Bookrunners to the extent material to the interests of the Lenders, in an
amount not less than the Minimum Equity Amount shall have been made.


 


6.6.          Closing
Certificates. The Administrative Agent shall have received a certificate of
the Loan Parties, dated the Closing Date, substantially in the form of Exhibit
F, with appropriate insertions, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of each Loan Party, and
attaching the documents referred to in Section 6.7.


 


6.7.          Authorization
of Proceedings of Each Loan Party. The Administrative Agent shall have
received a copy of the resolutions, in form and substance satisfactory to the
Administrative Agent, of the board of directors or other managers of each Loan
Party (or a duly authorized committee thereof) authorizing (a) the execution,
delivery and performance of the Loan Documents (and any agreements relating
thereto) to which it is a party and (b) in the case of the Borrower, the
extensions of credit contemplated hereunder.


 


6.8.          Fees.
The Agents shall have received the fees in the amounts previously agreed in
writing by the Agents to be received on the Closing Date and all expenses
(including the reasonable fees, disbursements and other charges of counsel)
payable by the Loan Parties for which invoices have been presented prior to the
Closing Date shall have been paid.


 


6.9.          Representations
and Warranties. On the Closing Date, representations and warranties made by
the Loan Parties in Section 8.1(a), Section 8.2, Section 8.5
and Section 8.7, as they relate to the Loan Parties at such time, shall
be true and correct in all material respects.


 


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6.10.        Solvency
Certificate. On the Closing Date, the Administrative Agent shall have
received a certificate from an Authorized Officer of the Borrower to the effect
that after giving effect to the consummation of the Transactions, the Borrower
on a consolidated basis with its Subsidiaries is Solvent.


 


6.11.        Merger.
Concurrently with the initial Credit Event hereunder, the Merger shall have
been consummated in accordance with the terms of the Acquisition Agreement (or
the Lead Arrangers shall be reasonably satisfied with the arrangements in place
for the consummation of the Merger reasonably promptly after the initial Credit
Event hereunder and shall have received confirmation from representatives of
the Borrower that such actions shall be taken promptly after the initial Credit
Event hereunder), without giving effect to any amendments or waivers thereto
that are materially adverse to the Lenders (including, without limitation, the
definition of, and representations, warranties and conditions relating to the
absence of any, “Material Adverse Change” or Material Adverse Effect on the Company”
therein) without the reasonable consent of the Joint Lead Arrangers and
Bookrunners.


 


6.12.        Patriot
Act. The Joint Lead Arrangers and Bookrunners shall have received such
documentation and information as is reasonably requested in writing at least 10
days prior to the Closing Date by the Administrative Agent about the Borrower
and the Guarantors in respect of applicable “know your customer” and anti-money
laundering rules and regulations, including, without limitation, the Patriot
Act.


 


The acceptance of the benefits of the
Borrowing shall constitute a representation and warranty by each Loan Party to
each of the Lenders that all the applicable conditions specified in Section
6 above have been satisfied as of that time.


 


SECTION 7.           [Reserved]


 


SECTION 8.           Representations, Warranties and
Agreements


 


In order to induce the Lenders to enter into
this Agreement and to make the Loans as provided for herein, the Borrower makes
(on the Closing Date) the following representations and warranties to, and
agreements with, the Lenders, all of which shall survive the execution and
delivery of this Agreement and the making of the Loans (it being understood
that the following representations and warranties shall be deemed made with
respect to any Foreign Subsidiary only to the extent relevant under applicable
law):


 


8.1.          Corporate
Status. The Borrower and each Material Subsidiary (a) is a duly organized
and validly existing corporation or other entity in good standing under the
laws of the jurisdiction of its organization and has the corporate or other
organizational power and authority to own its property and assets and to
transact the business in which it is engaged and (b) has duly qualified and is
authorized to do business and is in good standing (if applicable) in all
jurisdictions where it is required to be so qualified, except where the failure
to be so qualified could not reasonably be expected to result in a Material
Adverse Effect.


 


8.2.          Corporate
Power and Authority. Each Loan Party has the corporate or other
organizational power and authority to execute, deliver and carry out the terms
and provisions


 


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of the Loan
Documents to which it is a party and has taken all necessary corporate or other
organizational action to authorize the execution, delivery and performance of
the Loan Documents to which it is a party. Each Loan Party has duly executed
and delivered each Loan Document to which it is a party and each such Loan
Document constitutes the legal, valid and binding obligation of such Loan Party
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditors’
rights generally and subject to general principles of equity.


 


8.3.          No
Violation. Neither the execution, delivery or performance by any Loan Party
of the Loan Documents to which it is a party nor compliance with the terms and
provisions thereof nor the consummation of the Merger and the other transactions
contemplated hereby or thereby will (a) contravene any applicable provision of
any material law, statute, rule, regulation, order, writ, injunction or decree
of any court or governmental instrumentality, (b) except as set forth on Schedule
8.3, result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of such Loan Party or any of the Restricted Subsidiaries
(other than Liens created under the Senior Secured Credit Agreement and the
documents related thereto) pursuant to, the terms of any material indenture,
loan agreement, lease agreement, mortgage, deed of trust, agreement or other
material instrument to which such Loan Party or any of the Restricted Subsidiaries
is a party or by which it or any of its property or assets is bound (any such
term, covenant, condition or provision, a “Contractual Requirement”)
other than any such breach, default or Lien that could not reasonably be expected
to result in a Material Adverse Effect or (c) violate any provision of the
certificate of incorporation, by-laws or other organizational documents of such
Loan Party or any of the Restricted Subsidiaries.


 


8.4.          Litigation.
Except as set forth on Schedule 8.4, there are no actions, suits or
proceedings (including Environmental Claims) pending or, to the knowledge of
the Borrower, threatened with respect to the Borrower or any of its
Subsidiaries that could reasonably be expected to result in a Material Adverse
Effect.


 


8.5.          Margin
Regulations. Neither the making of any Loan hereunder nor the use of the
proceeds thereof will violate the provisions of Regulation T, U or X of the
Board.


 


8.6.          Governmental
Approvals. The execution, delivery and performance of the Acquisition
Agreement or any Loan Document do not require any consent or approval of,
registration or filing with, or other action by, any Governmental Authority,
except for (i) such as have been obtained or made and are in full force and
effect and (ii) such licenses, approvals, authorizations or consents the
failure of which to obtain could not reasonably be expected to have a Material
Adverse Effect.


 


8.7.          Investment
Company Act. The Borrower is not an “investment company” within the meaning
of the Investment Company Act of 1940, as amended.


 


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8.8.          True
and Complete Disclosure.


 


(a)           None of the written factual
information and written data (taken as a whole) heretofore or contemporaneously
furnished by or on behalf of the Borrower, any of the Subsidiaries or any of
their respective authorized representatives to the Administrative Agent, any
Joint Lead Arranger and Bookrunner and/or any Lender on or before the Closing
Date (including all such information and data contained in the Loan Documents)
for purposes of or in connection with this Agreement or any transaction contemplated
herein contained any untrue statement of any material fact or omitted to state
any material fact necessary to make such information and data (taken as a
whole) not misleading at such time in light of the circumstances under which
such information or data was furnished, it being understood and agreed that for
purposes of this Section 8.8(a), such factual information and data shall
not include pro forma financial information, projections
or estimates (including financial estimates, forecasts and other
forward-looking information) and information of a general economic or general
industry nature.


 


(b)           The projections (including financial
estimates, forecasts and other forward-looking information) contained in the
information and data referred to in paragraph (a) above were based on good
faith estimates and assumptions believed by such Persons to be reasonable at
the time made, it being recognized by the Lenders that such projections as to
future events are not to be viewed as facts and that actual results during the
period or periods covered by any such projections may differ from the projected
results.


 


8.9.          Financial
Condition; Financial Statements. The Historical Financial Statements
present fairly in all material respects the consolidated financial position of
the Borrower at the respective dates of said information, statements and
results of operations for the periods covered thereby. The unaudited pro forma consolidated balance sheet of the Borrower and its
Subsidiaries as at June 30, 2007 (including the notes thereto) (the “Pro Forma Balance Sheet”) and the unaudited pro forma consolidated statement of operations of the
Borrower and its Subsidiaries for the 12-month period ending on such date
(together with the Pro Forma Balance Sheet, the “Pro Forma
Financial Statements”), copies of which have heretofore been
furnished to the Administrative Agent, have been prepared based on (x) the
Historical Financial Statements and (y) the unaudited historical consolidated
financial information described in clause (a) of this Section 8.9
and have been prepared in good faith, based on assumptions believed by the
Borrower to be reasonable as of the date of delivery thereof, and present
fairly in all material respects on a pro forma basis
the estimated financial position of the Borrower and its Subsidiaries as at
June 30, 2007 and their estimated results of operations for the period covered
thereby. The financial statements referred to in this Section 8.9 have
been prepared in accordance with GAAP consistently applied except to the extent
provided in the notes to said financial statements. After the Closing Date,
there has been no Material Adverse Effect.


 


8.10.        Tax
Matters. Except as could not reasonably be expected to have a Material
Adverse Effect, (a) each of the Borrower and the Subsidiaries has filed all
federal income tax returns and all other tax returns, domestic and foreign,
required to be filed by it and has timely paid all taxes payable by it (whether
or not shown on a tax return) that have become due, (b) the Borrower and each
of the Subsidiaries have paid, or have provided adequate reserves (in the good
faith judgment of management of the Borrower or such Subsidiary) in accordance
with 


 


72

















 


GAAP for the
payment of, all federal, state, provincial and foreign taxes applicable for the
current fiscal year to the Closing Date and (c) the Borrower and each of its
Subsidiaries has withheld amounts from their respective employees for all
periods in compliance with the tax, social, security and unemployment
withholding provisions of applicable law and timely paid such withholdings to
the respective Governmental Authorities.


 


8.11.        Compliance
with ERISA.


 


(a)           Each Plan is in compliance with
ERISA, the Code and any applicable Requirement of Law; no Reportable Event has
occurred (or is reasonably likely to occur) with respect to any Plan; no Plan
is insolvent or in reorganization (or is reasonably likely to be insolvent or
in reorganization), and no written notice of any such insolvency or
reorganization has been given to the Borrower or any ERISA Affiliate; no Plan
(other than a Multiemployer Plan) has an accumulated or waived funding
deficiency (or is reasonably likely to have such a deficiency); on and after
the effectiveness of the Pension Act, each Plan that is subject to Title IV of
ERISA has satisfied the minimum funding standards (within the meaning of
Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, and
there has been no determination that any such Plan is, or is expected to be, in
“at risk” status (within the meaning of Section 4010(d)(2) of ERISA); none of
the Borrower or any ERISA Affiliate has incurred (or is reasonably likely to
incur) any liability to or on account of a Plan pursuant to Section 409,
502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971
or 4975 of the Code or has been notified in writing that it will incur any
liability under any of the foregoing Sections with respect to any Plan; no
proceedings have been instituted (or are reasonably likely to be instituted) to
terminate or to reorganize any Plan or to appoint a trustee to administer any
Plan, and no written notice of any such proceedings has been given to the
Borrower or any ERISA Affiliate; and no lien imposed under the Code or ERISA on
the assets of the Borrower or any ERISA Affiliate exists (or is reasonably
likely to exist) nor has the Borrower or any ERISA Affiliate been notified in
writing that such a lien will be imposed on the assets of the Borrower or any
ERISA Affiliate on account of any Plan, except to the extent that a breach of
any of the representations, warranties or agreements in this Section 8.11(a)
would not result, individually or in the aggregate, in an amount of liability
that would be reasonably likely to have a Material Adverse Effect. No Plan
(other than a Multiemployer Plan) has an Unfunded Current Liability that would,
individually or when taken together with any other liabilities referenced in
this Section 8.11(a), be reasonably likely to have a Material Adverse
Effect. With respect to Plans that are Multiemployer Plans (as defined in
Section 3(37) of ERISA), the representations and warranties in this Section
8.11(a), other than any made with respect to (i) liability under Section
4201 or 4204 of ERISA or (ii) liability for termination or reorganization of
such Plans under ERISA, are made to the best knowledge of the Borrower.


 


(b)           All Foreign Plans are in compliance
with, and have been established, administered and operated in accordance with,
the terms of such Foreign Plans and applicable law, except for any failure to
so comply, establish, administer or operate the Foreign Plans as would not
reasonably be expected to have a Material Adverse Effect. All contributions or
other payments which are due with respect to each Foreign Plan have been made
in full and there are no funding deficiencies thereunder, except to the extent
any such events would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.


 


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8.12.        Subsidiaries.
Schedule 8.12 lists each Subsidiary of the Borrower (and the direct and
indirect ownership interest of the Borrower therein), in each case existing on
the Closing Date.


 


8.13.        Intellectual
Property. The Borrower and each of the Restricted Subsidiaries have
obtained all intellectual property, free from burdensome restrictions, that is
necessary for the operation of their respective businesses as currently
conducted and as proposed to be conducted, except where the failure to obtain
any such rights could not reasonably be expected to have a Material Adverse
Effect.


 


8.14.        Environmental
Laws.


 


(a)           Except as could not reasonably be
expected to have a Material Adverse Effect: 
(i) the Borrower and each of the Subsidiaries and all Real Estate are in
compliance with all Environmental Laws; (ii) neither the Borrower nor any
Subsidiary is subject to any Environmental Claim or any other liability under
any Environmental Law; (iii) neither the Borrower nor any Subsidiary is
conducting any investigation, removal, remedial or other corrective action pursuant
to any Environmental Law at any location; and (iv) no underground storage tank
or related piping, or any impoundment or other disposal area containing
Hazardous Materials is located at, on or under any Real Estate currently owned
or leased by the Borrower or any of its Subsidiaries.


 


(b)           Neither the Borrower nor any of the
Subsidiaries has treated, stored, transported, released or disposed or arranged
for disposal or transport for disposal of Hazardous Materials at, on, under or
from any currently or formerly owned or leased Real Estate or facility in a
manner that could reasonably be expected to have a Material Adverse Effect.


 


8.15.        Properties.
The Borrower and each of the Subsidiaries have good and marketable title to or
valid leasehold interests in all properties that are necessary for the
operation of their respective businesses as currently conducted and as proposed
to be conducted, free and clear of all Liens (other than any Liens permitted by
this Agreement) and except where the failure to have such good title could not
reasonably be expected to have a Material Adverse Effect.


 


8.16.        Solvency.
On the Closing Date (after giving effect to the Transactions), immediately
following the making of each Loan and after giving effect to the application of
the proceeds of such Loans, the Borrower on a consolidated basis with its
Subsidiaries will be Solvent.


 


SECTION 9.           Covenants


 


9.1.          Reports
and Other Information.


 


(a)           Notwithstanding that the Borrower may
not be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act or otherwise report on an annual and quarterly basis on forms
provided for such annual and quarterly reporting pursuant to rules and
regulations promulgated by the SEC, the Borrower shall file with the SEC (and
make available to


 


74





















 


the Administrative Agent and the Lenders
(without exhibits), without cost to any Lender, within 15 days after the
Borrower files them with the SEC) from and after the Closing Date,


 


(i)      within 90 days (or any
other time period then in effect under the rules and regulations of the Exchange
Act with respect to the filing of a Form 10-K by a non-accelerated filer) after
the end of each fiscal year, annual reports on Form 10-K, or any successor or
comparable form, containing the information required to be contained therein,
or required in such successor or comparable form;


 


(ii)     within 45 days after the
end of each of the first three fiscal quarters of each fiscal year, reports on
Form 10-Q containing all quarterly information that would be required to be
contained in Form 10-Q, or any successor or comparable form;


 


(iii)    promptly from time to
time after the occurrence of an event required to be therein reported, such
other reports on Form 8-K, or any successor or comparable form; and


 


(iv)    any other information,
documents and other reports which the Borrower would be required to file with
the SEC if it were subject to Section 13 or 15(d) of the Exchange Act;


 


in each case
in a manner that complies in all material respects with the requirements
specified in such form; provided that the Borrower shall not be so
obligated to file such reports with the SEC if the SEC does not permit such
filing, in which event the Borrower shall make available such information to
the Administrative Agent and the Lenders, in each case within 15 days after the
time the Borrower would be required to file such information with the SEC if it
were subject to Section 13 or 15(d) of the Exchange Act.


 


(b)     Notwithstanding the foregoing, the
requirements of Section 9.1(a), shall be deemed satisfied (1) by the filing
with the SEC of a registration statement, and any amendments thereto, with such
financial information that satisfies Regulation S-X, subject to exceptions
consistent with the presentation of financial information in an offering
memorandum relating to securities sold in reliance on Rule 144A of the
Securities Act, to the extent filed within the times specified in Section
9.1(a), or (2) by posting reports that would be required to be filed substantially
in the form required by the SEC on the Borrower’s website (or that of any of
its parent companies) or providing such reports to the Administrative Agent
within 15 days after the time the Borrower would be required to file such
information with the SEC if it were subject to Section 13 or 15(d) of the
Exchange Act or the financial information that would be required to be included
in such reports. Additionally, in the event that any direct or indirect parent
company of the Borrower becomes a Guarantor of the Loans, the Borrower may
satisfy its obligations under this Section 9.1 with respect to financial
information relating to the Borrower by furnishing financial information
relating to such parent; provided that the same is accompanied by
consolidating information that explains in reasonable detail the differences
between the information relating to such parent, on the one hand, and the
information relating to the Borrower and its Restricted Subsidiaries on a standalone
basis, on the other hand.


 


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9.2.          Compliance
Certificate.


 


(a)           The Borrower shall deliver to the
Administrative Agent, within 90 days after the end of each fiscal year ending after
the Closing Date, a certificate from the principal executive officer, principal
financial officer or principal accounting officer stating that a review of the
activities of the Borrower and its Restricted Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officer with a
view to determining whether the Borrower has kept, observed, performed and fulfilled
its obligations under this Agreement, and further stating, as to such Officer
signing such certificate, that to the best of his or her knowledge the Borrower
has kept, observed, performed and fulfilled each and every condition and
covenant contained in this Agreement and is not in default in the performance
or observance of any of the terms, provisions, covenants and conditions of this
Agreement (or, if a Default shall have occurred, describing all such Defaults
of which he or she may have knowledge and what action the Borrower is taking or
proposes to take with respect thereto).


