Exhibit 10.3


 


EXECUTION COPY


 




 





$2,500,000,000


 


SENIOR SUBORDINATED 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


 


886525


 

















 


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

  	
  51

  
	
  2.3.

  	
  Notice of Borrowing

  	
  51

  
	
  2.4.

  	
  Disbursement of Funds

  	
  52

  
	
  2.5.

  	
  Repayment of Loans; Evidence of Debt

  	
  53

  
	
  2.6.

  	
  Conversions and Continuations

  	
  53

  
	
  2.7.

  	
  Pro Rata Borrowings

  	
  54

  
	
  2.8.

  	
  Interest

  	
  54

  
	
  2.9.

  	
  Interest Periods

  	
  55

  
	
  2.10.

  	
  Increased Costs, Illegality, Etc.

  	
  56

  
	
  2.12

  	
  Change of Lending Office

  	
  58

  
	
  2.13.

  	
  Notice of Certain Costs

  	
  58

  
	
  2.14

  	
  Permanent Refinancing

  	
  58

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  [RESERVED]

  	
  60

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  FEES; COMMITMENTS

  	
  60

  
	
  4.1.

  	
  Administrative Agent’s Fees

  	
  60

  
	
  4.2.

  	
  [Reserved]

  	
  61

  
	
  4.3.

  	
  Mandatory Termination of Commitments

  	
  61

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  PAYMENTS

  	
  61

  
	
  5.1.

  	
  Voluntary Prepayments

  	
  61

  
	
  5.2.

  	
  Mandatory Prepayments

  	
  61

  
	
  5.3.

  	
  Method and Place of Payment

  	
  63

  
	
  5.4.

  	
  Net Payments

  	
  63

  
	
  5.5.

  	
  Computations of Interest

  	
  66

  
	
  5.6.

  	
  Limit on Rate of Interest

  	
  66

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  CONDITIONS
  PRECEDENT TO INITIAL BORROWING

  	
  67

  
	
  6.1.

  	
  Loan Documents

  	
  67

  
	
  6.2.

  	
  Guarantee

  	
  67

  
	
  6.3.

  	
  Legal Opinions

  	
  67

  
	
  6.4.

  	
  Notice of Borrowing

  	
  67

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  6.5.

  	
  Equity Investments

  	
  67

  
	
  6.6.

  	
  Closing Certificates

  	
  67

  
	
  6.7.

  	
  Authorization of Proceedings of Each Loan Party

  	
  68

  
	
  6.8.

  	
  Fees

  	
  68

  
	
  6.9.

  	
  Representations and Warranties

  	
  68

  
	
  6.10.

  	
  Solvency Certificate

  	
  68

  
	
  6.11.

  	
  Merger

  	
  68

  
	
  6.12.

  	
  Patriot Act

  	
  68

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  [RESERVED]

  	
  69

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  REPRESENTATIONS, WARRANTIES
  AND AGREEMENTS

  	
  69

  
	
  8.1.

  	
  Corporate Status

  	
  69

  
	
  8.2.

  	
  Corporate Power and Authority

  	
  69

  
	
  8.3.

  	
  No Violation

  	
  69

  
	
  8.4.

  	
  Litigation

  	
  70

  
	
  8.5.

  	
  Margin Regulations

  	
  70

  
	
  8.6.

  	
  Governmental Approvals

  	
  70

  
	
  8.7.

  	
  Investment Company Act

  	
  70

  
	
  8.8.

  	
  True and Complete Disclosure

  	
  70

  
	
  8.9.

  	
  Financial Condition; Financial Statements

  	
  70

  
	
  8.10.

  	
  Tax Matters

  	
  71

  
	
  8.11.

  	
  Compliance with ERISA

  	
  71

  
	
  8.12.

  	
  Subsidiaries

  	
  72

  
	
  8.13.

  	
  Intellectual Property

  	
  72

  
	
  8.14.

  	
  Environmental Laws

  	
  72

  
	
  8.15.

  	
  Properties

  	
  73

  
	
  8.16.

  	
  Solvency

  	
  73

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  COVENANTS

  	
  73

  
	
  9.1.

  	
  Reports and Other Information

  	
  73

  
	
  9.2.

  	
  Compliance Certificate

  	
  74

  
	
  9.3.

  	
  Taxes

  	
  74

  
	
  9.4.

  	
  Stay, Extension and Usury Laws

  	
  75

  
	
  9.5.

  	
  Limitation on Restricted Payments

  	
  75

  
	
  9.6.

  	
  Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries

  	
  83

  
	
  9.7.

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

  	
  85

  
	
  9.8.

  	
  Asset Sales

  	
  91

  
	
  9.9.

  	
  Transactions with Affiliates

  	
  93

  
	
  9.10.

  	
  Liens

  	
  96

  
	
  9.11.

  	
  Corporate Existence

  	
  96

  
	
  9.12.

  	
  Offer to Repurchase upon Change of Control

  	
  97

  
	
  9.13.

  	
  Limitation on Guarantees of Indebtedness by Restricted Subsidiaries

  	
  98

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  9.14.

  	
  Merger, Consolidation or Sale of All or Substantially All Assets

  	
  99

  
	
  9.15.

  	
  Successor Corporation Substituted

  	
  101

  
	
  9.16.

  	
  [Reserved]

  	
  101

  
	
  9.17.

  	
  [Reserved]

  	
  101

  
	
  9.18.

  	
  Limitation on Layering

  	
  101

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  [RESERVED]

  	
  102

  
	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  DEFAULTS AND
  REMEDIES

  	
  102

  
	
  11.1.

  	
  Event of Default

  	
  102

  
	
  11.2.

  	
  [Reserved]

  	
  104

  
	
  11.3.

