Exhibit 10.1


 


 




 





 


$14,000,000,000


 


€709,219,858.16


 


CREDIT AGREEMENT


 


Dated as of September 24, 2007


 


among


 


FIRST DATA CORPORATION,

as the Borrower,


 


The Several Lenders

from Time to Time Parties Hereto,


 


CREDIT SUISSE, CAYMAN ISLANDS BRANCH, 

as Administrative Agent, Swingline Lender

and Letter of Credit Issuer,


 


CITIBANK, N.A.,


as Syndication Agent,


 


and


 


CREDIT SUISSE SECURITIES (USA) LLC,

CITIGROUP GLOBAL MARKETS, INC.,

DEUTSCHE BANK SECURITIES INC.,

GOLDMAN SACHS CREDIT PARTNERS L.P.,

HSBC SECURITIES (USA) INC.,

LEHMAN BROTHERS INC. and

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Joint Lead Arrangers and Bookrunners


 




 





 


 


Cahill Gordon & Reindel LLP

80 Pine Street

New York, New York  10005


 
















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  Definitions

  	
  2

  
	
  1.1.

  	
  Defined Terms

  	
  2

  
	
  1.2.

  	
  Other Interpretive Provisions

  	
  50

  
	
  1.3.

  	
  Accounting Terms

  	
  51

  
	
  1.4.

  	
  Rounding

  	
  51

  
	
  1.5.

  	
  References to Agreements, Laws, Etc

  	
  51

  
	
  1.6.

  	
  Exchange Rates

  	
  51

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  Amount and Terms of Credit

  	
  51

  
	
  2.1.

  	
  Commitments

  	
  51

  
	
  2.2.

  	
  Minimum Amount of Each Borrowing; Maximum
  Number of Borrowings

  	
  54

  
	
  2.3.

  	
  Notice of Borrowing

  	
  54

  
	
  2.4.

  	
  Disbursement of Funds

  	
  56

  
	
  2.5.

  	
  Repayment of Loans; Evidence of Debt

  	
  57

  
	
  2.6.

  	
  Conversions and Continuations

  	
  59

  
	
  2.7.

  	
  Pro Rata Borrowings

  	
  60

  
	
  2.8.

  	
  Interest

  	
  60

  
	
  2.9.

  	
  Interest Periods

  	
  61

  
	
  2.10.

  	
  Increased Costs, Illegality, Etc

  	
  61

  
	
  2.11.

  	
  Compensation

  	
  63

  
	
  2.12.

  	
  Change of Lending Office

  	
  63

  
	
  2.13.

  	
  Notice of Certain Costs

  	
  64

  
	
  2.14.

  	
  Incremental Facilities

  	
  64

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  Letters of Credit

  	
  65

  
	
  3.1.

  	
  Letters of Credit

  	
  65

  
	
  3.2.

  	
  Letter of Credit Requests

  	
  67

  
	
  3.3.

  	
  Letter of Credit Participations

  	
  68

  
	
  3.4.

  	
  Agreement to Repay Letter of Credit
  Drawings

  	
  70

  
	
  3.5.

  	
  Increased Costs

  	
  72

  
	
  3.6.

  	
  New or Successor Letter of Credit Issuer

  	
  72

  
	
  3.7.

  	
  Role of Letter of Credit Issuer

  	
  73

  
	
  3.8.

  	
  Cash Collateral

  	
  74

  
	
  3.9.

  	
  Applicability of ISP and UCP

  	
  74

  
	
  3.10.

  	
  Conflict with Issuer Documents

  	
  74

  
	
  3.11.

  	
  Letters of Credit Issued for Restricted
  Subsidiaries

  	
  75

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  Fees; Commitments

  	
  75

  
	
  4.1.

  	
  Fees

  	
  75

  
	
  4.2.

  	
  Voluntary Reduction of Revolving Credit
  Commitments

  	
  76

  
	
  4.3.

  	
  Mandatory Termination of Commitments

  	
  76

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  Payments

  	
  77

  
	
  5.1.

  	
  Voluntary Prepayments

  	
  77

  
	
  5.2.

  	
  Mandatory Prepayments

  	
  78

  
	
  5.3.

  	
  Method and Place of Payment

  	
  80

  
	
  5.4.

  	
  Net Payments

  	
  81

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  5.5.

  	
  Computations of Interest and Fees

  	
  84

  
	
  5.6.

  	
  Limit on Rate of Interest

  	
  84

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  Conditions Precedent to Initial Borrowing

  	
  84

  
	
  6.1.

  	
  Credit Documents

  	
  84

  
	
  6.2.

  	
  Collateral

  	
  85

  
	
  6.3.

  	
  Legal Opinions

  	
  85

  
	
  6.4.

  	
  [Reserved]

  	
  85

  
	
  6.5.

  	
  Equity Investments

  	
  85

  
	
  6.6.

  	
  Closing Certificates

  	
  85

  
	
  6.7.

  	
  Authorization of Proceedings of Each Credit
  Party

  	
  86

  
	
  6.8.

  	
  Fees

  	
  86

  
	
  6.9.

  	
  Representations and Warranties

  	
  86

  
	
  6.10.

  	
  Solvency Certificate

  	
  86

  
	
  6.11.

  	
  Merger

  	
  86

  
	
  6.12.

  	
  Patriot Act

  	
  86

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  Conditions Precedent to All Credit Events

  	
  86

  
	
  7.1.

  	
  No Default; Representations and Warranties

  	
  86

  
	
  7.2.

  	
  Notice of Borrowing; Letter of Credit
  Request

  	
  87

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  Representations, Warranties and Agreements

  	
  87

  
	
  8.1.

  	
  Corporate Status

  	
  87

  
	
  8.2.

  	
  Corporate Power and Authority

  	
  87

  
	
  8.3.

  	
  No Violation

  	
  88

  
	
  8.4.

  	
  Litigation

  	
  88

  
	
  8.5.

  	
  Margin Regulations

  	
  88

  
	
  8.6.

  	
  Governmental Approvals

  	
  88

  
	
  8.7.

  	
  Investment Company Act

  	
  88

  
	
  8.8.

  	
  True and Complete Disclosure

  	
  88

  
	
  8.9.

  	
  Financial Condition; Financial Statements

  	
  89

  
	
  8.10.

  	
  Tax Matters

  	
  89

  
	
  8.11.

  	
  Compliance with ERISA

  	
  89

  
	
  8.12.

  	
  Subsidiaries

  	
  90

  
	
  8.13.

  	
  Intellectual Property

  	
  90

  
	
  8.14.

  	
  Environmental Laws

  	
  90

  
	
  8.15.

  	
  Properties

  	
  91

  
	
  8.16.

  	
  Solvency

  	
  91

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  Affirmative Covenants

  	
  91

  
	
  9.1.

  	
  Information Covenants

  	
  91

  
	
  9.2.

  	
  Books, Records and Inspections

  	
  94

  
	
  9.3.

  	
  Maintenance of Insurance

  	
  94

  
	
  9.4.

  	
  Payment of Taxes

  	
  95

  
	
  9.5.

  	
  Consolidated Corporate Franchises

  	
  95

  
	
  9.6.

  	
  Compliance with Statutes, Regulations, Etc

  	
  95

  
	
  9.7.

  	
  ERISA

  	
  95

  
	
  9.8.

  	
  Maintenance of Properties

  	
  96

  
	
  9.9.

  	
  Transactions with Affiliates

  	
  96

  
	
  9.10.

  	
  End of Fiscal Years; Fiscal Quarters

  	
  96

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  9.11.

  	
  Additional Guarantors and Grantors

  	
  96

  
	
  9.12.

  	
  Pledge of Additional Stock and Evidence of
  Indebtedness

  	
  97

  
	
  9.13.

  	
  Use of Proceeds

  	
  97

  
	
  9.14.

  	
  Further Assurances

  	
  97

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  Negative Covenants

  	
  98

  
	
  10.1.

  	
  Limitation on Indebtedness

  	
  98

  
	
  10.2.

  	
  Limitation on Liens

  	
  104

  
	
  10.3.

  	
  Limitation on Fundamental Changes

  	
  106

  
	
  10.4.

  	
  Limitation on Sale of Assets

  	
  107

  
	
  10.5.

  	
  Limitation on Investments

  	
  109

  
	
  10.6.

  	
  Limitation on Dividends

  	
  112

  
	
  10.7.

  	
  Limitations on Debt Payments and Amendments

  	
  114

  
	
  10.8.

  	
  Limitations on Sale Leasebacks

  	
  115

  
	
  10.9.

  	
  Changes in Business

  	
  115

  
	
  10.10.

  	
  Consolidated Senior Secured Debt to Consolidated
  EBITDA Ratio

  	
  115

  
	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  Events of Default

  	
  115

  
	
  11.1.

  	
  Payments

  	
  115

  
	
  11.2.

  	
  Representations, Etc

  	
  115

  
	
  11.3.

  	
  Covenants

  	
  116

  
	
  11.4.

  	
  Default Under Other Agreements

  	
  116

  
	
  11.5.

  	
  Bankruptcy, Etc

  	
  116

  
	
  11.6.

  	
  ERISA

  	
  117

  
	
  11.7.

  	
  Guarantee

  	
  117

  
	
  11.8.

  	
  Pledge Agreement

  	
  117

  
	
  11.9.

  	
  Security Agreement

  	
  117

  
	
  11.10.

  	
  Mortgages

  	
  117

  
	
  11.11.

  	
  Judgments

  	
  117

  
	
  11.12.

  	
  Change of Control

  	
  118

  
	
  11.13.

  	
  Subordination

  	
  118

  
	
  11.14.

  	
  Application of Proceeds

  	
  118

  
	
  11.15.

  	
  Right to Cure

  	
  119

  
	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  The Agents

  	
  120

  
	
  12.1.

  	
  Appointment

  	
  120

  
	
  12.2.

  	
  Delegation of Duties

  	
  120

  
	
  12.3.

  	
  Exculpatory Provisions

  	
  120

  
	
  12.4.

  	
  Reliance by Agents

  	
  121

  
	
  12.5.

  	
  Notice of Default

  	
  121

  
	
  12.6.

  	
  Non-Reliance on Administrative Agent,
  Collateral Agent and Other Lenders

  	
  122

  
	
  12.7.

  	
  Indemnification

  	
  122

  
	
  12.8.

  	
  Agents in Their Individual Capacities

  	
  123

  
	
  12.9.

  	
  Successor Agents

  	
  123

  
	
  12.10.

  	
  Withholding Tax

  	
  124

  
	
  12.11.

  	
  [Reserved]

  	
  124

  
	
  12.12.

  	
  Agents Under Security Documents and
  Guarantee

  	
  124

  
	
  12.13.

  	
  Right to Realize on Collateral and Enforce
  Guarantee

  	
  124

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
  Miscellaneous

  	
  125

  
	
  13.1.

  	
  Amendments, Waivers and Releases

  	
  125

  
	
  13.2.

  	
  Notices

  	
  128

  
	
  13.3.

  	
  No Waiver; Cumulative Remedies

  	
  128

  
	
  13.4.

  	
  Survival of Representations and Warranties

  	
  128

  
	
  13.5.

  	
  Payment of Expenses; Indemnification

  	
  128

  
	
  13.6.

  	
  Successors and Assigns; Participations and
  Assignments

  	
  129

  
	
  13.7.

  	
  Replacements of Lenders Under Certain
  Circumstances

  	
  133

  
	
  13.8.

  	
  Adjustments; Set-off

  	
  134

  
	
  13.9.

  	
  Counterparts

  	
  135

  
	
  13.10.

  	
  Severability

  	
  135

  
	
  13.11.

  	
  Integration

  	
  135

  
	
  13.12.

  	
  GOVERNING LAW

  	
  135

  
	
  13.13.

  	
  Submission to Jurisdiction; Waivers

  	
  135

  
	
  13.14.

  	
  Acknowledgments

  	
  136

  
	
  13.15.

  	
  WAIVERS OF JURY TRIAL

  	
  136

  
	
  13.16.

  	
  Confidentiality

  	
  136

  
	
  13.17.

  	
  Direct Website Communications

  	
  137

  
	
  13.18.

  	
  USA PATRIOT Act

  	
  139

  
	
  13.19.

  	
  Judgment Currency

  	
  139

  
	
  13.20.

  	
  Payments Set Aside

  	
  139

  



 


SCHEDULES


 


	
  Schedule 1.1(a)

  	
   

  	
  Existing Secured Letters of Credit

  
	
  Schedule 1.1(b)

  	
   

  	
  Mortgaged Properties

  
	
  Schedule 1.1(c)

  	
   

  	
  Commitments and Addresses of Lenders

  
	
  Schedule 1.1(d)(i)

  	
   

  	
  Excluded Subsidiaries

  
	
  Schedule 1.1(g)

  	
   

  	
  Debt Repayment

  
	
  Schedule 1.1(i)

  	
   

  	
  Existing Hedge Banks

  
	
  Schedule 6.3

  	
   

  	
  Local Counsels

  
	
  Schedule 8.3

  	
   

  	
  Conflicts

  
	
  Schedule 8.4

  	
   

  	
  Litigation

  
	
  Schedule 8.12

  	
   

  	
  Subsidiaries

  
	
  Schedule 9.9

  	
   

  	
  Closing Date Affiliate Transactions

  
	
  Schedule 9.14(d)

  	
   

  	
  Post-Closing Actions

  
	
  Schedule 10.1

  	
   

  	
  Closing Date Indebtedness

  
	
  Schedule 10.2

  	
   

  	
  Closing Date Liens

  
	
  Schedule 10.4

  	
   

  	
  Scheduled Dispositions

  
	
  Schedule 10.5

  	
   

  	
  Closing Date Investments

  
	
  Schedule 13.2

  	
   

  	
  Notice Addresses

  



 


EXHIBITS


 


	
  Exhibit A

  	
  Form of Joinder Agreement

  
	
  Exhibit B

  	
  Form of Guarantee

  
	
  Exhibit C

  	
  Form of Mortgage (Real Property)

  
	
  Exhibit D

  	
  Form of Perfection Certificate

  
	
  Exhibit E

  	
  Form of Pledge Agreement

  
	
  Exhibit F

  	
  Form of Security Agreement

  



 


iv

















 


	
  Exhibit G

  	
   

  	
  Form of Letter of Credit Request

  
	
  Exhibit H-1

  	
   

  	
  Form of Legal Opinion of Simpson Thacher & Bartlett LLP

  
	
  Exhibit H-2

  	
   

  	
  Form of Legal Opinion of General Counsel

  
	
  Exhibit I

  	
   

  	
  Form of Credit Party Closing Certificate

  
	
  Exhibit J

  	
   

  	
  Form of Assignment and Acceptance

  
	
  Exhibit K-1-A

  	
   

  	
  Form of Promissory Note (Initial Tranche B-1 Term Loans)

  
	
  Exhibit K-1-B

  	
   

  	
  Form of Promissory Note (Initial Tranche B-2 Term Loans)

  
	
  Exhibit K-1-C

  	
   

  	
  Form of Promissory Note (Initial Tranche B-3 Term Loans)

  
	
  Exhibit K-2

  	
   

  	
  Form of Promissory Note (Delayed Draw Term Loans)

  
	
  Exhibit K-3

  	
   

  	
  Form of Promissory Note (Revolving Credit Loans and Swingline
  Loans)

  
	
  Exhibit K-4

  	
   

  	
  Form of Promissory Note (Euro Tranche Term Loans)

  



 


v
















 


CREDIT
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”), CREDIT SUISSE, CAYMAN ISLANDS
BRANCH, as Administrative Agent, Swingline Lender and Letter of Credit
Issuer (such terms and each other capitalized term used but not defined in this
preamble having the meaning provided in Section 1), CITIBANK, N.A.,
as Syndication Agent, and CREDIT SUISSE
SECURITIES (USA) LLC, CITIGROUP GLOBAL MARKETS, INC., DEUTSCHE BANK SECURITIES
INC., GOLDMAN SACHS CREDIT PARTNERS L.P., HSBC SECURITIES (USA) INC., LEHMAN
BROTHERS INC. and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
as Joint Lead Arrangers and Bookrunners.


 


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 Company, Holdings and Merger Sub, Merger
Sub will merge with and into the Company (the “Merger”), with the Company surviving the Merger as a
wholly-owned Subsidiary of Holdings;


 


WHEREAS, to
fund, in part, the Merger, it is intended that the Sponsor and the other
Initial 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 Investments”), 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, to
consummate the transactions contemplated by the Acquisition Agreement, it is
intended that the Borrower will enter into (a) 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 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 (b) a
senior subordinated interim loan agreement, dated as of the Closing Date, by
and among the Borrower, the lenders from time to time parties thereto, Citibank,
N.A.., as administrative agent, Credit Suisse, Cayman Islands Branch, as
syndication agent, and Citigroup Global Markets Inc., Credit Suisse Securities
(USA) LLC, Deutsche Bank Securities Inc., Goldman Sachs Credit Partners L.P.,
HSBC Securities (USA) Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, as joint lead arrangers and bookrunners
(as the same may be amended, supplemented or otherwise modified from time to
time in accordance therewith, the “Senior
Subordinated Interim Loan Agreement”), pursuant to which the
Borrower will borrow term loans in an aggregate principal amount of
$2,500,000,000 (the “Senior Subordinated
Interim Loans”);


 


WHEREAS, in
connection with the foregoing, (I) the Borrower has requested that the Lenders
extend credit in the form of (a) Initial Term Loans to the Borrower on the
Closing Date in Dollars, in an aggregate principal amount of $11,775,000,000, (b) Euro Tranche Term Loans to the Borrower on
the Closing Date in Euro, in an aggregate principal amount of €709,219,858.16, (c) Delayed
Draw Term Loans made available to the
Borrower at any time and from time to time prior to the Delayed Draw Term Loan
Commitment Termination Date in Dollars an aggregate principal amount at any time outstanding


 

















 


not in excess of
$225,000,000, and (d) Revolving
Credit Loans made available to the Borrower at any time and from time to time
prior to the Revolving Credit Maturity Date in Dollars and Alternative
Currencies, in an aggregate Dollar Equivalent principal amount at any time
outstanding not in excess of $2,000,000,000 less the sum of (i) the
aggregate Letters of Credit Outstanding at such time and (ii) the
aggregate principal amount of all Swingline Loans outstanding at such time, and
(II) the Borrower has requested the Letter of Credit Issuer to issue Letters of
Credit at any time and from time to time prior to the L/C Maturity Date, in
Dollars and Alternative Currencies in an aggregate Stated Amount at any time
outstanding not in excess of $500,000,000 and (III) the Borrower has requested the Swingline Lender to
extend credit in the form of Swingline Loans at any time and from time to time
prior to the Swingline Maturity Date, in Dollars, in an aggregate principal
amount at any time outstanding not in excess of $250,000,000;


 


WHEREAS, the
proceeds of the Initial Term Loans, Euro Tranche Term Loans and up to
$200,000,000 of Revolving Credit Loans will be used by the Borrower, together
with (a) the net proceeds of the Senior Interim Loans and Senior Subordinated Interim Loans, (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. Proceeds of Revolving Credit Loans and Swingline
Loans will be used by the Borrower on or after the Closing Date for working
capital general corporate purposes (including Permitted Acquisitions). Letters
of Credit will be used by the Borrower for general corporate purposes. Proceeds
of the Delayed Draw Term Loans will be used by the Borrower and its
Subsidiaries to refinance certain existing indebtedness not tendered on or
before the Closing Date; and


 


WHEREAS, the
Lenders and Letter of Credit Issuer are willing to make available to the
Borrower such term loans and revolving credit and letter of credit facilities
upon the terms and subject to the conditions set forth herein;


 


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 and, in any event, shall (i) include all Swingline Loans and (ii) exclude
all Loans denominated in Alternative Currencies.


 


2

















 


“Acquired EBITDA”  shall mean, with respect to
any Acquired Entity or Business or any Converted Restricted Subsidiary (any of
the foregoing, a “Pro Forma Entity”)
for any period, the amount for such period of Consolidated EBITDA of such Pro
Forma Entity (determined using such definitions as if references to the
Borrower and its Restricted Subsidiaries therein were to such Pro Forma Entity
and its Restricted Subsidiaries), all as determined on a consolidated basis for
such Pro Forma Entity.


 


“Acquired Entity or Business”  shall have the meaning
provided in the definition of the term “Consolidated EBITDA.”


 


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


 


“Additional Swingline Lender” shall mean any lender of
Additional Swingline Loans hereunder.


 


“Additional Swingline Loan” shall have the meaning provided
in Section 2.1(c).


 


“Additional Swingline Maximum Amount” shall mean an aggregate
principal amount equal to $200,000,000.


 


“Adjusted Total Delayed Draw Term
Loan Commitment”  shall
mean at any time the Total Delayed Draw Term Loan Commitment less the Delayed
Draw Term Loan Commitments of all Defaulting Lenders.


 


“Adjusted Total Euro Tranche Term
Loan Commitment”  shall
mean at any time the Total Euro Tranche Term Loan Commitment less the Euro
Tranche Term Loan Commitments of all Defaulting Lenders.


 


“Adjusted Total Initial Term Loan
Commitment”  shall
mean at any time the Total Initial Term Loan Commitment less the Initial Term
Loan Commitments of all Defaulting Lenders.


 


“Adjusted Total Revolving Credit Commitment” shall mean at any time the Total Revolving
Credit Commitment less the aggregate Revolving Credit Commitments of all
Defaulting Lenders.


 


“Adjusted Total Term Loan Commitment”  shall mean at any time the
Total Term Loan Commitment less the Term Loan Commitments of all Defaulting
Lenders.


 


“Administrative Agent” shall mean Credit Suisse, as the
administrative agent for the Lenders under this Agreement and the other Credit
Documents, or any successor administrative agent pursuant to Section 12.9.


 


“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).


 


“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


 


3

















 


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 Collateral
Agent, the Syndication Agent and each Joint Lead Arranger and Bookrunner.


 


“Aggregate Multicurrency Exposures” shall have the meaning
provided in Section 5.2(b).


 


“Aggregate Revolving Credit Outstandings” shall have the
meaning provided in Section 5.2(b).


 


“Agreement” shall mean this Credit 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.