 


(b)           When any Default has occurred and is
continuing under this Agreement, or if the Administrative Agent or the holder
of any other evidence of Indebtedness of the Borrower or any Subsidiary gives
any notice or takes any other action with respect to a claimed Default, the
Borrower shall promptly (which shall be no more than five (5) Business Days)
deliver to the Administrative Agent by registered or certified mail or by
facsimile transmission an Officer’s Certificate specifying such event and what
action the Borrower proposes to take with respect thereto.


 


9.3.          Taxes.
The Borrower shall pay, and shall cause each of its Restricted Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate negotiations
or proceedings or where the failure to effect such payment is not adverse in
any material respect to the Lenders.


 


9.4.          Stay,
Extension and Usury Laws. The Borrower and each of the Guarantors covenant
(to the extent that they may lawfully do so) that they shall not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at any
time hereafter in force, that may affect the covenants or the performance of
this Agreement; and the Borrower and each of the Guarantors (to the extent that
they may lawfully do so) hereby expressly waive all benefit or advantage of any
such law, and covenant that they shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Administrative
Agent, but shall suffer and permit the execution of every such power as though
no such law has been enacted.


 


9.5.          Limitation
on Restricted Payments.


 


(a)           The Borrower shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly:


 


(I)            declare or pay any dividend or make
any payment or distribution on account of the Borrower’s, or any of its Restricted
Subsidiaries’ Equity Interests, including 


 


76

















 


any dividend
or distribution payable in connection with any merger or consolidation, other
than:


 


(A)          dividends
or distributions by the Borrower payable solely in Equity Interests (other than
Disqualified Stock) of the Borrower; or


 


(B)           dividends
or distributions by a Restricted Subsidiary so long as, in the case of any
dividend or distribution payable on or in respect of any class or series of
securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary,
the Borrower or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in
accordance with its Equity Interests in such class or series of securities;


 


(II)           purchase, redeem, defease or
otherwise acquire or retire for value any Equity Interests of the Borrower or
any direct or indirect parent of the Borrower, including in connection with any
merger or consolidation;


 


(III)         make any principal payment on, or
redeem, repurchase, defease or otherwise acquire or retire for value in each
case, prior to any scheduled repayment, sinking fund payment or maturity, any
Subordinated Indebtedness, other than:


 


(A)          Indebtedness
permitted under clauses (7) and (8) of Section 9.7(b)
hereof; or


 


(B)           the
purchase, repurchase or other acquisition of Subordinated Indebtedness
purchased in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of
purchase, repurchase or acquisition; or


 


(IV)         make any Restricted Investment


 


(all such
payments and other actions set forth in clauses (I) through (IV)
above (other than any exception thereto) being collectively referred to as “Restricted Payments”), unless, at the time of such
Restricted Payment:


 


(1)           no Default shall
have occurred and be continuing or would occur as a consequence thereof;


 


(2)           immediately after
giving effect to such transaction on a pro forma  basis, the Borrower could incur $1.00 of additional
Indebtedness under Section 9.7(a) hereof; and


 


(3)           such Restricted
Payment, together with the aggregate amount of all other Restricted Payments
made by the Borrower and its Restricted Subsidiaries after the Closing Date
(including Restricted Payments permitted by clauses (1), (2)
(with respect to the payment of dividends on Refunding Capital Stock pursuant
to clause (b) thereof only),


 


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(6)(c), (9)
and (14) of Section 9.5(b) hereof but excluding all other Restricted
Payments permitted by Section 9.5(b) hereof, is less than the sum of
(without duplication):


 


(a)           50% of the
Consolidated Net Income of the Borrower for the period (taken as one accounting
period) beginning July 1, 2007, to the end of the Borrower’s most recently
ended fiscal quarter for which internal financial statements are available at
the time of such Restricted Payment, or, in the case such Consolidated Net Income
for such period is a deficit, minus 100% of such deficit; plus


 


(b)           100% of the
aggregate net cash proceeds and the fair market value, as determined in good
faith by the Borrower, of marketable securities or other property received by
the Borrower since immediately after the Closing Date (other than net cash
proceeds to the extent such net cash proceeds have been used to incur
Indebtedness, Disqualified Stock or Preferred Stock pursuant to clause
(12)(a) of Section 9.7(b) hereof) from the issue or sale of:


 


(i)            (A) Equity Interests of the
Borrower, including Treasury Capital Stock, but excluding cash proceeds and the
fair market value, as determined in good faith by the Borrower, of marketable
securities or other property received from the sale of:


 


(x)            Equity
Interests to any former, current or future employees, directors or consultants
of the Borrower, any direct or indirect parent company of the Borrower and the
Borrower’s Subsidiaries after the Closing Date to the extent such amounts have
been applied to Restricted Payments made in accordance with clause (4)
of Section 9.5(b); and


 


(y)           Designated
Preferred Stock; and


 


(B)           to
the extent such net cash proceeds are actually contributed to the Borrower,
Equity Interests of the Borrower’s direct or indirect parent companies
(excluding contributions of the proceeds from the sale of Designated Preferred
Stock of such companies or contributions to the extent such amounts have been
applied to Restricted Payments made in accordance with clause (4) of Section
9.5(b) hereof); or


 


(ii)           debt securities of the Borrower that
have been converted into or exchanged for such Equity Interests of the
Borrower;


 


provided,
however, that this clause (b) shall not include the proceeds from
(V) Refunding Capital Stock, (W) Equity Interests or convertible debt
securities of the Borrower sold to a Restricted Subsidiary, as the case may be,
(X) Disqualified Stock or debt securities that have been converted into
Disqualified Stock or (Y) Excluded Contributions; plus


 


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(c)           100% of the
aggregate amount of cash and the fair market value, as determined in good faith
by the Borrower, of marketable securities or other property contributed to the
capital of the Borrower following the Closing Date (other than net cash
proceeds to the extent such net cash proceeds (i) have been used to incur Indebtedness,
Disqualified Stock or Preferred Stock pursuant to clause (12)(a) of Section
9.7(b) hereof, (ii) are contributed by a Restricted Subsidiary, or (iii)
constitute Excluded Contributions); plus


 


(d)           100% of the
aggregate amount received in cash and the fair market value, as determined in
good faith by the Borrower, of marketable securities or other property received
by means of:


 


(i)            the sale or other disposition (other
than to the Borrower or a Restricted Subsidiary) of Restricted Investments made
by the Borrower or its Restricted Subsidiaries and repurchases and redemptions
of such Restricted Investments from the Borrower or its Restricted Subsidiaries
and repayments of loans or advances, and releases of guarantees, which
constitute Restricted Investments by the Borrower or its Restricted
Subsidiaries, in each case after the Closing Date; or


 


(ii)           the sale (other than to the Borrower
or a Restricted Subsidiary) of the stock of an Unrestricted Subsidiary or a
distribution from an Unrestricted Subsidiary (other than in each case to the
extent the Investment in such Unrestricted Subsidiary was made by the Borrower
or a Restricted Subsidiary pursuant to clause (7) of Section 9.5(b)
hereof or to the extent such Investment constituted a Permitted Investment) or
a dividend from an Unrestricted Subsidiary after the Closing Date; plus


 


(e)           in the case of the
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary after
the Closing Date, the fair market value of the Investment in such Unrestricted
Subsidiary, as determined by the Borrower in good faith (or if such fair market
value exceeds $250.0 million, in writing by an Independent Financial Advisor),
at the time of the redesignation of such Unrestricted Subsidiary as a
Restricted Subsidiary other than to the extent the Investment in such
Unrestricted Subsidiary was made by the Borrower or a Restricted Subsidiary
pursuant to clause (7) of Section 9.5(b) or to the extent such
Investment constituted a Permitted Investment.


 


(b)           The foregoing provisions of Section
9.5(a) shall not prohibit:


 


(1)           the payment of any dividend or
distribution within 60 days after the date of declaration thereof, if at the
date of declaration such payment would have complied with the provisions of
this Agreement;


 


(2)           (a) the redemption, repurchase,
defeasance, retirement or other acquisition of any Equity Interests (“Treasury Capital Stock”) or Subordinated Indebtedness of the


 


79
















 


Borrower or
any Equity Interests of any direct or indirect parent company of the Borrower,
in exchange for, or out of the proceeds of the substantially concurrent sale
(other than to a Restricted Subsidiary) of, Equity Interests of the Borrower or
any direct or indirect parent company of the Borrower to the extent contributed
to the Borrower (in each case, other than any Disqualified Stock) (“Refunding Capital Stock”) and (b) if immediately prior to
the retirement of Treasury Capital Stock, the declaration and payment of
dividends thereon was permitted under clause (6) of this Section
9.5(b), the declaration and payment of dividends on the Refunding Capital
Stock (other than Refunding Capital Stock the proceeds of which were used to
redeem, repurchase, retire or otherwise acquire any Equity Interests of any
direct or indirect parent company of the Borrower) in an aggregate amount per
year no greater than the aggregate amount of dividends per annum
that were declarable and payable on such Treasury Capital Stock immediately
prior to such retirement;


 


(3)           the defeasance, redemption,
repurchase or other acquisition or retirement of Subordinated Indebtedness of
the Borrower or any Restricted Subsidiary made in exchange for, or out of the
proceeds of the substantially concurrent sale of, new Indebtedness of the
Borrower or any Restricted Subsidiary, as the case may be, which is incurred in
compliance with Section 9.7 hereof so long as:


 


(a)           the
principal amount (or accreted value) of such new Indebtedness does not exceed
the principal amount of (or accreted value, if applicable), plus any accrued
and unpaid interest on, the Subordinated Indebtedness being so redeemed,
repurchased, defeased, acquired or retired for value, plus the amount of any
reasonable premium (including reasonable tender premiums), defeasance costs and
any reasonable fees and expenses incurred in connection with the issuance of
such new Indebtedness;


 


(b)           such
new Indebtedness is subordinated to the Loans or the applicable Guarantee at
least to the same extent as such Subordinated Indebtedness so purchased,
exchanged, redeemed, repurchased, defeased, acquired or retired for value;


 


(c)           such
new Indebtedness has a final scheduled maturity date equal to or later than the
final scheduled maturity date of the Subordinated Indebtedness being so
redeemed, repurchased, defeased, acquired or retired; and


 


(d)           such
new Indebtedness has a Weighted Average Life to Maturity equal to or greater
than the remaining Weighted Average Life to Maturity of the Subordinated
Indebtedness being so redeemed, repurchased, defeased, acquired or retired;


 


(4)           a Restricted Payment to pay for the
repurchase, retirement or other acquisition or retirement for value of Equity
Interests (other than Disqualified Stock) of the Borrower or any of its direct
or indirect parent companies held by any future, present or former employee,
director or consultant of the Borrower, any of its Subsidiaries or any of 


 


80

















 


its direct or
indirect parent companies pursuant to any management equity plan or stock
option plan or any other management or employee benefit plan or agreement,
including any Equity Interests rolled over by management of the Borrower or any
of its direct or indirect parent companies in connection with the Transactions;
provided, however, that the aggregate Restricted Payments made
under this clause (4) do not exceed in any calendar year $75.0 million
(which shall increase to $150.0 million subsequent to the consummation of an
underwritten public Equity Offering by the Borrower or any direct or indirect
parent entity of the Borrower) (with unused amounts in any calendar year being
carried over to succeeding calendar years subject to a maximum (without giving
effect to the following proviso) of $150.0 million in any calendar year (which
shall increase to $300.0 million subsequent to the consummation of an
underwritten public Equity Offering by the Borrower or any direct or indirect
parent corporation of the Borrower)); provided  further that such
amount in any calendar year may be increased by an amount not to exceed:


 


(a)           the
cash proceeds from the sale of Equity Interests (other than Disqualified Stock)
of the Borrower and, to the extent contributed to the Borrower, Equity
Interests of any of the Borrower’s direct or indirect parent companies, in each
case to members of management, directors or consultants of the Borrower, any of
its Subsidiaries or any of its direct or indirect parent companies that occurs
after the Closing Date, to the extent the cash proceeds from the sale of such Equity
Interests have not otherwise been applied to the payment of Restricted Payments
by virtue of clause (3) of Section 9.5(a); plus


 


(b)           the
cash proceeds of key man life insurance policies received by the Borrower or
its Restricted Subsidiaries after the Closing Date; less


 


(c)           the
amount of any Restricted Payments previously made with the cash proceeds
described in clauses (a) and (b) of this clause (4);


 


and provided,
further, that cancellation of Indebtedness owing to the Borrower or any
Restricted Subsidiary from members of management of the Borrower, any of the
Borrower’s direct or indirect parent companies or any of the Borrower’s
Restricted Subsidiaries in connection with a repurchase of Equity Interests of
the Borrower or any of its direct or indirect parent companies will not be
deemed to constitute a Restricted Payment for purposes of this Section 9.5
or any other provision of this Agreement;


 


(5)           the declaration and payment of
dividends to holders of any class or series of Disqualified Stock of the Borrower
or any of its Restricted Subsidiaries or any class or series of Preferred Stock
of any Restricted Subsidiary or any class or series of Preferred Stock of a
Restricted Subsidiary issued in accordance with Section 9.7 hereof to
the extent such dividends are included in the definition of “Fixed Charges”;


 


(6)           (a)           the
declaration and payment of dividends to holders of any class or series of
Designated Preferred Stock (other than Disqualified Stock) issued by the Borrower
after the Closing Date;


 


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(b)           the declaration and payment of
dividends to a direct or indirect parent company of the Borrower, the proceeds
of which will be used to fund the payment of dividends to holders of any class
or series of Designated Preferred Stock (other than Disqualified Stock) of such
parent corporation issued after the Closing Date; provided that the
amount of dividends paid pursuant to this clause (b) shall not exceed
the aggregate amount of cash actually contributed to the Borrower from the sale
of such Designated Preferred Stock; or


 


(c)           the declaration and payment of
dividends on Refunding Capital Stock that is Preferred Stock in excess of the
dividends declarable and payable thereon pursuant to clause (2) of this Section
9.5(b);


 


provided,
however, in the case of each of (a) and (c) of this clause (6),
that for the most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date of issuance
of such Designated Preferred Stock or the declaration of such dividends on
Refunding Capital Stock that is Preferred Stock, after giving effect to such
issuance or declaration on a pro forma  basis, the Borrower and its Restricted
Subsidiaries on a consolidated basis would have had a Fixed Charge Coverage
Ratio of at least 2.00 to 1.00;


 


(7)           Investments in Unrestricted
Subsidiaries having an aggregate fair market value, taken together with all
other Investments made pursuant to this clause (7) that are at the time
outstanding, without giving effect to the sale of an Unrestricted Subsidiary to
the extent the proceeds of such sale do not consist of cash or marketable
securities, not to exceed (x) prior to the Interim Loan Conversion Date, $750.0
million and (y) thereafter, 1% of Total Assets, in each case at the time of
such Investment (with the fair market value of each Investment being measured
at the time made and without giving effect to subsequent changes in value);


 


(8)           repurchases of Equity Interests
deemed to occur upon exercise of stock options or warrants if such Equity Interests
represent a portion of the exercise price of such options or warrants;


 


(9)           the declaration and payment of
dividends on the Borrower’s common stock (or the payment of dividends to any
direct or indirect parent entity to fund a payment of dividends on such entity’s
common stock), following consummation of the first public offering of the
Borrower’s common stock or the common stock of any of its direct or indirect
parent companies after the Closing Date, of up to 6% per annum
of the net cash proceeds received by or contributed to the Borrower in or from
any such public offering, other than public offerings with respect to the
Borrower’s common stock registered on Form S-4 or Form S-8 and other than any
public sale constituting an Excluded Contribution;


 


(10)         Restricted Payments that are made with
Excluded Contributions;


 


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(11)         other Restricted Payments in an
aggregate amount taken together with all other Restricted Payments made pursuant
to this clause (11) not to exceed (x) prior to the Interim Loan
Conversion Date, $400.0 million and (y) thereafter, 2% of Total Assets, in each
case at the time made;


 


(12)         distributions or payments of
Receivables Fees;


 


(13)         any Restricted Payment made in
connection with the Transaction and the fees and expenses related thereto or
used to fund amounts owed to Affiliates (including dividends to any direct or indirect
parent of the Borrower to permit payment by such parent of such amount), in
each case to the extent permitted by Section 9.9 hereof;


 


(14)         the repurchase, redemption or other
acquisition or retirement for value of any Subordinated Indebtedness in accordance
with provisions similar to those described under Sections 9.8 and 9.12
hereof; provided that all Loans subject to prepayment under Section
9.8(c) or 9.12(a) hereof which have been accepted for repayment by
the applicable Lender, have been repaid;


 


(15)         the declaration and payment of
dividends or distributions by the Borrower to, or the making of loans to, any direct
or indirect parent in amounts required for any direct or indirect parent
companies to pay, in each case without duplication,


 


(a)           franchise
and excise taxes and other fees, taxes and expenses required to maintain their
corporate existence;


 


(b)           foreign,
federal, state and local income taxes, to the extent such income taxes are
attributable to the income of the Borrower and its Restricted Subsidiaries and,
to the extent of the amount actually received from its Unrestricted
Subsidiaries, in amounts required to pay such taxes to the extent attributable
to the income of such Unrestricted Subsidiaries; provided that in each
case the amount of such payments in any fiscal year does not exceed the amount
that the Borrower and its Restricted Subsidiaries would be required to pay in
respect of foreign, federal, state and local taxes for such fiscal year were
the Borrower, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to
the extent described above) to pay such taxes separately from any such parent
entity;


 


(c)           customary
salary, bonus and other benefits payable to officers and employees of any
direct or indirect parent company of the Borrower to the extent such salaries,
bonuses and other benefits are attributable to the ownership or operation of
the Borrower and its Restricted Subsidiaries;


 


(d)           general
corporate operating and overhead costs and expenses of any direct or indirect
parent company of the Borrower to the extent such costs and expenses are
attributable to the ownership or operation of the Borrower and its Restricted
Subsidiaries; and


 


83

















 


(e)           fees
and expenses other than to Affiliates of the Borrower related to any
unsuccessful equity or debt offering of such parent entity;


 


(16)         the distribution, by dividend or
otherwise, of shares of Capital Stock of, or Indebtedness owed to the Borrower
or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than
Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash
Equivalents);


 


provided,
however, that at the time of, and after giving effect to, any Restricted
Payment permitted under clauses (11) and (16) of this Section
9.5(b) no Default shall have occurred and be continuing or would occur as a
consequence thereof.