  	
  [Reserved]

  	
  104

  
	
  11.4.

  	
  [Reserved]

  	
  105

  
	
  11.5.

  	
  [Reserved]

  	
  105

  
	
  11.6.

  	
  [Reserved]

  	
  105

  
	
  11.7.

  	
  [Reserved]

  	
  105

  
	
  11.8.

  	
  [Reserved]

  	
  105

  
	
  11.9.

  	
  [Reserved]

  	
  105

  
	
  11.10.

  	
  [Reserved]

  	
  105

  
	
  11.11.

  	
  [Reserved]

  	
  105

  
	
  11.12.

  	
  [Reserved]

  	
  105

  
	
  11.13.

  	
  [Reserved]

  	
  105

  
	
  11.14.

  	
  [Reserved]

  	
  105

  
	
  11.15.

  	
  [Reserved]

  	
  105

  
	
  11.16.

  	
  Remedies upon Event of Default, Waivers of Past Defaults

  	
  105

  
	
  11.17.

  	
  Application of Proceeds

  	
  106

  
	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  THE AGENTS

  	
  106

  
	
  12.1.

  	
  Appointment

  	
  106

  
	
  12.2.

  	
  Delegation of Duties

  	
  107

  
	
  12.3.

  	
  Exculpatory Provisions

  	
  107

  
	
  12.4.

  	
  Reliance by Agents

  	
  107

  
	
  12.5.

  	
  Notice of Default

  	
  108

  
	
  12.6.

  	
  Non-Reliance on Administrative Agent and Other Lenders

  	
  108

  
	
  12.7.

  	
  Indemnification

  	
  109

  
	
  12.8.

  	
  Agents in Their Individual Capacities

  	
  110

  
	
  12.9.

  	
  Successor Agents

  	
  110

  
	
  12.10.

  	
  Withholding Tax

  	
  111

  
	
  12.11.

  	
  [Reserved]

  	
  111

  
	
  12.12.

  	
  Agents under Guarantee

  	
  111

  
	
  12.13.

  	
  Right to Enforce Guarantee

  	
  111

  
	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
  MISCELLANEOUS

  	
  111

  
	
  13.1.

  	
  Amendments, Waivers and Releases

  	
  111

  
	
  13.2.

  	
  Notices

  	
  113

  
	
  13.3.

  	
  No Waiver; Cumulative Remedies

  	
  114

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  13.4.

  	
  Survival of Representations and Warranties

  	
  114

  
	
  13.5.

  	
  Payment of Expenses; Indemnification

  	
  114

  
	
  13.6.

  	
  Successors and Assigns; Participations and Assignments

  	
  115

  
	
  13.7.

  	
  Replacements of Lenders Under Certain Circumstances

  	
  120

  
	
  13.8.

  	
  Adjustments; Set-off

  	
  121

  
	
  13.9.

  	
  Counterparts

  	
  121

  
	
  13.10.

  	
  Severability

  	
  121

  
	
  13.11.

  	
  Integration

  	
  121

  
	
  13.12.

  	
  GOVERNING LAW

  	
  122

  
	
  13.13.

  	
  Submission to Jurisdiction; Waivers

  	
  122

  
	
  13.14.

  	
  Acknowledgments

  	
  122

  
	
  13.15.

  	
  WAIVERS OF JURY TRIAL

  	
  123

  
	
  13.16.

  	
  Confidentiality

  	
  123

  
	
  13.17.

  	
  Direct Website Communications

  	
  124

  
	
  13.18.

  	
  USA PATRIOT Act

  	
  126

  
	
  13.19.

  	
  Judgment Currency

  	
  126

  
	
  13.20.

  	
  Payments Set Aside

  	
  126

  
	
   

  	
   

  	
   

  
	
  SECTION 14.

  	
  SUBORDINATION

  	
  127

  
	
  14.1.

  	
  Agreement To Subordinate

  	
  127

  
	
  14.2.

  	
  Liquidation, Dissolution or Bankruptcy

  	
  127

  
	
  14.3.

  	
  Default on Senior Indebtedness of the Borrower

  	
  127

  
	
  14.4.

  	
  Acceleration of Payment of Loans

  	
  129

  
	
  14.5.

  	
  When Distribution Must Be Paid Over

  	
  129

  
	
  14.6.

  	
  Subrogation

  	
  129

  
	
  14.7.

  	
  Relative Rights

  	
  129

  
	
  14.8.

  	
  Subordination May Not Be Impaired by Borrower

  	
  130

  
	
  14.9.

  	
  Rights of Administrative Agent and Paying Agent

  	
  130

  
	
  14.10.

  	
  Distribution or Notice to Representative

  	
  130

  
	
  14.11.

  	
  Section 14 Not To Prevent Events of Default or Limit Right To
  Accelerate

  	
  130

  
	
  14.12.

  	
  Subordination of Subsidiary Guarantees

  	
  130

  
	
  14.13.

  	
  Reliance by Lenders of Senior Indebtedness of the Borrower on
  Subordination Provisions

  	
  130

  



 


iv

















 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1.1(a)

  	
  Commitments

  	
   

  
	
  Schedule 1.1(b)

  	
  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 Subordinated Guarantee

  	
   

  
	
  Exhibit B

  	
  Form of Senior Subordinated Refinancing Indenture

  	
   

  
	
  Exhibit C

  	
  Form of Senior Subordinated Refinancing Registration Rights Agreement

  	
   

  
	
  Exhibit D

  	
  Form of Exchange Notice

  	
   

  
	
  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

  	
  Form of Promissory Note

  	
   

  



 


v

















 


SENIOR SUBORDINATED 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
Subordinated Interim Loans to the Borrower on the Closing Date, in Dollars, in
an aggregate principal amount of $2,500,000,000;


 


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, Citicorp
North America, Inc., 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
unsecured 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  Unsecured Interim Loan Agreement”),
pursuant to which the Borrower will borrow senior unsecured loans 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 (the “Senior
Interim Cash Pay Loans”) and (b) $2,750,000,000 of senior interim
PIK loans (the “Senior Interim PIK Loans” and, together with the Senior Interim Cash Pay Loans,
the “Senior
Interim Loans”); and


 


WHEREAS, the net proceeds of the Senior Subordinated
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 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 Subordinated Interim 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.