 


“Alternative Currency” shall mean Euro, British Pounds
Sterling and any other currency acceptable to the Administrative Agent that is
freely convertible into Dollars and readily available in the London interbank
market.


 


“Applicable ABR Margin”  shall mean, at any date,
with respect to each ABR Loan that is an Initial Term Loan, Delayed Draw Term Loan,
Revolving Credit Loan or a Swingline Loan, the applicable percentage per annum set forth below based upon the
Status in effect on such date:


 


	
   

  	
   

  	
  Applicable ABR Margin for:

  	
   

  
	
  Status

  	
   

  	
  Initial 

  Term Loans

  	
   

  	
  Delayed Draw 

  Term Loans

  	
   

  	
  Revolving Credit and

  Swingline Loans

  	
   

  
	
  Level I
  Status

  	
   

  	
  1.75

  	
  %

  	
  1.75

  	
  %

  	
  1.75

  	
  %

  
	
  Level II
  Status

  	
   

  	
  1.50

  	
  %

  	
  1.50

  	
  %

  	
  1.50

  	
  %

  
	
  Level III
  Status

  	
   

  	
  1.25

  	
  %

  	
  1.25

  	
  %

  	
  1.25

  	
  %

  



 


Notwithstanding
the foregoing, Level I Status shall apply during the period from and including
the Closing Date to but excluding the Trigger Date.


 


“Applicable Amount”  shall mean, at any time (the
“Applicable
Amount Reference Time”), an amount equal to (a) the sum,
without duplication, of:


 


(i)                                     an
amount (which shall not be less than zero) equal to the greater of (x) 50% of Cumulative
Consolidated Net Income of the Borrower and the Restricted Subsidiaries for the period from the first
day of the first full fiscal quarter commencing after the Closing Date until
the last day of the then most recent fiscal quarter or fiscal year, as
applicable, for which Section 9.1 Financials have been delivered and (y) (A) the
cumulative amount of Excess Cash Flow of the Borrower and the Restricted
Subsidiaries for all fiscal years (or, in the case of the fiscal year ending on
or about December 31, 2007, the portion of the fiscal year) completed
after the Closing Date (commencing with and including the portion of the fiscal
year ending on or about December 31, 2007 following the Closing Date) and
prior to the Applicable Amount Reference Time, minus (B) the
portion of such Excess Cash Flow that has been (or is required to be) applied
after the


 


4

















 


Closing Date and prior to
the Applicable Amount Reference Time to the prepayment of Loans in accordance with

Section 5.2(a)(ii);


 


(ii)                                  to
the extent not (A) already included in the calculation of Consolidated Net
Income of the Borrower and the Restricted Subsidiaries or (B) already
reflected as a return of capital or deemed reduction in the amount of such Investment,
the aggregate JV Distribution Amount received by the Borrower or any Restricted
Subsidiary during the period from and including the Business Day immediately
following the Closing Date through and including the Applicable Amount Reference
Time;


 


(iii)                               to
the extent not (A) already included in the calculation of Consolidated Net
Income of the Borrower and the Restricted Subsidiaries, (B) already
reflected as a return of capital or deemed reduction in the amount of such
Investment and (C) required to be applied to prepay Term Loans in
accordance with Section 5.2(a), the aggregate amount of all Net
Cash Proceeds received by the Borrower or any Restricted Subsidiary in
connection with the sale, transfer or other disposition of its ownership
interest in any joint venture that is not a Subsidiary or in any Unrestricted
Subsidiary, in each case, to the extent of the Investment in such joint venture
or Unrestricted Subsidiary following the Closing Date, during the period from
and including the Business Day immediately following the Closing Date through
and including the Applicable Amount Reference Time;


 


(iv)                              other
than for purposes of Section 10.6(c), the aggregate amount of
Retained Declined Proceeds retained by the Borrower during the period from and
including the Business Day immediately following the Closing Date through and
including the Applicable Amount Reference Time; and


 


(v)                                 the
amount of any capital contributions (other than (A) the Equity
Investments, (B) the Cure Amount, (C) any amount added back in the
definition of Consolidated EBITDA pursuant to clause (a)(viii) thereof,
(D) any contributions in respect of Disqualified Equity Interests and (E) any
amount applied to redeem Stock or Stock Equivalents of the Borrower pursuant to
Section 10.6(a)) made in cash to, or any proceeds of an equity
issuance received by, the Borrower from and including the Business Day
immediately following the Closing Date through and including the Applicable
Amount Reference Time, including proceeds from the issuance of Stock or Stock
Equivalents of any direct or indirect parent of the Borrower;


 


minus
(b) the sum, without duplication, of:


 


(i)                                     the
aggregate amount of Investments made pursuant to Section 10.5(g)(ii)(y),
10.5(i)(y) or 10.5(v)(y) following the Closing Date and prior to
the Applicable Amount Reference Time (with regard to Investments made pursuant
to Section 10.5(g)(ii)(y), net of any return of capital in respect
of such Investment or deemed reduction in the amount of such Investment including,
without limitation, upon the re-designation of any Unrestricted Subsidiary as a
Restricted Subsidiary or the Disposition of any such Investment);


 


(ii)                                  the
aggregate amount of dividends pursuant to Section 10.6(c)(y) (or
amounts loaned or advanced pursuant to Section 10.5(m) in lieu of
such dividends) following the Closing Date and prior to the Applicable Amount
Reference Time; and


 


(iii)                               the
aggregate amount of prepayments, repurchases and redemptions of Senior Notes,
Senior Interim Loans, Senior Subordinated Notes, Senior Subordinated Interim
Loans and 


 


5

















 


Permitted
Additional Debt pursuant to Section 10.7(a)(i)(2) following
the Closing Date and prior to the Applicable Amount Reference Time.


 


“Applicable LIBOR Margin” shall mean, at
any date, with respect to each LIBOR Loan that is an Initial Term Loan, Delayed
Draw Term Loan, Euro Tranche Term Loan or Revolving Credit Loan, the applicable
percentage per annum set forth below based upon the
Status in effect on such date:


 


	
   

  	
   

  	
  Applicable LIBOR Margin for:

  	
   

  
	
  Status

  	
   

  	
  Initial 

  Term Loans

  	
   

  	
  Delayed Draw 

  Term Loans

  	
   

  	
  Euro Tranche

  Term Loans

  	
   

  	
  Revolving

  Credit Loans

  	
   

  
	
  Level I
  Status

  	
   

  	
  2.75

  	
  %

  	
  2.75

  	
  %

  	
  2.75

  	
  %

  	
  2.75

  	
  %

  
	
  Level II
  Status

  	
   

  	
  2.50

  	
  %

  	
  2.50

  	
  %

  	
  2.50

  	
  %

  	
  2.50

  	
  %

  
	
  Level III
  Status

  	
   

  	
  2.25

  	
  %

  	
  2.25

  	
  %

  	
  2.25

  	
  %

  	
  2.25

  	
  %

  



 


Notwithstanding
the foregoing, Level I Status shall apply during the period from and including
the Closing Date to but excluding the Trigger Date.


 


“Applicable Premium” shall mean, as of any date upon which a
prepayment is payable pursuant to Section 5.1(b), the present value
at such date, computed using a discount rate equal to the Treasury Rate plus 50
basis points, of all interest that would accrue on the applicable Repaid
Tranche B-3 Loans from such date to the date which is 3.25 years following the
Closing Date, computed using the LIBOR Rate for an Interest Period of three
months plus the Applicable LIBOR Margin in effect on such date.


 


“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 Prepayment Event”  shall mean any Disposition
of any business units, assets or other property of the Credit Parties or any of
their Restricted Subsidiaries not in the ordinary course of business (including
any Disposition of any Stock or Stock Equivalents of any Subsidiary of the
Borrower owned by the Borrower or a Restricted Subsidiary). Notwithstanding the
foregoing, the term “Asset Sale Prepayment Event” shall not include any
transaction permitted by Section 10.4 (other than transactions permitted
by Section 10.4(b) and Section 10.4(o), which
shall constitute Asset Sale Prepayment Events).


 


“Assignment and Acceptance”  shall mean an assignment and
acceptance substantially in the form of Exhibit J, 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.


 


“Auto-Extension Letter of Credit”
shall have the meaning provided in Section 3.2(d).


 


“Available Commitment”  shall mean an amount equal
to the excess, if any, of (a) the amount of the Total Revolving Credit
Commitment over (b) the sum of (i) the aggregate Dollar Equivalent
principal amount of all Revolving Credit Loans (but not Swingline Loans) then
outstanding and (ii) the aggregate Letters of Credit Outstanding at such
time.


 


6

















 


“Available Delayed Draw Commitment”  shall mean an amount equal
to the excess, if any, of (a) the amount of the Total Delayed Draw Term
Loan Commitment over (b) the aggregate principal amount of all Delayed
Draw Term Loans.


 


“Bankruptcy Code”  shall have the meaning
provided in Section 11.5.


 


“BBA LIBOR” shall have the meaning provided in the definition
of “LIBOR Rate.”


 


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


 


“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 (a) the incurrence of
Swingline Loans from the Swingline Lender on a given date, (b) the
incurrence of one Type of Term Loan on the Closing Date (or resulting from
conversions on a given date after the Closing Date) having, in the case of
LIBOR Term Loans, the same Interest Period (provided that ABR Loans
incurred pursuant to Section 2.10(b) shall be considered part
of any related Borrowing of LIBOR Term Loans) and (c) the incurrence of
one Type of Revolving Credit Loan on a given date (or resulting from conversions
on a given date) having, in the case of LIBOR Revolving Credit Loans, the same
Interest Period (provided that ABR Loans incurred pursuant to Section 2.10(b) shall
be considered part of any related Borrowing of LIBOR Revolving Credit Loans).


 


“British Pounds Sterling”
shall mean the lawful currency of Great Britain.


 


“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,


 


(a)                                  if
such day relates to any interest rate settings as to a LIBOR Loan denominated
in Dollars or any Alternative Currency (other than Euro), any fundings,
disbursements, settlements and payments in Dollars or any Alternative Currency
(other than Euro) in respect of any such LIBOR Loan, or any other dealings in
Dollars or any Alternative Currency (other than Euro) 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 or such Alternative Currency are
conducted by and between banks in the London interbank eurodollar market; provided,
however,


 


(b)                                 if
such day relates to any interest rate settings as to a LIBOR Loan denominated
in Euro, any fundings, disbursements, settlements and payments in Euro in
respect of any such LIBOR Loan, or any other dealings in Euro to be carried out
pursuant to this Agreement in respect of any such LIBOR Loan, such day shall be
a TARGET Day.


 


“Capital Expenditures”  shall mean, for any period,
the aggregate of all expenditures (whether paid in cash or accrued as
liabilities and including in all events all amounts expended or capitalized
under Capital Leases) by the Borrower and the Restricted Subsidiaries during
such period that, in conformity with GAAP, are or are required to be included
as capital expenditures on a consolidated statement of cash flows of the
Borrower and its Subsidiaries (including capitalized software expenditures,
customer acquisition costs and incentive payments, conversion costs and
contract acquisition costs).


 


7

















 


“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.


 


“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.


 


“Cash Collateralize” shall have the meaning provided in Section 3.8(d).


 


“Cash Management Agreement”  shall mean any agreement or
arrangement to provide cash management services, including treasury,
depository, overdraft, credit or debit card, purchase card, electronic funds
transfer and other cash management arrangements.


 


“Cash Management Bank” shall mean any Person that, either (x)
at the time it enters into a Cash Management Agreement or (y) on the Closing
Date, is a Lender or an Affiliate of a Lender, in its capacity as a party to
such Cash Management Agreement.


 


“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 and be deemed to have occurred
if (a) either (i) the Permitted Holders shall at any time not own, in
the aggregate, directly or indirectly, beneficially and of record, at least 35%
of the voting power of the outstanding Voting Stock of the Borrower or (ii) the
Sponsor shall at any time not own, in the aggregate, directly or indirectly,
beneficially and of record, at least 12% of the voting power of the outstanding
Voting Stock of the Borrower; or (b) any person, entity or “group” (within
the meaning of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended), other than the Permitted Holders, shall at any time
have acquired direct or indirect beneficial ownership of a percentage of the
voting power of the outstanding Voting Stock of the Borrower that exceeds 35%
thereof, unless, in the case of either clause (a) or (b) above,
the Permitted Holders have, at such time, the right or the ability by voting
power, contract or otherwise to elect or designate for election at least a
majority of the board of directors of the Borrower; or (c) Continuing
Directors shall not constitute at least a majority of the board of directors of
the Borrower; or (d) at any time, a Change of Control (as defined in the
Senior Interim Loan Agreement, the Senior Notes Indenture, the Senior
Subordinated Interim Loan Agreement or the Senior Subordinated Notes Indenture)
shall have occurred.


 


“Class”,  when used in reference to
any Loan or Borrowing, shall refer to whether such Loan, or the Loans
comprising such Borrowing, are Revolving Credit Loans, New Revolving Loans, Initial
Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans, Initial Tranche B-3
Term Loans, Delayed Draw Term Loans, Euro Tranche Term Loans, New Term Loans (of
each Series) or Swingline Loans and, when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Credit Commitment, a New
Revolving Credit Commitment, an Initial Tranche B-1 Term Loan Commitment,


 


8

















 


Initial
Tranche B-2 Term Loan Commitment, a Initial Tranche B-3 Term Loan Commitment,
Delayed Draw Term Loan Commitment, Euro Tranche Term Loan Commitment or a New
Term Loan Commitment.


 


“Closing Date”  shall mean the date of the initial
Borrowing 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.


 


“Collateral” shall mean all property pledged or purported to
be pledged pursuant to the Security Documents.


 


“Collateral Agent” shall mean Credit Suisse, as collateral
agent under the Security Documents, or any successor collateral agent pursuant
to Section 12.9.


 


“Commitment Fee” shall have the meaning provided in Section 4.1(a).


 


“Commitment Fee Rate” shall mean, with respect to the Available
Commitment on any day, the rate per annum  set forth below opposite the Status  in effect on such day:


 


	
  Status

  	
   

  	
  Commitment Fee Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Level I
  Status

  	
   

  	
  0.50

  	
  %

  
	
  Level II
  Status

  	
   

  	
  0.50

  	
  %

  
	
  Level III
  Status

  	
   

  	
  0.25

  	
  %

  



 


Notwithstanding
the foregoing, the term “Commitment Fee Rate” shall mean 0.50% during the
period from and including the Closing Date to but excluding the Trigger Date.


 


 “Commitments”
shall mean, with respect to each Lender (to the extent applicable), such Lender’s
Revolving Credit Commitment, a New Revolving Credit Commitment, an Initial
Tranche B-1 Term Loan Commitment, an Initial Tranche B-2 Term Loan Commitment,
an Initial Tranche B-3 Term Loan Commitment, a Delayed Draw Term Loan
Commitment, a Euro Tranche Term Loan Commitment or a New Term Loan Commitment.


 


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


 


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


 


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


 


“Confidential Information Memorandum”  shall mean the Confidential
Information Memorandum of the Borrower dated September 2007.


 


9

















 


“Consolidated EBITDA” shall mean, for any period,
Consolidated Net Income for such period, plus:


 


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


 


(i)                                     total interest
expense and to the extent not reflected in such total interest expense, any
losses on hedging obligations or other derivative instruments entered into for
the purpose of hedging interest rate risk, net of interest income and gains on
such hedging obligations, bank fees and costs of surety bonds in connection
with financing activities, and commissions, discounts, yield and other fees and
charges (including any interest expense) related to any Permitted Receivables
Financing,


 


(ii)                                  provision for taxes
based on income, profits or capital, including federal, foreign state,
franchise, excise and similar taxes and foreign withholding taxes paid or
accrued during such period, including any penalties and interest relating to
any tax examinations,


 


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


 


(iv)                              Non-Cash Charges,


 


(v)                                 business optimization
expenses (including data center consolidation initiatives, severance costs and
other costs relating to initiatives aimed at profitability improvement) and
restructuring charges or reserves (including restructuring costs related to
acquisitions after the date hereof and to closure and/or consolidation of
facilities),


 


(vi)                              the amount of any
minority interest expense consisting of Subsidiary income attributable to
minority equity interests of third parties in any non-wholly-owned Subsidiary
deducted (and not added back) in such period in arriving at Consolidated Net
Income,


 


(vii)                           the amount of management,
monitoring, consulting and advisory fees (including termination fees) and
related indemnities and expenses paid or accrued in such period to the Sponsor,


 


(viii)                        any costs or expenses incurred
pursuant to any management equity plan or stock option plan or any other
management or employee benefit plan or agreement or any stock subscription or
shareholder agreement, to the extent that such costs or expenses are funded
with cash proceeds contributed to the capital of the Borrower or net cash
proceeds of an issuance of Stock or Stock Equivalents (other than Disqualified
Equity Interests) of the Borrower (provided such capital contributions
have not been applied to increase the “Applicable Amount” pursuant to clause
(v) of the definition thereof),


 


(ix)                                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


 


10

















 


or joint ventures projected by the Borrower in good faith to be
realized as a result of specified actions taken or to be taken prior to or
during such period (which cost savings or revenue enhancements shall be subject
only to certification by management of the Borrower and shall be calculated on
a Pro Forma Basis as though such cost savings or 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 (A) such cost savings or revenue
enhancements are reasonably identifiable and factually supportable, (B) such
actions have been taken or are to be taken within 12 months after the date of
determination to take such action and (C) no cost savings or revenue
enhancements shall be added pursuant to this clause (ix) to the
extent duplicative of any expenses or charges relating to such cost savings or
revenue enhancements that are included in clause (v) above with
respect to such period,


 


(x)                                   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 such 365 days), expenses with respect to liability or
casualty events or business interruption,


 


(xi)                                the amount of losses on
Dispositions of receivables and related assets in connection with any Permitted
Receivables Financing,


 


(xii)                             extraordinary losses and
unusual or non-recurring charges (including litigation and regulatory
settlements, and spin-off costs relating to divestitures of subsidiaries, including
without limitation from the spin-off of The Western Union Company),


 


(xiii)                          to the extent included in
Consolidated Net Income, the negative EBITDA of IPS and IPS Canada, and


 


(xiv)                         with respect to any Joint
Venture, an amount equal to the proportion of those items described in clauses
(ii) and (iii) above relating to such Joint Venture
corresponding to the Borrower’s and the Restricted Subsidiaries’ proportionate
share of such Joint Venture’s Consolidated Net Income (determined as if such
Joint Venture were a Restricted Subsidiary),


 


less


 


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


 


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


 


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


 


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


 


11

















 


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


 


(v)                                 cash expenditures (or
any netting arrangements resulting in increased cash expenditures) not deducted
in arriving at Consolidated EBITDA or Consolidated Net Income in any period to
the extent non-cash losses relating to such income were added in the
calculation of Consolidated EBITDA pursuant to paragraph (a) above for any
previous period and not deducted,


 


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


 


(i)                                     to
the extent included in Consolidated Net Income, there shall be excluded in
determining Consolidated EBITDA currency translation gains and losses related
to currency remeasurements of Indebtedness or intercompany balances (including
the net loss or gain resulting from Hedge Agreements for currency exchange
risk),


 


(ii)                                  to
the extent included in Consolidated Net Income, there shall be excluded in
determining Consolidated EBITDA for any period any adjustments resulting from
the application of Statement of Financial Accounting Standards No. 133 and
its related pronouncements and interpretations,


 


(iii)                               there
shall be included in determining Consolidated EBITDA for any period, without
duplication, (A) the Acquired EBITDA of any Person or business, or
attributable to any property or asset acquired by the Borrower or any
Restricted Subsidiary during such period (but not the Acquired EBITDA of any
related Person or business or any Acquired EBITDA attributable to any assets or
property, in each case to the extent not so acquired) to the extent not subsequently
sold, transferred, abandoned or otherwise disposed by the Borrower or such
Restricted Subsidiary (each such Person, business, property or asset acquired
and not subsequently so disposed of, an “Acquired Entity or Business”) and
the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a
Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”),
based on the actual Acquired EBITDA of such Acquired Entity or Business
or Converted Restricted Subsidiary for such period (including the portion
thereof occurring prior to such acquisition or conversion) and (B) other
than for purposes of determining the Applicable Amount, the Applicable ABR
Margin, the Applicable LIBOR Margin, Commitment Fee Rate and the Delayed Draw
Commitment Fee Rate, an adjustment in respect of each Acquired Entity or
Business equal to the amount of the Pro Forma Adjustment with respect to such
Acquired Entity or Business for such period (including the portion thereof
occurring prior to such acquisition) as specified in a Pro Forma Adjustment
Certificate and delivered to the Lenders and the Administrative Agent, and


 


(iv)                              to
the extent included in Consolidated Net Income, there shall be excluded in
determining Consolidated EBITDA for any period the Disposed EBITDA of any
Person, property, business or asset sold, transferred, abandoned or otherwise
disposed of, closed or classified as discontinued operations by the Borrower or
any Restricted Subsidiary during such period (each such Person, property,
business or asset so sold or disposed of, a “Sold Entity or Business”), and
the Disposed EBITDA of any Restricted Subsidiary that is converted into an
Unrestricted Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”)
based on the actual Disposed EBITDA of such Sold Entity or Business or
Converted Unrestricted Subsidiary for such period (including the portion
thereof occurring prior to such sale, transfer or disposition or conversion).


 


12

















 


“Consolidated Net Income”  shall mean, for any period,
the net income (loss) of the Borrower and the Restricted Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP, excluding,
without duplication,


 


(a)                                  extraordinary
items for such period,


 


(b)                                 the
cumulative effect of a change in accounting principles during such period to
the extent included in Consolidated Net Income,


 


(c)                                  Transaction
Expenses incurred during such period,


 


(d)                                 any
fees and expenses incurred during such period, or any amortization thereof for
such period, in connection with any acquisition, investment, recapitalization,
asset disposition, issuance or repayment of debt, issuance of equity
securities, refinancing transaction or amendment or other modification of any
debt instrument (in each case, including 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,


 


(e)                                  any
effect of income or loss for such period attributable to the early extinguishment
of Indebtedness,


 


(f)                                    accruals
and reserves established or adjusted within twelve months after the Closing
Date that are so required to be established as a result of the Transactions in
accordance with GAAP or changes as a result of adoption of or modification of
accounting policies during such period,


 


(g)                                 the
mark-to-market effects on net income during the period of any derivatives or
similar financial instruments, including the ineffective portion of hedging
arrangements, but including such effects settled in cash in the period,


 


(h)                                 Net
Income of IPS and IPS Canada,


 


(i)                                     solely
for purposes of determining the Applicable Amount, the net income for such
period of any Restricted Subsidiary (other than any Guarantor) 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) to the Borrower or a Restricted Subsidiary
thereof in respect of such period, to the extent not already included therein,
and


 


(j)                                     the
amount of any net income (or loss) for such period from disposed or discontinued
operations.