 


(c)           The Borrower shall not permit any
Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to
the last sentence of the definition of “Unrestricted Subsidiary.”  For purposes of designating any Restricted
Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the
Borrower and its Restricted Subsidiaries (except to the extent repaid) in the
Subsidiary so designated shall be deemed to be Restricted Payments in an amount
determined as set forth in the last sentence of the definition of “Investments.”
Such designation shall be permitted only if a Restricted Payment in such amount
would be permitted at such time, whether pursuant to Section 9.5(a)
hereof or under clause (7), (10) or (11) of Section
9.5(b), or pursuant to the definition of “Permitted Investments,” and if
such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.


 


(d)           Notwithstanding
clauses (a), (b) and (c) of this Section 9.5, the
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
pay any cash dividend or make any cash distribution on or in respect of the
Borrower’s Capital Stock or purchase for cash or otherwise acquire for cash any
Capital Stock of the Borrower or any direct or indirect parent of the Borrower,
for the purpose of paying any cash dividend or making any cash distribution to,
or acquiring Capital Stock of any direct or indirect parent of the Borrower for
cash from, the Investors, or Guarantee any Indebtedness of any Affiliate of the
Borrower for the purpose of paying such dividend, making such distribution or
so acquiring such Capital Stock to or from the Investors, in each case by means
of utilization of the cumulative Restricted Payment credit provided by the
first paragraph of this covenant, or the exceptions provided by clauses (1),
(7) or (11) of the second paragraph of this covenant or clauses
(8), (10) or (13) of the definition of “Permitted Investments”,
unless (x) at the time and after giving effect to such payment, the
Consolidated Leverage Ratio of the Borrower (including for this purpose
Indebtedness of the direct and/or indirect parent company of the Borrower)
would be equal to or less than 7.50 to 1.00 and (y) such payment is otherwise
in compliance with this covenant.


 


9.6.          Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.


 


(a)           The Borrower will not, and will not
permit any of its Restricted Subsidiaries that are not Guarantors to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any consensual encumbrance or consensual restriction on the ability of any such
Restricted Subsidiary to:


 


84





















 


(1)           (A)  pay dividends or make any other distributions
to the Borrower or any of its Restricted Subsidiaries on its Capital Stock or
with respect to any other interest or participation in, or measured by, its
profits, or


 


(B)           pay any Indebtedness owed to the
Borrower or any of its Restricted Subsidiaries;


 


(2)           make loans or
advances to the Borrower or any of its Restricted Subsidiaries; or


 


(3)           sell, lease or
transfer any of its properties or assets to the Borrower or any of its
Restricted Subsidiaries.


 


(b)           The restrictions in Section 9.6(a)
hereof shall not apply to encumbrances or restrictions existing under or by reason
of:


 


(1)           contractual
encumbrances or restrictions in effect on the Closing Date, including pursuant
to the Senior Secured Credit Agreement and the related documentation and
Hedging Obligations, the Senior Subordinated Interim Loan Agreement and the
related documentation, the Senior Subordinated Refinancing Indenture, the
Senior Subordinated Notes, the Holdco Indenture and the Holdco Notes;


 


(2)           this Agreement, the
Loans, the Guarantees, the Senior Refinancing Indenture and the Senior Notes;


 


(3)           purchase money
obligations for property acquired in the ordinary course of business and
Capital Lease Obligations that impose restrictions of the nature discussed in clause
(3) of Section 9.6(a) hereof on the property so acquired;


 


(4)           applicable law or
any applicable rule, regulation or order;


 


(5)           any agreement or
other instrument of a Person acquired by the Borrower or any Restricted
Subsidiary in existence at the time of such acquisition or at the time it
merges with or into the Borrower or any of its Restricted Subsidiaries or
assumed in connection with the acquisition of assets from any Person (but, in
any such case, not created in contemplation thereof), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person and its Subsidiaries, or the property or assets
of the Person and its Subsidiaries, so acquired or the property or assets
assumed;


 


(6)           contracts for the
sale of assets, including customary restrictions with respect to a Subsidiary
of the Borrower pursuant to an agreement that has been entered into for the
sale or disposition of all or substantially all of the Capital Stock or assets
of such Subsidiary;


 


85





















 


(7)           Secured Indebtedness
otherwise permitted to be incurred pursuant to Section 9.7 hereof and Section
9.10 hereof that limits the right of the debtor to dispose of the assets
securing such Indebtedness;


 


(8)           restrictions on cash
or other deposits or net worth imposed by customers under contracts entered
into in the ordinary course of business;


 


(9)           other Indebtedness,
Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be
incurred subsequent to the Closing Date pursuant Section 9.7 hereof;


 


(10)         customary provisions
in joint venture agreements and other agreements or arrangements relating
solely to such joint venture;


 


(11)         customary provisions
contained in leases or licenses of intellectual property and other agreements,
in each case, entered into in the ordinary course of business;


 


(12)         restrictions or
conditions contained in any trading, netting, operating, construction, service,
supply, purchase or other agreement to which the Borrower or any of its
Restricted Subsidiaries is a party entered into in the ordinary course of business,
in each case so long as such agreement prohibits the encumbrance of solely the
property or assets of the Borrower or such Restricted Subsidiary that are the
subject of such agreement, the payment rights arising thereunder or the
proceeds thereof and does not extend to any other asset or property of the
Borrower or such Restricted Subsidiary;


 


(13)         restrictions created
in connection with any Receivables Facility that, in the good faith
determination of the Borrower are necessary or advisable to effect the
transactions contemplated under such Receivables Facility; and


 


(14)         any encumbrances or
restrictions of the type referred to in clauses (1), (2) and (3)
of Section 9.6(a) hereof imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or refinancings
of the contracts, instruments or obligations referred to in clauses (1)
through (13) of this Section 9.6(b); provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are, in the good faith judgment of the
Borrower, not materially more restrictive with respect to such encumbrance and
other restrictions taken as a whole than those prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing.


 


9.7.          Limitation on Incurrence of
Indebtedness and Issuance of Disqualified Stock and Preferred Stock.


 


(a)           The Borrower shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise (collectively, “incur” and
collectively, an “incurrence”),
with respect to any Indebtedness (including Acquired Indebtedness), and the
Borrower shall not issue any shares of Disqualified Stock and shall not permit
any Restricted 


 


86





















 


Subsidiary to issue any shares of
Disqualified Stock or Preferred Stock; provided, however, that
the Borrower may incur Indebtedness (including Acquired Indebtedness) or issue
shares of Disqualified Stock, and any of its Restricted Subsidiaries may incur
Indebtedness (including Acquired Indebtedness), issue shares of Disqualified
Stock and issue shares of Preferred Stock, if the Fixed Charge Coverage Ratio
on a consolidated basis for the Borrower and its Restricted Subsidiaries’ most
recently ended four fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional Indebtedness
is incurred or such Disqualified Stock or Preferred Stock is issued would have
been at least 2.00 to 1.00, determined on a pro forma  basis (including a pro forma  application of the net proceeds therefrom),
as if the additional Indebtedness had been incurred, or the Disqualified Stock
or Preferred Stock had been issued, as the case may be, and the application of
proceeds therefrom had occurred at the beginning of such four-quarter period; provided,
further, that Restricted Subsidiaries that are not Guarantors may not
incur Indebtedness or issue shares of Disqualified Stock or Preferred Stock if,
after giving pro forma  effect to such incurrence or issuance
(including a pro forma  application of the net proceeds therefrom),
more than an aggregate of $2,000.0 million of Indebtedness or Disqualified Stock
or Preferred Stock of Restricted Subsidiaries that are not Guarantors would be
outstanding pursuant to this Section 9.7(a) and clauses (12)(b)
and (14) of Section 9.7(b) at such time.


 


(b)           The provisions of Section 9.7(a)
hereof shall not apply to:


 


(1)           the incurrence of
Indebtedness under Credit Facilities by the Borrower or any of its Restricted
Subsidiaries and the issuance and creation of letters of credit and bankers’
acceptances thereunder (with letters of credit and bankers’ acceptances being
deemed to have a principal amount equal to the face amount thereof), up to an
aggregate principal amount of $16,500.0 million outstanding at any one time;


 


(2)           the incurrence by
the Borrower and any Guarantor of Indebtedness arising under (a) this Agreement
(including any Guarantee), (b) the Senior Subordinated Interim Loan Agreement
(including any guarantees thereof) (c) the Senior Refinancing Indenture
(including any guarantee thereof) and (d) the Senior Subordinated Refinancing
Indenture (including any guarantee thereof);


 


(3)           Indebtedness of the
Borrower and its Restricted Subsidiaries in existence on the Closing Date
(other than Indebtedness described in clauses (1) and (2) of this
Section 9.7(b));


 


(4)           Indebtedness
(including Capitalized Lease Obligations), Disqualified Stock and Preferred
Stock incurred by the Borrower or any of its Restricted Subsidiaries, to
finance the purchase, lease, improvement, development or construction of property
(real or personal), equipment or other fixed or capital assets that are used or
useful in a Similar Business, whether through the direct purchase of assets or
the Capital Stock of any Person owning such assets; provided that the
aggregate amount of Indebtedness, Disqualified Stock and Preferred Stock
incurred pursuant to this clause (4), when aggregated with all other
outstanding amounts of Indebtedness incurred under clause (13) to
refinance Indebtedness initially incurred in reliance on this clause (4),
does not exceed (x) 


 


87





















 


prior to the
Interim Loan Conversion Date, $1,000.0 million and (y) thereafter, 4.0% of
Total Assets, in each case at any one time outstanding so long as such
Indebtedness exists at the date of such purchase, lease or improvement or is
created within 270 days thereafter;


 


(5)           Indebtedness
incurred by the Borrower or any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to letters of credit issued in the
ordinary course of business, including letters of credit in respect of workers’
compensation or employee health claims, or other Indebtedness with respect to
reimbursement-type obligations regarding workers’ compensation or employee
health claims; provided that upon the drawing of such letters of credit
or the incurrence of such Indebtedness, such obligations are reimbursed within
30 days following such drawing or incurrence;


 


(6)           Indebtedness arising
from agreements of the Borrower or its Restricted Subsidiaries providing for
indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the disposition of any business,
assets or a Subsidiary, other than guarantees of Indebtedness incurred by any
Person acquiring all or any portion of such business, assets or a Subsidiary
for the purpose of financing such acquisition; provided that such Indebtedness
is not reflected on the balance sheet of the Borrower or any of its Restricted
Subsidiaries (contingent obligations referred to in a footnote to financial
statements and not otherwise reflected on the balance sheet will not be deemed
to be reflected on such balance sheet for purposes of this clause (6));


 


(7)           Indebtedness of the
Borrower to a Restricted Subsidiary; provided that any such Indebtedness
owing to a Restricted Subsidiary that is not a Guarantor is expressly
subordinated in right of payment to the Loans; provided, further,
that any subsequent issuance or transfer of any Capital Stock or any other
event which results in any Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such Indebtedness (except to
the Borrower or another Restricted Subsidiary) shall be deemed, in each case,
to be an incurrence of such Indebtedness;


 


(8)           Indebtedness of a
Restricted Subsidiary to the Borrower or another Restricted Subsidiary; provided
that if a Guarantor incurs such Indebtedness owing to a Restricted Subsidiary
that is not a Guarantor, such Indebtedness is expressly subordinated in right
of payment to the Guarantee of the Loans of such Guarantor; provided, further,
that any subsequent transfer of any such Indebtedness (except to the Borrower
or another Restricted Subsidiary) shall be deemed, in each case, to be an
incurrence of such Indebtedness not permitted by this clause (8);


 


(9)           shares of Preferred
Stock of a Restricted Subsidiary issued to the Borrower or another Restricted
Subsidiary; provided that any subsequent issuance or transfer of any
Capital Stock or any other event which results in any such Restricted Subsidiary
ceasing to be a Restricted Subsidiary or any other subsequent transfer of any
such shares of Preferred Stock (except to the Borrower or another Restricted
Subsidiary) shall be 


 


88





















 


deemed in each
case to be an issuance of such shares of Preferred Stock not permitted by this clause
(9);


 


(10)         Hedging Obligations
(excluding Hedging Obligations entered into for speculative purposes) for the
purpose of limiting interest rate risk with respect to any Indebtedness permitted
to be incurred pursuant to this Section 9.7, exchange rate risk or
commodity pricing risk;


 


(11)         obligations in
respect of performance, bid, appeal and surety bonds and completion guarantees
provided by the Borrower or any of its Restricted Subsidiaries in the ordinary
course of business;


 


(12)         (a)  Indebtedness or Disqualified Stock of the
Borrower and Indebtedness, Disqualified Stock or Preferred Stock of the
Borrower or any Restricted Subsidiary equal to 200.0% of the net cash proceeds
received by the Borrower since immediately after the Closing Date from the
issue or sale of Equity Interests of the Borrower or cash contributed to the
capital of the Borrower (in each case, other than Excluded Contributions or
proceeds of Disqualified Stock or sales of Equity Interests to the Borrower or
any of its Subsidiaries) as determined in accordance with clauses (3)(b)
and (3)(c) of Section 9.5(a) hereof to the extent such net cash
proceeds or cash have not been applied pursuant to such clauses to make Restricted
Payments or to make other Investments, payments or exchanges pursuant to Section
9.5(b) hereof or to make Permitted Investments (other than Permitted
Investments specified in clauses (1) and (3) of the definition
thereof); and


 


(b)           Indebtedness or Disqualified Stock of
the Borrower and Indebtedness, Disqualified Stock or Preferred Stock of the
Borrower or any Restricted Subsidiary not otherwise permitted hereunder in an
aggregate principal amount or liquidation preference, which when aggregated
with the principal amount and liquidation preference of all other Indebtedness,
Disqualified Stock and Preferred Stock then outstanding and incurred pursuant
to this clause (12)(b), does not at any one time outstanding exceed (x)
prior to the Interim Loan Conversion Date, $500.0 million and (y) thereafter,
$1,000.0 million; provided, however, that on a pro forma  basis,
together with any amounts incurred and outstanding by Restricted Subsidiaries
that are not Guarantors pursuant to the second proviso to Section 9.7(a)
and clause (14) of this Section 9.7(a), no more than $2,000.0
million of Indebtedness, Disqualified Stock or Preferred Stock at any one time
outstanding and incurred pursuant to this clause (12)(b) shall be
incurred by Restricted Subsidiaries that are not Guarantors (it being
understood that any Indebtedness, Disqualified Stock or Preferred Stock
incurred pursuant to this clause (12)(b) shall cease to be deemed incurred
or outstanding for purposes of this clause (12)(b) but shall be deemed
incurred for the purposes of Section 9.7(a) hereof from and after the
first date on which the Borrower or such Restricted Subsidiary could have
incurred such Indebtedness, Disqualified Stock or Preferred Stock under Section
9.7(a) hereof without reliance on this clause (12)(b));


 


(13)         the incurrence or
issuance by the Borrower or any Restricted Subsidiary of Indebtedness,
Disqualified Stock or Preferred Stock which serves to refund, refinance, 


 


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replace, renew,
extend or defease any Indebtedness, Disqualified Stock or Preferred Stock of
the Borrower or any Restricted Subsidiary incurred as permitted under Section
9.7(a) hereof and clauses (2), (3), (4) and (12)(a)
of this Section 9.7(b) above, this clause (13) and clause (14)
of this Section 9.7(b) or any Indebtedness, Disqualified Stock or
Preferred Stock of the Borrower or any Restricted Subsidiary issued to so
refund or refinance such Indebtedness, Disqualified Stock or Preferred Stock of
the Borrower or any Restricted Subsidiary including additional Indebtedness,
Disqualified Stock or Preferred Stock incurred to pay premiums (including
reasonable tender premiums), defeasance costs and fees in connection therewith
(the “Refinancing Indebtedness”) prior to its
respective maturity; provided, however, that such Refinancing
Indebtedness:


 


(a)           has a Weighted
Average Life to Maturity at the time such Refinancing Indebtedness is incurred
which is not less than the remaining Weighted Average Life to Maturity of the
Indebtedness, Disqualified Stock or Preferred Stock being refunded, refinanced,
replaced, renewed or defeased,


 


(b)           to the extent such
Refinancing Indebtedness refinances (i) Indebtedness subordinated or pari passu
to the Loans or any Guarantee thereof, such Refinancing Indebtedness is
subordinated or pari passu to the Loans or the Guarantee at least to the same
extent as the Indebtedness being refinanced or refunded or (ii) Disqualified
Stock or Preferred Stock, such Refinancing Indebtedness must be Disqualified Stock
or Preferred Stock, respectively, and


 


(c)           shall not include
Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the Borrower
that is not a Guarantor that refinances Indebtedness, Disqualified Stock or Preferred
Stock of the Borrower or a Guarantor;


 


and provided,
further, that subclause (a) of this clause (13) will not
apply to any refunding or refinancing of any Obligations secured by Permitted
Liens;


 