 


“Applicable ABR Margin” shall mean at any date, with respect to each ABR
Loan, 3.75% per annum. 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 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 


 


3

















 


Loan Maturity
Date. Notwithstanding the foregoing, the Applicable ABR Margin shall be capped
such that the applicable interest rate shall not exceed the Senior Subordinated
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, 4.75% per annum. 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 shall not exceed the Senior Subordinated
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;


 


(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;


 


4

















 


(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


 


(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.


 


5

















 


“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).


 


“Blockage Notice”
shall have the meaning provided in Section 14.3.


 


“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;


 


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


 


6

















 


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


 


7
















 


(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.


 


“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 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 


 


8

















 


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).


 


“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 Subordinated 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 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, 


 


9

















 


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 Subordinated 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 (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 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,


 


10

















 


(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 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 


 


11

















 


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,


 


(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 


 


12

















 


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 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 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.


 


13

















 


“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 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
Subordinated Notes).


 


“Debt Repayment” shall mean the repayment,
prepayment, repurchase or defeasance of the Indebtedness of the Borrower that
is identified on Schedule 1.1(b) 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.”


 


14

















 


“Designated Senior
Indebtedness”  shall
mean:


 


(1)                                  any
Indebtedness outstanding under the Senior Secured Credit Agreement; and


 


(2)                                  any
other Senior Indebtedness permitted under this Agreement, the principal amount
of which is $100.0 million or more and that has been designated by the Borrower
as “Designated Senior Indebtedness.”


 


“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 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.


 


15

















 


“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


 


(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 this Agreement, the Senior Unsecured Interim Loan Agreement
and the Senior Secured Credit Agreement and (ii) any amendment or other
modification of the Senior Subordinated 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


 


16

















 


(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 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,


 


17

















 


(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 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.


 


18

















 


“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.


 


“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.


 


19

















 


“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 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.


 


20

















 


“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
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 


 


21

















 


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
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.


 


22
















 


“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 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 


 


23

















 


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;


 


(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


 


24

















 


(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 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.


 


25

















 


“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.


 


“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.


 


26

















 


“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.


 


“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.


 


27

















 


“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 Subordinated Interim Loan or Senior Subordinated Term Loan made
by any Lender hereunder.


 


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


 


“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 Subordinated 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 Subordinated Term Loans,
September 24, 2016 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”).


 


28

















 


“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).


 


“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.


 


29

















 


“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 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-Payment Default”
shall have the meaning provided in Section 14.3.


 


30

















 


“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 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.


 


“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.


 


“Payment Blockage Period”
shall have the meaning provided in Section 14.3.


 


31

















 


“pay the Loans”
shall have the meaning provided in Section 14.3.


 


“Payment Default”
shall have the meaning provided in Section 14.3.


 


“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.


 


“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 


 


32

















 


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


 


(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 


 


33

















 


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;


 


(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 Junior
Securities” shall mean:


 


(1)           Equity Interests in the
Borrower, any Guarantor or any direct or indirect parent of the Borrower;


 


(2)           unsecured debt
securities that are subordinated to all Senior Indebtedness (and any debt
securities issued in exchange for Senior Indebtedness) to substantially the
same extent as, or to a greater extent than, the Loans and the related Guarantees
are subordinated to Senior Indebtedness under this Agreement;


 


provided
that the term “Permitted Junior Securities” shall not include any securities
distributed pursuant to a plan of reorganization if the Indebtedness under the
Senior Secured Credit Agreement is treated as part of the same class as the
Loans for purposes of such plan of reorganization; provided
further that to the extent that any Senior Indebtedness of the
Borrower or the Guarantors outstanding on the date of consummation of any such
plan of reorganization is not paid in full in cash on such date, the holders of
any such Senior Indebtedness not so paid in full in cash have consented to the
terms of such plan of reorganization.


 


34

















 


“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 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;


 


35

















 


(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 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;


 


36

















 


(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(I) 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 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


 


37
















 


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 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.


 


“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.


 


“Plan of Reorganization” shall  mean any plan of
reorganization, plan of liquidation, agreement for composition, or other type
of plan of arrangement proposed in or in connection with any insolvency or
liquidation proceeding.


 


“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.


 


38

















 


“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).


 


“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.


 


39

















 


“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.


 


“Representative”
shall mean the Administrative Agent, trustee, agent or representative (if any)
for an issue of Designated Senior Indebtedness.


 


“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 Subordinated Notes, a majority
of the outstanding principal amount of the Loans (excluding the Loans of
Defaulting Lenders) and the Senior Subordinated Notes in the aggregate at such
date, voting as a single class.


 


“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.


 


40

















 


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


 


“Senior Cash Pay Notes”
shall mean senior notes due 2015, to be issued in 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 mean term loans outstanding under the Senior Unsecured Interim Loan
Agreement after conversion, on the Interim Loan Conversion Date, of the Senior
Interim Cash Pay Loans outstanding on such date.