 


There shall be
excluded from Consolidated Net Income for any period the purchase accounting
effects of adjustments in component amounts required or permitted by GAAP and
related authoritative pronouncements


 


13

















 


(including the
effects of such adjustments pushed down to the Borrower and the Restricted
Subsidiaries), as a result of the Transactions, any consummated acquisition
whether consummated before or after the Closing Date, or the amortization or
write-off of any amounts thereof.


 


“Consolidated Senior Secured Debt”  shall mean Consolidated
Total Debt secured by a Lien on any Collateral.


 


“Consolidated Senior Secured Debt to
Consolidated EBITDA Ratio”  shall
mean, as of any date of determination, the ratio of (a) Consolidated
Senior Secured Debt as of such date to (b) Consolidated EBITDA for the
Test Period then last ended.


 


“Consolidated Total Assets”  shall mean, as of any date
of determination, the amount that would, in conformity with GAAP, be set forth
opposite the caption “total assets” (or any like caption) on a consolidated
balance sheet of the Borrower and the Restricted Subsidiaries at such date
(excluding any settlement assets).


 


“Consolidated Total Debt”  shall mean, as of any date
of determination, (a) all Indebtedness of the types described in clause
(a) and clause (d) of the definition thereof (but, (i) in
the case of clause (d), only to the extent of any unreimbursed drawings
under any letter of credit and (ii) in any event, excluding any Settlement
Indebtedness) of the definition thereof, in each case actually owing by the Borrower
and the Restricted Subsidiaries on such date and to the extent appearing on the
balance sheet of the Borrower determined on a consolidated basis in accordance
with GAAP minus (b) the aggregate cash and cash equivalents (in
each case, free and clear of all Liens, other than Liens permitted by Section 10.2
other than clause (u) thereof) included in the cash and cash equivalents
accounts (other than settlement assets) (x) listed on the consolidated balance
sheet of the Borrower and the Restricted Subsidiaries as at such date and (y)
listed on the balance sheet of any Joint Venture (excluding settlement assets)
in an amount corresponding to the Borrower’s or Restricted Subsidiaries’, as
applicable, proportionate share thereof, based on its ownership of such Joint
Venture’s Voting Stock.


 


“Consolidated Total Debt to
Consolidated EBITDA Ratio”  shall
mean, as of any date of determination, the ratio of (a) Consolidated Total
Debt as of such date to (b) Consolidated EBITDA for the Test Period then
last ended.


 


“Consolidated Working Capital” shall mean, at any date, the excess of (a) the
sum of all amounts (other than cash and Permitted Investments) that would, in
conformity with GAAP, be set forth opposite the caption “total current assets”
(or any like caption) on a consolidated balance sheet of the Borrower and the
Restricted Subsidiaries at such date excluding the current portion of current
and deferred income taxes over (b) the sum of all amounts that would, in
conformity with GAAP, be set forth opposite the caption “total current liabilities”
(or any like caption) on a consolidated balance sheet of the Borrower and the
Restricted Subsidiaries on such date, including deferred revenue but excluding,
without duplication, (i) the current portion of any Funded Debt, (ii) all
Indebtedness consisting of Loans and Letter of Credit Exposure to the extent
otherwise included therein, (iii) the current portion of interest and (iv) the
current portion of current and deferred income taxes.


 


“Continuing Director”  shall mean, at any date, an
individual (a) who is a member of the board of directors of the Borrower
on the date hereof, (b) who, as of the date of determination, has been a
member of such board of directors for at least the twelve preceding months, (c) who
has been nominated to be a member of such board of directors, directly or
indirectly, by a Sponsor or Persons nominated by a Sponsor or (d) who has
been nominated to be a member of such board of directors by a majority of the
other Continuing Directors then in office.


 


14
















 


“Contract Consideration” shall have the meaning provided in
the definition of “Excess Cash Flow.”


 


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


 


“Converted Restricted Subsidiary”  shall have the meaning
provided in the definition of the term “Consolidated EBITDA.”


 


“Converted Unrestricted Subsidiary”  shall have the meaning
provided in the definition of the term “Consolidated EBITDA.”


 


“Credit Documents”  shall mean this Agreement,
the Guarantees, the Security Documents, each Letter of Credit and any
promissory notes issued by the Borrower hereunder.


 


“Credit Event”  shall mean and include the
making (but not the conversion or continuation) of a Loan and the issuance of a
Letter of Credit.


 


“Credit Facility” shall mean a category of Commitments and
extensions of credit thereunder.


 


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


 


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


 


“Cumulative Consolidated Net Income”  shall mean, for any period,
Consolidated Net Income for such period, taken as a single accounting period. Cumulative
Consolidated Net Income may be a positive or negative amount.


 


“Cure Amount” shall have the meaning provided in Section 11.15(a).


 


“Cure Right” shall have the meaning provided in Section 11.15(a).


 


“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 10.1
other than Section 10.1(o) or, except to the extent accompanied by
a corresponding reduction of the Revolving Credit Commitments Section 10.1(y)).


 


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


 


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


 


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


 


“Default Rate” shall
have the meaning provided in Section 2.8(c).


 


15

















 


“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”.


 


“Delayed Draw Commitment Fee”  shall
have the meaning provided in Section 4.1(b).


 


“Delayed Draw Commitment Fee Rate”  shall
mean, with respect to the Available Delayed Draw Commitment on any day, 0.75% per annum.


 


“Delayed Draw Repayment Amount”  shall
have the meaning provided in Section 2.5(b).


 


“Delayed Draw Repayment Date”  shall
have the meaning provided in Section 2.5(b).


 


“Delayed Draw Term Loan” shall have the meaning provided in Section 2.1(a).


 


“Delayed Draw Term 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(c) as such Lender’s “Delayed
Draw Term 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 “Delayed
Draw Term Loan Commitment” in the Assignment and Acceptance pursuant to which
such Lender assumed a portion of the Total Delayed Draw Term 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 Delayed Draw Term Loan Commitments as of
the Closing Date is $225,000,000.


 


“Delayed Draw Term Loan Commitment
Percentage”  shall
mean at any time, for each Lender, the percentage obtained by dividing (a) such
Lender’s Delayed Draw Term Loan Commitment at such time by (b) the amount
of the Total Delayed Draw Term Loan Commitment at such time, provided
that at any time when the Total Delayed Draw Term Loan Commitment shall have
been terminated, each Lender’s Delayed Draw Term Loan Commitment Percentage
shall be the percentage obtained by dividing (a) such Lender’s Delayed
Draw Term Loan Exposure at such time by (b) the Delayed Draw Term Loan
Exposure of all Lenders at such time.


 


“Delayed Draw Term Loan Commitment Termination Date” shall
mean the earliest to occur of (i) December 31, 2008, (ii) the
date the Delayed Draw  Term Loan
Commitments are permanently reduced to zero pursuant to Section 2.1,
and (iii) the date of the termination of the Delayed Draw  Term Loan Commitments pursuant to Section 11.1.


 


“Delayed Draw Term Loan Exposure” shall mean, with respect to
any Lender as of any date of determination, (a) prior to the termination
of the Delayed Draw  Term Loan
Commitments, that Lender’s Delayed Draw  Term Loan
Commitment; and (b) after the termination of the Delayed Draw  Term Loan Commitments, the aggregate outstanding principal
amount of the Delayed Draw  Term Loans of
that Lender.


 


“Delayed Draw Term Loan Lender”  shall mean a Lender with a
Delayed Draw Term Loan Commitment or an outstanding Delayed Draw Term Loan.


 


16

















 


“Delayed Draw Term Loan Maturity Date” shall mean the earlier
of (a) September 24, 2014, or, if such date is not a Business Day,
the next preceding Business, and (b) the date that all Delayed Draw  Term Loans shall become due and payable in full hereunder,
whether by acceleration or otherwise.


 


“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 a Disposition pursuant to Section 10.4(b) or
Section 10.4(c) that is designated as Designated Non-Cash
Consideration pursuant to a certificate of an Authorized Officer of the
Borrower, setting forth the basis of such valuation (which amount will be
reduced by the fair market value of the portion of the non-cash consideration
converted to cash within 180 days following the consummation of the applicable
Disposition).


 


“Designated Obligations” shall mean all
obligations of the Borrower with respect to (a) principal of and interest
on the Loans, (b) Unpaid Drawings and interest thereon and (c) accrued
and unpaid fees under the Credit Documents.


 


“Disposed EBITDA”  shall mean, with respect to
any Sold Entity or Business or any Converted Unrestricted Subsidiary for any
period, the amount for such period of Consolidated EBITDA of such Sold Entity
or Business or Converted Unrestricted Subsidiary (determined as if references
to the Borrower and the Restricted Subsidiaries in the definition of
Consolidated EBITDA were references to such Sold Entity or Business or
Converted Unrestricted Subsidiary and its respective Subsidiaries), all as determined
on a consolidated basis for such Sold Entity or Business or Converted
Unrestricted Subsidiary, as the case may be.


 


“Disposition”  shall have the meaning
provided in Section 10.4(b).


 


“Disqualified Equity Interests” shall mean, with respect to
any Person, any Stock or Stock Equivalents 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 for Stock or Stock Equivalent that is
not Disqualified Equity Interests), other than 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 as a result of a
change of control or asset sale to the extent the terms of such Stock or Stock
Equivalents provide that such Stock or Stock Equivalents shall not be required
to be repurchased or redeemed until the Final Maturity Date has occurred or
such repurchase or redemption is otherwise permitted by this Agreement (including
as a result of a waiver hereunder)), in whole or in part, in each case prior to
the date that is ninety-one (91) days after the Final Maturity Date hereunder; provided
that if such Stock or Stock Equivalents are issued to any plan for the benefit
of employees of the Borrower or its Subsidiaries or by any such plan to such
employees, such Stock or Stock Equivalents shall not constitute Disqualified
Equity Interests solely because it may be required to be repurchased by the
Borrower or its Subsidiaries in order to satisfy applicable statutory or
regulatory obligations; provided, further, that any Stock or
Stock Equivalents held by any future, present or former employee, director,
manager or consultant, of the Borrower, any of its Subsidiaries or any of its
direct or indirect parent companies or any other entity in which the Borrower
or a Restricted Subsidiary has an Investment and is designated in good faith as
an “affiliate” by the Board of Directors of the Borrower, in each case pursuant
to any stockholders’ agreement, management equity plan or stock incentive plan
or any other management or employee benefit plan or agreement shall not
constitute Disqualified Equity Interests solely because it may be required to
be repurchased by the Borrower or its Subsidiaries.


 


“Dividends”  or “dividends”  shall have the meaning provided in Section 10.6.


 


 “Dollar Equivalent”
shall mean, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in
any currency other


 


17

















 


than Dollars,
the equivalent amount thereof in Dollars as determined by the Administrative
Agent or the Letter of Credit Issuer, as the case may be, on the basis of the
Spot Rate (determined in respect of the most recent Revaluation Date or other
relevant date of determination) for the purchase of Dollars with such currency.


 


“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.


 


“Drawing” shall have the meaning provided in Section 3.4(b).


 


“EMU” shall mean the economic and monetary union in
accordance with the Treaty of Rome 1957, as amended by the Single European Act
1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.


 


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


 


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


 


“Equity Offering” shall mean any public or private sale of
common stock or Preferred Stock of the Borrower or any of its direct or
indirect parent companies (excluding Disqualified Stock), other than: (a) public
offerings with respect to the Borrower’s or any direct or indirect parent
company’s common stock registered on Form S-8, (b) issuances to any
Subsidiary of the Borrower and (c) any Cure Amount.


 


18

















 


“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”  and “€”
shall mean the lawful currency of the Participating Member States introduced in
accordance with the EMU Legislation.


 


“Euro Tranche Repayment Amount”  shall have the meaning
provided in Section 2.5(b).


 


“Euro Tranche Repayment Date”  shall have the meaning
provided in Section 2.5(b).


 


“Euro Tranche Term Loan” shall have the meaning provided in Section 2.1(a).


 


“Euro Tranche Term 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(c) as such Lender’s
“Euro Tranche Term 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 “Euro
Tranche Term Loan Commitment” in the Assignment and Acceptance pursuant to
which such Lender assumed a portion of the Total Euro Tranche Term 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 Euro Tranche Term Loan
Commitments as of the Closing Date is .


 


“Euro Tranche Term Loan Lender”  shall mean a Lender with a
Euro Tranche Term Loan Commitment or an outstanding Euro Tranche Term Loan.


 


“Euro Tranche Term Loan Maturity Date”  shall mean September 24,
2014 or, if such date is not a Business Day, the first Business Day thereafter.


 


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


 


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


 


(a)                                  the
sum, without duplication, of


 


(i)                                     Consolidated Net
Income for such period,


 


(ii)                                  an amount equal to
the amount of all non-cash charges to the extent deducted in arriving at such
Consolidated Net Income and cash receipts included in clauses  (a) through
(f) of the definition of “Consolidated Net Income” and excluded in
arriving at such Consolidated Net Income,


 


(iii)                               decreases in
Consolidated Working Capital for such period (other than any such decreases
arising from acquisitions by the Borrower and the Restricted Subsidiaries
completed during such period or the application of purchase accounting),


 


19

















 


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


 


(v)                                 cash receipts in
respect of Hedge Agreements during such fiscal year to the extent not otherwise
included in Consolidated Net Income;


 


over (b) the
sum, without duplication, of


 


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


 


(ii)                                  without duplication
of amounts deducted pursuant to clause (xi) below in prior years, the
amount of Capital Expenditures or acquisitions of intellectual property accrued
or made in cash during such period, except to the extent that such Capital
Expenditures or acquisitions were financed with the proceeds of Indebtedness of
the Borrower or the Restricted Subsidiaries (unless such Indebtedness has been
repaid),


 


(iii)                               the aggregate amount of
all principal payments of Indebtedness of the Borrower and the Restricted
Subsidiaries (including (A) the principal component of payments in respect
of Capitalized Lease Obligations, (B) the amount of any repayment of Term
Loans pursuant to Section 2.5 and (C) the amount of a mandatory
prepayment of Term Loans pursuant to Section 5.2(a) to the
extent required due to a Disposition that resulted in an increase to
Consolidated Net Income and not in excess of the amount of such increase but
excluding (x) all other prepayments of Term Loans and (y) all prepayments of
Revolving Credit Loans and Swingline Loans) made during such period (other than
in respect of any revolving credit facility to the extent there is not an
equivalent permanent reduction in commitments thereunder), except to the extent
financed with the proceeds of other Indebtedness of the Borrower or the
Restricted Subsidiaries,


 


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


 


(v)                                 increases in
Consolidated Working Capital for such period (other than any such increases
arising from acquisitions by the Borrower and the Restricted Subsidiaries
completed during such period or the application of purchase accounting),


 


(vi)                              payments by the Borrower
and the Restricted Subsidiaries during such period in respect of long-term
liabilities of the Borrower and the Restricted Subsidiaries other than
Indebtedness, to the extent not already deducted from Consolidated Net Income,


 


(vii)                           without duplication of
amounts deducted pursuant to clause (xi) below in prior fiscal years,
the aggregate amount of cash consideration paid by the Borrower and the
Restricted Subsidiaries (on a consolidated basis) in connection with
Investments (including acquisitions) made during such period pursuant to Section 10.5
to the extent that


 


20

















 


such Investments were financed with internally generated cash flow of
the Borrower and the Restricted Subsidiaries,


 


(viii)                        the amount of dividends paid
during such period (on a consolidated basis) by the Borrower and the Restricted
Subsidiaries pursuant to Section 10.6(a), (b) or (d),
to the extent such dividends were financed with internally generated cash flow
of the Borrower and the Restricted Subsidiaries,


 


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


 


(x)                                   the aggregate amount
of any premium, make-whole or penalty payments actually paid in cash by the
Borrower and the Restricted Subsidiaries during such period that are made in
connection with any prepayment of Indebtedness to the extent that such payments
are not deducted in calculating Consolidated Net Income,


 


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


 


(xii)                             the amount of taxes (including
penalties and interest) paid in cash or tax reserves set aside or payable
(without duplication) in such period to the extent they exceed the amount of
tax expense deducted in determining Consolidated Net Income for such period,
and


 


(xiii)                          cash expenditures in respect
of Hedge Agreements during such fiscal year to the extent not deducted in
arriving at such Consolidated Net Income.


 


“Excluded Stock and  Stock
Equivalents”  shall mean (i) any Stock or
Stock Equivalents with respect to which, in the reasonable judgment of the
Collateral Agent (confirmed in writing by notice to the Borrower), the cost or
other consequences (including any adverse tax consequences) of pledging such
Stock or Stock Equivalents in favor of the Secured Parties under the Security
Documents shall be excessive in view of the benefits to be obtained by the
Lenders therefrom, (ii) solely in the case of any pledge of Stock and
Stock Equivalents of any Foreign Subsidiary or any Domestic Subsidiary substantially
all of the assets of which consist of Stock or Stock Equivalents of Foreign
Subsidiaries to secure the Obligations, any Stock or Stock Equivalents of any
class of such Foreign Subsidiary or such Domestic Subsidiary in excess of 65%
of the outstanding Stock or Stock Equivalents of such class (such percentage to
be adjusted upon any Change in Law as may be required to avoid adverse U.S.
federal income tax consequences to the Borrower or any Subsidiary), (iii) any
Stock or Stock Equivalents to the extent the pledge thereof would violate any
applicable Requirement of Law, (iv) in the case of (A) any Stock or
Stock Equivalents of any Subsidiary to the extent such Stock or Stock
Equivalents are subject to a Lien


 


21

















 


permitted by Section 10.2(h) or
(B) any Stock or Stock Equivalents of any Subsidiary that is not
wholly-owned by the Borrower and its Subsidiaries at the time such Subsidiary
becomes a Subsidiary, any Stock or Stock Equivalents of each such Subsidiary
described in clause  (A) or (B) to the extent (1) that
a pledge thereof to secure the Obligations is prohibited by any applicable
Contractual Requirement (other than customary non-assignment provisions which
are ineffective under the Uniform Commercial Code or other applicable law), (2) any
Contractual Requirement prohibits such a pledge without the consent of any
other party; provided that this clause (2) shall not apply
if (x) such other party is a Credit Party or wholly-owned Subsidiary or (y)
consent has been obtained to consummate such pledge (it being understood that
the foregoing shall not be deemed to obligate the Borrower or any Subsidiary to
obtain any such consent) and for so long as such Contractual Requirement or
replacement or renewal thereof is in effect, or (3) a pledge thereof to
secure the Obligations would give any other party (other than a Credit Party or
wholly-owned Subsidiary) to any contract, agreement, instrument or indenture
governing such Stock or Stock Equivalents the right to terminate its
obligations thereunder (other than customary non-assignment provisions which
are ineffective under the Uniform Commercial Code or other applicable law) and (v) any
Stock or Stock Equivalents of any Subsidiary to the extent that (A) the
pledge of such Stock or Stock Equivalents would result in adverse tax
consequences to the Borrower or any Subsidiary as reasonably determined by the
Borrower and (B) such Stock or Stock Equivalents have been identified in
writing to the Collateral Agent by an Authorized Officer of the Borrower.


 


“Excluded Subsidiary”  shall mean (a) each
Domestic Subsidiary listed on Schedule 1.1(d)(i) hereto and
each future Domestic Subsidiary, in each case, for so long as any such
Subsidiary does not (on a consolidated basis with its Restricted Subsidiaries),
have property, plant and equipment with a book value in excess of $10,000,000
or a contribution to Consolidated EBITDA for any four fiscal quarter period
that includes any date on or after the Closing Date in excess of $10,000,000, (b) each
Domestic Subsidiary that is not a wholly-owned Subsidiary on any date such
Subsidiary would otherwise be required to become a Guarantor pursuant to the
requirements of Section 9.11 (for so long as such Subsidiary
remains a non-wholly-owned Restricted Subsidiary), (c) any Domestic
Subsidiary substantially all the assets of which consist of Stock and Stock
Equivalents of Foreign Subsidiaries, (d) each Domestic Subsidiary that is
prohibited by any applicable Contractual Requirement or Requirement of Law from
guaranteeing or granting Liens to secure the Obligations at the time such
Subsidiary becomes a Restricted Subsidiary (and for so long as such restriction
or any replacement or renewal thereof is in effect), (e) each Domestic
Subsidiary that is a Subsidiary of a Foreign Subsidiary, (f) each Domestic
Subsidiary with respect to which, as reasonably determined by the Borrower, the
consequence of providing a Guarantee of the Obligations would adversely affect
the ability of the Borrower and its Subsidiaries to satisfy applicable
Requirements of Law, (g) any other Domestic Subsidiary with respect to
which, in the reasonable judgment of the Administrative Agent (confirmed in
writing by notice to the Borrower), the cost or other consequences (including
any adverse tax consequences) of providing a Guarantee of the Obligations shall
be excessive in view of the benefits to be obtained by the Lenders therefrom, (h) each
Unrestricted Subsidiary, (i) any Receivables Subsidiary and (j) IPS.


 


“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 Credit Document), (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,


 


22

















 


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(i) (in the
case of a U.S. Lender).


 


“Existing Secured Letters of Credit” shall mean each letter
of credit existing on the Closing Date and identified on Schedule 1.1(a); provided, however, no letter of credit on Schedule 1.1(a) shall
continue to constitute an Existing Secured Letter of Credit after the
expiration date set forth opposite such letter of credit on Schedule 1.1(a) except
to the extent of unreimbursed drawings thereunder.