(14)         Indebtedness,
Disqualified Stock or Preferred Stock of (x) the Borrower or a Restricted
Subsidiary incurred to finance an acquisition or (y) Persons that are acquired
by the Borrower or any Restricted Subsidiary or merged into the Borrower or a
Restricted Subsidiary in accordance with the terms of this Agreement; provided
that after giving effect to such acquisition or merger, either


 


(a)           the Borrower would
be permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 9.7(a) hereof, or


 


(b)           the Fixed Charge Coverage
Ratio of the Borrower and the Restricted Subsidiaries is greater than immediately
prior to such acquisition or merger;


 


provided,
however, that on a pro forma
basis, together with amounts incurred and outstanding pursuant to the second
proviso to Section 9.7(a) and clause (12)(b) of this Section
9.7(b), no more than $2,000.0 million of Indebtedness, Disqualified Stock
or 


 


90

















 


Preferred
Stock at any one time outstanding and incurred by Restricted Subsidiaries that
are not Guarantors pursuant to this clause (14) shall be incurred and
outstanding;


 


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


 


(16)         Indebtedness of the
Borrower or any of its Restricted Subsidiaries supported by a letter of credit
issued pursuant to any Credit Facilities, in a principal amount not in excess
of the stated amount of such letter of credit;


 


(17)         (a) any guarantee by
the Borrower or a Restricted Subsidiary of Indebtedness or other obligations of
any Restricted Subsidiary, so long as the incurrence of such Indebtedness
incurred by such Restricted Subsidiary is permitted under the terms of this
Agreement, or (b) any guarantee by a Restricted Subsidiary of Indebtedness of
the Borrower; provided that such guarantee is incurred in accordance
with Section 9.13 hereof;


 


(18)         Indebtedness of
Foreign Subsidiaries of the Borrower in an amount not to exceed at any one time
outstanding and together with any other Indebtedness incurred under this clause
(18) 5.0% of the Total Assets of the Foreign Subsidiaries (it being
understood that any Indebtedness incurred pursuant to this clause (18)
shall cease to be deemed incurred or outstanding for purposes of this clause
(18) but shall be deemed incurred for the purposes of Section 9.7(a)
hereof from and after the first date on which the Borrower or such Restricted
Subsidiaries could have incurred such Indebtedness under Section 9.7(a)
hereof without reliance on this clause (18));


 


(19)         Indebtedness of the
Borrower or any of its Restricted Subsidiaries consisting of (i) the financing
of insurance premiums or (ii) take-or-pay obligations contained in supply
arrangements, in each case, incurred in the ordinary course of business;


 


(20)         Indebtedness
consisting of Indebtedness issued by the Borrower or any of its Restricted
Subsidiaries to current or former officers, directors and employees thereof,
their respective estates, spouses or former spouses, in each case to finance
the purchase or redemption of Equity Interests of the Borrower or any direct or
indirect parent company of the Borrower to the extent described in clause
(4) of Section 9.5(b) hereof;


 


(21)         customer deposits and
advance payments received in the ordinary course of business from customers for
goods and services purchased in the ordinary course of business;


 


(22)         Indebtedness owed on
a short-term basis of no longer than 30 days to banks and other financial
institutions incurred in the ordinary course of business of the Borrower and
its Restricted Subsidiaries with such banks or financial institutions that arises
in connection with ordinary banking arrangements to manage cash balances of the
Borrower and its Restricted Subsidiaries; and


 


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(23)         Indebtedness of the
Borrower or any of its Restricted Subsidiaries undertaken in connection with
cash management and related activities with respect to any Subsidiary or joint
venture in the ordinary course of business.


 


(c)           For purposes of determining
compliance with this Section 9.7:


 


(x)            in the event that an item of Indebtedness,
Disqualified Stock or Preferred Stock (or any portion thereof) meets the
criteria of more than one of the categories of permitted Indebtedness,
Disqualified Stock or Preferred Stock described in clauses (1) through (23)
of this Section 9.7(b) or is entitled to be incurred pursuant to Section
9.7(a) hereof, the Borrower, in its sole discretion, shall classify or
reclassify such item of Indebtedness, Disqualified Stock or Preferred Stock (or
any portion thereof) and shall only be required to include the amount and type
of such Indebtedness, Disqualified Stock or Preferred Stock in clauses (1)
through (23) of this Section 9.7(b) or under Section 9.7(a)
hereof; provided that all Indebtedness outstanding under the Credit
Facilities on the Closing Date shall be treated as incurred on the Closing Date
under clause (1) of Section 9.7(b) hereof; and


 


(y)           at the time of incurrence, the
Borrower will be entitled to divide and classify an item of Indebtedness in
more than one of the types of Indebtedness described in Sections 9.7(a)
and 9.7(b) hereof.


 


(d)           Accrual of interest or dividends, the
accretion of accreted value, the accretion or amortization of original issue
discounts and the payment of interest or dividends in the form of additional
Indebtedness, Disqualified Stock or Preferred Stock shall not be deemed to be
an incurrence of Indebtedness, Disqualified Stock or Preferred Stock for
purposes of this Section 9.7.


 


(e)           For purposes of determining
compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness,
the U.S. dollar-equivalent principal amount of Indebtedness denominated in a
foreign currency shall be calculated based on the relevant currency exchange
rate in effect on the date such Indebtedness was incurred, in the case of term
debt, or first committed, in the case of revolving credit debt; provided
that if such Indebtedness is incurred to refinance other Indebtedness
denominated in a foreign currency, and such refinancing would cause the
applicable U.S. dollar-denominated restriction to be exceeded if calculated at
the relevant currency exchange rate in effect on the date of such refinancing,
such U.S. dollar-denominated restriction shall be deemed not to have been
exceeded so long as the principal amount of such refinancing Indebtedness does
not exceed the principal amount of such Indebtedness being refinanced.


 


The principal amount of any Indebtedness
incurred to refinance other Indebtedness, if incurred in a different currency
from the Indebtedness being refinanced, shall be calculated based on the currency
exchange rate applicable to the currencies in which such respective
Indebtedness is denominated that is in effect on the date of such refinancing.


 


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(f)            Notwithstanding anything to the
contrary, the Borrower shall not, and shall not permit any Guarantor to, directly
or indirectly, incur any Indebtedness (including Acquired Indebtedness) that is
subordinated or junior in right of payment to any Indebtedness of the Borrower
or such Guarantor, as the case may be, unless such Indebtedness is expressly
subordinated in right of payment to the Loans or such Guarantor’s Guarantee to
the extent and in the same manner as such Indebtedness is subordinated to other
Indebtedness of the Borrower or such Guarantor, as the case may be.


 


9.8.          Asset Sales.


 


(a)           The Borrower shall not, and shall not
permit any of its Restricted Subsidiaries to consummate, directly or indirectly,
an Asset Sale, unless:


 


(1)           the Borrower or such
Restricted Subsidiary, as the case may be, receives consideration at the time
of such Asset Sale at least equal to the fair market value (as determined in
good faith by the Borrower) of the assets sold or otherwise disposed of; and


 


(2)           except in the case
of a Permitted Asset Swap, at least 75% of the consideration therefor received
by the Borrower or such Restricted Subsidiary, as the case may be, is in the
form of cash or Cash Equivalents; provided that the amount of:


 


(A)          any
liabilities (as reflected in the Borrower’s or such Restricted Subsidiary’s
most recent balance sheet or in the footnotes thereto, or if incurred or
accrued subsequent to the date of such balance sheet, such liabilities that
would have been shown on the Borrower or such Restricted Subsidiary’s balance
sheet or in the footnotes thereto if such incurrence or accrual have taken
place on the date of such balance sheet, as determined by the Borrower) of the
Borrower or such Restricted Subsidiary, other than liabilities that are by
their terms subordinated to the Loans, that are assumed by the transferee of
any such assets and for which the Borrower and all of its Restricted
Subsidiaries have been validly released by all creditors in writing,


 


(B)           any
securities, notes or other obligations or assets received by the Borrower or
such Restricted Subsidiary from such transferee that are converted by the
Borrower or such Restricted Subsidiary into cash (to the extent of the cash
received) within 180 days following the closing of such Asset Sale, and


 


(C)           any
Designated Non-cash Consideration received by the Borrower or such Restricted
Subsidiary in such Asset Sale having an aggregate fair market value, taken
together with all other Designated Non-cash Consideration received pursuant to
this clause (C) that is at that time outstanding, not to exceed 5% of
Total Assets at the time of the receipt of such Designated Non-cash
Consideration, with the fair market value of each item of Designated Non-cash
Consideration being measured at the time received and without giving effect to
subsequent changes in value,


 


shall be
deemed to be cash for purposes of this provision and for no other purpose.


 


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(b)           Within 450 days after the receipt of
any Net Asset Sale Proceeds of any Asset Sale, the Borrower or such Restricted
Subsidiary, at its option, may apply the Net Asset Sale Proceeds from such
Asset Sale,


 


(1)           to permanently
reduce:


 


(A)          Obligations
under Senior Indebtedness which is Secured Indebtedness permitted by this Agreement,
and to correspondingly reduce commitments with respect thereto;


 


(B)           Obligations
under (i) this Agreement, or (ii) other Senior Indebtedness (and to
correspondingly reduce commitments with respect thereto); provided that
to the extent the Borrower or such Guarantor reduces or makes an offer to
prepay, as applicable, Obligations under Senior Indebtedness other than the
Loans, including by making an offer in accordance with the procedures set forth
in Section 4.10 of the Senior Refinancing Indenture (such provisions of which
are incorporated herein for purposes of this Section 9.8), the Borrower
shall equally and ratably reduce or make an offer to prepay, as applicable, the
Loans at 100% of the principal amount thereof, plus the amount of accrued but
unpaid interest, if any, on the amount of the Loans that would otherwise be prepaid;
or


 


(C)           Indebtedness
of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness
owed to the Borrower or another Restricted Subsidiary (or any Affiliate thereof);


 


(2)           to make (a) an
Investment in any one or more businesses, provided that if such business
is not a Restricted Subsidiary, such Investment is in the form of the
acquisition of Capital Stock and results in the Borrower or another of its Restricted
Subsidiaries, as the case may be, owning an amount of the Capital Stock of such
business such that it constitutes a Restricted Subsidiary, (b) an Investment in
properties (c) capital expenditures or (d) acquisitions of other assets, in
each of clauses (a) through (d), that are used or useful in a
Similar Business or that replace the businesses, properties and/or assets that
are the subject of such Asset Sale;


 


provided
that, in the case of clause (2) above, a binding commitment shall be
treated as a permitted application of the Net Asset Sale Proceeds from the date
of such commitment so long as the Borrower or such other Restricted Subsidiary
enters into such commitment with the good faith expectation that such Net Asset
Sale Proceeds will be applied to satisfy such commitment within 180 days of
such commitment (an “Acceptable Commitment”)
and, in the event any Acceptable Commitment is later cancelled or terminated
for any reason before the Net Asset Sale Proceeds are applied in connection
therewith, the Borrower or such Restricted Subsidiary enters into another
Acceptable Commitment (a “Second Commitment”)
within 180 days of such cancellation or termination; provided, further,
that if any Second Commitment is later cancelled or terminated for any reason
before such Net Asset Sale Proceeds are applied, then such Net Asset Sale Proceeds
shall constitute Excess Proceeds.


 


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(c)           Any Net Asset Sale Proceeds that are
not invested or applied as provided and within the time period set forth in Section
9.8(b) shall be deemed to constitute “Excess Proceeds.”  When the aggregate amount of Excess Proceeds
exceeds $200.0 million, the Borrower shall make an offer to all Lenders or
holders of the Senior Notes, as applicable, and, if required or permitted by
the terms of any Senior Indebtedness, to the holders of such Senior
Indebtedness (an “Asset Sale Offer”),
to purchase the maximum aggregate principal amount of the Loans or Senior
Notes, as applicable, and such Senior Indebtedness that is a minimum of $2,000
or an integral multiple of $1,000 in excess thereof that may be purchased out
of the Excess Proceeds at an offer price in cash in an amount equal to 100% of
the principal amount thereof, plus accrued and unpaid interest, to the date
fixed for the closing of such offer, in accordance with the procedures set
forth in this Agreement. The Borrower will commence an Asset Sale Offer with respect
to Excess Proceeds within ten Business Days after the date that Excess Proceeds
exceed $200.0 million by mailing the notice required pursuant to the terms of
this Agreement or the Senior Refinancing Indenture, as applicable, with a copy
to the Administrative Agent.


 


To the extent that the aggregate amount of
Loans or Senior Notes, as applicable, and any other Senior Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Borrower
may use any remaining Excess Proceeds for general corporate purposes, subject
to other covenants contained in this Agreement or the Senior Refinancing Indenture,
as applicable. If the aggregate principal amount of Loans or Senior Notes, as
applicable, or the Senior Indebtedness surrendered by such holders thereof
exceeds the amount of Excess Proceeds, the Administrative Agent shall select
the Loans or Senior Notes, as applicable, and such other Senior Indebtedness to
be purchased on a pro rata basis based on the
accreted value or principal amount of the Loans or Senior Notes, as applicable,
or such Senior Indebtedness which have been accepted for repayment by the
applicable Lender. Upon completion of any such Asset Sale Offer, the amount of
Excess Proceeds shall be reset at zero. Additionally, the Borrower may, at its
option, make an Asset Sale Offer using proceeds from any Asset Sale at any time
after consummation of such Asset Sale; provided that such Asset Sale
Offer shall be in an aggregate amount of not less than $25.0 million. Upon consummation
of such Asset Sale Offer, any Net Asset Sale Proceeds not required to be used
to purchase Loans or Senior Notes, as applicable, shall not be deemed Excess
Proceeds.


 


(d)           Pending the final application of any
Net Asset Sale Proceeds pursuant to this Section 9.8, the holder of such
Net Asset Sale Proceeds may apply such Net Asset Sale Proceeds temporarily to
reduce Indebtedness outstanding under a revolving credit facility or otherwise
invest such Net Asset Sale Proceeds in any manner not prohibited by this
Agreement.


 


9.9.          Transactions with Affiliates.


 


(a)           The Borrower shall not, and shall not
permit any of its Restricted Subsidiaries to, make any payment to, or sell,
lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate of the Borrower (each of the
foregoing, an “Affiliate Transaction”) involving
aggregate payments or consideration in excess of $40.0 million, unless:


 


95





















 


(1)           such Affiliate
Transaction is on terms that are not materially less favorable to the Borrower
or its relevant Restricted Subsidiary than those that would have been obtained
in a comparable transaction by the Borrower or such Restricted Subsidiary with
an unrelated Person on an arm’s-length basis; and


 


(2)           the Borrower
delivers to the Administrative Agent with respect to any Affiliate Transaction
or series of related Affiliate Transactions involving aggregate payments or
consideration in excess of $80.0 million, a resolution adopted by the majority
of the board of directors of the Borrower approving such Affiliate Transaction
and set forth in an Officer’s Certificate certifying that such Affiliate
Transaction complies with clause (1) of this Section 9.9(a).


 


(b)           The provisions of Section 9.9(a)
hereof shall not apply to the following:


 


(1)           transactions between
or among the Borrower or any of its Restricted Subsidiaries;


 


(2)           Restricted Payments
permitted by Section 9.5 hereof and the definition of “Permitted Investments”;


 


(3)           the payment of
management, consulting, monitoring and advisory fees and related expenses to
the Investors pursuant to the Sponsor Management Agreement (plus any unpaid
management, consulting, monitoring and advisory fees and related expenses
accrued in any prior year) and the termination fees pursuant to the Sponsor
Management Agreement, in each case as in effect on the Closing Date, or any
amendments thereto (so long as any such amendment is not, in the good faith
judgment of the board of directors of the Borrower, disadvantageous to the
Lenders when taken as a whole compared to the Sponsor Management Agreement as
in effect on the Closing Date);


 


(4)           the payment of
reasonable and customary fees paid to, and indemnities provided for the benefit
of, former, current or future officers, directors, employees or consultants of
Borrower, any of its direct or indirect parent companies or any of its Restricted
Subsidiaries;


 


(5)           transactions in
which the Borrower or any of its Restricted Subsidiaries, as the case may be,
delivers to the Administrative Agent a letter from an Independent Financial
Advisor stating that such transaction is fair to the Borrower or such Restricted
Subsidiary from a financial point of view or stating that the terms are not
materially less favorable to the Borrower or its relevant Restricted Subsidiary
than those that would have been obtained in a comparable transaction by the Borrower
or such Restricted Subsidiary with an unrelated Person on an arm’s-length
basis;


 


(6)           any agreement or
arrangement as in effect as of the Closing Date, or any amendment thereto (so
long as any such amendment is not disadvantageous to the Lenders when taken as
a whole as compared to the applicable agreement as in effect on the Closing
Date);


 


96





















 


(7)           the existence of, or
the performance by the Borrower or any of its Restricted Subsidiaries of its
obligations under the terms of, any stockholders agreement or its equivalent
(including any registration rights agreement or purchase agreement related
thereto) to which it is a party as of the Closing Date and any similar
agreements which it may enter into thereafter; provided, however,
that the existence of, or the performance by the Borrower or any of its
Restricted Subsidiaries of obligations under any future amendment to any such
existing agreement or under any similar agreement entered into after the
Closing Date shall only be permitted by this clause (7) to the extent
that the terms of any such amendment or new agreement are not otherwise
disadvantageous to the Lenders when taken as a whole;


 


(8)           the Transactions and
the payment of all fees and expenses related to the Transactions;


 


(9)           transactions with
customers, clients, suppliers, or purchasers or sellers of goods or services,
in each case in the ordinary course of business and otherwise in compliance
with the terms of this Agreement which are fair to the Borrower and its
Restricted Subsidiaries, in the reasonable determination of the board of
directors of the Borrower or the senior management thereof, or are on terms at
least as favorable as might reasonably have been obtained at such time from an
unaffiliated party;


 


(10)         the issuance or
transfer of Equity Interests (other than Disqualified Stock) of the Borrower to
any Permitted Lender or to any former, current or future director, officer,
employee or consultant (or their respective estates, investment funds, investment
vehicles, spouses or former spouses) of the Borrower, any of its direct or
indirect parent companies or any of its Subsidiaries;


 


(11)         sales of accounts
receivable, or participations therein, in connection with any Receivables Facility;


 


(12)         payments by the
Borrower or any of its Restricted Subsidiaries to any of the Investors made for
any financial advisory, financing, underwriting or placement services or in
respect of other investment banking activities, including, without limitation,
in connection with acquisitions or divestitures, which payments are approved by
a majority of the board of directors of the Borrower in good faith;


 


(13)         payments or loans (or
cancellation of loans) to employees or consultants of the Borrower, any of its
direct or indirect parent companies or any of its Restricted Subsidiaries and
employment agreements, stock option plans and other similar arrangements with
such employees or consultants which, in each case, are approved by the Borrower
in good faith;


 


(14)         investments by the
Investors in securities of the Borrower or any of its Restricted Subsidiaries
(and the payment of reasonable out-of-pocket expenses incurred by the Investors
in connection therewith) so long as (i) the investment is being offered
generally to other investors on the same or more favorable terms and (ii) the
investment constitutes 


 


97





















 


less than 5%
of the proposed or outstanding issue amount of such class of securities;


 


(15)         payments to and from,
and transactions with, any joint venture in the ordinary course of business;
and


 


(16)         payments by the
Borrower (and any direct or indirect parent thereof) and its Subsidiaries
pursuant to tax sharing agreements among the Borrower (and any such parent) and
its Subsidiaries on customary terms to the extent attributable to the ownership
or operation of the Borrower and its Subsidiaries; provided that in each
case the amount of such payments in any fiscal year does not exceed the amount
that the Borrower, its Restricted Subsidiaries and its Unrestricted Subsidiaries
(to the extent of amounts received from Unrestricted Subsidiaries) would be
required to pay in respect of foreign, federal, state and local taxes for such
fiscal year were the Borrower and its Restricted Subsidiaries (to the extent
described above) to pay such taxes separately from any such parent entity.