 


“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 


 


41

















 


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;


 


(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; provided, however that such Indebtedness shall be deemed not
to have been incurred in violation of this Agreement for purposes of this
clause if such Indebtedness consists of Designated Senior Indebtedness, and the
holder(s) of such Indebtedness or their trustee, agent or representative
(a) had no actual knowledge at the time of incurrence that the incurrence
of such Indebtedness violated this Agreement and (b) shall have received a
certificate from an officer of the Borrower to the effect that the incurrence
of such Indebtedness does not violate the provisions of this Agreement.


 


“Senior Interim Cash Pay Loans”  shall have the meaning
provided in the recitals to this Agreement.


 


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


 


42

















 


“Senior Interim PIK Loans”
shall have the meaning provided in the recitals to this Agreement.


 


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


 


“Senior PIK Notes” shall mean senior PIK notes due 2015, to be issued in
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 mean term loans outstanding under the Senior
Unsecured Interim Loan Agreement after conversion, on the Interim Loan
Conversion Date, of the Senior Interim PIK Loans outstanding on such date.


 


“Senior Refinancing Indenture”  shall mean the indenture 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 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 Fixed Rate”  shall mean 11.25% per annum.


 


“Senior Subordinated Indebtedness”  shall mean:


 


(1)                                  with
respect to the Borrower, Indebtedness which ranks pari passu
in right of payment to the Indebtedness under this Agreement; and


 


43

















 


(2)                                  with
respect to any Guarantor, Indebtedness which ranks pari passu
in right of payment to the Guarantee of such entity under the Guarantee.


 


“Senior Subordinated Interim 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(a) as such Lender’s “Senior
Subordinated Interim 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
Subordinated Interim Loan Commitment” in the Assignment and Acceptance pursuant
to which such Lender assumed a portion of the Total Senior Subordinated 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 Subordinated
Interim Loan Commitments as of the Closing Date is $2,500,000,000.


 


“Senior Subordinated
Interim Loans” shall have the meaning provided in Section 2.1(a).


 


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


 


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


 


“Senior Subordinated Notes”
shall mean senior subordinated notes due 2016, to be issued in connection with
the exchange for the Senior Subordinated Term Loans under the Senior
Subordinated 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, and for purposes of Section 5.2, any
senior subordinated debt securities issued in connection with the refinancing
of the Senior Subordinated Interim Loans.


 


“Senior Subordinated Refinancing Indenture”  shall mean the indenture
substantially in the form attached as Exhibit C 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 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
Subordinated 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 Subordinated Notes to register such notes
under the Securities Act.


 


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


 


44

















 


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


 


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


 


“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.


 


“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 


 


45

















 


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 Subordinated
Interim Loans,


 


(1)                                  any Indebtedness of the Borrower which is by
its terms subordinated in right of payment to the Senior Subordinated 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 Subordinated 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 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 


 


46

















 


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.


 


“Total Senior Subordinated
Interim Loan Commitment” shall mean the sum of Senior Subordinated
Interim Loan Commitments of all Lenders.


 


“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 Unsecured 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).


 


“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 


 


47

















 


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


 


(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.


 


48

















 


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.


 


(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.


 


49

















 


(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 Subordinated 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 Subordinated Refinancing Indenture
shall be deemed to be a reference to the Borrower, (ii) any reference to a “Holder”
in the Senior Subordinated Refinancing Indenture shall be deemed to be a
reference to a Lender, (iii) any reference to the “Trustee” in the Senior
Subordinated Refinancing Indenture shall be deemed to be a reference to the
Administrative Agent, (iv) any reference to the “Notes” in the Senior
Subordinated Refinancing Indenture shall be deemed to be a reference to the
Loans and (v) any reference to “this Indenture” in the Senior Subordinated
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, each Lender severally
agrees to make a loan or loans (each, a “Senior  Subordinated Interim Loan”) in
a single draw on the Closing Date to the Borrower in Dollars, which Senior
Subordinated Interim Loans shall not exceed for any such Lender the Senior
Subordinated Interim Loan Commitment of such Lender and in the aggregate shall
not exceed $2,500,000,000.


 


Such Senior
Subordinated Interim Loans (i) shall be incurred and maintained (except as
provided in Sections 2.6 and 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 Subordinated Interim Loan Commitment of such Lender and (iv) shall not
exceed in the aggregate the Total Senior Subordinated Interim Loan Commitment. 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).


 


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 Subordinated Interim Loans. Such notice (a “Notice of Borrowing”) shall specify (i) the aggregate principal
amount of the Senior Subordinated Interim Loans to be borrowed (the “Senior
Subordinated Interim Loans Requested Amount”)
(such Senior Subordinated Interim Loans Requested Amount not to exceed in the
aggregate the Total Senior Subordinated Interim Loan Commitment), (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 Subordinated Interim
Loans, of such Lender’s proportionate share thereof and of the other matters
covered by the related Notice of Borrowing.


 


51





















 


(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 10:00 a.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 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).


 


52




















 


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 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.


 


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 


 


53





















 


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 Hedging Obligations as LIBOR Loans for each Interest Period until the
expiration of the term of such applicable Hedging Obligations.


 


2.7.                              Pro
Rata Borrowings.  Each Borrowing of
Senior Subordinated Interim Loans under this Agreement shall be made by the
Lenders pro rata on the basis of their
then-applicable Senior Subordinated Interim 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)                          The
unpaid principal amount of each Senior Subordinated 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.


 


(b)                         The
unpaid principal amount of each Senior Subordinated 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.


 


54





















 


(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 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;


 


55

















 


(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
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 


 


56

















 


case of clause
(i) above, LIBOR Loans shall no longer be available until such time as the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice by the Administrative Agent no longer exist
(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.