 


“Existing Secured Letter of Credit Issuer” shall mean each
issuer of any Existing Secured Letter of Credit identified on Schedule 1.1(a).


 


“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.


 


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


 


“Final Maturity Date”  shall mean September 24,
2014 or, if the Euro Tranche Term Loans, the Initial Term Loans and the Delayed
Draw Term Loans shall have been repaid in full, September 24, 2013.


 


“First Delayed Draw Repayment Date” shall mean March 31,
2009.


 


“Foreign Asset Sale” shall have the meaning provided in Section 5.2(i).


 


“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 each Subsidiary of the
Borrower that is not a Domestic Subsidiary.


 


“Fronting Fee” shall have the meaning provided in Section 4.1(d).


 


23

















 


“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.


 


“Funded Debt”  shall mean all indebtedness
of the Borrower and the Restricted Subsidiaries for borrowed money that matures
more than one year from the date of its creation or matures within one year
from such date that is renewable or extendable, at the option of the Borrower
or any Restricted Subsidiary, to a date more than one year from such date or
arises under a revolving credit or similar agreement that obligates the lender
or lenders to extend credit during a period of more than one year from such
date, including all amounts of Funded Debt required to be paid or prepaid
within one year from the date of its creation and, in the case of the Borrower,
Indebtedness in respect of the Loans.


 


“GAAP” shall mean generally accepted accounting principles in
the United States of America, as in effect from time to time; provided, however,
that if there occurs after the date hereof any change in GAAP that affects in
any respect the calculation of any covenant contained in Section 10,
the Lenders and the Borrower shall negotiate in good faith amendments to the
provisions of this Agreement that relate to the calculation of such covenant
with the intent of having the respective positions of the Lenders and the
Borrower after such change in GAAP conform as nearly as possible to their
respective positions as of the date of this Agreement and, until any such
amendments have been agreed upon, the covenants in Section 10 shall
be calculated as if no such change in GAAP has occurred.


 


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


 


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


 


24

















 


“Guarantors” shall mean (a) each Domestic Subsidiary
that is party to the Guarantee on the Closing Date and (b) each Domestic
Subsidiary that becomes a party to the Guarantee after the Closing Date
pursuant to Section 9.11 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.


 


“Hedge Agreements”  shall mean interest rate
swap, cap or collar agreements, interest rate future or option contracts,
currency swap agreements, cross-currency rate swap agreements, currency future
or option contracts, commodity price protection agreements or other commodity
price hedging agreements, and other similar agreements entered into by the
Borrower or any Restricted Subsidiary in the ordinary course of business (and
not for speculative purposes) for the principal purpose of protecting the
Borrower or any of the Restricted Subsidiaries against fluctuations in interest
rates, currency exchange rates or commodity prices.


 


“Hedge Bank” shall
mean (a) any Person that, at the time it enters into a Hedge Agreement, is
a Lender or an Affiliate of a Lender, (b) solely with respect to any
currency Hedge Agreement in effect on the Closing Date, the counterparties
listed on Schedule 1.1(i) or (c) with respect to any
Hedge Agreement entered into prior to the Closing Date, any person that is a
Lender or an Affiliate of a Lender on the Closing Date.


 


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


 


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


 


“Increased Amount Date”  shall have the meaning
provided in Section 2.14(a).


 


“Indebtedness”  of any Person shall mean (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (c) the deferred purchase price of assets or services
that in accordance with GAAP would be included as a liability on the balance
sheet of such Person, (d) the face amount of all letters of credit issued
for the account of such Person and, without duplication, all drafts drawn
thereunder, (e) all Indebtedness of any other Person secured by any Lien
on any property owned by such Person, whether or not such Indebtedness has been
assumed by such Person, (f) the principal component of all Capitalized
Lease Obligations of such Person, (g) all obligations of such Person under
interest rate swap, cap or collar agreements, interest rate future or option
contracts, currency swap agreements, currency future or option contracts,
commodity price protection agreements or other commodity price hedging
agreements and other similar agreements, (h) all obligations of such Person
in respect of Disqualified Equity Interests and (i) without duplication,
all Guarantee Obligations of such Person, provided that Indebtedness
shall not include (i) trade and other ordinary course payables and accrued
expenses arising in the ordinary course of business, (ii) deferred or
prepaid revenue, (iii) purchase price holdbacks in respect of a


 


25

















 


portion of the
purchase price of an asset to satisfy warranty or other unperformed obligations
of the respective seller and (iv) all intercompany indebtedness having a
term not exceeding 364 days and incurred in the ordinary course of business. The
amount of Indebtedness of any Person for purposes of clause (e) shall
be deemed to be equal to the lesser of (i) the aggregate unpaid amount of
such Indebtedness and (ii) the fair market value of the property
encumbered thereby as determined by such Person in good faith.


 


“indemnified liabilities”  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.


 


“Initial Investors” shall
have 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, LBI 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.


 


“Initial Term Loan” shall mean any Initial Tranche B-1 Term Loan, Initial
Tranche B-2 Term Loan or Initial Tranche B-3 Term Loan.


 


“Initial Term Loan Commitment” shall mean, with respect to each Lender,
such Lender’s Initial Tranche B-1 Term Loan Commitment, Initial Tranche B-2
Term Loan Commitment and Initial Tranche B-3 Term Loan Commitment.


 


“Initial Term Loan Lender”  shall mean a Lender with an
Initial Term Loan Commitment or an outstanding Initial Term Loan.


 


“Initial Term Loan Maturity Date” shall mean September 24, 2014 or, if such date is
not a Business Day, the first Business Day thereafter.


 


“Initial Term Loan Repayment Amount”  shall have the meaning
provided in Section 2.5(b).


 


“Initial Term Loan Repayment Date”  shall have the meaning
provided in Section 2.5(b).


 


“Initial Tranche B-1 Term Loan” shall have the meaning provided in Section 2.1(a)(i).


 


“Initial Tranche B-1 Term 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(c) as such Lender’s “Initial
Tranche B-1 Term 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 “Initial
Tranche B-1 Term Loan Commitment” in the Assignment and Acceptance pursuant to
which such Lender assumed a portion of the Total Initial Term 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 Initial B-1 Term Loan Commitments as of the
Closing Date is $3,775,000,000.


 


26

















 


“Initial Tranche B-1 Term Loan Lender”  shall mean a Lender with an
Initial Tranche B-1 Term Loan Commitment or an outstanding Initial Tranche B-1
Term Loan.


 


“Initial Tranche B-2 Term Loan” shall have the meaning provided in Section 2.1(a)(ii).


 


“Initial Tranche B-2 Term 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(c) as such Lender’s “Initial Tranche B-2
Term 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 “Initial
Tranche B-2 Term Loan Commitment” in the Assignment and Acceptance pursuant to
which such Lender assumed a portion of the Total Initial Term 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 Initial B-2 Term Loan Commitments as of the
Closing Date is $5,000,000,000.


 


“Initial Tranche B-2 Term Loan Lender”  shall mean a Lender with an
Initial Tranche B-2 Term Loan Commitment or an outstanding Initial Tranche B-2
Term Loan.


 


“Initial Tranche B-3 Term Loan” shall have the meaning provided in Section 2.1(a)(iii).


 


 “Initial Tranche B-3 Term 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(c) as such Lender’s “Initial Tranche B-3 Term
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 “Initial Tranche B-3
Term Loan Commitment” in the Assignment and Acceptance pursuant to which such
Lender assumed a portion of the Total Initial Term 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 Initial B-3 Term Loan Commitments as of the Closing
Date is $3,000,000,000.


 


 “Initial Tranche B-3 Term Loan Lender”  shall mean a Lender with an
Initial Tranche B-3 Term Loan Commitment or an outstanding Initial Tranche B-3
Term Loan.


 


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


 


“Investment” shall mean, for any Person:  (a) the acquisition (whether for cash,
property, services or securities or otherwise) of Stock, Stock Equivalents,
bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person (including any “short sale” or any sale of any
securities at a time when such securities are not owned by the Person entering
into such sale); (b) the making of any deposit with, or advance, loan or
other extension of credit to, any other Person (including the purchase of
property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such property to such Person) (including any
partnership or joint venture); (c) the entering into of any guarantee of,
or other contingent obligation with respect to, Indebtedness; or (d) the
purchase or other acquisition (in one transaction or a series of transactions)
of all or substantially all of the property and assets or business of another
Person or assets constituting a business unit, line of business or division of
such Person; provided that, in the event that any Investment is made by
the Borrower or any Restricted Subsidiary in any Person through substantially
concurrent interim transfers of any amount through one or more other Restricted
Subsidiaries, then such other substantially concurrent interim transfers shall
be disregarded for purposes of Section 10.5.


 


27

















 


“IPS” shall mean Integrated Payment Systems Inc., a Delaware
corporation and its successors.


 


“IPS Canada” shall mean Integrated Payment Systems Canada
Inc., a Canadian corporation and its successors.


 


“ISP” shall mean, with respect to any Letter of Credit, the “International
Standby Practices 1998” published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of
issuance).


 


“Issuer Documents” shall mean with respect to any Letter of
Credit, the Letter of Credit Request, and any other document, agreement and
instrument entered into by the Letter of Credit Issuer and the Borrower (or any
Restricted Subsidiary) or in favor of the Letter of Credit Issuer and relating
to such Letter of Credit.


 


“Joinder Agreement”  shall mean an agreement
substantially in the form of Exhibit A.


 


“Joint Lead Arrangers and  Bookrunners”  shall
mean 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.


 


“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.


 


“JV  Distribution Amount”  shall
mean, at any time, the lesser of (x) the aggregate amount of cash distributed
to the Borrower or any Restricted Subsidiary by any joint venture that is not a
Subsidiary (regardless of the form of legal entity) since the Closing Date and
prior to such time (without duplication of any amount treated as a reduction in
the outstanding amount of Investments by the Borrower or any Restricted
Subsidiary pursuant to clause (d), (i) or (v) of
Section 10.5) and only to the extent that neither the Borrower nor
any Restricted Subsidiary is under any obligation to repay such amount to such
joint venture and (y) the amount of Investments by the Borrower or such
Restricted Subsidiary in such joint venture.


 


“KKR” shall mean each of Kohlberg Kravis Roberts &
Co., L.P. and KKR Associates, L.P.


 


“L/C  Borrowing”  shall
mean an extension of credit resulting from a drawing under any Letter of Credit
which has not been reimbursed on the date when made or refinanced as a
Borrowing. All L/C Borrowings shall be denominated in Dollars or any
Alternative Currency.


 


“L/C Maturity Date”  shall
mean the date that is three Business Days prior to the Revolving Credit
Maturity Date; provided that the L/C Maturity Date may be extended
beyond such date with the consent of the Letter of Credit Issuer.


 


“L/C Obligations”  shall
mean, as at any date of determination, the aggregate amount available to be
drawn under all outstanding Letters of Credit plus the aggregate of all
Unpaid Drawings, including all L/C Borrowings. For all purposes of this
Agreement, if on any date of determination a Letter


 


28

















 


of Credit has
expired by its terms but any amount may still be drawn thereunder by reason of
the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.


 


“L/C  Participant”  shall
have the meaning provided in Section 3.3(a).


 


“L/C Participation” shall have the meaning provided in Section 3.3(a).


 


“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
to fund its portion of any unreimbursed payment under Section 3.3
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),
2.1(b), 2.1(d) or 3.3, or (c) a Lender becoming
the subject of a bankruptcy or insolvency proceeding.


 


“Letter of Credit”  shall mean each letter of
credit issued pursuant to Section 3.1.


 


“Letter of Credit Commitment”  shall mean $500,000,000, as
the same may be reduced from time to time pursuant to Section 3.1.


 


“Letter of Credit Exposure”  shall mean, with respect to
any Lender, at any time, the sum of (a) the Dollar Equivalent amount of the
principal amount of any Unpaid Drawings in respect of which such Lender has
made (or is required to have made) payments to the Letter of Credit Issuer pursuant
to Section 3.4(a) at such time and (b) such Lender’s
Revolving Credit Commitment Percentage of the Letters of Credit Outstanding at
such time (excluding the portion thereof consisting of Unpaid Drawings in
respect of which the Lenders have made (or are required to have made) payments
to the Letter of Credit Issuer pursuant to Section 3.4(a)).


 


“Letter of Credit Fee”  shall have the meaning
provided in Section 4.1(c).


 


“Letter of Credit Issuer”  shall mean Credit Suisse,
Cayman Islands Branch, any of its Affiliates or any replacement or successor
pursuant to Section 3.6. The Letter of Credit Issuer may, in its
discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the Letter of Credit Issuer, and in each such case the term “Letter
of Credit Issuer” shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate. In the event that there is more than one
Letter of Credit Issuer at any time, references herein and in the other Credit
Documents to the Letter of Credit Issuer shall be deemed to refer to the Letter
of Credit Issuer in respect of the applicable Letter of Credit or to all Letter
of Credit Issuers, as the context requires.


 


“Letters of Credit Outstanding”  shall mean, at any time, the
sum of, without duplication, (a) the aggregate Stated Amount of all
outstanding Letters of Credit and (b) the aggregate Dollar Equivalent
amount of the principal amount of all Unpaid Drawings.


 


“Letter of Credit Request”  shall have the meaning
provided in Section 3.2(a).


 


“Level I Status” shall mean, on any date, the circumstance
that neither Level II Status or Level III Status exists and the Consolidated
Total Debt to Consolidated EBITDA Ratio is greater than 6.00 to 1.00 as of such
date.


 


29
















 


“Level II Status” shall mean, on any date, the circumstance
that Level III Status does not exist and the Consolidated Total Debt to
Consolidated EBITDA Ratio is less than or equal to 6.00 to 1.00 as of such
date.


 


“Level III Status” shall mean, on any date, the circumstance that
the Consolidated Total Debt to Consolidated EBITDA Ratio is less than or equal
to 5.00 to 1.00 as of such date.


 


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


 


“LIBOR Loan”  shall mean any
LIBOR Term Loan or LIBOR Revolving Credit Loan.


 


“LIBOR Rate”  shall mean, for any Interest
Period with respect to a LIBOR Loan of any currency, 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 such currency (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 such currency 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 (or on the first day of such Interest
Period in the case of any LIBOR Loan denominated in Sterling).


 


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


 


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


 


“Lien” shall mean any mortgage, pledge, security interest,
hypothecation, assignment, lien (statutory or other) or similar encumbrance
(including any agreement to give any of the foregoing, any conditional sale or
other title retention agreement or any lease in the nature thereof).


 


“Loan” shall mean any Revolving Credit Loan, Swingline Loan,
Term Loan, New Revolving Loan or New Term Loan made by any Lender hereunder.


 


“Management Investors”  shall mean the directors,
management officers and employees of the Borrower and its Subsidiaries on the
Closing Date.


 


“Mandatory Borrowing” shall have the meaning provided in Section
2.1(d).


 


“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 Credit Parties, taken as a whole, to perform
their payment obligations under this Agreement or any of the other Credit
Documents or (b) the rights and remedies of the Administrative Agent and the
Lenders under this Agreement or any of the other Credit Documents.


 


30

















 


“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 the Initial Term
Loan Maturity Date, the Delayed Draw Term Loan Maturity Date, the Euro Tranche
Term Loan Maturity Date or the Revolving Credit Maturity Date, as applicable.


 


“Maximum Incremental Facilities Amount” shall mean, at any
date of determination, the sum of (a) $1,500,000,000 plus (b) the Dollar
Equivalent principal amount of Term Loans (other than New Term Loans) voluntarily
prepaid pursuant to Section 5.1 prior to such date.


 


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


 


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


 


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


 


“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 or the Dollar Equivalent thereof (or,
if less, the entire remaining Commitments under the applicable Credit Facility
at the time of such Borrowing) and (b) with respect to a Borrowing of ABR Loans
(other than Swingline Loans), $1,000,000 (or, if less, the entire remaining
Commitments under the applicable Credit Facility at the time of such Borrowing).


 


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


 


“Moody’s” shall mean Moody’s Investors Service, Inc. or any
successor by merger or consolidation to its business.


 


31

















 


“Mortgage” shall mean a Mortgage, Assignment of Leases and
Rents, Security Agreement and Financing Statement or other security document
entered into by the owner of a Mortgaged Property and the Collateral Agent for
the benefit of the Secured Parties in respect of that Mortgaged Property to
secure the Obligations, substantially in the form of Exhibit C, as the
same may be amended, supplemented or otherwise modified from time to time.


 


“Mortgaged Property” shall mean, initially, each parcel of
real estate and the improvements thereto owned by a Credit Party and identified
on Schedule 1.1(b), and includes each other parcel of real property and
improvements thereto with respect to which a Mortgage is granted pursuant to Section
9.14.


 


“Multicurrency Exposure” shall mean, for any Revolving Credit
Lender at any date, the sum of (a) the aggregate Dollar Equivalent amount
of the principal amount of Revolving Credit Loans denominated in Alternative
Currencies of such Lender then outstanding, and (b) such Lender’s Letter of
Credit Exposure in respect of Letters of Credit denominated in Alternative
Currencies at such time.


 


 “Multicurrency Sublimit”
shall mean, at any date, the lesser of (x) $500,000,000 and (y) the Total
Revolving Credit Commitment at such date.


 


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


 


 “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,


 


(iv)          in
the case of any Asset Sale Prepayment Event or Casualty Event or Permitted Sale
Leaseback, the amount of any proceeds of such Prepayment Event that the
Borrower or any Restricted Subsidiary has reinvested (or intends to reinvest
within the Reinvestment Period or has entered into a binding commitment prior
to the last day of the Reinvestment Period to reinvest) in the business of the
Borrower or any of the Restricted Subsidiaries (subject to Section 10.9),
provided that any portion of such proceeds that has not been so
reinvested within such Reinvestment Period (with respect to such Prepayment
Event, the “Deferred Net Cash Proceeds”) shall, unless the Borrower
or a Restricted Subsidiary has entered into a binding commitment prior to the
last day of such Reinvestment Period to reinvest such proceeds, (x) be deemed
to be Net Cash Proceeds


 


32

















 


of an Asset
Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback occurring on
the last day of such Reinvestment Period or, if later, 180 days after the date
the Borrower or such Restricted Subsidiary has entered into such binding
commitment, as applicable (such last day or 180th day, as applicable, the “Deferred
Net Cash Proceeds Payment Date”), and (y) be applied to the
repayment of Term Loans in accordance with Section 5.2(a)(i),


 


(v)           in
the case of any Asset Sale Prepayment Event, Casualty Event or Permitted Sale
Leaseback by a non-wholly-owned Restricted Subsidiary, the pro rata portion of
the Net Cash Proceeds thereof (calculated without regard to this clause (v))
attributable to minority interests and not available for distribution to or for
the account of the Borrower or a wholly-owned Restricted Subsidiary as a result
thereof, and


 


(vi)          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.


 


“New Loan  Commitments”  shall
have the meaning provided in Section 2.14(a).


 


“New Revolving  Credit
Commitments”  shall have the meaning provided in Section
2.14(a).


 


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


 


“New Revolving Loans” shall have the meaning provided in Section
2.14(b).


 


“New Term Loan Commitments” shall have the meaning provided
in Section 2.14(a).


 


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


 


“New Term Loan Maturity Date”  shall mean the date on which a New Term Loan matures.


 


“New Term Loan Repayment Amount” shall have the meaning provided in Section
2.5(c).


 


“New Term Loan Repayment Date” shall have the meaning provided in Section
2.5(c).


 


“New Term Loans”  shall have the meaning provided
in Section 2.14(c).


 


“Non-Cash Charges” shall mean, without duplication, (a)
losses on non-ordinary course asset sales, disposals or abandonments, (b) any
impairment charge or asset write-off related to intangible assets (including
goodwill), long-lived assets, and investments in debt and equity securities
pursuant to GAAP, (c) all losses from investments recorded using the equity
method, (d) stock-based awards compensation expense, including any such charges
arising from stock options, restricted stock grants or other equity incentive
grants, and any cash compensation charges associated with the rollover or
acceleration of stock-based awards or payment of stock options in connection
with the Transactions, and (e) other non-cash charges (provided that (x)
if any non-cash charges referred to in this clause (e) represent an
accrual or reserve for potential cash items in any future period, the cash
payment in respect thereof in such future


 


33

















 


period shall
be subtracted from Consolidated EBITDA to such extent and (y) the amortization
of a prepaid current asset item that was paid in a prior period shall not be
included in Non-Cash Charges).


 


“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-Extension Notice Date” shall have the meaning provided
in Section 3.2(d).


 


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


 


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


 


“Notes” shall mean, collectively, the Senior Notes and the
Senior Subordinated Notes.


 


“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 all
advances to, and debts, liabilities, obligations, covenants and duties of, any
Credit Party arising under any Credit Document or otherwise with respect to any
Revolving Credit Commitment, Loan or Letter of Credit or under any Secured Cash
Management Agreement, Secured Hedge Agreement or Existing Secured Letter of
Credit, in each case, entered into with the Borrower or any of its Domestic
Subsidiaries, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and fees that accrue after the commencement
by or against any Credit Party or any Affiliate thereof of any proceeding under
any bankruptcy or insolvency law naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding. Without limiting the generality of the foregoing, the
Obligations of the Credit Parties under the Credit Documents (and any of their
Subsidiaries to the extent they have obligations under the Credit Documents)
include the obligation (including guarantee obligations) to pay principal,
interest, charges, expenses, fees, attorney costs, indemnities and other
amounts payable by any Credit Party under any Credit Document.


 


“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 Credit 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
Credit Document.


 


34

















 


“Overnight Rate”  shall mean, for any day, (a)
with respect to any amount denominated in Dollars, the greater of (i) the
Federal Funds Effective Rate and (ii) an overnight rate determined by the
Administrative Agent, the Letter of Credit Issuer or the Swingline Lender, as
the case may be, in accordance with banking industry rules on interbank
compensation, and (b) with respect to any amount denominated in any
Alternative Currency, the rate of interest per annum at
which overnight deposits in such Alternative Currency, in an amount approximately
equal to the amount with respect to which such rate is being determined, would
be offered for such day by a branch or Affiliate of the Administrative Agent in
the applicable offshore interbank market for such Alternative Currency to major
banks in such interbank market.