 


9.10.        Liens. The Borrower shall not,
and shall not permit any Guarantor to, directly or indirectly, create, incur,
assume or suffer to exist any Lien (except Permitted Liens) that secures obligations
under any Indebtedness or any related Guarantee, on any asset or property of
the Borrower or any Guarantor, or any income or profits therefrom, or assign or
convey any right to receive income therefrom, unless:


 


(1)           in the case of Liens
securing Subordinated Indebtedness, the Loans and related Guarantees are
secured by a Lien on such property, assets or proceeds that is senior in
priority to such Liens; or


 


(2)           in all other cases,
the Loans or the Guarantees are equally and ratably secured or are secured by a
Lien on such property, assets or proceeds that is senior in priority to such
Liens;


 


except that
the foregoing shall not apply to (a) Liens securing Indebtedness permitted to
be incurred under the Credit Facilities, including any letter of credit
relating thereto, that are permitted by the terms of this Agreement to be
incurred pursuant to clause (1) of Section 9.7(b) and
(b) Liens which are incurred to secure Obligations in respect of any
Indebtedness permitted to be incurred pursuant to the covenant described above
under Section 9.7; provided that, with respect to Liens securing
Obligations permitted under this subclause (b), at the time of
incurrence and after giving pro forma
effect thereto, the Consolidated Secured Debt Ratio would be no greater than
4.50 to 1.00. Any Lien which is granted to secure the Loans under this Section
9.10 shall be discharged at the same time as the discharge of the Lien (other
than through the exercise of remedies with respect thereto) that gave rise to
the obligation to so secure the Loans.


 


9.11.        Corporate Existence. Subject to Sections
9.14 and 9.15, the Borrower shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Borrower or any
such Restricted Subsidiary and


 


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(ii) the rights (charter
and statutory), licenses and franchises of the Borrower and its Restricted
Subsidiaries; provided that the Borrower shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Restricted Subsidiaries, if the Borrower in good
faith shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Borrower and its Restricted Subsidiaries,
taken as a whole.


 


9.12.        Offer to Repurchase upon Change of
Control.


 


(a)           If a Change of Control occurs, unless
otherwise prepaid in accordance with Section 5.2(a) or Section 9.8
hereof, the Borrower shall make an offer to prepay all of the Loans pursuant to
the offer described below (the “Change of Control Offer”)
at a price in cash (the “Change of Control
Prepayment”) equal to 100% of the aggregate principal amount thereof
plus accrued and unpaid interest, to the date of purchase, subject to the right
of Lenders of record on the relevant record date to receive interest due on the
relevant interest payment date. Within 30 days following any Change of Control,
the Borrower shall send notice of such Change of Control Offer by first-class
mail, with a copy to the Administrative Agent, to each Lender to the address of
such Lender appearing in the Register with a copy to the Administrative Agent,
with the following information:


 


(1)           that a Change of
Control Offer is being made pursuant to this Section 9.12 and that such
Lender has the right to require the Borrower to prepay such Lender’s Loans;


 


(2)           the prepayment
amount and the prepayment date, which will be no earlier than 30 days nor later
than 60 days from the date such notice is mailed (the “Change of
Control Prepayment Date”);


 


(3)           that any Loans not
properly accepted for prepayment pursuant to this Section 9.12 will
remain outstanding and continue to accrue interest;


 


(4)           that unless the
Borrower defaults in the prepayment of the Change of Control Prepayment, all
Loans accepted for prepayment pursuant to the Change of Control Offer will
cease to accrue interest on the Change of Control Prepayment Date;


 


(5)           that Lenders shall be
entitled to withdraw their election to require the Borrower to prepay such
Loans, provided that the Borrower receives, not later than the close of
business on the expiration date of the Change of Control Offer, a facsimile
transmission or letter setting forth the name of the Lender, the principal
amount of Loans accepted for prepayment, and a statement that such Lender is
withdrawing its election to have such Loans prepaid; and


 


(6)           the other
instructions, as determined by the Borrower, consistent with this Section
9.12, that a Lender must follow.


 


The notice, if mailed in a manner herein
provided, shall be conclusively presumed to have been given, whether or not the
Lender receives such notice. If (a) the notice is mailed in a manner herein
provided and (b) any Lender fails to receive such notice or a Lender receives 


 


99

















 


such notice
but it is defective, such Lender’s failure to receive such notice or such
defect shall not affect the validity of the proceedings for the purchase of the
Loans as to all other Lenders that properly received such notice without
defect.


 


(b)           On the Change of Control Prepayment
Date, the Borrower shall, to the extent permitted by law,


 


(i)            prepay all Loans,
or portions thereof, accepted for prepayment in accordance with this Section
9.12, pursuant to the Change of Control Offer;


 


(ii)           deposit with the
Administrative Agent an amount equal to the aggregate Change of Control
Prepayment in respect of all Loans or portions thereof so accreted for
prepayment; and


 


(iii)          deliver, or cause
to be delivered, to the Administrative Agent, an Officer’s Certificate to the
Administrative Agent stating that such Loans or portions thereof have been
prepaid by the Borrower.


 


(c)           The Borrower shall not be required to
make a Change of Control Offer following a Change of Control if a third-party
makes the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Section 9.12
applicable to a Change of Control Offer made by the Borrower and repays all
Loans accepted for prepayment pursuant to such Change of Control Offer. Notwithstanding
anything to the contrary herein, a Change of Control Offer may be made in
advance of a Change of Control, conditional upon such Change of Control, if a
definitive agreement is in place for the Change of Control at the time of
making of the Change of Control Offer.


 


(d)           Other than as specifically provided
in this Section 9.12, any prepayment pursuant to this Section 9.12 shall
be made pursuant to the provisions of Sections 5.2, 5.5 and 5.6
hereof.


 


9.13.        Limitation on Guarantees of
Indebtedness by Restricted Subsidiaries. The Borrower shall not permit any
of its Wholly-Owned Subsidiaries that are Restricted Subsidiaries (and
non-Wholly-Owned Subsidiaries if such non-Wholly-Owned Subsidiaries guarantee
capital markets debt securities of the Borrower or any Guarantor), other than a
Guarantor, a Foreign Subsidiary or a Receivables Subsidiary, to guarantee the
payment of any Indebtedness of the Borrower or any other Guarantor unless:


 


(1)           such Restricted
Subsidiary within 30 days executes and delivers a Guarantee substantially in
the form of Exhibit A hereto providing for a Guarantee by such
Restricted Subsidiary, provided that:


 


(a)           if the Loans or such
Guarantor’s Guarantee is subordinated in right of payment to such Indebtedness,
the Guarantee shall be subordinated to such Restricted Subsidiary’s guarantee
with respect to such Indebtedness substantially to the same extent as the Loans
are subordinated to such Indebtedness; and


 


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(b)           if such Indebtedness
is by its express terms subordinated in right of payment to the Loans or such
Guarantor’s Guarantee, any such guarantee by such Restricted Subsidiary with
respect to such Indebtedness shall be subordinated in right of payment to such
Guarantee substantially to the same extent as such Indebtedness is subordinated
to the Loans; and


 


(2)           such Restricted
Subsidiary waives, and shall not in any manner whatsoever claim or take the
benefit or advantage of, any rights of reimbursement, indemnity or subrogation
or any other rights against the Borrower or any other Restricted Subsidiary as
a result of any payment by such Restricted Subsidiary under its Guarantee;


 


provided
that this Section 9.13 shall not be applicable to (i) any guarantee of
any Restricted Subsidiary that existed at the time such Person became a
Restricted Subsidiary and was not incurred in connection with, or in contemplation
of, such Person becoming a Restricted Subsidiary and (ii) guarantees of any
Receivables Facility by any Receivables Subsidiary.


 


9.14.        Merger, Consolidation or Sale of All
or Substantially All Assets.


 


(a)           The Borrower shall not consolidate or
merge with or into or wind up into (whether or not the Borrower is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its properties or assets, in one or more related
transactions, to any Person unless:


 


(1)           either:  (x) the Borrower is the surviving entity; or
(y) the Person formed by or surviving any such consolidation or merger (if
other than the Borrower) or to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made is an entity organized or existing
under the laws of the jurisdiction of organization of the Borrower or the laws
of the United States, any state thereof, the District of Columbia or any
territory thereof (such Person, as the case may be, being herein called the “Successor Borrower”); provided that if the surviving
Person is not a corporation, a corporation organized or existing under the laws
of the jurisdiction of organization of the Borrower or the laws of the United
States, any state thereof, the District of Columbia or any territory thereof
shall be a co-Borrower of the Loans;


 


(2)           the Successor
Borrower, if other than the Borrower, expressly assumes all the obligations of
the Borrower under the Loans pursuant to a supplemental agreement or other
documents or instruments in form reasonably satisfactory to the Administrative
Agent;


 


(3)           immediately after
such transaction, no Default exists;


 


(4)           immediately after
giving pro forma  effect to such transaction and any related
financing transactions, as if such transactions had occurred at the beginning
of the applicable four quarter period,


 


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(A)          the
Successor Borrower would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section
9.7(a) hereof, or


 


(B)           the
Fixed Charge Coverage Ratio for the Successor Borrower, the Borrower and its Restricted
Subsidiaries would be greater than such ratio for the Borrower and its
Restricted Subsidiaries immediately prior to such transaction;


 


(5)           each Guarantor,
unless it is the other party to the transactions described above, in which case
Section 9.14(c)(1)(B) hereof shall apply, shall have by supplemental
agreement confirmed that its Guarantee shall apply to such Person’s obligations
under this Agreement and the Loans; and


 


(6)           the Borrower shall
have delivered to the Administrative Agent an Officer’s Certificate stating
that such consolidation, merger or transfer and such supplemental agreements,
if any, comply with this Agreement and, if a supplemental agreement is required
in connection with such transaction, such supplement shall comply with the
applicable provisions of this Agreement.


 


(b)           The Successor Borrower shall succeed
to, and be substituted for the Borrower, as the case may be, under this
Agreement, the Guarantees, the Loans, the Senior Refinancing Indenture and the
Senior Notes as applicable. Notwithstanding clauses (3) and (4)
of Section 9.14(a) hereof,


 


(1)           any Restricted
Subsidiary may consolidate with or merge into or transfer all or part of its
properties and assets to the Borrower, and


 


(2)           the Borrower may
merge with an Affiliate of the Borrower, as the case may be, solely for the
purpose of reincorporating the Borrower in a State of the United States or any
state thereof, the District of Columbia or any territory thereof so long as the
amount of Indebtedness of the Borrower and its Restricted Subsidiaries is not
increased thereby.


 


(c)           Subject to certain limitations
described in this Agreement governing release of a Guarantee upon the sale,
disposition or transfer of a Guarantor, no Guarantor shall, and the Borrower
shall not permit any Guarantor to, consolidate or merge with or into or wind up
into (whether or not the Borrower or Guarantor is the surviving corporation),
or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets, in one or more related
transactions, to any Person unless:


 


(1)           (A)  such Guarantor is the surviving corporation
or the Person formed by or surviving any such consolidation or merger (if other
than such Guarantor) or to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made is a corporation,
partnership, limited partnership, limited liability corporation or trust
organized or existing under the laws of the jurisdiction of organization of
such Guarantor, as the case may be, or the laws of the United States, any state
thereof, the 


 


102





















 


District of
Columbia, or any territory thereof (such Guarantor or such Person, as the case
may be, being herein called the “Successor Person”);


 


(B)           the Successor Person, if other than
such Guarantor, expressly assumes all the obligations of such Guarantor under
this Agreement and such Guarantor’s related Guarantee pursuant to supplemental
agreements or other documents or instruments in form reasonably satisfactory to
the Administrative Agent;


 


(C)           immediately after such transaction,
no Default exists; and


 


(D)          the Borrower shall have delivered to
the Administrative Agent an Officer’s Certificate stating that such consolidation,
merger or transfer and such supplemental agreements, if any, comply with this
Agreement; or


 


(2)           the transaction is
made in compliance with Section 9.8 hereof.


 


(d)           Subject to certain limitations
described in this Agreement, the Successor Person shall succeed to, and be
substituted for, such Guarantor under this Agreement and such Guarantor’s
Guarantee. Notwithstanding the foregoing, any Guarantor may (i) merge into or
transfer all or part of its properties and assets to another Guarantor or the
Borrower, (ii) merge with an Affiliate of the Borrower solely for the purpose
of reincorporating the Guarantor in the United States, any state thereof, the
District of Columbia or any territory thereof or (iii) convert into a
corporation, partnership, limited partnership, limited liability corporation or
trust organized or existing under the laws of the jurisdiction of organization
of such Guarantor.


 


(e)           Notwithstanding anything to the
contrary, the mergers contemplated by the Acquisition Agreement shall be permitted
without compliance with this Section 9.14.


 


9.15.        Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the assets of
the Borrower in accordance with Section 9.14 hereof, the successor
corporation formed by such consolidation or into or with which the Borrower is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Agreement referring to the Borrower shall
refer instead to the successor corporation and not to the Borrower), and may
exercise every right and power of the Borrower under this Agreement with the
same effect as if such successor Person had been named as the Borrower herein; provided
that the predecessor Borrower shall not be relieved from the obligation to pay
the principal of and interest, if any, on the Loans except in the case of a
sale, assignment, transfer, conveyance or other disposition of all of the
Borrower’s assets that meets the requirements of Section 9.14 hereof.


 


9.16.        [Reserved]


 


9.17.        [Reserved]


 


SECTION 10.         [Reserved]


 


103

















 


SECTION 11.         Defaults and Remedies


 


11.1.        Event of Default. (I)  Any of the following events referred to in
any of Sections 11.1(a) through (i) shall constitute an “Event of Default”:


 


(a)           default in payment
when due and payable, upon redemption, acceleration or otherwise, of principal
of, or premium, if any, on the Loans;


 


(b)           default for 30 days
or more in the payment when due of interest on or with respect to the Loans;


 


(c)           failure by the
Borrower for 120 days after receipt of written notice given by the Administrative
Agent or (x) prior to the Interim Loan Conversion Date, the Required Lenders or
(y) on or after the Interim Loan Conversion Date, Lenders holding at least 30%
in aggregate principal amount of the total Loans and Senior Notes then outstanding,
to comply with any of its obligations, covenants or agreements contained in Section
9.1;


 


(d)           (1) failure by the
Borrower or any Guarantor for 60 days after receipt of written notice given by
the Administrative Agent or (x) prior to the Interim Loan Conversion Date, the
Required Lenders or (y) on or after the Interim Loan Conversion Date, Lenders
holding at least 30% in aggregate principal amount of the total Loans and
Senior Notes then outstanding, to comply with any of its obligations, covenants
or agreements (other than a default referred to in clauses (a), (b)
and (c) above) contained in this Agreement or the Loans or (2) failure
by the Borrower or any Guarantor in the due performance of its obligation to
issue Senior Notes as contemplated in Section 2.14 and such default
shall continue unremedied for a period of at least 30 days;


 


(e)           default under any
mortgage, indenture or instrument under which there is issued or by which there
is secured or evidenced any Indebtedness for money borrowed by the Borrower or
any of its Restricted Subsidiaries or the payment of which is guaranteed by the
Borrower or any of its Restricted Subsidiaries, other than Indebtedness owed to
the Borrower or a Restricted Subsidiary, whether such Indebtedness or guarantee
now exists or is created after the issuance of the Loans, if both:


 


(i)      such default either
results from the failure to pay any principal of such Indebtedness at its
stated final maturity (after giving effect to any applicable grace periods) or
relates to an obligation other than the obligation to pay principal of any such
Indebtedness at its stated final maturity and results in the holder or holders
of such Indebtedness causing such Indebtedness to become due prior to its
stated maturity; and


 


(ii)     the principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness
in default for failure to pay principal at stated final maturity (after giving
effect to any applicable grace periods), or the maturity of which has been so
accelerated, aggregates $100.0 million or more at any one time outstanding;


 


104

















 


(f)            failure by the
Borrower or any Significant Subsidiary (or group of Subsidiaries that together
would constitute a Significant Subsidiary) to pay final non-appealable
judgments aggregating in excess of $100.0 million, which final judgments remain
unpaid, undischarged and unstayed for a period of more than 60 days after such
judgment becomes final, and in the event such judgment is covered by insurance,
an enforcement proceeding has been commenced by any creditor upon such judgment
or decree which is not promptly stayed;


 


(g)           the Borrower or any
of its Restricted Subsidiaries that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:


 


(i)            commences
proceedings to be adjudicated bankrupt or insolvent;


 


(ii)           consents to the
institution of bankruptcy or insolvency proceedings against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief under
applicable Bankruptcy Law;


 


(iii)          consents to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator or other
similar official of it or for all or substantially all of its property;


 


(iv)          makes a general
assignment for the benefit of its creditors; or


 


(v)           generally is not
paying its debts as they become due;


 


(h)           a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that:


 


(i)            is for relief
against the Borrower or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary, in a proceeding in which
the Borrower or any such Restricted Subsidiaries, that is a Significant Subsidiary
or any group of Restricted Subsidiaries that, taken together, would constitute
a Significant Subsidiary, is to be adjudicated bankrupt or insolvent;


 


(ii)           appoints a
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Borrower or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary, or for all or substantially all of the
property of the Borrower or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary; or


 


(iii)          orders the
liquidation of the Borrower or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary;


 


105

















 


and the order
or decree remains unstayed and in effect for 60 consecutive days; or


 


(i)            the Guarantee of
any Significant Subsidiary (or group of Subsidiaries that together would
constitute a Significant Subsidiary) shall for any reason cease to be in full
force and effect or be declared null and void or any responsible officer of any
Guarantor that is a Significant Subsidiary (or group of Subsidiaries that
together would constitute a Significant Subsidiary), as the case may be, denies
that it has any further liability under its Guarantee or gives notice to such
effect, other than by reason of the termination of this Agreement or the
release of any such Guarantee in accordance with this Agreement.