 


57

















 


(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, all outstanding Senior Subordinated Interim
Loans shall be converted into term loans (each, a “Senior
Subordinated Term Loan”) having an aggregate principal amount equal
to the unpaid principal amount of such 


 


58





















 


Senior Subordinated  Interim
Loans, in each case to the extent such Loans are not repaid in whole or in part
in cash or 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, the Senior Subordinated Term Loans may be exchanged in whole
or in part for one or more Senior Subordinated Notes having an aggregate
principal amount equal to the unpaid principal amount of such Senior
Subordinated Term Loans; provided, however, that the Borrower
shall not be required to issue Senior Subordinated Notes until the Borrower
shall have received requests to issue at least $150,000,000 in aggregate principal
amount of Senior Subordinated Notes and that the amount of Senior Subordinated
Term Loans exchanged for Senior Subordinated 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, at least five Business Days
prior to the date of exchange. The Exchange Notice shall specify the principal
amount of Senior Subordinated Term Loans to be exchanged and, subject to the
terms of the Senior Subordinated Refinancing Indenture, the name of the
proposed registered holder and the amount of each Senior Subordinated Note
requested. Senior Subordinated Term Loans exchanged for Senior Subordinated
Notes pursuant to this Section 2.14 shall be deemed repaid and canceled,
and the Senior Subordinated Notes so issued shall be governed by and construed
in accordance with the provisions of the Senior Subordinated Refinancing
Indenture. The Senior Subordinated Notes shall be issued in the form set forth
in the Senior Subordinated Refinancing Indenture.


 


(iii)                       As more particularly provided in
the Senior Subordinated Refinancing Indenture, (A) Senior Subordinated Notes
issued pursuant to the Senior Subordinated Refinancing Indenture shall bear
interest at the rate applicable to Senior Subordinated Term Loans (unless a
Lender shall elect to have the interest rate fixed at the rate applicable to
Senior Subordinated Term Loans in effect on the date of such exchange if
necessary to effect an actual bona fide sale of Senior Subordinated Notes on
such date to a third party that is not an Affiliate of  such Lender), and (B) Senior Subordinated
Notes issued pursuant to the Senior Subordinated Refinancing Indenture (I)
shall mature on September 24, 2016 and (II) shall be redeemable as set forth in
the Senior Subordinated Refinancing Indenture and the applicable form of Senior
Subordinated 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 Subordinated
Refinancing Indenture (the “Trustee”), directing such Trustee to
authenticate and deliver Senior Subordinated Notes as specified in the Exchange
Notice and (B) use all commercially reasonable efforts to effect delivery of
such Senior Subordinated Notes to the requesting Lender.


 


59

















 


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


 


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


 


(ii)               The
Borrower shall have issued the Senior Subordinated Notes pursuant to the Senior
Subordinated Refinancing Indenture substantially in the applicable form set
forth therein, and the Borrower and each Guarantor shall have executed and delivered
the Senior Subordinated 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 Subordinated Refinancing Indenture and, in the case of the
Borrower, the issuance of the Senior Subordinated 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
Subordinated 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 Subordinated 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 Subordinated Term Loans pursuant
to this Agreement until such conditions are satisfied and the Senior
Subordinated Term Loans are so exchanged for Senior Subordinated 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]


 


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.


 


60

















 


4.2.                              [Reserved].


 


4.3.                              Mandatory
Termination of Commitments.  The
Senior Subordinated 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.  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 Loans on a pro rata basis
based on the aggregate principal amount of Loans 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.


 


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 Prepayment Event, prepay, in
accordance with clause (c) below, Loans with a 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 or the Senior Unsecured Interim Loan Agreement,
apply such Net Cash Proceeds to prepay, repay or repurchase Indebtedness
outstanding under the Senior Secured Credit Agreement  or the Senior Unsecured Interim Loan
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].


 


61





















 


(c)                                  Application
to Repayment Amounts. Subject to Section 5.2(h), each prepayment of
Senior Subordinated Interim Loans required by Section 5.2(a)(i) (except
for Debt Incurrence Prepayment Events resulting from the incurrence of Senior
Subordinated 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 Subordinated Interim Loans required by Section
5.2(a)(i) solely resulting from the incurrence of Senior Subordinated Notes
shall be applied on a pro rata basis
based on the aggregate principal amount of Senior Subordinated 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].


 


(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 (but not less than all) 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 


 


62





















 


Day after the date of such Lender’s receipt
of notice from the Administrative Agent regarding such prepayment. 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 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 


 


63





















 


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 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 


 


64





















 


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
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.


 


65





















 


(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
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 


 


66





















 


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:


 


(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 Subordinated 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


 


67




















 


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.


 


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.


 


68

















 


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 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.


 


69

















 


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.


 


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 


 


70





















 


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 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 


 


71





















 


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.


 


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.


 


72





















 


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 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.


 


73

















 


(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.


 


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.


 


74

















 


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 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


 


75

















 


(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), (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


 


76

















 


(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


 


(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 


 


77

















 


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 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;


 


78

















 


(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 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 


 


79

















 


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;


 


(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;


 


80

















 


(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;


 


(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 that 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;


 


81

















 


(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


 


(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 in-


 


82
















 


direct 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:


 


(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 Unsecured Interim Loan Agreement and the
related documentation, the Senior Refinancing Indenture, the Senior Notes, the
Holdco Indenture and the Holdco Notes;


 


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


 


83

















 


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;


 


(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.


 


84





















 


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 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 Unsecured 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, 


 


85





















 


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) 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 having a term exceeding 364 days 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 having a term exceeding 364 days
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 


 


86





















 


(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 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


 


87

















 


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, 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 Senior Indebtedness;


 


(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


 


88

















 


(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 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;


 


89





















 


(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


 


(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.


 


90





















 


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.


 


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.