 


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


 


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


 


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


 


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


 


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


 


“Perfection Certificate”  shall mean a certificate of
the Borrower in the form of Exhibit D or any other form approved by
the Administrative Agent.


 


“Permitted Acquisition” shall mean the acquisition, by merger
or otherwise, by the Borrower or any of the Restricted Subsidiaries of assets
or Stock or Stock Equivalents, so long as (a) such acquisition and all
transactions related thereto shall be consummated in accordance with applicable
law; (b) such acquisition shall result in the issuer of such Stock or Stock Equivalents
becoming a Restricted Subsidiary and a Subsidiary Guarantor, to the extent
required by Section 9.11; (c) such acquisition shall result in the
Administrative Agent, for the benefit of the applicable Lenders, being granted
a security interest in any Stock, Stock Equivalent or any assets so acquired,
to the extent required by Sections 9.11, 9.12 and/or 9.14;
(d) each Person (or, as applicable, the assets) so acquired shall be in (or
with respect to assets, useful for engaging in) the same or generally related
line of business as conducted by the Borrower and its Subsidiaries on the
Closing Date; (e) both immediately before and after giving effect to such
acquisition, no Default or Event of Default shall have occurred and be
continuing; (f) the aggregate fair market value (as determined in good faith by
the Borrower) of all Investments funded or financed in any Persons that do not
become Guarantors in connection with all such acquisitions following the
Closing Date in reliance on Section 10.5(h) shall not exceed
$2,500,000,000 (it being understood that additional Investments in Persons that
are not Credit Parties may be made in connection with Permitted Acquisitions in
reliance on any exception in Section 10.5 other than clause (h)
thereof); and (g) the Borrower shall be in compliance, on a Pro Forma Basis
after giving effect to such acquisition (including without limitation any
Indebtedness assumed or permitted to exist or incurred pursuant to Sections 10.1(j)
and 10.1(k), respectively, and any related Pro Forma Adjustment), with
the covenant set forth in Section 10.10, or the Consolidated Senior
Secured Debt to Consolidated EBITDA Ratio shall be no higher after giving
effect to such acquisition on a Pro Forma Basis after giving effect to such
acquisition (including without limitation any Indebtedness assumed or permitted
to exist or incurred pursuant to Sections 10.1(j) and 10.1(k),
respectively, and any related Pro Forma Adjustment).


 


35

















 


“Permitted Additional Debt”  shall mean unsecured
Indebtedness, issued by the Borrower or a Guarantor, (a) the terms of which (i)
do not provide for any scheduled repayment, mandatory redemption or sinking
fund obligation prior to the Final Maturity Date (other than customary offers
to purchase upon a change of control, asset sale or event of loss and customary
acceleration rights after an event of default) and (ii) to the extent the same
are subordinated, provide for customary subordination to the Obligations under
the Credit Documents, (b) the covenants, events of default, guarantees and
other terms of which (other than interest rate and redemption premiums), taken
as a whole, are not more restrictive to the Borrower and the Restricted
Subsidiaries than those herein (or to the extent such Permitted Additional Debt
constitutes refinancing Indebtedness of the (x) Senior Subordinated Notes,
those applicable to the Senior Subordinated Notes being so refinanced or (y)
the Senior Notes, those applicable to the Senior Notes being refinanced); provided
that a certificate of an Authorized Officer of the Borrower is delivered to the
Administrative Agent at least five Business Days (or such shorter period as the
Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness,
together with a reasonably detailed description of the material terms and
conditions of such Indebtedness or drafts of the documentation relating
thereto, stating that the Borrower has determined in good faith that such terms
and conditions satisfy the foregoing requirement shall be conclusive evidence
that such terms and conditions satisfy the foregoing requirement unless the
Administrative Agent notifies the Borrower within such period that it disagrees
with such determination (including a reasonable description of the basis upon
which it disagrees) and (c) of which no Subsidiary of the Borrower (other than
a Guarantor or any guarantor of the Indebtedness being refinanced by such
Permitted Additional Debt, if applicable) is an obligor.


 


“Permitted Holders”  shall mean the Sponsor, the
Management Investors, the Initial Investors and each Person to whom any Initial
Investor transfers Stock or Stock Equivalents of Holdings or any direct or
indirect parent thereof in connection with the primary equity syndication
following the Closing Date.


 


“Permitted Investments” shall mean:


 


(a)           securities issued or
unconditionally guaranteed by the United States government or any agency or
instrumentality thereof, in each case having maturities of not more than 24
months from the date of acquisition thereof;


 


(b)           securities issued by
any state of the United States of America or any political subdivision of any
such state or any public instrumentality thereof or any political subdivision
of any such state or any public instrumentality thereof having maturities of
not more than 24 months from the date of acquisition thereof and, at the time
of acquisition, having an investment grade rating generally obtainable from
either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall
be rating such obligations, then from another nationally recognized rating
service);


 


(c)           commercial paper
maturing no more than 12 months after the date of creation thereof and, at the
time of acquisition, having a rating of at least A-2 or P-2 from either S&P
or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such
obligations, an equivalent rating from another nationally recognized rating
service);


 


(d)           domestic and LIBOR
certificates of deposit or bankers’ acceptances maturing no more than two years
after the date of acquisition thereof issued by any Lender or any other bank
having combined capital and surplus of not less than $500,000,000 in the case
of domestic banks and $100,000,000 (or the Dollar Equivalent thereof) in the
case of foreign banks;


 


(e)           repurchase agreements
with a term of not more than 90 days for underlying securities of the type
described in clauses (a), (b) and (d) above entered into
with any bank meeting


 


36

















 


the qualifications specified in clause (d) above or securities
dealers of recognized national standing;


 


(f)            marketable short-term
money market and similar funds (x) either having assets in excess of
$500,000,000 or (y) having a rating of at least A-2 or P-2 from either S&P
or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such
obligations, an equivalent rating from another nationally recognized rating
service);


 


(g)           shares of investment
companies that are registered under the Investment Company Act of 1940 and
substantially all the investments of which are one or more of the types of
securities described in clauses (a) through (f) above;


 


(h)           in the case of
Investments by any Restricted Foreign Subsidiary or Investments made in a
country outside the United States of America, other customarily utilized
high-quality Investments in the country where such Restricted Foreign
Subsidiary is located or in which such Investment is made; and


 


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


 


“Permitted Liens”  shall mean:


 


(a)           Liens for taxes,
assessments or governmental charges or claims not yet due and payable or that
are being contested in good faith and by appropriate proceedings for which
appropriate reserves have been established to the extent required by and in
accordance with GAAP;


 


(b)           Liens in respect of
property or assets of the Borrower or any of the Subsidiaries imposed by law, such
as carriers’, warehousemen’s and mechanics’ Liens and other similar Liens
arising in the ordinary course of business, in each case so long as such Liens
arise in the ordinary course of business and do not individually or in the
aggregate have a Material Adverse Effect;


 


(c)           Liens arising from
judgments or decrees in circumstances not constituting an Event of Default
under Section 11.11;


 


(d)           Liens incurred or
deposits made in connection with workers’ compensation, unemployment insurance
and other types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations
incurred in the ordinary course of business or otherwise constituting
Investments permitted by Section 10.5;


 


(e)           ground leases in
respect of real property on which facilities owned or leased by the Borrower or
any of its Subsidiaries are located;


 


(f)            easements,
rights-of-way, restrictions, minor defects or irregularities in title and other
similar charges or encumbrances not interfering in any material respect with
the business of the Borrower and its Subsidiaries, taken as a whole;


 


(g)           any interest or title
of a lessor or secured by a lessor’s interest under any lease permitted by this
Agreement;


 


37

















 


(h)           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;


 


(i)            Liens on goods the
purchase price of which is financed by a documentary letter of credit issued
for the account of the Borrower or any of its Subsidiaries, provided
that such Lien secures only the obligations of the Borrower or such Subsidiaries
in respect of such letter of credit to the extent permitted under Section
10.1;


 


(j)            leases, licenses,
subleases or sublicenses granted to others not interfering in any material
respect with the business of the Borrower and its Subsidiaries, taken as a
whole;


 


(k)           Liens arising from
precautionary Uniform Commercial Code financing statement or similar filings
made in respect of operating leases entered into by the Borrower or any of its
Subsidiaries;


 


(l)            Liens created in the
ordinary course of business in favor of banks and other financial institutions
over credit balances of any bank accounts of the Borrower and the Restricted
Subsidiaries held at such banks or financial institutions, as the case may be,
to facilitate the operation of cash pooling and/or interest set-off
arrangements in respect of such bank accounts in the ordinary course of
business;


 


(m)          Settlement Liens;


 


(n)           Liens on accounts
receivable and related assets incurred in connection with a Permitted
Receivables Financing; and


 


(o)           any zoning or similar
law or right reserved to or vested in any Governmental Authority to control or
regulate the use of any real property that does not materially interfere with
the ordinary conduct of the business of the Borrower and its Subsidiaries, taken
as a whole.


 


“Permitted Receivables Financing” shall mean any customary accounts receivable
financing facility (including customary back-to-back intercompany arrangements
in respect thereof) to the extent that (a) the maturity date is no earlier than
the Revolving Credit Maturity Date; (b) any collateral securing the obligations
of the obligors thereunder shall be pledged to the Secured Parties on a second
priority basis to secure the Obligations pursuant to intercreditor arrangement
reasonably acceptable to the Administrative Agent; (c) the remaining terms
applicable to such financing facility must be customary for financings of such
type and (d) (i) the proceeds of all Indebtedness incurred under such facility
must be applied to the prepayment of Term Loans pursuant to Section 5.2
or (ii) the Revolving Credit Commitments are reduced by an amount equal to such
facility.


 


“Permitted Sale Leaseback” shall mean any Sale Leaseback
consummated by the Borrower or any of the Restricted Subsidiaries after the
Closing Date, provided that any such Sale Leaseback not between (a) a
Credit Party and another Credit Party or (b) a Restricted Subsidiary that is
not a Credit Party to another Restricted Subsidiary that is not a Credit Party
is consummated for fair value as determined at the time of consummation in good
faith by (i) the Borrower or such Restricted Subsidiary and, in the case of any
Sale Leaseback (or series of related Sales Leasebacks) the aggregate proceeds
of which exceed $100,000,000, (ii) the board of directors of the Borrower or
such Restricted Subsidiary (which such determination may take into account any
retained interest or other Investment of the Borrower or such Restricted
Subsidiary in connection with, and any other material economic terms of, such
Sale Leaseback).


 


38

















 


“Person” shall mean any individual, partnership, joint
venture, firm, corporation, limited liability company, association, trust or
other enterprise or any Governmental Authority.


 


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


 


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


 


“Pledge Agreement”
shall mean (a) the Pledge Agreement, entered into by the Credit Parties party
thereto and the Collateral Agent for the benefit of the Secured Parties, substantially
in the form of Exhibit E, on the Closing Date, and (b) any other pledge
agreement with respect to all of the Obligations delivered pursuant to Section
9.12, in each case, as the same may be amended, supplemented or otherwise
modified from time to time.


 


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


 


“Prepayment Event” shall mean any Asset Sale Prepayment
Event, Debt Incurrence Prepayment Event, Casualty Event or any Permitted Sale
Leaseback.


 


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


 


“Pro Forma Adjustment”  shall mean, for any Test
Period that includes all or any part of a fiscal quarter included in any
Post-Acquisition Period, with respect to the Acquired EBITDA of the applicable
Acquired Entity or Business or Converted Restricted Subsidiary or the
Consolidated EBITDA of the Borrower, the pro forma increase or decrease in such
Acquired EBITDA or such Consolidated EBITDA, as the case may be, projected by
the Borrower in good faith as a result of (a) actions taken during such
Post-Acquisition Period for the purposes of realizing reasonably identifiable
and factually supportable cost savings or (b) any additional costs incurred
during such Post-Acquisition Period, in each case in connection with the
combination of the operations of such Acquired Entity or Business or Converted
Restricted Subsidiary with the operations of the Borrower and the Restricted
Subsidiaries; provided that (i) at the election of the Borrower, such
Pro Forma Adjustment shall not be required to be determined for any Acquired
Entity or Business or Converted Restricted Subsidiary to the extent the
aggregate consideration paid in connection with such acquisition was less than
$5,000,000 and (ii) so long as such actions are taken during such
Post-Acquisition Period or such costs are incurred during such Post-Acquisition
Period, as applicable, it may be assumed, for purposes of projecting such pro
forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA,
as the case may be, that the applicable amount of such cost savings will be
realizable during the entirety of such Test Period, or the applicable amount of
such additional costs, as applicable, will be incurred during the entirety of
such Test Period; provided  further that any such pro forma
increase or decrease to such Acquired EBITDA or such


 


39

















 


Consolidated
EBITDA, as the case may be, shall be without duplication for cost savings or
additional costs already included in such Acquired EBITDA or such Consolidated
EBITDA, as the case may be, for such Test Period.


 


“Pro Forma Adjustment Certificate” shall mean any certificate of an Authorized
Officer of the Borrower delivered pursuant to Section 9.1(h) or Section
9.1(d).


 


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


 


“Pro Forma Entity” shall have the meaning provided in the
definition of the term “Acquired EBITDA.”


 


“Qualified Equity Interest” shall mean any Stock or Stock
Equivalent that does not constitute a Disqualified Equity Interest.


 


“Real Estate”  shall have the meaning
provided in Section 9.1(f).


 


“Receivables Subsidiary”
shall mean any Subsidiary established in connection with a Permitted
Receivables Financing that is not permitted by the terms of such Permitted
Receivables Financing to guarantee the Obligations.


 


“Refinanced Term Loans” shall have the meaning provided in Section 13.1.


 


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


 


“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.


 


40

















 


“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.


 


“Reimbursement Date”  shall have the meaning
provided in Section 3.4(a).


 


“Reinvestment Period”  shall mean 15 months
following the date of receipt of Net Cash Proceeds of an Asset Sale Prepayment
Event, Casualty Event or Permitted Sale Leaseback.


 


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


 


“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.


 


“Repaid Tranche B-2 Loans”
shall have the meaning provided in Section 5.2(a)(i)(B).


 


“Repaid Tranche B-3 Loans”
shall have the meaning provided in Section 5.1(b).


 


“Repayment Amount”  shall mean the Initial Term
Loan Repayment Amount, the Delayed Draw Repayment Amount, the Euro Tranche
Repayment Amount or a New Term Loan Repayment Amount with respect to any
Series, as applicable.


 


“Replacement Term Loans”  shall have the meaning
provided in Section 13.1.


 


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


 


“Required Delayed Draw Term Loan
Lenders”  shall
mean, at any date, Non-Defaulting Lenders having or holding a majority of the
sum of (a) the Adjusted Total Delayed Draw Term Loan Commitment at such date
and (b) the aggregate outstanding principal amount of the Delayed Draw Term
Loans (excluding Delayed Draw Term Loans held by Defaulting Lenders) at such
date.


 


“Required Euro Tranche Term Loan
Lenders”  shall
mean, at any date, Non-Defaulting Lenders having or holding a Dollar Equivalent
of a majority of the sum of (a) the Adjusted Total Euro Tranche Term Loan
Commitment at such date and (b) the aggregate outstanding principal amount of
the Euro Tranche Term Loans (excluding Euro Tranche Term Loans held by
Defaulting Lenders) at such date.


 


“Required Initial Term Loan Lenders”  shall mean, at any date, Non-Defaulting Lenders having or holding a
majority of the sum of (a) the Adjusted Total Initial Term Loan Commitment at
such date and (b) the aggregate outstanding principal amount of the Initial
Term Loans (excluding Initial Term Loans held by Defaulting Lenders) at such
date.


 


“Required
Initial Tranche B-1 Term Loan Lenders” shall mean, at any date, Non-Defaulting
Lenders having or holding a majority of the sum of (a) the Initial Tranche B-1
Term Loan Commitments at such date (excluding Initial Tranche B-1 Term Loan
Commitments held by Defaulting Lenders) and (b) the aggregate outstanding
principal amount of the Initial Tranche B-1 Term Loans (excluding Initial
Tranche B-1 Term Loans held by Defaulting Lenders) at such date.


 


41

















 


“Required
Initial Tranche B-2 Term Loan Lenders” shall mean, at any date,
Non-Defaulting Lenders having or holding a majority of the sum of (a) the
Initial Tranche B-2 Term Loan Commitments at such date (excluding Initial
Tranche B-2 Term Loan Commitments held by Defaulting Lenders) and (b) the
aggregate outstanding principal amount of the Initial Tranche B-2 Term Loans
(excluding Initial Tranche B-2 Term Loans held by Defaulting Lenders) at such
date.


 


“Required
Initial Tranche B-3 Term Loan Lenders” shall mean, at any date,
Non-Defaulting Lenders having or holding a majority of the sum of (a) the
Initial Tranche B-3 Term Loan Commitments at such date (excluding Initial
Tranche B-3 Term Loan Commitments held by Defaulting Lenders) and (b) the
aggregate outstanding principal amount of the Initial Tranche B-3 Term Loans
(excluding Initial Tranche B-3 Term Loans held by Defaulting Lenders) at such
date.


 


“Required Lenders”  shall mean, at any date, (a)
Non-Defaulting Lenders having or holding a majority of the Dollar Equivalent of
the sum of (i) the Adjusted Total Revolving Credit Commitment at such date,
(ii) the Adjusted Total Term Loan Commitment at such date and (iii) the
outstanding principal amount of the Term Loans (excluding Term Loans held by
Defaulting Lenders) at such date or (b) if the Total Revolving Credit
Commitment and the Total Term Loan Commitment have been terminated or for the
purposes of acceleration pursuant to Section 11, Non-Defaulting Lenders
having or holding a majority of the Dollar Equivalent of the outstanding principal
amount of the Loans and Letter of Credit Exposure (excluding the Loans and
Letter of Credit Exposure of Defaulting Lenders) in the aggregate at such date.


 


“Required Revolving Credit Lenders”  shall mean, at any date,
Non-Defaulting Lenders holding a majority of the Adjusted Total Revolving
Credit Commitment at such date (or, if the Total Revolving Credit Commitment
has been terminated at such time, a majority of the Revolving Credit Exposure
(excluding Revolving Credit Exposure of Defaulting Lenders) at such time).


 


“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 Foreign Subsidiary”  shall
mean a Foreign Subsidiary that is a Restricted Subsidiary.


 


“Restricted Subsidiary” shall mean any Subsidiary of the
Borrower other than an Unrestricted Subsidiary.


 


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


 


“Revaluation Date” shall mean (a) with
respect to any Revolving Credit Loan or Swingline Loan, each of the following:
(i) each date of a Borrowing of a Revolving Credit Loan or Swingline Loan, (ii)
each date of a continuation of a Revolving Credit Loan pursuant to Section
2.6, and (iii) such additional dates as the Administrative Agent shall
determine or the Required Revolving Credit Lenders or Swingline Lender shall
require; and (b) with respect to any Letter of Credit, each of the following:  (i) each date of issuance of any such Letter
of Credit, (ii) each date of an amendment of any such Letter of Credit having
the effect of increasing the amount thereof, (iii) each date of any payment by
the applicable Letter of Credit Issuer under any Letter of Credit, and (iv)
such additional dates as the Administrative Agent or the Letter of Credit
Issuer shall determine or the Required Revolving Credit Lenders shall require.


 


42

















 


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


 


“Revolving Credit Commitment
Percentage”  shall
mean at any time, for each Lender, the percentage obtained by dividing (a) such
Lender’s Revolving Credit Commitment at such time by (b) the amount of the
Total Revolving Credit Commitment at such time, provided that at any
time when the Total Revolving Credit Commitment shall have been terminated,
each Lender’s Revolving Credit Commitment Percentage shall be the percentage
obtained by dividing (a) such Lender’s Revolving Credit Exposure at such time
by (b) the Revolving Credit Exposure of all Lenders at such time.


 


“Revolving Credit Exposure”  shall mean, with respect to
any Lender at any time, the sum of (a) the aggregate Dollar Equivalent amount
of the principal amount of Revolving Credit Loans of such Lender then
outstanding, (b) such Lender’s Letter of Credit Exposure at such time and (c)
such Lender’s Revolving Credit Commitment Percentage of the aggregate principal
amount of all outstanding Swingline Loans at such time.


 


“Revolving Credit Facility”  shall mean the Credit
Facility consisting of the Revolving Credit Commitments and the extensions of
credit thereunder.


 


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


 


“Revolving Credit Loans”  shall have the meaning
provided in Section 2.1(b).


 


“Revolving Credit Maturity Date”  shall mean September 24,
2013, or, if such date is not a Business Day, the next preceding Business Day.


 


“Revolving Credit Termination Date”  shall mean the date on which
the Revolving Credit Commitments shall have terminated, no Revolving Credit
Loans shall be outstanding and the Letters of Credit Outstanding shall have
been reduced to zero or Cash Collateralized.


 


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


 


“Sale Leaseback” shall mean any transaction or series of
related transactions pursuant to which the Borrower or any of the Restricted
Subsidiaries (a) sells, transfers or otherwise disposes of any property, real
or personal, whether now owned or hereafter acquired, and (b) as part of such
transaction, thereafter rents or leases such property or other property that it
intends to use for substantially the same purpose or purposes as the property
being sold, transferred or disposed.


 


“Scheduled Dispositions” shall have the meaning provided in Section
10.4(k).


 


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


 


43

















 


“Section 9.1  Financials”  shall
mean the financial statements delivered, or required to be delivered, pursuant
to Section 9.1(a) or (b) together with the accompanying officer’s
certificate delivered, or required to be delivered, pursuant to Section 9.1(d).


 


“Secured Cash Management Agreement” shall mean any Cash
Management Agreement that is entered into by and between the Borrower or any of
its Subsidiaries and any Cash Management Bank.


 


“Secured Hedge Agreement” shall mean any Hedge Agreement that
is entered into by and between the Borrower or any Restricted Subsidiary and
any Hedge Bank; provided that in the case of a Hedge Bank that is
considered a Hedge Bank solely as a result of the operation of clause (b)
of the definition thereof, the only Hedge Agreements with such Hedge Bank that
shall be considered Secured Hedge Agreements are those set forth on Schedule
1.1(i) except
as such Hedge Bank may otherwise be considered a Hedge Bank after the Closing
Date in accordance with clause (a) of the definition thereof.