 


(II)           In the event of any Event of Default
specified in clause (d) of Section 11.1(I) hereof, such Event of
Default and all consequences thereof (excluding any resulting payment default,
other than as a result of acceleration of the Senior Interim Loan) will be annulled,
waived and rescinded, automatically and without any action by the
Administrative Agent or the Required Lenders, if within 20 days after such
Event of Default arose:


 


(a)           the Indebtedness or guarantee that is
the basis for such Event of Default has been discharged; or


 


(b)           holders thereof have rescinded or
waived the acceleration, notice or action (as the case may be) giving rise to
such Event of Default; or


 


(c)           the default that is the basis for
such Event of Default has been cured.


 


11.2.        [Reserved]


 


11.3.        [Reserved]


 


11.4.        [Reserved]


 


11.5.        [Reserved]


 


11.6.        [Reserved]


 


11.7.        [Reserved]


 


11.8.        [Reserved]


 


11.9.        [Reserved]


 


11.10.      [Reserved]


 


11.11.      [Reserved]


 


11.12.      [Reserved]


 


11.13.      [Reserved]


 


106

















 


11.14.      [Reserved]


 


11.15.      [Reserved]


 


11.16.      Remedies upon Event of Default, Waivers
of Past Defaults.


 


(a)           If
any Event of Default (other than an Event of Default specified in clause (g)
or (h) of Section 11.1(I) hereof) occurs and is continuing under
this Agreement, (x) prior to the Interim Loan Conversion Date, the
Administrative Agent may and, upon the written request of the Required Lenders,
shall and (y) on or after the Interim Loan Conversion Date, the Administrative
Agent may, and upon written request of Lenders holding at least 30% in
aggregate principal amount of the total Loans and Senior Notes then outstanding
shall declare the principal, premium, if any, interest and any other monetary
obligations on all the then outstanding Loans to be due and payable immediately.
Upon the effectiveness of such declaration, such principal and interest shall
be due and payable immediately.


 


Notwithstanding the foregoing, in the case of
an Event of Default arising under clause (g) or (h) of Section
11.1(I) hereof, all outstanding Loans shall be due and payable immediately
without further action or notice.


 


(b)           The Required Lenders by notice to the
Administrative Agent may on behalf of all Lenders waive any existing Default
and its consequences hereunder, except a continuing Default in the payment of
the principal of, premium, if any, or interest on, any Loans (held by a
Non-Consenting Lender) and rescind any acceleration with respect to the Loans
and its consequences (provided such rescission would not conflict with any
judgment of a court of competent jurisdiction; and that the Required Lenders
may rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Agreement; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.


 


11.17.      Application of Proceeds. Any amount
received by the Administrative Agent from any Loan Party following any
acceleration of the Obligations under this Agreement or any Event of Default
with respect to the Borrower under Section 11.1(I)(g) or (h)
shall be applied:


 


(i)            first, to the payment of all reasonable and documented costs
and expenses incurred by the Administrative Agent in connection with any
collection or sale or otherwise in connection with any Loan Document, including
all court costs and the reasonable fees and expenses of its agents and legal
counsel, the repayment of all advances made by the Administrative Agent hereunder
or under any other Loan Document on behalf of any Loan Party and any other
reasonable and documented costs or expenses incurred in connection with the
exercise of any right or remedy hereunder or under any other Loan Document;


 


(ii)           second, to the Guaranteed Parties, an amount (x) equal to
all Obligations owing to them on the date of any distribution and such moneys
shall be insufficient to 


 


107





















 


pay such
amounts in full, then ratably (without priority of any one over any other) to
such Guaranteed Parties in proportion to the unpaid amounts thereof; and


 


(iii)    third,
any surplus then remaining shall be paid to the applicable Loan Parties or
their successors or assigns or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.


 


SECTION 12.         The Agents


 


12.1.        Appointment.  


 


(a)           Each Lender hereby irrevocably
designates and appoints the Administrative Agent as the agent of such Lender
under this Agreement and the other Loan Documents and irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan Documents,
together with such other powers as are reasonably incidental thereto. The
provisions of this Section 12 (other than Section 12.1(c) with
respect to the Joint Lead Arrangers and Section 12.9 with respect to the
Borrower) are solely for the benefit of the Agents and the Lenders, and the
Borrower shall not have rights as third party beneficiary of any such provision.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent.


 


(b)           [Reserved].


 


(c)           Each of the Syndication Agent and
Joint Lead Arrangers and Bookrunners, each in its capacity as such, shall not
have any obligations, duties or responsibilities under this Agreement but shall
be entitled to all benefits of this Section 12.


 


12.2.        Delegation of Duties. The
Administrative Agent may each execute any of its duties under this Agreement
and the other Loan Documents by or through agents, sub-agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Administrative Agent shall not be responsible
for the negligence or misconduct of any agents, subagents or attorneys-in-fact
selected by it in the absence of gross negligence or willful misconduct (as
determined in the final judgment of a court of competent jurisdiction).


 


12.3.        Exculpatory Provisions. No Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by any of them under or in connection with this Agreement or any other
Loan Document (except for its or such Person’s own gross negligence or willful
misconduct, as determined in the final judgment of a court of competent
jurisdiction, in connection with its duties expressly set forth herein) or (b)
responsible in any manner to any of the Lenders or any participant for any
recitals, statements, representations or warranties made by any of the Borrower,



 


108

















 


any Guarantor, any other Loan
Party or any officer thereof contained in this Agreement or any other Loan
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by such Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of the Borrower, any Guarantor or any other Loan
Party to perform its obligations hereunder or thereunder. No Agent shall be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party or any Affiliate thereof.


 


12.4.        Reliance by Agents. The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or instruction believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the Lender specified in the Register
with respect to any amount owing hereunder as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate or it shall
first be indemnified to its satisfaction by the Lenders against any and all liability
and expense that may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Loan Documents in accordance with a request of the Required Lenders, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Loans; provided
that the Administrative Agent shall not be required to take any action that, in
its opinion or in the opinion of its counsel, may expose it to liability or
that is contrary to any Loan Document or applicable law. For purposes of
determining compliance with the conditions specified in Sections 6 and 7
on the Closing Date, each Lender that has signed this Agreement shall be deemed
to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date specifying
its objection thereto.


 


12.5.        Notice of Default. The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received written notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a “notice of default.”  In the event that the Administrative Agent
receives such a notice, it shall give notice thereof to the Lenders. The
Administrative Agent shall take such action


 


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with respect
to such Default or Event of Default as shall be reasonably 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 or Event of Default as it shall deem advisable
in the best interests of the Lenders except to the extent that this Agreement
requires that such action be taken only with the approval of the Required
Lenders or each of the Lenders, as applicable).


 


12.6.        Non-Reliance on Administrative Agent
and Other Lenders. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of the Borrower, any Guarantor or any other
Loan Party, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower, Guarantor and other Loan Party
and made its own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon the Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of the Borrower,
any Guarantor and any other Loan Party. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, assets, operations, properties, financial
condition, prospects or creditworthiness of the Borrower, any Guarantor or any
other Loan Party that may come into the possession of the Administrative Agent
any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates.


 


12.7.        Indemnification. The Lenders
agree to indemnify each Agent in its capacity as such (to the extent not reimbursed
by the Loan Parties and without limiting the obligation of the Loan Parties to
do so), ratably according to their respective portions of the Total Credit Exposure
in effect on the date on which indemnification is sought (or, if indemnification
is sought after the date upon which the Commitments shall have terminated and
the Loans shall have been paid in full, ratably in accordance with their
respective portions of the Total Credit Exposure in effect immediately prior to
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (including at any time following
the payment of the Loans) be imposed on, incurred by or asserted against any
Agent in any way relating to or arising out of the Commitments, this Agreement,
any of the other Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in connection with
any of the foregoing, provided that no Lender shall be liable to an
Agent for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent’s, gross negligence or willful misconduct as
determined by a final judgment of a court of competent jurisdiction; provided,
further, that no 


 


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action taken by the
Administrative Agent in accordance with the directions of the Required Lenders
(or such other number or percentage of the Lenders as shall be required by the
Loan Documents) shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section 12.7. In the case of any
investigation, litigation or proceeding giving rise to any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever that may at any time occur (including at
any time following the payment of the Loans), this Section 12.7 applies
whether any such investigation, litigation or proceeding is brought by any
Lender or any other Person. Without limitation of the foregoing, each Lender
shall reimburse each Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including attorneys’ fees) incurred by such Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice rendered in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any
document contemplated by or referred to herein, to the extent that such Agent
is not reimbursed for such expenses by or on behalf of the Borrower, provided
that such reimbursement by the Lenders shall not affect the Borrower’s
continuing reimbursement obligations with respect thereto. If any indemnity
furnished to any Agent for any purpose shall, in the opinion of such Agent, be
insufficient or become impaired, such Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished; provided, in no event shall this
sentence require any Lender to indemnify any Agent against any liability,
obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
disbursement in excess of such Lender’s pro rata
portion thereof; and provided, further, this sentence shall not
be deemed to require any Lender to indemnify any Agent against any liability,
obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
disbursement resulting from such Agent’s gross negligence or willful misconduct.
The agreements in this Section 12.7 shall survive the payment of the
Loans and all other amounts payable hereunder.


 


12.8.        Agents in Their Individual Capacities.
Each Agent and its Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower, any Guarantor, and
any other Loan Party as though such Agent were not an Agent hereunder and under
the other Loan Documents. With respect to the Loans made by it, each Agent
shall have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not an Agent,
and the terms “Lender” and “Lenders” shall include each Agent in its individual
capacity.


 


12.9.        Successor Agents. The
Administrative Agent may at any time give notice of its resignation to the
Lenders and the Borrower. Upon receipt of any such notice of resignation, the
Required Lenders shall have the right, subject to the consent of the Borrower
(not to be unreasonably withheld or delayed) so long as no Default under Section
11.1 is continuing, to appoint a successor, which shall be a bank with an
office in the United States, or an Affiliate of any such bank with an office in
the United States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may on behalf of the Lenders, appoint a successor
Administrative Agent meeting the qualifications set forth above. Upon the
acceptance of a successor’s appointment as the Administrative Agent hereunder,
and upon the transfer by the retiring (or retired) Agent to the successor Agent



 


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of all sums, together with all
records and other documents necessary or appropriate in connection with the performance
of the duties of the successor Agent under the Loan Documents, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Agent, and the retiring Agent shall be
discharged from all of its duties and obligations hereunder or under the other
Loan Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower (following the effectiveness of such
appointment) to such Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
retiring Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Section 12 (including 12.7) and Section
13.5 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the
retiring Administrative Agent was acting as an Administrative Agent.


 


12.10.      Withholding Tax. To the extent
required by any applicable law, the Administrative Agent may withhold from any
payment to any Lender an amount equivalent to any applicable withholding tax. If
the Internal Revenue Service or any authority of the United States or other
jurisdiction asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for the account of any Lender for any
reason (including, without limitation, because the appropriate form was not
delivered, was not properly executed, or because such Lender failed to notify
the Administrative Agent of a change in circumstances that rendered the
exemption from, or reduction of, withholding tax ineffective), such Lender
shall indemnify the Administrative Agent (to the extent that the Administrative
Agent has not already been reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so) fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax or otherwise, including
penalties and interest, together with all expenses incurred, including legal
expenses, allocated staff costs and any out of pocket expenses.


 


12.11.      [Reserved].


 


12.12.      Agents under Guarantee. Each
Guaranteed Party hereby further authorizes the Administrative Agent, on behalf
of and for the benefit of the Guaranteed Parties, to be the agent for and
representative of the Guaranteed Parties with respect to the Guarantees. Subject
to Section 13.1, without further written consent or authorization from
any Guaranteed Party, the Administrative Agent may execute any documents or
instruments necessary to in connection with a sale or disposition of assets
permitted by this Agreement, release any Guarantor from the Guarantee, or with
respect to which Required Lenders (or such other Lenders as may be required to
give such consent under Section 13.1) have otherwise consented.


 


12.13.      Right to Enforce Guarantee. Anything
contained in any of the Loan Documents to the contrary notwithstanding, the
Borrower, the Agents and each Guaranteed Party hereby agree that no Guaranteed
Party shall have any right individually to enforce the Guarantee, it being understood
and agreed that all powers, rights and remedies hereunder may be exercised
solely by the Administrative Agent, on behalf of the Guaranteed Parties in
accordance with the terms hereof and all powers, rights and remedies under the
Guarantee may be exercised solely by the Administrative Agent, on behalf of the
Guaranteed Parties.


 


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SECTION 13.         Miscellaneous


 


13.1.        Amendments, Waivers and Releases.


 


(a)           Neither this Agreement nor any other
Loan Document, nor any terms hereof or thereof, may be amended, supplemented or
modified except in accordance with the provisions of this Section 13.1. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the relevant
Loan Party or Loan Parties written amendments, supplements or modifications
hereto and to the other Loan Documents for the purpose of adding any provisions
to this Agreement or the other Loan Documents or changing in any manner the
rights of the Lenders or of the Loan Parties hereunder or thereunder, (b) waive
in writing, on such terms and conditions as the Required Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any
of the requirements of this Agreement or the other Loan Documents or any
Default or Event of Default and its consequences or (c) consent to amendments,
supplements or modifications to the form of the Senior Refinancing Indenture
prior to the Interim Loan Conversion Date; provided, however,
that each such waiver and each such amendment, supplement or modification shall
be effective only in the specific instance and for the specific purpose for
which given and provided, further, that no such waiver and no
such amendment, supplement or modification shall (i) forgive or reduce any
portion of any Loan or extend the final scheduled maturity date of any Loan or
reduce the stated rate (it being understood that any change to the definition
of Consolidated Leverage Ratio or Consolidated Secured Debt Ratio or Fixed
Charge Coverage Ratio or in the component definitions thereof shall not
constitute a reduction in the rate and only the consent of the Required Lenders
shall be necessary to waive any obligation of the Borrower to pay interest at
the “default rate” or amend Section 2.8(c)), or forgive any portion, or
extend the date for the payment, of any interest or fee payable hereunder
(other than as a result of waiving the applicability of any post-default
increase in interest rates), or extend the final expiration date of any Lender’s
Commitment or increase the aggregate amount of the Commitments of any Lender,
or amend or modify any provisions of Section 5.3(a) (with respect to the
ratable allocation of any payments only) and 13.8(a) and 13.20,
or make any Loan, interest, Fee or other amount payable in any currency other
than expressly provided herein, in each case without the written consent of
each Lender directly and adversely affected thereby (or, in the case of any
Fees, the written consent of the Administrative Agent), or (ii) amend, modify
or waive any provision of this Section 13.1 or reduce the percentages
specified in the definitions of the terms “Required Lenders,” consent to the
assignment or transfer by the Borrower of its rights and obligations under any
Loan Document to which it is a party (except as permitted pursuant to Section
10.3) or alter the order of application set forth Section 11.14, in
each case without the written consent of each Lender directly and adversely
affected thereby, or (iii) amend, modify or waive any provision of Section 12
without the written consent of the then-current Administrative Agent in a
manner that directly and adversely affects such Person, (iv) release all or
substantially all of the Guarantors under the Guarantees (except as expressly
permitted by the Guarantees or this Agreement) except with the prior written
consent of each Lender or (v) amend, modify or waive any provision of Section
2.14 without the written consent of each Lender directly and adversely
affected thereby or (vi) amend or modify any provision of the Senior
Refinancing Indenture that requires (or would, if any Senior Notes were
outstanding, require) the approval of all holders of Senior Notes, without the
written consent of each Lender directly and adversely affected thereby. Any
such waiver 


 


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and any such amendment, supplement or
modification shall apply equally to each of the affected Lenders and shall be
binding upon the Borrower, such Lenders, the Administrative Agent and all
future holders of the affected Loans. In the case of any waiver, the Borrower,
the Lenders and the Administrative Agent shall be restored to their former
positions and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not continuing,
it being understood that no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon. In connection
with the foregoing provisions, the Administrative Agent may, but shall have no
obligations to, with the concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of such Lender.