 


91

















 


(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, and to correspondingly reduce commitments with respect thereto;


 


(B)                                Obligations under (i)
this Agreement or (ii) other Senior Subordinated Indebtedness of the Borrower
or any Guarantor (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 Subordinated Indebtedness other than the Loans,
including by making an offer in accordance with the procedures set forth in
Section 4.10 of the Senior Subordinated 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.


 


92





















 


(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 Subordinated Notes, as applicable and, if required or
permitted by the terms of any Senior Subordinated Indebtedness, to the holders
of such Senior Subordinated Indebtedness (an “Asset Sale
Offer”), to purchase the maximum aggregate principal amount of the
Loans or Senior Subordinated Notes, as applicable and such Senior Subordinated
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 Subordinated Refinancing Indenture, as applicable, with a copy to the
Administrative Agent.


 


To the extent that the aggregate amount of
Loans or Senior Subordinated Notes, as applicable, and any other Senior Subordinated
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 Subordinated Refinancing Indenture, as applicable. If the aggregate
principal amount of Loans or Senior Subordinated Notes, as applicable, or the
Senior Subordinated Indebtedness surrendered by such holders thereof exceeds
the amount of Excess Proceeds, the Administrative Agent shall select the Loans
or Senior Subordinated Notes, as applicable, and such other Senior Subordinated
Indebtedness to be purchased on a pro rata basis based on the accreted value or
principal amount of the Loans or Senior Subordinated Notes, as applicable, or
such Senior Subordinated 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 Subordinated 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


 


93





















 


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:


 


(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


 


94





















 


when taken as
a whole as compared to the applicable agreement as in effect on the Closing
Date);


 


(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


 


95





















 


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 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 ranking pari passu
with or subordinated to the Loans 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 Liens securing Senior Indebtedness of the Borrower
or any Guarantor.


 


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 (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.


 


96

















 


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 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.


 


97
















 


(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


 


(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


 


98

















 


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,


 


(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


 


99

















 


(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
Subordinated Refinancing Indenture and the Senior Subordinated 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 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


 


100

















 


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].


 


9.18.                        Limitation
on Layering.


 


The Borrower shall not, and shall not permit
any Guarantor to, directly or indirectly, incur any Indebtedness (including
Acquired Indebtedness) that is subordinate in right of payment to any Senior
Indebtedness of the Borrower or such Guarantor, as the case may be, unless such
Indebtedness is either:


 


101

















 


(1)                                  pari passu in right of payment with the Loans or such
Guarantor’s Guarantee, as the case may be; or


 


(2)                                  expressly
subordinated in right of payment to the Loans or such Guarantor’s Guarantee, as
the case may be.


 


This agreement shall not treat
(1) unsecured Indebtedness as subordinated or junior to Secured
Indebtedness merely because it is unsecured or (2) Senior Indebtedness as
subordinated or junior to any other Senior Indebtedness merely because it has a
junior priority with respect to the same collateral.


 


SECTION 10.                          [Reserved].


 


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 (whether or not such payment
will be prohibited by Section 14 hereto);


 


(b)                                 default
for 30 days or more in the payment when due of interest on or with respect to
the Loans (whether or not such payment will be prohibited by Section 14 hereto);


 


(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 Subordinated 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 Subordinated 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 Subordinated 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


 


102

















 


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;


 


(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:


 


103

















 


(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;


 


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 Loans) 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].


 


104

















 


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].


 


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 or (y) on or after the Interim Loan Conversion Date, the Administrative
Agent may and, upon the written request of Lenders holding at least 30% in aggregate
principal amount of the total Loans and Senior Subordinated 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; provided, however,
that so long as any Indebtedness under the Senior Secured Credit Agreement
permitted to be incurred under this Agreement shall be outstanding, no such
acceleration shall be effective until the earlier of:


 


(1)                                  acceleration
of any such Indebtedness under the Senior Secured Credit Agreement; or


 


(2)                                  five
Business Days after the giving of written notice of such acceleration to the
Borrower and the administrative agent under the Senior Secured Credit
Agreement.


 


Upon the
effectiveness of such declaration, such principal and interest shall be due and
payable immediately.


 


105

















 


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 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


 


106





















 


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, 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,
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


 


107

















 


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 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 


 


108

















 


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 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


 


109

















 


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 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.


 


110

















 


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.


 


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 Subordinated Refinancing Indenture


 


111

















 


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
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 9.14) or
alter the order of application set forth in Section 11.17, 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 Subordinated
Refinancing Indenture that requires (or would, if any Senior Subordinated Notes
were outstanding, require) the approval of all holders of Senior Subordinated
Notes, without the written consent of each Lender directly and adversely
affected thereby. Any such waiver 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.


 


(a)                          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 the Senior Subordinated Refinancing Indenture,
such provisions of this Agreement shall be replaced with corre-


 


112




















 


sponding
provisions of the Senior Subordinated Refinancing Indenture, and, to the extent
necessary to give effect to the foregoing, each defined term used in the
sections of the Senior Subordinated Refinancing Indenture shall have the
meaning set forth in the Senior Subordinated 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 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:


 


113

















 


(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.


 


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,


 


114





















 


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 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


 


115

















 


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.


 


(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, 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;


 


116

















 


(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 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


 


117

















 


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 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


 


118





















 


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,
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.


 


(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


 


119





















 


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, 2.11 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 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.


 


120





















 


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 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,


 


121





















 


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;


 


(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,


 


122

















 


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 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


 


123





















 


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 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


 


124





















 


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
similar electronic transmission system (the “Platform”),
so long as the access to such Platform (i) is limited to the Agents and 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.


 


125





















 


(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 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


 


126





















 


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.


 


SECTION 14.                          Subordination.