 


“Secured Parties”  shall mean the
Administrative Agent, the Collateral Agent, the Letter of Credit Issuer and
each Lender, in each case with respect to the Credit Facilities, each Existing
Secured Letter of Credit Issuer that is an issuer of any Existing Secured
Letter of Credit, each Hedge Bank that is party to any Secured Hedge Agreement
with the Borrower or any Domestic Subsidiary, each Cash Management Bank that is
party to a Secured Cash Management Agreement with the Borrower or any Domestic
Subsidiary and each sub-agent pursuant to Section 12 appointed by the
Administrative Agent with respect to matters relating to the Credit Facilities
or the Collateral Agent with respect to matters relating to any Security
Document.


 


“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 Credit Documents.


 


“Security Agreement”  shall mean the
Security Agreement entered into by the Borrower, the other grantors party
thereto and the Collateral Agent for the benefit of the Secured Parties,
substantially in the form of Exhibit F, as the same may be amended,
supplemented or otherwise modified from time to time.


 


“Security Documents”  shall mean,
collectively, (a) the Guarantee, (b) the Pledge Agreement, (c) the Security
Agreement, (d) the Mortgages and (e) each other security agreement or other
instrument or document executed and delivered pursuant to Section 9.11, 9.12
or 9.14 or pursuant to any other such Security Documents to secure all
of the Obligations.


 


“Senior Interim Loan Agreement” 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 and shall include term loans
outstanding under the Senior Interim Loan Agreement after conversion thereof.


 


“Senior Interim PIK Loans” shall have the
meaning provided in the recitals to this Agreement and shall include term loans
outstanding under the Senior Interim Loan Agreement after conversion thereof.


 


44
















 


“Senior Notes” shall mean (a) senior notes
and/or senior PIK notes (the “PIK  Notes”) with a stated maturity no earlier
than seven and one-half years after the Closing Date to be issued in connection
with the refinancing or exchange of the Senior Interim Loans in sales pursuant
to Rule 144A and Regulation S under the Securities Act of 1933, as amended,
under the Senior Notes Indenture or Senior Interim Loan Agreement, as
applicable, in each case together with interest, fees and all other amounts
payable in connection therewith, generating aggregate gross proceeds of up to
$6,500,000,000 plus the aggregate amount of fees, underwriting discounts,
premiums and other costs and expenses incurred in connection with such
refinancing (less the amount of any Senior Interim Loans and Senior Interim PIK
Loans that remain outstanding after the issuance of the Senior Notes), and (b)
any modification, replacement, refinancing, refunding, renewal or extension
thereof that constitutes Permitted Additional Debt.


 


“Senior Notes Indenture” shall mean the
Indenture to be entered into in connection with the refinancing or exchange of
the Senior Interim Loans, among the Borrower, the guarantors party thereto 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 Secured Leverage Test” shall mean, as of any date of
determination, with respect to the last day of the most recently ended Test
Period, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio shall
be no greater than 5.5 to 1.0.


 


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


 


“Senior Subordinated Interim Loans” shall
have the meaning provided in the recitals to this Agreement and shall include
term loans outstanding under the Senior Subordinated Interim Loan Agreement
after conversion thereof.


 


“Senior Subordinated Notes” shall mean (a)
senior subordinated notes with a stated maturity no earlier than seven and
one-half years after the Closing Date to be issued in connection with the
refinancing or exchange of the Senior Subordinated Interim Loans in a sale
pursuant to Rule 144A and Regulation S under the Securities Act of 1933, as
amended, under the Senior Subordinated Notes Indenture or Senior Subordinated
Interim Loan Agreement, as applicable, together with interest, fees and all
other amounts payable in connection therewith, generating aggregate gross
proceeds of up to $2,500,000,000 plus the aggregate amount of fees,
underwriting discounts, premiums and other costs and expenses incurred in
connection with such refinancing (less the amount of any Senior Subordinated
Interim Loans that remain outstanding after the issuance of the Senior
Subordinated Notes), and (b) any modification, replacement, refinancing,
refunding, renewal or extension thereof that constitutes Permitted Additional
Debt.


 


“Senior Subordinated Notes Indenture” shall
mean the Indenture to be entered into in connection with the refinancing or
exchange of the Senior Subordinated Interim Loans, among the Borrower, the
guarantors party thereto 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.


 


“Series” shall have the meaning provided in Section
2.14(a).


 


“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.


 


45

















 


“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.


 


“Sold Entity or Business”  shall have the meaning
provided in the definition of the term “Consolidated EBITDA.”


 


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


 


“Specified Subsidiary” shall mean, at any date of
determination (a) any Material Subsidiary or (b) any Unrestricted Subsidiary
(i) 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 10% of the Consolidated Total Assets of
the Borrower and the Subsidiaries at such date, or (ii) whose revenues during
such Test Period were equal to or greater than 10% of the consolidated revenues
of the Borrower and the Subsidiaries for such period, in each case determined
in accordance with GAAP, and (c) each other Unrestricted Subsidiary that is the
subject of an Event of Default under Section 11.5 and that, when such
Subsidiary’s total assets or revenues are aggregated with the total assets or
revenues, as applicable, of each other Subsidiary that is the subject of an
Event of Default under Section 11.5 would constitute a Specified
Subsidiary under clause (b) above.


 


“Specified Transaction”  shall mean, with respect to
any period, any Investment, any Disposition of assets, incurrence or repayment
of Indebtedness, Dividend, Subsidiary designation, New Term Loan, New Revolving
Credit Commitment or other event that by the terms of this Agreement requires “Pro
Forma Compliance” with a test or covenant hereunder or requires such test or
covenant to be calculated on a “Pro Forma Basis”.


 


46

















 


“Sponsor” shall mean any of KKR and its Affiliates but
excluding portfolio companies of any of the foregoing.


 


“Spot Rate”  for a currency shall mean
the rate determined by the Administrative Agent to be the rate quoted by the
Administrative Agent as the spot rate for the purchase by the Administrative
Agent of such currency with another currency through its principal foreign
exchange trading office at approximately 11:00 a.m. on the date two Business
Days prior to the date as of which the foreign exchange computation is made; provided
that the Administrative Agent may obtain such spot rate from another financial
institution designated by the Administrative Agent if it does not have as of
the date of determination a spot buying rate for any such currency.


 


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


 


“Stated Amount”  of any Letter of Credit
shall mean the Dollar Equivalent of the maximum amount from time to time
available to be drawn thereunder, determined without regard to whether any
conditions to drawing could then be met; provided, however, that
with respect to any Letter of Credit that by its terms or the terms of any
Issuer Document provides for one or more automatic increases in the stated
amount thereof, the Stated Amount shall be deemed to be the Dollar Equivalent
of the maximum stated amount of such Letter of Credit after giving effect to
all such increases, whether or not such maximum stated amount is in effect at
such time.


 


“Status” shall mean, as to the Borrower as of any date, the
existence of Level I Status, Level II Status or Level III Status, as the case
may be, on such date. Changes in Status resulting from changes in the
Consolidated Total Debt to Consolidated EBITDA Ratio shall become effective as
of the first day following each date that (a) Section 9.1 Financials for the
first full fiscal quarter ended after the Closing Date are delivered to the
Administrative Agent under Section 9.1 and (b) an officer’s certificate
is delivered by the Borrower to the Administrative Agent setting forth, with
respect to such Section 9.1 Financials, the then-applicable Status, and shall
remain in effect until the next change to be effected pursuant to this
definition, provided that each determination of the Consolidated Total
Debt to Consolidated EBITDA Ratio pursuant to this definition shall be made as
of the end of the Test Period ending at the end of the fiscal period covered by
the relevant Section 9.1 Financials.


 


“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 Indebtedness of the
Borrower or any Guarantor that is by its terms subordinated in right of payment
to the obligations of the Borrower and such Guarantor, as applicable, under
this Agreement.


 


“Subsidiary”  of any Person shall mean and
include (a) any corporation more than 50% of whose Stock of any class or
classes having by the terms thereof ordinary voting power to elect a majority
of the directors of such corporation (irrespective of whether or not at the
time Stock of any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries, (b) any
limited


 


47

















 


liability
company, partnership, association, joint venture or other entity of which such
Person directly or indirectly through Subsidiaries has more than a 50% equity
interest at the time. Unless otherwise expressly provided, all references
herein to a “Subsidiary” shall mean a Subsidiary of the Borrower.


 


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


 


“Swingline Commitment” shall mean $250,000,000.


 


“Swingline Lender” shall mean Credit Suisse, in its capacity
as lender of Swingline Loans hereunder, or any replacement or successor
thereto.


 


“Swingline Loans” shall have the meaning provided in Section
2.1(c).


 


“Swingline Maturity Date”  shall mean, with respect to
any Swingline Loan, the date that is five Business Days prior to the Revolving
Credit Maturity Date.


 


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


 


“TARGET Day”  shall mean any day on which
the Trans-European Automated Real-time Gross Settlement Express Transfer
(TARGET) payment system (or, if such payment system ceases to be operative,
such other payment system (if any) determined by the Administrative Agent to be
a suitable replacement) is open for the settlement of payments in Euro.


 


“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.


 


“Term Loan Commitment”  shall mean, with respect to
each Lender, such Lender’s Initial Term Loan Commitment, Delayed Draw Term Loan
Commitment, Euro Tranche Term Loan Commitment and, if applicable, New Term Loan
Commitment with respect to any Series.


 


“Term Loans”  shall mean the Initial Term
Loans, the Delayed Draw Term Loans, the Euro Tranche Term Loans and any New Term
Loans, collectively.


 


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


 


“Total Credit Exposure” shall mean, at any date, the sum, without
duplication, of (a) the Total Revolving Credit Commitment at such date (or, if
the Total Revolving Credit Commitment shall have terminated on such date, the
aggregate Revolving Credit Exposure of all Lenders at such date), (b) the Total
Term Loan Commitment at such date and (c) without duplication of clause (b),
the Dollar Equivalent of the aggregate outstanding principal amount of all Term
Loans at such date.


 


“Total Delayed Draw Term Loan
Commitment”  shall
mean the sum of the Delayed Draw Term Loan Commitments of all Lenders.


 


“Total Euro Tranche Term Loan
Commitment”  shall
mean the sum of the Euro Tranche Term Loan Commitments of all Lenders.


 


48

















 


“Total Initial Term Loan Commitment”  shall mean the sum of the
Initial Term Loan Commitments of all Lenders.


 


“Total Revolving Credit Commitment”  shall mean the sum of the
Revolving Credit Commitments of all the Lenders.


 


“Total Term Loan Commitment”  shall mean the sum of the
Initial Term Loan Commitments, the Delayed Draw Term Loan Commitments, the Euro
Tranche Term Loan Commitments and the New Term Loan Commitments, if applicable,
of all the 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 Credit Documents
and the transactions contemplated hereby and thereby.


 


“Transactions”  shall mean, collectively,
the transactions contemplated by this Agreement, the Senior Interim Loan
Agreement, the Senior Subordinated Interim Loan Agreement, the Merger and the
Equity Investments 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).


 


“Treasury Rate” shall mean at any date, the yield to maturity
as of such date of United States Treasury securities with a constant maturity
(as compiled and published in the most recent Federal Reserve Statistical
Release H.15 (519) that has become publicly available at least two Business
Days prior to such date (or, if such Statistical Release is no longer
published, any publicly available source of similar market data)) most nearly
equal to the period from such date to the date which is 3.25 years following
the Closing Date; provided, however, that if the period from such
date to the date which is 3.25 years following the Closing Date is less than
one year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year will be used.


 


“Trigger Date”  shall mean the day following
the date on which Section 9.1 Financials are delivered to the Administrative
Agent for the fiscal year ending on December 31, 2007.


 


“Type” shall mean (a) as to any Term Loan, its nature as an
ABR Loan or a LIBOR Term Loan and (b) as to any Revolving Credit Loan, its
nature as an ABR Loan or a LIBOR Revolving Credit Loan.


 


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


 


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


 


“Unrestricted Subsidiary”  shall mean (a) any
Subsidiary of the Borrower that is formed or acquired after the Closing Date, provided
that at such time (or promptly thereafter) the Borrower designates such
Subsidiary an Unrestricted Subsidiary in a written notice to the Administrative
Agent, (b) any Restricted Subsidiary subsequently designated as an Unrestricted
Subsidiary by the Borrower in a written notice to the Administrative Agent; provided
that in the case of (a) and (b), (x) such designation shall be
deemed to be an Investment (or reduction in an outstanding Investment, in the
case of a designation of an Unrestricted Subsidiary as a Restricted
Subsidiary), on the date of such designation in an


 


49

















 


amount equal
to the sum of (i) the Borrower’s direct or indirect equity ownership percentage
of the net worth of such designated Restricted Subsidiary immediately prior to
such designation (such net worth to be calculated without regard to any guarantee
provided by such designated Restricted Subsidiary) and (ii) without
duplication, the aggregate principal amount of any Indebtedness owed by such
designated Restricted Subsidiary to the Borrower or any other Restricted
Subsidiary immediately prior to such designation, all calculated, except as set
forth in the parenthetical to clause (i), on a consolidated basis in
accordance with GAAP and (y) no Default or Event of Default would result from
such designation after giving Pro Forma Effect thereto and the Borrower shall
be in compliance with the covenant set forth in Section 10.10 determined
on a Pro Forma Basis both before and after giving effect to such designation
and (c) each Subsidiary of an Unrestricted Subsidiary. The Borrower may, by
written notice to the Administrative Agent, redesignate any Unrestricted
Subsidiary as a Restricted Subsidiary, and thereafter, such Subsidiary shall no
longer constitute an Unrestricted Subsidiary, but only if no Default or Event
of Default would result from such re-designation. On or promptly after the date
of its formation, acquisition, designation or re-designation, as applicable,
each Unrestricted Subsidiary (other than an Unrestricted Subsidiary that is a
Foreign Subsidiary) shall have entered into a tax sharing agreement containing
terms that, in the reasonable judgment of the Administrative Agent, provide for
an appropriate allocation of tax liabilities and benefits.


 


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


 


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


 


“Voting Stock”  shall mean, with respect to
any Person, such Person’s Stock or Stock Equivalents having the right to vote
for the election of directors of such Person under ordinary circumstances.


 


1.2.          Other Interpretive
Provisions. With reference to this Agreement and each other Credit
Document, unless otherwise specified herein or in such other Credit 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 Credit
Document shall refer to such Credit Document as a whole and not to any
particular provision thereof.


 


(c)           Article, Section, Exhibit
and Schedule references are to the Credit 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.


 


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


 


50

















 


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


 


1.3.          Accounting Terms.


 


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


 


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


 


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


 


1.5.          References to
Agreements, Laws, Etc. Unless otherwise expressly provided herein, (a)
references to organizational documents, agreements (including the Credit
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 Credit 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.          Exchange Rates. For
purposes of determining compliance under Sections 10.4, 10.5 and 10.6
with respect to any amount in a currency other than Dollars (other than with
respect to (a) any amount derived from the financial statements of Holdings,
the Borrower or its Subsidiaries or (b) any Indebtedness denominated in a
currency other than Dollars), such amount shall be deemed to equal the Dollar
Equivalent thereof based on the average Spot Rate for such currency for the
most recent twelve-month period immediately prior to the date of determination
determined in a manner consistent with that used in calculating Consolidated
EBITDA for the related period. For purposes of determining compliance with Sections
10.1, 10.2 and 10.5, with respect to any amount of
Indebtedness denominated in a currency other than Dollars, compliance will be
determined at the time of incurrence or advancing thereof using the Dollar
Equivalent thereof at the Spot Rate in effect at the time of such incurrence or
advancement.


 


SECTION 2.        Amount
and Terms of Credit


 


2.1.          Commitments.


 


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


 


(i)          each Lender having an Initial Tranche B-1
Term Loan Commitment severally agrees to make a loan or loans (each an “Initial
Tranche B-1 Term Loan”) on the Closing Date


 


51

















 


to the Borrower in Dollars, which Initial Tranche B-1 Term Loans shall not exceed for any such Lender the Initial
Tranche B-1 Term Loan Commitment of
such Lender and in the aggregate shall not exceed $3,775,000,000];


 


(ii)         each Lender having an Initial Tranche B-2 Term
Loan Commitment severally agrees to make a loan or loans (each an “Initial
Tranche B-2 Term Loan”) on the Closing Date to the Borrower in Dollars, which Initial Tranche B-2
Term Loans shall not exceed for any
such Lender the Initial Tranche B-2 Term Loan Commitment of such Lender and in the aggregate shall not exceed
$5,000,000,000;


 


(iii)        each Lender having an Initial Tranche B-3 Term
Loan Commitment severally agrees to make a loan or loans (each an “Initial
Tranche B-3 Term Loan”) on the Closing Date to the Borrower in Dollars, which Initial Tranche B-3
Term Loans shall not exceed for any
such Lender the Initial Tranche B-3 Term Loan Commitment of such Lender and in the aggregate shall not
exceed $3,000,000,000;


 


(iv)        each Lender having a Delayed Draw Term Loan
Commitment severally agrees to make a loan or loans (each a “Delayed Draw Term Loan”) at any time and from time to time prior to the Delayed Draw Term Loan
Commitment Termination Date to Borrower in Dollars, which Delayed Draw
Term Loans shall not exceed for any such Lender the Delayed Draw  Term Loan Commitment of such Lender and in the aggregate
shall not exceed $225,000,000;
and


 


(v)         each Lender
having a Euro Tranche Term Loan Commitment severally agrees to make a loan or
loans (each a “Euro Tranche Term Loan”) on the Closing Date to the Borrower in Euro, which
Euro Tranche Term Loans shall not exceed for any such Lender the Euro Tranche
Term Loan Commitment of such Lender and
in the aggregate shall not exceed €709,219,858.16.


 


Such Term
Loans (i) may at the option of the Borrower be incurred and maintained as,
and/or converted into, ABR Loans (except in the case of Euro Tranche Term
Loans) or LIBOR Term Loans, provided that all Term Loans made by each of
the Lenders pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, consist entirely of Term Loans of the same Type, (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 Initial Term Loan Commitment, Delayed Draw Term Loan Commitment or Euro
Tranche Term Loan Commitment, as applicable, of such Lender, and
(iv) shall not exceed in the aggregate the Total Initial Term Loan
Commitments, Total Delayed Draw Term Loan Commitments or Total Euro Tranche
Term Loan Commitments, as applicable. On the Initial Term Loan Maturity Date,
all then unpaid Initial Term Loans shall be repaid in full in Dollars. On the
Delayed Draw Term Loan Maturity Date, all then unpaid Delayed Draw Term Loans
shall be repaid in full in Dollars. On the Euro Tranche Term Loan Maturity
Date, all then unpaid Euro Tranche Term Loans shall be repaid in full in Euro.


 


(b)           (i)  Subject to and upon the terms and conditions
herein set forth, each Lender having a Revolving Credit Commitment severally
agrees to make a loan or loans denominated in Dollars or any Alternative
Currency (each a “Revolving  Credit Loan”  and, collectively,
the “Revolving
Credit Loans”) to the Borrower, which Revolving Credit Loans
(A) shall be made at any time and from time to time on and after the Closing
Date and prior to the Revolving Credit Maturity Date, (B) may, at the option of
the Borrower be incurred and maintained as, and/or converted into, ABR Loans (in
the case of Revolving Credit Loans denominated in Dollars only) or LIBOR
Revolving Credit Loans, provided that all Revolving Credit Loans made by
each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, consist entirely of Revolving Credit Loans of the same Type,
(C) may be repaid and reborrowed in accordance with the provisions hereof, (D)
shall not, for any Lender at any


 


52

















 


time, after giving effect
thereto and to the application of the proceeds thereof, result in such Lender’s
Revolving Credit Exposure at such time exceeding such Lender’s Revolving Credit
Commitment at such time, (E) shall not, after giving effect thereto and to the
application of the proceeds thereof, result at any time in the aggregate amount
of the Lenders’ Revolving Credit Exposures at such time exceeding the Total
Revolving Credit Commitment
then in effect and (F) shall not, after giving effect thereto and to the
application of the proceeds thereof, result at any time in the Aggregate
Multicurrency Exposure at such time exceeding the Multicurrency Sublimit then
in effect.


 


(ii)           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). On the Revolving Credit Maturity Date, all Revolving Credit Loans shall
be repaid in full.