 


(b)           Notwithstanding the foregoing,
without notice to or the consent of any Lenders and without any further action
necessary by the parties hereto, effective as of the Initial Loan Maturity
Date, in the event of any inconsistency between the terms contained in Sections
8, 9 and 11 of this Agreement and the corresponding terms contained
in Senior Refinancing Indenture, such provisions of this Agreement shall be
replaced with corresponding provisions of the Senior Refinancing Indenture,
and, to the extent necessary to give effect to the foregoing, each defined term
used in the sections of the Senior Refinancing Indenture shall have the meaning
set forth in the Senior Refinancing Indenture, subject to the terms of Section
1.2(h), as applicable. The applicable provisions of the Indenture as
described in Exhibit B shall be deemed incorporated and set forth in
this Agreement to the extent necessary to give effect to the foregoing. In
furtherance of the foregoing, the Administrative Agent will (and the Lenders
hereby authorize and direct the Administrative Agent to), at the request of the
Borrower, enter into such technical amendments and other modifications to this
Agreement as are reasonably necessary to effect the foregoing.


 


(c)           Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or disapprove
any amendment, waiver or consent hereunder, except that the Commitment of such
Lender may not be increased or extended without the consent of such Lender (it
being understood that any Commitments or Loans held or deemed held by any
Defaulting Lender shall be excluded for a vote of the Lenders hereunder
requiring any consent of the Lenders).


 


(d)           The Lenders hereby irrevocably agree
that the Guarantors shall be released from the Guarantees and no further action
by such Guarantor, the Borrower or the Administrative Agent is required for the
release of such Guarantor’s Guarantee, upon: (1)(A)  any sale, exchange or transfer (by merger or
otherwise) of the Capital Stock of such Guarantor (including any sale, exchange
or transfer), after which the applicable Guarantor is no longer a Restricted
Subsidiary or all or substantially all the assets of such Guarantor which sale,
exchange or transfer is made in compliance with the applicable provisions of
this Agreement; (B) the release or discharge of the guarantee by such Guarantor
of the Senior Secured Credit Agreement or such other guarantee that resulted in
the creation of such Guarantee, except a discharge or release by or as a result
of payment under such guarantee; (C) the designation of any Restricted Subsidiary
that is a Guarantor as an Unrestricted Subsidiary in compliance with Section
9.5 hereof and the definition of “Unrestricted Subsidiary” hereunder; or
(D) the Borrower’s obligations under this Agreement being discharged in
accordance with the terms of this Agreement; and (2) such Guarantor delivering 


 


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to the Administrative Agent an Officer’s
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for in this Agreement relating to such transaction have been
complied with.


 


(e)           The Lenders hereby authorize the
Administrative Agent to execute and deliver any instruments, documents, and
agreements necessary or desirable to evidence and confirm the release of any
Guarantor pursuant to the foregoing provisions of this paragraph, all without
the further consent or joinder of any Lender.


 


13.2.        Notices. Unless otherwise
expressly provided herein, all notices and other communications provided for
hereunder or under any other Loan Document shall be in writing (including by
facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or electronic mail
address, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:


 


(a)           if to the Borrower
or the Administrative Agent, to the address, facsimile number, electronic mail
address or telephone number specified for such Person on Schedule 13.2
or to such other address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to the other parties;
and


 


(b)           if to any Lender, to
the address, facsimile number, electronic mail address or telephone number
specified in its Administrative Questionnaire or to such other address,
facsimile number, electronic mail address or telephone number as shall be designated
by such party in a notice to the Borrower and the Administrative Agent.


 


All such
notices and other communications shall be deemed to be given or made upon the
earlier to occur of (i) actual receipt by the relevant party hereto and (ii)
(A) if delivered by hand or by courier, when signed for by or on behalf of the
relevant party hereto; (B) if delivered by mail, three (3) Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail, when delivered; provided that notices and other communications to
the Administrative Agent or the Lenders pursuant to Sections 2.3, 2.6,
2.9 and 5.1 shall not be effective until received.


 


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


 


13.4.        Survival of Representations and
Warranties. All representations and warranties made hereunder, in the other
Loan Documents and in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive the execution and delivery of
this Agreement and the making of the Loans hereunder.


 


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13.5.        Payment of Expenses; Indemnification.
The Borrower agrees (a) to pay or reimburse the Agents for all their reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution and delivery of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation
and administration of the transactions contemplated hereby and thereby,
including the reasonable fees, disbursements and other charges of Cahill Gordon
& Reindel LLP and one counsel
in each relevant local jurisdiction, (b) to pay or reimburse each Agent for all
its reasonable out-of-pocket costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other Loan
Documents and any such other documents, including the reasonable fees,
disbursements and other charges of Cahill Gordon & Reindel LLP,
as counsel to the Agents, or such other counsel retained with the Borrower’s
consent (such consent not to be unreasonably withheld), (c) to pay, indemnify,
and hold harmless each Lender and Agent from, any and all recording and filing
fees and (d) to pay, indemnify, and hold harmless each Lender and Agent and
their respective Affiliates, directors, officers, employees, trustees,
investment advisors and agents from and against any and all other liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever, including
reasonable and documented fees, disbursements and other charges of one primary
counsel and one local counsel in each relevant jurisdiction to such indemnified
Persons (unless there is an actual or perceived conflict of interest or the
availability of different claims or defenses in which case each such Person may
retain its own counsel), related to the Transactions (including, without
limitation, the Merger) or, with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan
Documents and any such other documents, including, without limitation, any of
the foregoing relating to the violation of, noncompliance with or liability
under, any Environmental Law (other than by such indemnified person or any of
its Affiliates, officers, directors, employees or agents (other than any
trustee or advisor)) or to any actual or alleged presence, release or
threatened release of Hazardous Materials involving or attributable to the operations
of the Borrower, any of its Subsidiaries or any of the Real Estate (all the
foregoing in this clause (d), collectively, the “indemnified
liabilities”), provided that the Borrower shall have no
obligation hereunder to any Agent or any Lender or any of their respective
Affiliates, officers, directors, employees or agents, with respect to
indemnified liabilities to the extent it has been determined by a final
non-appealable judgment of a court of competent jurisdiction to have resulted
from (i) the gross negligence, bad faith or willful misconduct of the party to
be indemnified or any of its Affiliates, officers, directors, employees or
agents, or (ii) any material breach of any Loan Document by the party to be
indemnified. No Person entitled to indemnification under clause (d) of
this Section 13.5 shall be liable for any damages arising from the use
by others of any information or other materials obtained through IntraLinks or
other similar information transmission systems in connection with this
Agreement, nor shall any such Person have any liability for any special, punitive,
indirect or consequential damages relating to this Agreement or any other Loan
Document or arising out of its activities in connection herewith or therewith
(whether before or after the Closing Date). In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 13.5
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Loan Party, its directors,
stockholders or creditors or any other Person, whether or not any Person
entitled to indemnification under clause (d) of this Section 13.5
is 


 


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otherwise a party thereto. All
amounts payable under this Section 13.5 shall be paid within ten
Business Days of receipt by the Borrower of an invoice relating thereto setting
forth such expense in reasonable retail. The agreements in this Section 13.5
shall survive repayment of the Loans and all other amounts payable hereunder.


 


13.6.        Successors and Assigns;
Participations and Assignments.


 


(a)           The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that (i) except as expressly
permitted by Section 10.3, the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section 13.6. Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants (to the extent provided in clause (c) of
this Section 13.6) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent and the Lenders and each
other Person entitled to indemnification under Section 13.5) any legal
or equitable right, remedy or claim under or by reason of this Agreement.


 


(b)           (i) 
Subject to the conditions set forth in clause (b)(ii) below, any
Lender may at any time assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans at the time owing to it) with the prior written
consent (such consent not be unreasonably withheld or delayed; it being understood
that, without limitation, the Borrower shall have the right to withhold or
delay its consent to any assignment if, in order for such assignment to comply
with applicable law, the Borrower would be required to obtain the consent of,
or make any filing or registration with, any Governmental Authority) of:


 


(A)          the Borrower, provided that no
consent of the Borrower shall be required for an assignment to (1) a Lender, an
Affiliate of a Lender, an Approved Fund, (2) if an Event of Default under Section
11.1(I)(a), (b), (g) or (h) has occurred and is continuing,
any other assignee or (3) to a Person not more than 14 days following the
Closing Date to the extent the Borrower has previously consented to an allocation
of Loans of Commitments in an amount greater than or equal to the amount
assigned to a Person in such time period; and


 


(B)           the Administrative Agent (which
consent shall not be unreasonably withheld or delayed), provided that no
consent of the Administrative Agent shall be required for an assignment of any
Loan to a Lender, an Affiliate of a Lender or an Approved Fund.


 


Notwithstanding the foregoing, no such
assignment shall be made to a natural person.


 


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(ii)           Assignments
shall be subject to the following additional conditions:


 


(A)          except in the case of an assignment to
a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the
entire remaining amount of the assigning Lender’s Commitment or Loans of any
Class, the amount of the Commitment or Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $1,000,000 in excess thereof or, unless each of the Borrower
and the Administrative Agent otherwise consents (which consents shall not be
unreasonably withheld or delayed), provided that no such consent of the
Borrower shall be required if an Event of Default under Section 11.1(I)(a),
(b), (g) or (h) has occurred and is continuing; provided
further that contemporaneous assignments to a single assignee made by
Affiliates of Lenders and related Approved Funds shall be aggregated for purposes
of meeting the minimum assignment amount requirements stated above;


 


(B)           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, provided that this clause shall
not be construed to prohibit the assignment of a proportionate part of all the
assigning Lender’s rights and obligations in respect of one Class of
Commitments or Loans;


 


(C)           The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance
via an electronic settlement system reasonably acceptable to the Administrative
Agent, together with a processing and recordation fee in the amount of $3,500
via an electronic settlement system acceptable to the Administrative Agent; provided
that the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment;


 


(D)          the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an administrative questionnaire
in a form approved by the Administrative Agent (the “Administrative
Questionnaire”) and applicable tax form; and


 


(E)           prior to the Interim Loan Conversion
Date, no Committed Lender shall assign to another Lender (other than another
Committed Lender) any Loans without the Borrower’s prior consent if, after
giving effect to such assignment, the Committed Lenders would hold, in the
aggregate, less than 51% of the aggregate principal amount of outstanding
Loans.


 


(iii)          Subject
to acceptance and recording thereof pursuant to clause (b)(iv) of this Section
13.6, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled 



 


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to the benefits of Sections 2.10, 2.11, 5.4 and 13.5).
Any assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section 13.6 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with clause (c) of this Section
13.6.


 


(iv)          The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at the Administrative Agent’s Office a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, the Commitments of, and principal amount of the
Loans owing to each Lender pursuant to the terms hereof from time to time (the “Register”). Further, each Register shall contain the name
and address of the Administrative Agent and the lending office through which
each such Person acts under this Agreement. The entries in the Register shall
be conclusive, and the Borrower, the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.


 


(v)           Upon
its receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire
and applicable tax forms (unless the assignee shall already be a Lender hereunder),
the processing and recordation fee referred to in clause (b) of this Section
13.6 and any written consent to such assignment required by clause (b)
of this Section 13.6, the Administrative Agent shall promptly accept
such Assignment and Acceptance and record the information contained therein in
the Register.


 


(c)           (i) 
Any Lender may, without the consent of the Borrower, or the
Administrative Agent, sell participations to one or more banks or other
entities (each, a “Participant”)
in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans owing to
it), provided that (A) such Lender’s obligations under this Agreement
shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, and (C) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement or any other Loan
Document, provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in clause (i) of the proviso
to Section 13.1. that affects such Participant. Subject to clause
(c)(ii) of this Section 13.6, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.10, 2.11 and 5.4
to the same extent as if it were a Lender and provided that such
Participant agrees to be subject to the requirements of those Sections as
though it were a Lender and had acquired its interest by assignment pursuant to
clause (b) of this Section 13.6. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 13.8(b)
as though it were a 


 


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Lender, provided such Participant
agrees to be subject to Section 13.8(a) as though it were a Lender.


 


(ii)           A
Participant shall not be entitled to receive any greater payment under Section
2.10, 2.11 or 5.4 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 (which consent shall not be unreasonably withheld).
Each Lender that sells a participation shall, acting solely for this purpose as
an agent of the Borrower, maintain a register on which it enters the name and address
of each participant and the principal amounts of each participant’s interest in
the Loans or other obligations under this Agreement (the “Participant
Register”). The entries in the Participant Register shall be
conclusive, absent manifest error, and such Lender shall treat each Person
whose name is recorded in the Participant Register as the owner of such Loan or
other obligation hereunder as the owner thereof for all purposes of this
Agreement notwithstanding any notice to the contrary. Any such Participant
Register shall be available for inspection by the Administrative Agent at any
reasonable time and from time to time upon reasonable prior notice.


 


(d)           Any Lender may, without the consent
of the Borrower or the Administrative Agent, 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, and this Section 13.6 shall not
apply to any such pledge or assignment of a security interest, provided
that no such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto. The Borrower hereby agrees that,
upon request of any Lender at any time and from time to time after the Borrower
has made its initial borrowing hereunder, the Borrower shall provide to such
Lender, at the Borrower’s own expense, a promissory note, substantially in the
form of Exhibit H-1 or H-2, as the case may be, evidencing the
Loans, owing to such Lender.


 


(e)           Subject to Section 13.16, the
Borrower authorizes each Lender to disclose to any Participant, secured creditor
of such Lender or assignee (each, a “Transferee”)
and any prospective Transferee any and all financial information in such Lender’s
possession concerning the Borrower and its Affiliates that has been delivered
to such Lender by or on behalf of the Borrower and its Affiliates pursuant to
this Agreement or that has been delivered to such Lender by or on behalf of the
Borrower and its Affiliates in connection with such Lender’s credit evaluation
of the Borrower and its Affiliates prior to becoming a party to this Agreement.


 


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


 


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(g)           SPV Lender. Notwithstanding anything
to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (a “SPV”), identified as such in writing from time to time by
the Granting Lender to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make the Borrower pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPV to make any
Loan and (ii) if an SPV elects not to exercise such option or otherwise fails
to provide all or any part of such Loan, the Granting Lender shall be obligated
to make such Loan pursuant to the terms hereof. The making of a Loan by an SPV
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPV shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPV, it
shall not institute against, or join any other person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, Insolvency or Liquidation
Proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section
13.6, any SPV may (i) with notice to, but without the prior written consent
of, the Borrower and the Administrative Agent and without paying any processing
fee therefor, assign all or a portion of its interests in any Loans to the Granting
Lender or to any financial institutions (consented to by the Borrower and
Administrative Agent) providing liquidity and/or credit support to or for the
account of such SPV to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPV. This Section
13.6(g) may not be amended without the written consent of the SPV. Notwithstanding
anything to the contrary in this Agreement, (x) no SPV shall be entitled to any
greater rights under Sections 2.10, 2.11 and 5.4 than its
Granting Lender would have been entitled to absent the use of such SPV and (y)
each SPV agrees to be subject to the requirements of Sections 2.10, 2.11
and 5.4 as though it were a Lender and has acquired its interest by
assignment pursuant to clause (b) of this Section 13.6.


 


13.7.        Replacements of Lenders Under Certain
Circumstances.


 


(a)           The Borrower shall be permitted to
replace any Lender that (a) requests reimbursement for amounts owing pursuant
to Section 2.10 or 5.4, (b) is affected in the manner described
in Section 2.10(a)(iii) and as a result thereof any of the actions
described in such Section is required to be taken or (c) becomes a Defaulting
Lender, with a replacement bank or other financial institution, provided
that (i) such replacement does not conflict with any Requirement of Law, (ii)
no Event of Default under Section 11.1 or 11.5 shall have occurred
and be continuing at the time of such replacement, (iii) the Borrower shall
repay (or the replacement bank or institution shall purchase, at par) all Loans
and other amounts (other than any disputed amounts), pursuant to Section
2.10, 2.11 or 5.4, as the case may be) owing to such replaced
Lender prior to the date of replacement, (iv) the replacement bank or
institution, if not already a Lender, and the terms and conditions of such
replacement, shall be reasonably satisfactory to the Administrative Agent, (v)
the replaced Lender shall be obligated to make such replacement in accordance
with 


 


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the provisions of Section 13.6 (provided
that the Borrower shall be obligated to pay the registration and processing fee
referred to therein) and (vi) any such replacement shall not be deemed to be a
waiver of any rights that the Borrower, the Administrative Agent or any other
Lender shall have against the replaced Lender.


 


(b)           If any Lender (such Lender, a “Non-Consenting Lender”) has failed to consent to a proposed
amendment, waiver, discharge or termination that pursuant to the terms of Section
13.1 requires the consent of all of the Lenders affected and with respect
to which the Required Lenders shall have granted their consent, then provided
no Event of Default then exists, the Borrower shall have the right (unless such
Non-Consenting Lender grants such consent) to replace such Non-Consenting
Lender by requiring such Non-Consenting Lender to assign its Loans, and its
Commitments hereunder to one or more assignees reasonably acceptable to the
Administrative Agent, provided that (a) all Obligations of the Borrower
owing to such Non-Consenting Lender being replaced shall be paid in full to
such Non-Consenting Lender concurrently with such assignment, and (b) the
replacement Lender shall purchase the foregoing by paying to such
Non-Consenting Lender a price equal to the principal amount thereof plus accrued
and unpaid interest thereon and (c) the Borrower shall pay to such
Non-Consenting Lender the amount, if any, owing to such Lender pursuant to Section
5.1(b). In connection with any such assignment, the Borrower,
Administrative Agent, such Non-Consenting Lender and the replacement Lender
shall otherwise comply with Section 13.6.


 


13.8.        Adjustments; Set-off.


 


(a)           If any Lender (a “benefited Lender”) shall at any time receive any payment of
all or part of its Loans, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in Section 11.1(I)(g) or
(h), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender’s Loans, or interest thereon, such benefited Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender’s Loan, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause
such benefited Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter recovered
from such benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.