 


14.1.                        Agreement
To Subordinate. The Borrower agrees, and each of the Administrative Agent
and the Lenders agrees, that the payment
of all principal, premium, if any, and interest on Indebtedness under this
Agreement is subordinated in right of payment, to the extent and in the manner
provided in this Section 14, to the prior payment in full of all
existing and future Senior Indebtedness of the Borrower, and that the
subordination is for the benefit of and enforceable by the holders of such
Senior Indebtedness. The Indebtedness that is permitted to be incurred under
this Agreement shall in all respects rank pari passu in
right of payment with all existing and future Senior Subordinated Indebtedness
of the Borrower, and will be senior in right of payment to all existing and
future Subordinated Indebtedness of the Borrower; and only Indebtedness of the
Borrower that is Senior Indebtedness shall rank senior to the Indebtedness that
is permitted to be incurred under this Agreement in accordance with the provisions
set forth herein.


 


14.2.                        Liquidation,
Dissolution or Bankruptcy. Upon any
payment or distribution of the assets of the Borrower to creditors upon a total
or partial liquidation or a total or partial dissolution of the Borrower or in
a reorganization, bankruptcy, insolvency, receivership of or similar proceeding
relating to the Borrower or its property:


 


(i)                  the
holders of Senior Indebtedness of the Borrower shall be entitled to receive
payment in full of such Senior Indebtedness in cash or Permitted Investments
before Lenders shall be entitled to receive any payment; and


 


(ii)               until
the Senior Indebtedness of the Borrower is paid in full in cash or Permitted
Investments, any payment or distribution to which Lenders would be entitled but
for this Section 14 shall be made to holders of such Senior Indebtedness
as their interests may appear, except that Lenders may receive Permitted Junior
Securities.


 


14.3.                        Default
on Senior Indebtedness of the Borrower. The Borrower shall not pay
principal of, premium, if any, or interest on the Loans (or pay any other
Obligations relating to the Loans, including fees, costs, expenses, indemnities
and rescission or damage claims) and may not purchase, redeem or otherwise
retire any Loans (collectively, “pay the Loans”)
(except in the form of Permitted Junior Securities) if either of the following
occurs (a “Payment Default”):


 


127




















 


(i)                  any
Obligation on any Designated Senior Indebtedness of the Borrower is not paid in
full in cash or Permitted Investments when due (after giving effect to any
applicable grace periods); or


 


(ii)               any
other default on Designated Senior Indebtedness of the Borrower occurs and the
maturity of such Designated Senior Indebtedness is accelerated in accordance
with its terms;


 


unless, in
either case, the Payment Default has been cured or waived and any such
acceleration has been rescinded or such Designated Senior Indebtedness has been
paid in full in cash or Permitted Investments; provided, however,
that the Borrower shall be entitled to pay the Loans without regard to the
foregoing if the Borrower and the Administrative Agent receive written notice
approving such payment from the Representatives of all Designated Senior
Indebtedness with respect to which the Payment Default has occurred and is
continuing.


 


During the continuance of any default (other
than a Payment Default) with respect to any Designated Senior Indebtedness of
the Borrower pursuant to which the maturity thereof may be accelerated without
further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods (a “Non-Payment Default”), the Borrower shall not pay the Loans
(except in the form of Permitted Junior Securities) for a period (a “Payment Blockage Period”) commencing upon the receipt by the
Administrative Agent (with a copy to the Borrower) of written notice (a “Blockage Notice”) of such Non-Payment Default from the
Representative of such Designated Senior Indebtedness specifying an election to
effect a Payment Blockage Period and ending 179 days thereafter. So long
as there shall remain outstanding any Senior Indebtedness under the Senior
Secured Credit Agreement, a Blockage Notice may be given only by the
administrative agent thereunder unless otherwise agreed to in writing by the
requisite lenders named therein. The Payment Blockage Period shall end earlier
if such Payment Blockage Period is terminated (i) by written notice to the
Administrative Agent and the Borrower from the Person or Persons who gave such
Blockage Notice; (ii) because the Non-Payment Default giving rise to such
Blockage Notice is cured, waived or otherwise no longer continuing; or (iii)
because such Designated Senior Indebtedness has been discharged or repaid in
full in cash or Permitted Investments.


 


Notwithstanding the provisions described in
the immediately preceding two sentences (but subject to the provisions contained
in the first sentence of this Section 14.3 and Section 14.2
hereof), unless the holders of such Designated Senior Indebtedness or the
Representative of such Designated Senior Indebtedness shall have accelerated
the maturity of such Designated Senior Indebtedness or a Payment Default has
occurred and is continuing, the Borrower shall be entitled to resume paying the
Loans after the end of such Payment Blockage Period. The Loans shall not be
subject to more than one Payment Blockage Period in any consecutive 360-day
period irrespective of the number of defaults with respect to Designated Senior
Indebtedness of the Borrower during such period; provided that if any Blockage Notice is delivered to the
Administrative Agent by or on behalf of the holders of Designated Senior Indebtedness
of the Borrower (other than the holders of Indebtedness under the Senior
Secured Credit Agreement), a Representative of holders of Indebtedness under
the Senior Secured Credit Agreement may give another Blockage Notice within
such period. However, in no event shall the total number of


 


128

















 


days during
which any Payment Blockage Period or Periods on the Loans is in effect exceed
179 days in the aggregate during any consecutive 360-day period, and there must
be at least 181 days during any consecutive 360-day period during which no
Payment Blockage Period is in effect. Notwithstanding the foregoing, however,
no default that existed or was continuing on the date of delivery of any
Blockage Notice to the Administrative Agent shall be, or be made, the basis for
a subsequent Blockage Notice unless such default shall have been waived for a
period of not less than 90 days (it being acknowledged that any subsequent
action, or any breach of any financial covenants during the period after the
date of delivery of a Blockage Notice, that, in either case, would give rise to
a Non-Payment Default pursuant to any provisions under which a Non-Payment
Default previously existed or was continuing shall constitute a new Non-Payment
Default for this purpose).