 


(c)           Subject to and upon the
terms and conditions herein set forth, the Swingline Lender in its individual
capacity agrees, at any time and from time to time on and after the Closing
Date and prior to the Swingline Maturity Date, to make a loan or loans (each a “Swingline Loan” and, collectively the “Swingline
Loans”) to the Borrower in Dollars, which Swingline Loans
(i) shall be ABR Loans, (ii) shall have the benefit of the provisions
of Section 2.1(d), (iii) shall not exceed at any time outstanding
the Swingline Commitment, (iv) shall not, after giving effect thereto and
to the application of the proceeds thereof, result at any time in the aggregate
amount of the Lenders’ Revolving Credit Exposures at such time exceeding the
Total Revolving Credit Commitment then in effect and (v) may be repaid and
reborrowed in accordance with the provisions hereof. On the Swingline Maturity
Date, all Swingline Loans shall be repaid in full. Any Additional Swingline
Lender may, in its individual capacity and in its sole discretion, agree, at
any time and from time to time on and after the Closing Date and prior to the
Swingline Maturity Date, to make a loan or loans (each an “Additional
Swingline Loan” and, collectively, the “Additional
Swingline Loans”) to the Borrower in Dollars, which Additional
Swingline Loans (i) shall bear interest at rates, and have interest
periods and maturities (not to be later than the Revolving Credit Maturity
Date), mutually agreed by the Borrower and the applicable Additional Swingline
Lender, (ii) shall not have the benefit of the provisions of Section
2.1(d), (iii) shall not exceed at any time outstanding the Additional
Swingline Maximum Amount, (iv) shall have notice, borrowing, conversion
and repayment provisions as mutually agreed by the Borrower, the applicable
Additional Swingline Lender and the Administrative Agent, acting reasonably,
(v) shall not, after giving effect thereto and to the application of the
proceeds thereof, result at any time in the aggregate amount of the Lenders’
Revolving Credit Exposures at such time exceeding the Total Revolving Credit
Commitment then in effect, and (vi) shall constitute a Revolving Credit
Loan for purposes of Section 5.2 and Section 13.1 and shall constitute a Loan
for all other purposes hereunder. Neither the Swingline Lender nor any
Additional Swingline Lender shall make any Swingline Loan after receiving a
written notice from the Borrower, Administrative Agent or the Required
Revolving Credit Lenders stating that a Default or Event of Default exists and
is continuing until such time as the Swingline Lender or such Additional
Swingline Lender shall have received written notice of (i) rescission of all
such notices from the party or parties originally delivering such notice or
(ii) the waiver of such Default or Event of Default in accordance with the
provisions of Section 13.1


 


(d)           On any Business Day,
the Swingline Lender may, in its sole discretion, give notice to each Revolving
Credit Lender that all then-outstanding Swingline Loans shall be funded with a


 


53

















 


Borrowing of Revolving Credit
Loans denominated in Dollars, in which case Revolving Credit Loans denominated
in Dollars constituting ABR Loans (each such Borrowing, a “Mandatory
Borrowing”) shall be made on the immediately succeeding Business Day
by each Revolving Credit Lender pro rata based
on each Lender’s Revolving Credit Commitment Percentage, and the proceeds
thereof shall be applied directly to the Swingline Lender to repay the Swingline
Lender for such outstanding Swingline Loans. Each Revolving Credit Lender
hereby irrevocably agrees to make such Revolving Credit Loans upon one Business
Day’s notice pursuant to each Mandatory Borrowing in the amount and in the
manner specified in the preceding sentence and on the date specified to it in
writing by the Swingline Lender notwithstanding (i) that the amount of the
Mandatory Borrowing may not comply with the minimum amount for each Borrowing
specified in Section 2.2, (ii) whether any conditions specified in Section
7 are then satisfied, (iii) whether a Default or an Event of Default has
occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v)
any reduction in the
Total Revolving Credit Commitment after any such Swingline Loans were made. In
the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing
cannot for any reason be made on the date otherwise required above (including
as a result of the commencement of a proceeding under the Bankruptcy Code in
respect of the Borrower), each Revolving Credit Lender hereby agrees that it
shall forthwith purchase from the Swingline Lender (without recourse or
warranty) such participation of the outstanding Swingline Loans as shall be
necessary to cause the Lenders to share in such Swingline Loans ratably based
upon their respective Revolving Credit Commitment Percentages, provided
that all principal and interest payable on such Swingline Loans shall be for
the account of the Swingline Lender until the date the respective participation
is purchased and, to the extent attributable to the purchased participation,
shall be payable to such Lender purchasing same from and after such date of
purchase.


 


2.2.          Minimum Amount of
Each Borrowing; Maximum Number of Borrowings. The aggregate principal
amount of each Borrowing of Term Loans or Revolving Credit Loans shall be in a
minimum amount of at least the Minimum Borrowing Amount for such Type of Loans
and in a multiple of $100,000 (or the Dollar Equivalent thereof) in excess
thereof and Swingline Loans shall be in
a minimum amount of $500,000 and in a multiple of $100,000 in excess thereof
(except that Mandatory Borrowings shall be made in the amounts required by Section
2.1(d) and Revolving Credit Loans to reimburse the Letter of Credit Issuer
with respect to any Unpaid Drawing shall be made in the amounts required by Section
3.3 or Section 3.4, as applicable). 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 (i) 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) in the case of a Borrowing of
Initial Term Loans to be made on the Closing Date initially as LIBOR Loans,
(ii) 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 Euro Tranche Term Loans on the Closing Date and (iii) prior to 10:00 a.m.
(New York City time) written notice (or telephonic notice promptly confirmed in
writing) on the date of the Borrowing of Initial Term Loans if such Initial
Term Loans are to be ABR Loans. Such notice (together with each notice of a
Borrowing of Delayed Draw Term Loans pursuant to Section 2.3(b), each
notice of a Borrowing of Revolving Credit Loans pursuant to Section 2.3(c)
and each notice of a Borrowing of Swingline Loans pursuant to Section 2.3(d),
a “Notice of Borrowing”) shall specify (i)
the identity of the Borrower, (ii) the aggregate principal amount of the Term
Loans to be made under each Term Loan Facility, (iii) the date of the Borrowing
(which shall be the Closing Date) and (iv) whether the Term Loans shall consist
of ABR Term Loans (in the case of Loans denominated in Dollars) and/or LIBOR
Term Loans and, if the Term 


 


54

















 


Loans are to include LIBOR Term
Loans, 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 Term Loans, of such Lender’s proportionate share thereof and of
the other matters covered by the related Notice of Borrowing.


 


(b)           Whenever the Borrower desires to incur
Delayed Draw Term Loans, it shall give the Administrative Agent at the
Administrative Agent’s Office, (i) prior to 1:00 p.m. (New York City Time) at
least three Business Days’ prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing of LIBOR Delayed Draw Term Loans
denominated in Dollars (or prior to 9:00 a.m. (New York City time)) and (ii)
prior to 10:00 a.m. (New York City time) on the date of such Borrowing prior
written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing of Delayed Draw Term Loans that are ABR Loans. Each such Notice of
Borrowing, except as otherwise expressly provided in Section 2.10, shall
specify (i) the aggregate principal amount of the Delayed Draw Term Loans to be
made pursuant to such Borrowing, (ii) the date of Borrowing (which shall be a
Business Day) and (iii) whether the respective Borrowing shall consist of ABR
Loans or LIBOR Term Loans and, if LIBOR Term Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall promptly give each
Delayed Draw Term Loan Lender written notice (or telephonic notice promptly
confirmed in writing) of each proposed Borrowing of Delayed Draw Term Loans, of
such Lender’s Delayed Draw Term Loan Commitment Percentage thereof and of the
other matters covered by the related Notice of Borrowing.


 


(c)           Whenever the Borrower
desires to incur Revolving Credit Loans (other than Mandatory Borrowings or borrowings
to repay Unpaid Drawings), it shall give the Administrative Agent at the
Administrative Agent’s Office, (i) prior to 1:00 p.m. (New York City Time) at
least three Business Days’ prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing of LIBOR Revolving Credit Loans
denominated in Dollars (or prior to 9:00 a.m. (New York City time) two Business
Days’ prior written notice in the case of a Borrowing of Revolving Credit Loans
to be made on the Closing Date initially as LIBOR Loans denominated in
Dollars), (ii) prior to 1:00 p.m. (New York City Time) at least four Business
Days’ prior written notice (or telephonic notice promptly confirmed in writing)
of each Borrowing of Revolving Credit Loans denominated in Alternative
Currencies and (iii) prior to 10:00 a.m. (New York City time) on the date of
such Borrowing prior written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of Revolving Credit Loans that are ABR Loans. Each
such Notice of Borrowing, except as otherwise expressly provided in Section
2.10, shall specify (i) the aggregate principal amount of the Revolving
Credit Loans to be made pursuant to such Borrowing, (ii) the date of Borrowing
(which shall be a Business Day) and (iii) whether the respective Borrowing
shall consist of ABR Loans (in the case of Revolving Credit Loans denominated
in Dollars) or LIBOR Revolving Credit Loans and, if LIBOR Revolving Credit
Loans, (A) the Interest Period to be initially applicable thereto and (B)
whether such LIBOR Revolving Credit Loans are to be made in Dollars or an
Alternative Currency. The Administrative Agent shall promptly give each
Revolving Credit Lender written notice (or telephonic notice promptly confirmed
in writing) of each proposed Borrowing of Revolving Credit Loans, of such
Lender’s Revolving Credit Commitment Percentage thereof and of the other
matters covered by the related Notice of Borrowing.


 


(d)           Whenever the Borrower
desires to incur Swingline Loans hereunder, it shall give the Swingline Lender
written notice (or telephonic notice promptly confirmed in writing) with a copy
to the Administrative Agent of each Borrowing of Swingline Loans prior to 2:30
p.m. (New York City time) on the date of such Borrowing. Each such notice shall
specify (i) the aggregate principal amount of the Swingline Loans to be made
pursuant to such Borrowing and (ii) the date of Borrowing (which shall be a
Business Day).


 


55

















 


(e)           Mandatory Borrowings
shall be made upon the notice specified in Section 2.1(d), with the
Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the
making of Mandatory Borrowings as set forth in such Section.


 


(f)            Borrowings to
reimburse Unpaid Drawings shall be made upon the notice specified in Section
3.4(a).


 


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


 


2.4.          Disbursement of Funds.


 


(a)           No later than 2:00 p.m.
(New York City time) on the date specified in each Notice of Borrowing
(including Mandatory Borrowings), 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 on the Closing Date, 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; provided  further
that all Swingline Loans shall be made available to the Borrower in the full
amount thereof by the Swingline Lender no later than 4:00 p.m. (New York City
time) on the date requested.


 


(b)           Each Lender shall make
available all amounts it is to fund to the Borrower under any 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 (except in the case of Mandatory Borrowings and Borrowings to repay
Unpaid Drawings) 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 the applicable currency. Unless the Administrative
Agent shall have been notified by any Lender prior to the date of any such
Borrowing that such Lender does not intend to make available to the
Administrative Agent its portion of the Borrowing or Borrowings to be made on
such date, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on such date of Borrowing, and the
Administrative Agent, 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 the applicable currency. 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).


 


56

















 


2.5.          Repayment of Loans;
Evidence of Debt.


 


(a)           The Borrower shall
repay to the Administrative Agent, for the benefit of the applicable Lenders,
(i) on the Initial Term Loan Maturity Date, the then-outstanding Initial Term Loans, in Dollars, and (ii) on the Delayed
Draw Term Loan Maturity Date, the then-outstanding Delayed Draw Term Loans, in
Dollars. The Borrower shall repay to the Administrative Agent, for the benefit
of the Euro Tranche Term Lenders, on the Euro Tranche Term Loan Maturity Date,
the then-outstanding Euro Tranche Term Loans, in Euro. The Borrower shall repay
to the Administrative Agent for the benefit of the Revolving Credit Lenders, on
the Revolving Credit Maturity Date, the then outstanding Revolving Credit Loans
made to the Borrower in currency in which such Revolving Credit Loans are
denominated. The Borrower shall repay to the Swingline Lender, in Dollars, on
the Swingline Maturity Date, the then-outstanding Swingline Loans.


 


(b)           (i) The Borrower shall repay to the
Administrative Agent, in Dollars, for the benefit of the Initial Term Loan
Lenders, on each date set forth below (or, if not a Business Day, the immediately
preceding Business Day) (each, an “Initial Term Loan Repayment Date”), a principal amount in respect of
the Initial Term Loans equal to (x) the outstanding principal amount of Initial
Term Loans immediately after closing on the Closing Date multiplied by
(y) the percentage set forth below opposite such Initial term Loan
Repayment Date (each, an “Initial Term Loan Repayment Amount”);
(ii) the Borrower shall pay to the Administrative Agent, in Euro, for the
benefit of the Euro Tranche Term Loan Lenders, on each date set forth below
(or, if not a Business Day, the immediately preceding Business Day) (each, a “Euro
Tranche Repayment Date”), the principal amount of the Euro
Tranche Term Loans equal to (x) the outstanding principal amount of Euro
Tranche Term Loans immediately after closing on the Closing Date multiplied by
(y) the percentage set forth below opposite such Euro Tranche Repayment
Date (each, a “Euro Tranche Repayment Amount”) and (iii) the
Borrower shall repay to the Administrative Agent, in Dollars, for the benefit
of the Delayed Draw Term Loan Lenders, on each date set forth below on and
after the First Delayed Draw Repayment Date (each, a “Delayed Draw  Repayment Date”), a principal amount in respect of the Delayed Draw Term Loans
equal to (x) the sum of (I) the outstanding principal amount of Delayed Draw
Term Loans immediately before the First Delayed Draw Repayment Date and (II)
the aggregate principal amount of Delayed Draw Term Loans funded from and after
the First Delayed Draw Repayment Date and prior to such applicable Delayed Draw
Repayment Date by (y) the percentage set forth below opposite such Delayed Draw
Repayment Date (each, a “Delayed Draw  Repayment Amount”):


 


	
  Date

  	
   

  	
  Initial Term Loan, Euro Tranche

  Repayment Amount and

  Delayed Draw Repayment Amount

  	
   

  
	
  December 31, 2007

  	
   

  	
  0.25

  	
  %

  
	
  March 31, 2008

  	
   

  	
  0.25

  	
  %

  
	
  June 30, 2008

  	
   

  	
  0.25

  	
  %

  
	
  September 30, 2008

  	
   

  	
  0.25

  	
  %

  
	
  December 31, 2008

  	
   

  	
  0.25

  	
  %

  
	
  March 31, 2009

  	
   

  	
  0.25

  	
  %

  
	
  June 30, 2009

  	
   

  	
  0.25

  	
  %

  
	
  September 30, 2009

  	
   

  	
  0.25

  	
  %

  
	
  December 31, 2009

  	
   

  	
  0.25

  	
  %

  



 


57

















 


	
  Date

  	
   

  	
  Initial Term Loan, Euro Tranche

  Repayment Amount and

  Delayed Draw Repayment Amount

  	
   

  
	
  March 31, 2010

  	
   

  	
  0.25

  	
  %

  
	
  June 30, 2010

  	
   

  	
  0.25

  	
  %

  
	
  September 30, 2010

  	
   

  	
  0.25

  	
  %

  
	
  December 31, 2010

  	
   

  	
  0.25

  	
  %

  
	
  March 31, 2011

  	
   

  	
  0.25

  	
  %

  
	
  June 30, 2011

  	
   

  	
  0.25

  	
  %

  
	
  September 30, 2011

  	
   

  	
  0.25

  	
  %

  
	
  December 31, 2011

  	
   

  	
  0.25

  	
  %

  
	
  March 31, 2012

  	
   

  	
  0.25

  	
  %

  
	
  June 30, 2012

  	
   

  	
  0.25

  	
  %

  
	
  September 30, 2012

  	
   

  	
  0.25

  	
  %

  
	
  December 31, 2012

  	
   

  	
  0.25

  	
  %

  
	
  March 31, 2013

  	
   

  	
  0.25

  	
  %

  
	
  June 30, 2013

  	
   

  	
  0.25

  	
  %

  
	
  September 30, 2013

  	
   

  	
  0.25

  	
  %

  
	
  December 31, 2013

  	
   

  	
  0.25

  	
  %

  
	
  March 31, 2014

  	
   

  	
  0.25

  	
  %

  
	
  June 30, 2014

  	
   

  	
  0.25

  	
  %

  
	
  Initial Term Loan

  Maturity Date, Euro

  Tranche Term Loan

  Maturity Date and

  Delayed Draw Term

  Loan Maturity Date

  	
   

  	
  Remaining outstanding amounts

  	
   

  



 


(c)           In the event that any New
Term Loans are made, such New Term Loans shall, subject to Section 2.14(d),
be repaid by the Borrower in the amounts (each, a “New Term Loan Repayment Amount”)
and on the dates (each a “New Term Loan Repayment
Date”) set forth in the applicable Joinder Agreement.


 


(d)           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.


 


(e)           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, whether such Loan
is an Initial Term Loan, Delayed Draw Term Loan, Euro Tranche Term Loan,
Revolving Credit Loan or Swingline Loan, as applicable, the Type of each Loan
made, the currency in which 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.


 


58

















 


(f)            The entries made in
the Register and accounts and subaccounts maintained pursuant to clauses (d)
and (e) 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, the Administrative Agent or the Swingline Lender 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 on any Business Day to convert all or a portion equal to at least $5,000,000 (or the Dollar Equivalent
thereof) of the outstanding principal
amount of Term Loans or Revolving Credit Loans denominated in Dollars 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) no partial conversion of LIBOR Loans shall reduce the outstanding
principal amount of LIBOR Loans made pursuant to a single Borrowing to less
than the Minimum Borrowing Amount, (ii) 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, (iii)
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,
(iv) Borrowings resulting from conversions pursuant to this Section 2.6
shall be limited in number as provided in Section 2.2 and (v) Euro
Tranche Term Loans and Revolving Credit Loans denominated in any Alternative
Currency may not be converted to ABR Loans. 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’ notice, in the case of a continuation
of or conversion to LIBOR Loans (other than in the case of a notice delivered
on the Closing Date pursuant to clause (d), which shall be deemed to be
effective on the Closing Date) or (ii) one Business Day’s notice in the case of
a conversion into ABR Loans prior written notice (or telephonic notice promptly
confirmed in writing) (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 (other than Borrowings of
LIBOR Loans denominated in Alternative Currencies), 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.
Notwithstanding the foregoing, with respect to the Borrowings of LIBOR Loans
denominated in Alternative Currencies, in connection with the occurrence of any
of the events described in the preceding two sentences, at the expiration of the
then current Interest Period each such Borrowing shall be automatically
continued as a Borrowing of LIBOR Loans with an Interest Period of one month.


 


59




















 


(c)           No Loan may be
converted into or continued as a Loan denominated in a different currency.


 


(d)           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 Initial Term Loans subject to
an interest rate Hedge Agreement as LIBOR Loans for each Interest Period until
the expiration of the term of such applicable Hedge Agreement.


 


2.7.          Pro Rata Borrowings.
Each Borrowing of (i) Initial Term Loans, (ii) Delayed Draw Term Loans and
(iii) Euro Tranche Term Loans under this Agreement shall be made by the Lenders
pro rata on the basis of their
then-applicable Initial Term Loan Commitments, Delayed Draw Term Loan
Commitments and Euro Tranche Term Loan Commitments, respectively. Each
Borrowing of Revolving Credit Loans under this Agreement shall be made by the
Revolving Credit Lenders pro rata on
the basis of their then-applicable Revolving Credit Commitment Percentages. Each
Borrowing of New Term Loans under this Agreement shall be made by the Lenders pro rata on the basis of their
then-applicable New Term Loan 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 Credit Documents
shall not release any Person from performance of its obligation under any
Credit Document.


 


2.8.          Interest.


 


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


 


(b)           The unpaid principal
amount of each 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.


 


(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 the same currency in
which the Loan is denominated; 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 in respect of LIBOR Loans, (B) at maturity (whether by
acceleration or otherwise) and (C) after such maturity, on demand.


 


60

















 


(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 relevant 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 Section 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 or (if available to
all the Lenders making such LIBOR Loans as determined by such Lenders in good
faith based on prevailing market conditions) a nine or twelve month period.


 


Notwithstanding
anything to the contrary contained above:


 


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


 


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


 


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


 


(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; and


 


(e)           interest periods for Additional
Swingline Loans shall be as determined by the Borrower and the applicable
Additional Swingline Lender pursuant to Section 2.1(c).


 


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


 


61

















 


for ascertaining the applicable interest rate on the basis provided for
in the definition of LIBOR Rate; or


 


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


 


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


 


then, and in
any such event, such Lender (or the Administrative Agent, in the case of clause
(i) above) shall within a reasonable time thereafter give notice (if by
telephone, confirmed in writing) to the Borrower and to the Administrative
Agent of such determination (which notice the Administrative Agent shall
promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause
(i) above, LIBOR Term Loans and LIBOR Revolving Credit Loans (other than
the Euro Tranche Term Loans, which shall automatically continue as LIBOR Loans
with Interest Periods of one month duration) 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 given by the Borrower with respect to LIBOR Term Loans or
LIBOR Revolving Credit 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
(A) any LIBOR Loan denominated in Dollars 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), or (B) any


 


62

















 


LIBOR Loan denominated in an
Alternative Currency 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) prepay
each such LIBOR Loan or (y) keep such LIBOR Loan outstanding, in which case the
LIBOR Rate with respect to such Loan shall be deemed to be the rate reasonably
determined by such Lender as the all-in cost of funds to fund such Loan with
maturities comparable to the Interest Period applicable thereto.


 


(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.


 


(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),
3.5 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


 


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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, 3.5 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, 3.5 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, 3.5 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.        Incremental Facilities.


 


(a)           The Borrower may by
written notice to Administrative Agent elect to request the establishment of
one or more (x) additional tranches of term loans (the commitments thereto, the
“New  Term
Loan Commitments”) and/or
(y) increases in Revolving Credit Commitments (the “New
Revolving Credit Commitments”  and,
together with the New Term Loan Commitments, the “New
Loan Commitments”), by an aggregate amount not in
excess of the Maximum Incremental Facilities Amount in the aggregate and not
less than $100,000,000 individually (or
such lesser amount as (x) may be approved by the Administrative Agent or
(y) shall constitute the difference between the Maximum Incremental
Facilities Amount and all such New Loan
Commitments obtained on or prior to such date). Each such notice shall specify
the date (each, an “Increased Amount Date”) on which the
Borrower proposes that the New Loan Commitments shall be effective, which shall
be a date not less than ten Business Days after the date on which such notice
is delivered to the Administrative Agent. The Borrower may approach any Lender
or any Person (other than a natural person) to provide all or a portion of the
New Loan Commitments; provided that any Lender offered or approached to
provide all or a portion of the New Loan Commitments may elect or decline, in
its sole discretion, to provide a New Loan Commitment. In each case, such New
Loan Commitments shall become effective as of the applicable Increased Amount Date;
provided that (i) no Default or Event of Default shall exist on such
Increased Amount Date before or after giving effect to such New Loan
Commitments, as applicable; (ii) both before and after giving effect to the
making of any Series of New Term Loans or New Revolving Loans, each of the
conditions set forth in Section 7 shall be satisfied; (iii) the New Loan
Commitments shall be effected pursuant to one or more Joinder Agreements
executed and delivered by the Borrower and Administrative Agent, and each of
which shall be recorded in the Register and shall be subject to the
requirements set forth in Section 5.4(d); (iv) the Borrower shall make
any payments required pursuant to Section 2.11 in connection with the
New Loan Commitments, as applicable; and (v) the Borrower shall deliver or
cause to be delivered any legal opinions or other documents reasonably
requested by Administrative Agent in connection with any such transaction. Any
New Term Loans made on an Increased Amount Date shall be designated, a separate
series (a “Series”) of New Term Loans for all purposes of this
Agreement.