 


(b)           After the occurrence and during the
continuance of an Event of Default, in addition to any rights and remedies of
the Lenders provided by law, each Lender shall have the right, without prior
notice to the Borrower, any such notice being expressly waived by the Borrower
to the extent permitted by applicable law, upon any amount becoming due and
payable by the Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Lender or any branch or
agency thereof to or for the 


 


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credit or the account of the Borrower
(excluding, for the avoidance of doubt, any Settlement Assets, except to effect
Settlement Payments such Lender is obligated to make to a third party in
respect of such Settlement Assets or as otherwise agreed in writing between the
Borrower and such Lender). Each Lender agrees promptly to notify the Borrower
and the Administrative Agent after any such set-off and application made by
such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.


 


13.9.        Counterparts. This Agreement may
be executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by facsimile or other electronic
transmission), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.


 


13.10.      Severability. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.


 


13.11.      Integration. This Agreement and the
other Loan Documents represent the agreement of the Borrower, the Administrative
Agent and the Lenders with respect to the subject matter hereof, and there are
no promises, undertakings, representations or warranties by the Borrower, the
Administrative Agent nor any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents. For
the avoidance of doubt, the Fee Letter and the Engagement Letter remain in full
force and effect in accordance with their terms.


 


13.12.      GOVERNING LAW. THIS AGREEMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


13.13.      Submission to Jurisdiction; Waivers.
The Borrower irrevocably and unconditionally:


 


(a)           submits for itself
and its property in any legal action or proceeding relating to this Agreement
and the other Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction
of the courts of the State of New York, the courts of the United States of
America for the Southern District of New York and appellate courts from any
thereof;


 


(b)           consents that any
such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in
an inconvenient court and agrees not to plead or claim the same;


 


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(c)           agrees that service
of process in any such action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to such Person at its address set forth on Schedule
13.2 at such other address of which the Administrative Agent shall have
been notified pursuant to Section 13.2;


 


(d)           agrees that nothing
herein shall affect the right to effect service of process in any other manner
permitted by law or shall limit the right to sue in any other jurisdiction; and


 


(e)           waives, to the
maximum extent not prohibited by law, any right it may have to claim or recover
in any legal action or proceeding referred to in this Section 13.13 any
special, exemplary, punitive or consequential damages.


 


13.14.      Acknowledgments. The Borrower
hereby acknowledges that:


 


(a)           it has been advised
by counsel in the negotiation, execution and delivery of this Agreement and the
other Loan Documents;


 


(b)           (i) the Loans provided
for hereunder and any related arranging or other services in connection
therewith (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document) are an arm’s-length commercial
transaction between the Borrower, on the one hand, and the Administrative
Agent, the Lenders and the other Agents on the other hand, and the Borrower and
the other Loan Parties are capable of evaluating and understanding and
understand and accept the terms, risks and conditions of the transactions contemplated
hereby and by the other Loan Documents (including any amendment, waiver or
other modification hereof or thereof); (ii) in connection with the process
leading to such transaction, each of the Administrative Agent and the other Agents,
is and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary for the Borrower, any other Loan Parties or any of their
respective Affiliates, stockholders, creditors or employees or any other
Person; (iii) neither the Administrative Agent nor any other Agent has
assumed or will assume an advisory, agency or fiduciary responsibility in favor
of the Borrower or any other Loan Party with respect to any of the transactions
contemplated hereby or the process leading thereto, including with respect to
any amendment, waiver or other modification hereof or of any other Loan
Document (irrespective of whether the Administrative Agent or other Agent has
advised or is currently advising the Borrower, the other Loan Parties or their
respective Affiliates on other matters) and neither the Administrative Agent or
other Agent has any obligation to the Borrower, the other Loan Parties or their
respective Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan
Documents; (iv) the Administrative Agent, each other Agent and each Affiliate
of the foregoing  may be engaged in a
broad range of transactions that involve interests that differ from those of
the Borrower and its Affiliates, and neither the Administrative Agent nor any
other Agent has any obligation to disclose any of such interests by virtue of
any advisory, agency or fiduciary relationship; and (v) neither the Administrative
Agent nor any other Agent has provided and none will


 


124
















 


provide any legal, accounting, regulatory or tax advice with respect to
any of the transactions contemplated hereby (including any amendment, waiver or
other modification hereof or of any other Loan Document) and the Borrower has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate. The Borrower hereby waives and releases, to the fullest
extent permitted by law, any claims that it may have against the Administrative
Agent or any other Agent with respect to any breach or alleged breach of agency
or fiduciary duty; and


 


(c)           no joint venture is
created hereby or by the other Loan Documents or otherwise exists by virtue of
the transactions contemplated hereby among the Lenders or among the Borrower,
on the one hand, and any Lender, on the other hand.


 


13.15.      WAIVERS OF JURY TRIAL.
THE BORROWER, EACH AGENT AND EACH LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


13.16.      Confidentiality. The Administrative
Agent, each other Agent and each Lender shall hold all non-public information
furnished by or on behalf of the Borrower or any of its Subsidiaries in
connection with such Lender’s evaluation of whether to become a Lender hereunder
or obtained by such Lender, the Administrative Agent or such other Agent
pursuant to the requirements of this Agreement (“Confidential
Information”), confidential in accordance with its customary procedure
for handling confidential information of this nature and (in the case of a
Lender that is a bank) in accordance with safe and sound banking practices and
in any event may make disclosure as required or requested by any governmental,
regulatory or self-regulatory agency or representative thereof or pursuant to
legal process or applicable law or regulation or (a) to such Lender’s or the
Administrative Agent’s or other Agent’s attorneys, professional advisors,
independent auditors, trustees or Affiliates, (b) to an investor or prospective
investor in a Securitization that agrees its access to information regarding
the Loan Parties, the Loans and the Loan Documents is solely for purposes of
evaluating an investment in a Securitization and who agrees to treat such
information as confidential, (c) to a trustee, collateral manager, servicer,
backup servicer, noteholder or secured party in connection with the
administration, servicing and reporting on the assets serving as collateral for
a securitization and who agrees to treat such information as confidential and
(d) to a nationally recognized ratings agency that requires access to
information regarding the Loan Parties, the Loans and Loan Documents in
connection with ratings issued with respect to a Securitization; provided
that unless specifically prohibited by applicable law or court order, each
Lender, the Administrative Agent and each other Agent shall use commercially
reasonable efforts to notify the Borrower of any request made to such Lender,
the Administrative Agent or such other Agent by any governmental, regulatory or
self regulatory agency or representative thereof (other than any such request
in connection with an examination of the financial condition of such Lender by
such agency) for disclosure of any such non-public information prior to
disclosure of such information, and provided  further that in no
event shall any Lender, the Administrative Agent or any other Agent be
obligated or required to return any materials furnished by the Borrower or any
Subsidiary. Each Lender, the Administrative Agent and each other Agent agrees
that it will not provide to prospective Transferees or to any pledgee 


 


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referred to in Section 13.6 or to
prospective direct or indirect contractual counterparties in swap agreements to
be entered into in connection with Loans made hereunder any of the Confidential
Information unless such Person is advised of and agrees to be bound by the
provisions of this Section 13.16 or confidentiality provisions at least
as restrictive as those set forth in this Section 13.16.


 


13.17.      Direct Website Communications.


 


(a)           The Borrower may, at its option,
provide to the Administrative Agent any information, documents and other materials
that it is obligated to furnish to the Administrative Agent pursuant to the
Loan Documents, including, without limitation, all notices, requests, financial
statements, financial and other reports, certificates and other information
materials, but excluding any such communication that (A) relates to a request
for a new, or a conversion of an existing, borrowing or other extension of
credit (including any election of an interest rate or interest period relating
thereto), (B) relates to the payment of any principal or other amount due under
the Senior Secured Credit Agreement prior to the scheduled date therefor, (C)
provides notice of any default or event of default under this Agreement or (D)
is required to be delivered to satisfy any condition precedent to the
effectiveness of the Senior Secured Credit Agreement and/or any borrowing or
other extension of credit thereunder (all such non-excluded communications
being referred to herein collectively as “Communications”),
by transmitting the Communications in an electronic/soft medium in a format
reasonably acceptable to the Administrative Agent to the Administrative Agent
at an email address provided by the Administrative Agent from time to time; provided
that: (i) upon written request by the Administrative Agent, the Borrower shall
deliver paper copies of such documents to the Administrative Agent for further
distribution to each Lender until a written request to cease delivering paper
copies is given by the Administrative Agent and (ii) the Borrower shall notify
(which may be by facsimile or electronic mail) the Administrative Agent of the
posting of any such documents and provide to the Administrative Agent by electronic
mail electronic versions (i.e., soft copies) of such documents. Each Lender
shall be solely responsible for timely accessing posted documents or requesting
delivery of paper copies of such documents from the Administrative Agent and
maintaining its copies of such documents. Nothing in this Section 13.17
shall prejudice the right of the Borrower, the Administrative Agent, any other
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.


 


The Administrative Agent agrees that the
receipt of the Communications by the Administrative Agent at its e-mail address
set forth above shall constitute effective delivery of the Communications to
the Administrative Agent for purposes of the Loan Documents. Each Lender agrees
that notice to it (as provided in the next sentence) specifying that the
Communications have been posted to the Platform shall constitute effective
delivery of the Communications to such Lender for purposes of the Loan
Documents. Each Lender agrees (A) to notify the Administrative Agent in writing
(including by electronic communication) from time to time of such Lender’s
e-mail address to which the foregoing notice may be sent by electronic
transmission and (B) that the foregoing notice may be sent to such e-mail
address.


 


(b)           The Borrower further agrees that any
Agent may make the Communications available to the Lenders by posting the
Communications on Intralinks or a substantially 


 


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similar electronic transmission system (the “Platform”), so long as the access to such Platform (i) is
limited to the Agents, the Lenders and Transferees or Prospective Transferees
and (ii) remains subject to the confidentiality requirements set forth in Section
13.16.


 


(c)           THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.”  THE AGENT PARTIES (AS DEFINED
BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR
OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM
VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH
THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative
Agent or any of its Related Parties (collectively, the “Agent
Parties” and each an “Agent Party”)
have any liability to the Borrower, any Lender, or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract
or otherwise) arising out of the Borrower’s or the Administrative Agent’s
transmission of Borrower Materials through the internet, except to the extent
the liability of any Agent Party resulted from such Agent Party’s (or any of
its Related Parties’ (other than any trustee or advisor)) gross negligence, bad
faith or willful misconduct or material breach of the Loan Documents.


 


(d)           The Borrower and each Lender
acknowledge that certain of the Lenders may be “public-side” Lenders (Lenders
that do not wish to receive material non-public information with respect to the
Borrower, its Subsidiaries or their securities) and, if documents or notices
required to be delivered pursuant to the Loan Documents or otherwise are being
distributed through the Platform, any document or notice that the Borrower has
indicated contains only publicly available information with respect to the Borrower
may be posted on that portion of the Platform designated for such public-side
Lenders. If the Borrower has not indicated whether a document or notice delivered
contains only publicly available information, the Administrative Agent shall
post such document or notice solely on that portion of the Platform designated
for Lenders who wish to receive material nonpublic information with respect to
the Borrower, its Subsidiaries and their securities. Notwithstanding the
foregoing, the Borrower shall use commercially reasonable efforts to indicate
whether any document or notice contains only publicly available information.


 


13.18.      USA PATRIOT Act. Each Lender hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record
information that identifies each Loan Party, which information includes the
name and address of each Loan Party and other information that will allow such
Lender to identify each Loan Party in accordance with the Patriot Act.


 


13.19.      Judgment Currency. If, for the
purposes of obtaining judgment in any court, it is necessary to convert a sum
due hereunder or any other Loan Document in one currency into another currency,
the rate of exchange used shall be that at which in accordance with 


 


127





















 


normal banking procedures the Administrative
Agent could purchase the first currency with such other currency on the
Business Day preceding that on which final judgment is given. The obligation of
the Borrower in respect of any such sum due from it to the Administrative Agent
or the Lenders hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that
on the Business Day following receipt by the Administrative Agent of any sum adjudged
to be so due in the Judgment Currency, the Administrative Agent may in
accordance with normal banking procedures purchase the Agreement Currency with
the Judgment Currency. If the amount of the Agreement Currency so purchased is
less than the sum originally due to the Administrative Agent from the Borrower
in the Agreement Currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or the
Person to whom such obligation was owing against such loss. If the amount of
the Agreement Currency so purchased is greater than the sum originally due to
the Administrative Agent in such currency, the Administrative Agent agrees to
return the amount of any excess to the Borrower (or to any other Person who may
be entitled thereto under applicable law).


 


13.20.      Payments Set Aside. To the extent
that any payment by or on behalf of the Borrower is made to any Agent or any
Lender, or any Agent or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by such Agent or such Lender
in its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding or otherwise, then (a) to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made or such setoff had not occurred, and (b) each Lender severally
agrees to pay to the Administrative Agent upon demand its applicable share of
any amount so recovered from or repaid by any Agent, plus interest thereon from
the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from time
to time in effect.


 


128
















 


IN WITNESS WHEREOF, each of the parties
hereto has caused a counterpart of this Agreement to be duly executed and
delivered as of the date first above written.


 


	
   

  	
  FIRST DATA CORPORATION, as Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stanley J. Andersen

  	
   

  
	
   

  	
   

  	
  Name:

  	
   Stanley
  J. Andersen

  
	
   

  	
   

  	
  Title:

  	
   Vice
  President and
  Assistant Secretary

  
					



 


S-1

















 


	
   

  	
  CITIBANK, N.A.., as

  
	
   

  	
  Administrative Agent and a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward T. Crook

  	
   

  
	
   

  	
   

  	
  Name:

  	
   Edward
  T. Crook

  
	
   

  	
   

  	
  Title:

  	
   Managing
  Director

  
					



 


 


	
   

  	
  CITIGROUP GLOBAL MARKETS INC., as Joint

  
	
   

  	
  Lead Arranger and Bookrunner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward T. Crook

  	
   

  
	
   

  	
   

  	
  Name:

  	
   Edward
  T. Crook

  
	
   

  	
   

  	
  Title:

  	
   Managing
  Director

  
					



 


S-2

















 


	
   

  	
  CREDIT SUISSE, CAYMAN ISLANDS

  
	
   

  	
  BRANCH, as Syndication Agent and a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William O’Daly

  	
   

  
	
   

  	
   

  	
  Name:

  	
   William
  O’Daly

  
	
   

  	
   

  	
  Title:

  	
   Director

  
					



 


 


	
   

  	
  By:

  	
  /s/ Mikhail Faybusovich

  	
   

  
	
   

  	
   

  	
  Name:

  	
   Mikhail
  Faybusovich

  
	
   

  	
   

  	
  Title:

  	
   Associate

  
					



 


S-3

















 


	
   

  	
  DEUTSCHE BANK AG CAYMAN ISLANDS

  
	
   

  	
   BRANCH, as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carin Keegan

  	
   

  
	
   

  	
   

  	
  Name:

  	
   Carin
  Keegan

  
	
   

  	
   

  	
  Title:

  	
   Vice
  President

  
					



 


 


	
   

  	
  By:

  	
  /s/ Paul O’Leary

  	
   

  
	
   

  	
   

  	
  Name:

  	
   Paul
  O’Leary

  
	
   

  	
   

  	
  Title:

  	
   Vice
  President

  
					



 


 


	
   

  	
  DEUTSCHE BANK SECURITIES INC., as Joint

  
	
   

  	
  Lead Arranger and Bookrunner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Keith Braun

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Keith Braun

  
	
   

  	
   

  	
  Title:

  	
  Director

  
					



 


	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sean Murphy

  	
   

  
	
   

  	
   

  	
  Name:

  	
   Sean
  Murphy

  
	
   

  	
   

  	
  Title:

  	
   Managing
  Director

  
					



 


S-4

















 


	
   

  	
  GOLDMAN SACHS CREDIT PARTNERS L.P.,

  
	
   

  	
  as Joint Lead Arranger and Bookrunner and a

  
	
   

  	
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Walter A. Jackson

  	
   

  
	
   

  	
   

  	
  Name: 
  Walter A. Jackson

  
	
   

  	
   

  	
  Title: 
  Authorized Signatory

  



 


S-5

















 


	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION,

  
	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter G. Nealon

  	
   

  
	
   

  	
   

  	
  Name:

  	
   Peter
  G. Nealon

  
	
   

  	
   

  	
  Title:

  	
   Managing
  Director

  
					



 


S-6

















 


	
   

  	
  LEHMAN COMMERCIAL PAPER INC., as

  
	
   

  	
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William J. Hughes

  	
   

  
	
   

  	
   

  	
  Name:

  	
   William
  J. Hughes

  
	
   

  	
   

  	
  Title:

  	
   Managing
  Director

  
					



 


 


	
   

  	
  LEHMAN BROTHERS INC., as Joint Lead

  
	
   

  	
  Arranger and Joint Bookrunner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William J. Hughes

  	
   

  
	
   

  	
   

  	
  Name:

  	
   William
  J. Hughes

  
	
   

  	
   

  	
  Title:

  	
   Managing
  Director

  
					



 


S-7

















 


	
   

  	
  MERRILL LYNCH CAPITAL CORPORATION,

  
	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arminee Bowler

  	
   

  
	
   

  	
   

  	
  Name:

  	
   Arminee
  Bowler

  
	
   

  	
   

  	
  Title:

  	
   Vice
  President

  
					



 


 


	
   

  	
  MERRILL LYNCH, PIERCE, FENNER & SMITH

  
	
   

  	
  INCORPORATED, as Joint Lead Arranger and 

  
	
   

  	
  Bookrunner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephanie Vallillo

  	
   

  
	
   

  	
   

  	
  Name:

  	
   Stephanie
  Vallillo

  
	
   

  	
   

  	
  Title:

  	
   Vice
  President

  
					



 


S-8