 


14.4.                        Acceleration
of Payment of Loans. If payment of the Loans is accelerated because of an
Event of Default, the Borrower shall promptly notify the holders of the
Designated Senior Indebtedness of the Borrower or the Representative of such
Designated Senior Indebtedness of the acceleration; provided that any
failure to give such notice shall have no effect whatsoever on the provisions
of this Section 14. If any Designated Senior Indebtedness of the
Borrower is outstanding, the Borrower may not pay the Loans until five Business
Days after the Representatives of each Designated Senior Indebtedness of the
Borrower receive notice of such acceleration and, thereafter, the Borrower may
pay the Loans only if this Section 14 otherwise permits payment at that
time.


 


14.5.                        When
Distribution Must Be Paid Over. If a distribution is made to Lenders that,
due to the provisions of this Section 14, should not have been made
to them, such Lenders are required to hold it in trust for holders of Senior
Indebtedness of the Borrower and pay it over to them as their interests may appear.


 


14.6.                        Subrogation. After all
Senior Indebtedness of the Borrower is paid in full in cash or Permitted
Investments and until the Loans are paid in full, Lenders shall be subrogated
(equally and ratably with all other Senior Subordinated Indebtedness pari passu
with the Loans) to the rights of holders of Senior Indebtedness of the Borrower
to receive distributions applicable to such Senior Indebtedness. A distribution
made under this Section 14 to holders of such Senior Indebtedness
that otherwise would have been made to Lenders is not, as between the Borrower
and Lenders, a payment by the Borrower on such Senior Indebtedness.


 


14.7.                        Relative
Rights. This Section 14 defines the relative rights of Lenders
and holders of Senior Indebtedness of the Borrower. Nothing in this Agreement
shall:


 


(i)                                     impair,
as between the Borrower and Lenders, the obligation of the Borrower, which is absolute
and unconditional, to pay principal of and interest on the Loans in accordance
with their terms;


 


(ii)                                  prevent
the Administrative Agent or any Lender from exercising its available remedies
upon a Default, subject to the rights of holders of Senior Indebtedness of the
Borrower to receive payments or distributions otherwise payable to Lenders and
such other rights of such holders of Senior Indebtedness as set forth herein;
or


 


129





















 


(iii)                               affect
the relative rights of Lenders and creditors of the Borrower, other than rights
of Lenders in relation to holders of Senior Indebtedness.


 


14.8.                        Subordination
May Not Be Impaired by Borrower. No right of any holder of Senior
Indebtedness of the Borrower to enforce the subordination of the Indebtedness
permitted to be incurred under this Agreement shall be impaired by any act or
failure to act by the Borrower or by its failure to comply with this Agreement.


 


14.9.                        Rights
of Administrative Agent and Paying Agent. Each Agent in its individual or
any other capacity shall be entitled to hold Senior Indebtedness of the
Borrower with the same rights it would have if it were not an Agent. The Agent
shall be entitled to all the rights set forth in this Section 14
with respect to any Senior Indebtedness of the Borrower which may at any time
be held by it, to the same extent as any other holder of such Senior Indebtedness.
Nothing in this Section 14 shall apply to claims of, or payments
to, the Agent under or pursuant to Section 13.5 hereof or any other
Section of this Agreement.


 


14.10.                  Distribution
or Notice to Representative. Whenever a distribution is to be made or a
notice given to holders of Senior Indebtedness of the Borrower, the
distribution may be made and the notice given to their Representative (if any).


 


14.11.                  Section 14
Not To Prevent Events of Default or Limit Right To Accelerate. The failure
to make a payment pursuant to the Loans by reason of any provision in this Section 14
shall not be construed as preventing the occurrence of a Default. Subject to Section
14.4, nothing in this Section 14 shall have any effect on the
right of the Lenders or the Administrative Agent to accelerate the maturity of
the Loans.


 


14.12.                  Subordination
of Subsidiary Guarantees. The obligations of each Guarantor under its
Guarantee are subordinated in right of payment to the obligations of such
Guarantor under its Senior Indebtedness in the same manner and to the same
extent that the Loans are subordinated to Senior Indebtedness of the Borrower
pursuant to this Section 14.


 


14.13.                  Reliance by Lenders of Senior Indebtedness of the Borrower on
Subordination Provisions. Each
Lender acknowledges and agrees that the foregoing subordination provisions are,
and are intended to be, an inducement and a consideration to each holder of any
Senior Indebtedness of the Borrower, whether such Senior Indebtedness was
created or acquired before or after the Closing Date, to acquire and continue
to hold, or to continue to hold, such Senior Indebtedness and such holder of
such Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.


 


Without in any way limiting the generality of
the foregoing paragraph, the holders of Senior Indebtedness of the Borrower
may, at any time and from time to time, without the consent of or notice to the
Administrative Agent or the Lenders, without incurring responsibility to the
Administrative Agent or the Lenders and without impairing or releasing the
subordination provided in this Section 14 or the obligations
hereunder of the Lenders to the holders of the Senior Indebtedness of the
Borrower, do any one or more of the following:  (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness of the Borrower, or otherwise amend or supplement in
any manner Senior Indebtedness of the Borrower, or any instrument evidencing
the same or any agreement under which Senior Indebtedness


 


130

















 


of the
Borrower is outstanding; (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior Indebtedness
of the Borrower; (iii) release any Person liable in any manner for the
payment or collection of Senior Indebtedness of the Borrower; and
(iv) exercise or refrain from exercising any rights against the Borrower
and any other Person.


 


131

















 


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