 


(b)           On any Increased Amount
Date on which New Revolving Credit Commitments are effected, subject to the
satisfaction of the foregoing terms and conditions, (a) each of the Lenders
with Revolving Credit Commitments shall assign to each Lender with a New
Revolving Credit Commitment (each, a “New  Revolving Loan Lender”) and each of the New Revolving Loan
Lenders shall purchase from each of the Lenders with Revolving Credit Commitments,
at the principal amount thereof and in the applicable currency(ies), such
interests in the Revolving Credit Loans outstanding on such Increased Amount
Date as shall be necessary in order that, after giving effect to all such
assignments and purchases, the Revolving Credit Loans will be held by existing
Revolving Credit Lenders and New Revolving Loan


 


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Lenders ratably in accordance
with their Revolving Credit Commitments after giving effect to the addition of
such New Revolving Credit Commitments to the Revolving Credit Commitments, (b)
each New Revolving Credit Commitment shall be deemed for all purposes a
Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a
Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a
Lender with respect to the New Revolving Credit Commitment and all matters
relating thereto.


 


(c)           On any Increased Amount
Date on which any New Term Loan Commitments of any Series are effective,
subject to the satisfaction of the foregoing terms and conditions, (i) each
Lender with a New Term Loan Commitment (each, a “New
Term Loan Lender”) of any Series shall make a Loan to
the Borrower (a “New  Term Loan”) in
an amount equal to its New Term Loan Commitment of such Series, and (ii) each
New Term Loan Lender of any Series shall become a Lender hereunder with respect
to the New Term Loan Commitment of such Series and the New Term Loans of such
Series made pursuant thereto.


 


(d)           The terms and
provisions of the New Term Loans and New Term Loan Commitments of any Series
shall be, except as otherwise set forth herein or in the applicable Joinder
Agreement, identical to one or more Classes of the existing Initial Term Loans;
provided that (i) the applicable New Term Loan Maturity Date of each
Series shall be no earlier than the Initial Term Loan Maturity Date and
mandatory prepayment and other payment rights (other than scheduled
amortization) of the New Term Loans and the existing Initial Term Loans shall
be identical, (ii) the rate of interest and the amortization schedule
applicable to the New Term Loans of each Series shall be determined by the
Borrower and the applicable new Lenders and shall be set forth in each applicable
Joinder Agreement; provided that the weighted average life to maturity
of all New Term Loans shall be no shorter than the weighted average life to
maturity of the Initial Term Loans and (iii) all other terms applicable to the
New Term Loans of each Series that differ from the existing Initial Term Loans
shall be reasonably acceptable to the Administrative Agent (as evidenced by its
execution of the applicable Joinder Agreement). The terms and provisions of the
New Revolving Loans and New Revolving
Credit Commitments shall be identical to the Revolving Credit Loans and the
Revolving Credit Commitments.


 


(e)           Each Joinder Agreement
may, without the consent of any other Lenders, effect such amendments to this
Agreement and the other Credit Documents as may be necessary or appropriate, in
the opinion of the Administrative Agent, to effect the provision of this Section
2.14.


 


SECTION 3.                                          Letters of
Credit


 


3.1.          Letters of Credit.


 


(a)           Subject to and upon the
terms and conditions herein set forth, at any time and from time to time after
the Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer
agrees, in reliance upon the agreements of the Revolving Credit Lenders set
forth in this Section 3, to issue from time to time from the Closing
Date through the L/C Maturity Date upon the request of, and for the direct or
indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of
credit or letters of credit (the “Letters of Credit”  and each, a “Letter of Credit”) in
such form as may be approved by the Letter of Credit Issuer in its reasonable
discretion; provided that the Borrower shall be a co-applicant, and
jointly and severally liable with respect to, each Letter of Credit issued for
the account of a Restricted Subsidiary.


 


(b)           Notwithstanding the
foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which,
when added to the Letters of Credit Outstanding at such time, would exceed the
Letter of Credit Commitment then in effect; (ii) no Letter of Credit shall be
issued the Stated Amount of which


 


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would cause the aggregate
amount of the Lenders’ Revolving Credit Exposures at the time of the issuance
thereof to exceed the Total Revolving Credit Commitment then in effect; (iii)
no Letter of Credit in an Alternative Currency shall be issued the Stated
Amount of which would cause the Aggregate Multicurrency Exposures at the time
of the issuance thereof to exceed the Multicurrency Sublimit then in effect;
(iv) each Letter of Credit shall have an expiration date occurring no
later than one year after the date of issuance thereof, unless otherwise agreed
upon by the Administrative Agent and the Letter of Credit Issuer, provided
that in no event shall such expiration date occur later than the L/C Maturity
Date; (v) each Letter of Credit shall be denominated in Dollars or an
Alternative Currency; (vi) no Letter of Credit shall be issued if it would be
illegal under any applicable law for the beneficiary of the Letter of Credit to
have a Letter of Credit issued in its favor; and (vii) no Letter of Credit
shall be issued by a Letter of Credit Issuer after it has received a written
notice from any Credit Party or the Administrative Agent or the Required
Revolving Credit Lenders stating that a Default or Event of Default has
occurred and is continuing until such time as the Letter of Credit Issuer shall
have received a written notice of (x) rescission of such notice from the party
or parties originally delivering such notice or (y) the waiver of such Default
or Event of Default in accordance with the provisions of Section 13.1.


 


(c)           Upon at least one
Business Day’s prior written notice (or telephonic notice promptly confirmed in
writing) to the Administrative Agent and the Letter of Credit Issuer (which the
Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right,
on any day, permanently to terminate or reduce the Letter of Credit Commitment
in whole or in part, provided that, after giving effect to such
termination or reduction, the Letters of Credit Outstanding shall not exceed
the Letter of Credit Commitment.


 


(d)           [Reserved].


 


(e)           The Letter of Credit
Issuer shall not be under any obligation to issue any Letter of Credit if:


 


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


 


(ii)          the issuance of such Letter of Credit would
violate one or more policies of the Letter of Credit Issuer applicable to
letters of credit generally;


 


(iii)         except as otherwise agreed by the
Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is
in an initial Stated Amount less than $100,000 or the Dollar Equivalent
thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar
Equivalent thereof, in the case of a standby Letter of Credit;


 


(iv)         such Letter of Credit is denominated in a
currency other than Dollars or an Alternative Currency;


 


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(v)             the Letter of Credit Issuer does not as of
the issuance date of such requested Letter of Credit issue letters of credit in
the requested currency;


 


(vi)            such Letter of Credit contains any
provisions for automatic reinstatement of the Stated Amount after any drawing
thereunder; or


 


(vii)           a default of any Revolving Credit Lender’s
obligations to fund under Section 3.3 exists or any Revolving Credit
Lender is at such time a Defaulting Lender hereunder, unless, in each case, the
Letter of Credit Issuer has entered into satisfactory arrangements with the
Borrower or such Revolving Credit Lender to eliminate the Letter of Credit
Issuer’s risk with respect to such Revolving Credit Lender.


 


(f)            The Letter of Credit
Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer
would not be permitted at such time to issue such Letter of Credit in its
amended form under the terms hereof.


 


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


 


(h)           The Letter of Credit
Issuer shall act on behalf of the Revolving Credit Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith and the
Letter of Credit Issuer shall have all of the benefits and immunities
(A) provided to the Administrative Agent in Section 13 with respect
to any acts taken or omissions suffered by the Letter of Credit Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and Issuer
Documents pertaining to such Letters of Credit as fully as if the term “Administrative
Agent” as used in Section 13 included the Letter of Credit Issuer with
respect to such acts or omissions, and (B) as additionally provided herein with
respect to the Letter of Credit Issuer.


 


3.2.          Letter of Credit
Requests.


 


(a)           Whenever the Borrower desires that a Letter
of Credit be issued for its account or amended, it shall give the
Administrative Agent and the Letter of Credit Issuer a Letter of Credit Request
by no later than 1:00 p.m. (New York City time) at least two (or such lesser
number as may be agreed upon by the Administrative Agent and the Letter of
Credit Issuer) Business Days prior to the proposed date of issuance or
amendment. Each notice shall be executed by the Borrower and shall be in the
form of Exhibit G (each a “Letter of Credit Request”).


 


(b)           In the case of a
request for an initial issuance of a Letter of Credit, such Letter of Credit Request
shall specify in form and detail satisfactory to the Letter of Credit
Issuer:  (A) the proposed issuance date
of the requested Letter of Credit (which shall be a Business Day)); (B) the
Stated Amount thereof in the relevant currency; (C) the expiry date thereof;
(D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full
text of any certificate to be presented by such beneficiary in case of any
drawing thereunder and (G) such other matters as the Letter of Credit Issuer
may reasonably require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Request shall specify in
form and detail satisfactory to the Letter of Credit Issuer (A) the Letter of
Credit to be amended; (B) the proposed date of amendment thereof (which shall
be a Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as the Letter of Credit Issuer may reasonably require. Additionally,
the Borrower shall furnish to the Letter of Credit Issuer and the
Administrative Agent such other


 


67

















 


documents and information
pertaining to such requested Letter of Credit issuance or amendment, including
any Issuer Documents, as the Letter of Credit Issuer or the Administrative
Agent may require.


 


(c)           Promptly after receipt
of any Letter of Credit Request, the Letter of Credit Issuer will confirm with
the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Request from the Borrower
and, if not, the Letter of Credit Issuer will provide the Administrative Agent
with a copy thereof. Unless the Letter of Credit Issuer has received written
notice from any Revolving Credit Lender, the Administrative Agent or any Credit
Party, at least one Business Day prior to the requested date of issuance or
amendment of the applicable Letter of Credit, that one or more applicable
conditions contained in Sections 6 and 7 shall not then be
satisfied, then, subject to the terms and conditions hereof, the Letter of
Credit Issuer shall, on the requested date, issue a Letter of Credit for the
account of the Borrower (or the applicable Restricted Subsidiary) or enter into
the applicable amendment, as the case may be, in each case in accordance with
the Letter of Credit Issuer’s usual and customary business practices.


 


(d)           If the Borrower so
requests in any applicable Letter of Credit Request, the Letter of Credit
Issuer may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”); provided that any such Auto-Extension
Letter of Credit must permit the Letter of Credit Issuer to prevent any such
extension at least once in each twelve-month period (commencing with the date
of issuance of such Letter of Credit) by giving prior notice to the beneficiary
thereof not later than a day (the “Non-Extension Notice Date”) in each
such twelve-month period to be agreed upon at the time such Letter of Credit is
issued. Unless otherwise directed by the Letter of Credit Issuer, the Borrower
shall not be required to make a specific request to the Letter of Credit Issuer
for any such extension. Once an Auto-Extension Letter of Credit has been
issued, the Lenders shall be deemed to have authorized (but may not require)
the Letter of Credit Issuer to permit the extension of such Letter of Credit at
any time to an expiry date not later than the L/C Maturity Date; provided,
however, that the Letter of Credit Issuer shall not permit any such extension
if (A) the Letter of Credit Issuer has determined that it would not be
permitted, or would have no obligation, at such time to issue such Letter of
Credit in its revised form (as extended) under the terms hereof (by reason of
the provisions of clause (b) of Section 3.1 or otherwise), or (B)
it has received notice (which may be by telephone or in writing) on or before
the day that is five Business Days before the Non-Extension Notice Date (1)
from the Administrative Agent that the Required Revolving Credit Lenders have
elected not to permit such extension or (2) from the Administrative Agent, any
Lender or the Borrower that one or more of the applicable conditions specified
in Sections 6 and 7 are not then satisfied, and in each such case
directing the Letter of Credit Issuer not to permit such extension.


 


(e)           Promptly after its
delivery of any Letter of Credit or any amendment to a Letter of Credit
(including any Existing Secured Letter of Credit) to an advising bank with
respect thereto or to the beneficiary thereof, the Letter of Credit Issuer will
also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment. On the last Business Day of each
month, each Letter of Credit Issuer
shall provide the Administrative Agent a list of all Letters of Credit (including
any Existing Secured Letter of Credit) issued by it that are outstanding at
such time.


 


(f)            The making of each
Letter of Credit Request shall be deemed to be a representation and warranty by
the Borrower that the Letter of Credit may be issued in accordance with, and
will not violate the requirements of, Section 3.1(b).


 


3.3.          Letter of Credit
Participations.


 


(a)           Immediately upon the
issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter of
Credit Issuer shall be deemed to have sold and transferred to each Revolving
Credit


 


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Lender (each such Revolving
Credit Lender, in its capacity under this Section 3.3, an “L/C Participant”), and each such L/C Participant shall be
deemed irrevocably and unconditionally to have purchased and received from the
Letter of Credit Issuer, without recourse or warranty, an undivided interest
and participation (each an “L/C Participation”),
to the extent of such L/C Participant’s Revolving Credit Commitment Percentage
in each Letter of Credit, each substitute therefor, each drawing made
thereunder and the obligations of the Borrower under this Agreement with
respect thereto, and any security therefor or guaranty pertaining thereto; provided
that the Letter of Credit Fees will be paid directly to the Administrative
Agent for the ratable account of the L/C Participants as provided in Section
4.1(b) and the L/C Participants shall have no right to receive any portion
of any Fronting Fees.


 


(b)           In determining whether
to pay under any Letter of Credit, the relevant Letter of Credit Issuer shall
have no obligation relative to the L/C Participants other than to confirm that
any documents required to be delivered under such Letter of Credit have been
delivered and that they appear to comply on their face with the requirements of
such Letter of Credit. Any action taken or omitted to be taken by the relevant
Letter of Credit Issuer under or in connection with any Letter of Credit issued
by it, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for the Letter of Credit Issuer any resulting
liability.


 


(c)           In the event that the
Letter of Credit Issuer makes any payment under any Letter of Credit issued by
it and the Borrower shall not have repaid such amount in full to the respective
Letter of Credit Issuer pursuant to Section 3.4(a), the Letter of Credit
Issuer shall promptly notify the Administrative Agent and each L/C Participant
of such failure, and each L/C Participant shall promptly and unconditionally
pay to the Administrative Agent for the account of the Letter of Credit Issuer,
the amount of such L/C Participant’s Revolving Credit Commitment Percentage of
the Dollar Equivalent of such unreimbursed payment in Dollars and in immediately
available funds; provided, however, that no L/C Participant shall
be obligated to pay to the Administrative Agent for the account of the Letter
of Credit Issuer its Revolving Credit Commitment Percentage of such
unreimbursed amount arising from any wrongful payment made by the Letter of
Credit Issuer under any such Letter of Credit as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of the Letter
of Credit Issuer. If the Letter of Credit Issuer so notifies, prior to 11:00
a.m. (New York City time) on any Business Day, any L/C Participant required to
fund a payment under a Letter of Credit, such L/C Participant shall make
available to the Administrative Agent for the account of the Letter of Credit
Issuer such L/C Participant’s Revolving Credit Commitment Percentage of the amount
of such payment no later than 1:00 p.m.
(New York City time) on such Business Day in Dollars and in immediately
available funds. If and to the extent such L/C Participant shall not have so
made its Revolving Credit Commitment Percentage of the amount of such payment
available to the Administrative Agent for the account of the Letter of Credit
Issuer, such L/C Participant agrees to pay to the Administrative Agent for the
account of the Letter of Credit Issuer, forthwith on demand, such amount,
together with interest thereon for each day from such date until the date such
amount is paid to the Administrative Agent for the account of the Letter of
Credit Issuer at a rate per annum equal to the Overnight Rate from time to time
then in effect, plus any administrative, processing or similar fees customarily
charged by the Letter of Credit Issuer in connection with the foregoing. The
failure of any L/C Participant to make available to the Administrative Agent
for the account of the Letter of Credit Issuer its Revolving Credit Commitment
Percentage of any payment under any Letter of Credit shall not relieve any
other L/C Participant of its obligation hereunder to make available to the
Administrative Agent for the account of the Letter of Credit Issuer its Revolving
Credit Commitment Percentage of any payment under such Letter of Credit on the
date required, as specified above, but no L/C Participant shall be responsible
for the failure of any other L/C Participant to make available to the
Administrative Agent such other L/C Participant’s Revolving Credit Commitment
Percentage of any such payment.


 


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(d)           Whenever the Letter of
Credit Issuer receives a payment in respect of an unpaid reimbursement
obligation as to which the Administrative Agent has received for the account of
the Letter of Credit Issuer any payments from the L/C Participants pursuant to clause
(c) above, the Letter of Credit Issuer shall pay to the Administrative
Agent and the Administrative Agent shall promptly pay to each L/C Participant
that has paid its Revolving Credit Commitment Percentage of such reimbursement
obligation, in Dollars and in immediately available funds, an amount equal to
such L/C Participant’s share (based upon the proportionate aggregate amount
originally funded by such L/C Participant to the aggregate amount funded by all
L/C Participants) of the Dollar Equivalent of the amount so paid in respect of
such reimbursement obligation and interest thereon accruing after the purchase
of the respective L/C Participations at the Overnight Rate.


 


(e)           The obligations of the
L/C Participants to make payments to the Administrative Agent for the account
of a Letter of Credit Issuer with respect to Letters of Credit shall be
irrevocable and not subject to counterclaim, set-off or other defense or any
other qualification or exception whatsoever and shall be made in accordance
with the terms and conditions of this Agreement under all circumstances,
including under any of the following circumstances:


 


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


 


(ii)          the existence of any claim, set-off, defense
or other right that the Borrower may have at any time against a beneficiary
named in a Letter of Credit, any transferee of any Letter of Credit (or any
Person for whom any such transferee may be acting), the Administrative Agent,
the Letter of Credit Issuer, any Lender or other Person, whether in connection
with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower and the
beneficiary named in any such Letter of Credit);


 


(iii)         any draft, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or inaccurate
in any respect;


 


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


 


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


 


provided,
however, that no L/C Participant shall be obligated to pay to the
Administrative Agent for the account of the Letter of Credit Issuer its
Revolving Credit Commitment Percentage of any unreimbursed amount arising from
any wrongful payment made by the Letter of Credit Issuer under any such Letter
of Credit as a result of acts or omissions constituting willful misconduct or
gross negligence on the part of the Letter of Credit Issuer.


 


3.4.          Agreement to Repay
Letter of Credit Drawings.


 


(a)           The Borrower hereby
agrees to reimburse the Letter of Credit Issuer, by making payment in with
respect to any drawing under any Letter of Credit in the same currency in which
such drawing was made unless (A) the Letter of Credit Issuer (at its option)
shall have specified in the notice of drawing that it will require
reimbursement in Dollars, or (B) in the absence of any such requirement for
reimbursement in Dollars, the Borrower shall have notified the Letter of Credit
Issuer promptly following receipt of the notice of drawing that the Borrower
will reimburse the Letter of Credit Issuer in Dollars. In


 


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the case of any reimbursement
in Dollars of a drawing of a Letter of Credit denominated in an Alternative
Currency, the Letter of Credit Issuer shall notify the Borrower of the Dollar
Equivalent of the amount of the drawing promptly following the determination
thereof. Any such reimbursement shall be made by the Borrower to the
Administrative Agent in immediately available funds for any payment or
disbursement made by the Letter of Credit Issuer under any Letter of Credit
(each such amount so paid until reimbursed, an “Unpaid Drawing”)
no later than the date that is one Business Day after the date on which the
Borrower receives notice of such payment or disbursement (the “Reimbursement
Date”), with
interest on the amount so paid or disbursed by the Letter of Credit Issuer, to
the extent not reimbursed prior to 5:00 p.m. (New York City time) on the
Reimbursement Date, from the Reimbursement Date to the date the Letter of
Credit Issuer is reimbursed therefor at a rate per
annum that shall at all times be the Applicable ABR Margin plus the
ABR as in effect from time to time, provided that, notwithstanding
anything contained in this Agreement to the contrary, (i) unless the Borrower
shall have notified the Administrative Agent and the relevant Letter of Credit
Issuer prior to 1:00 p.m. (New York City time) on the Reimbursement Date that
the Borrower intends to reimburse the relevant Letter of Credit Issuer for the
amount of such drawing with funds other than the proceeds of Loans, the
Borrower shall be deemed to have given a Notice of Borrowing requesting that,
with respect to Letters of Credit, the Revolving Credit Lenders make Revolving
Credit Loans (which shall be denominated in Dollars and which shall be ABR
Loans) on the Reimbursement Date in the amount, or Dollar Equivalent of the amount, as applicable, of
such drawing and (ii) the Administrative Agent shall promptly notify each L/C
Participant of such drawing and the amount of its Revolving Credit Loan to be
made in respect thereof, and each L/C Participant shall be irrevocably obligated
to make a Revolving Credit Loan to the Borrower in Dollars in the manner deemed
to have been requested in the amount of its Revolving Credit Commitment
Percentage of the applicable Unpaid Drawing by 2:00 p.m. (New York City time)
on such Reimbursement Date by making the amount of such Revolving Credit Loan
available to the Administrative Agent. Such Revolving Credit Loans shall be
made without regard to the Minimum Borrowing Amount. The Administrative Agent
shall use the proceeds of such Revolving Credit Loans solely for purpose of
reimbursing the Letter of Credit Issuer for the related Unpaid Drawing. In the
event that the Borrower fails to Cash Collateralize any Letter of Credit that
is outstanding on the L/C Facility Maturity Date, the full amount of the
Letters of Credit Outstanding in respect of such Letter of Credit shall be
deemed to be an Unpaid Drawing subject to the provisions of this Section 3.4
except that the Letter of Credit Issuer shall hold the proceeds received from
the L/C Participants as contemplated above as cash collateral for such Letter
of Credit to reimburse any Drawing under such Letter of Credit and shall use
such proceeds first, to reimburse itself for any Drawings made in respect of
such Letter of Credit following the L/C Maturity Date, second, to the extent
such Letter of Credit expires or is returned undrawn while any such cash
collateral remains, to the repayment of obligations in respect of any Revolving
Credit Loans that have not been paid at such time and third, to the Borrower or
as otherwise directed by a court of competent jurisdiction. Nothing in this Section
3.4(a) shall affect the Borrower’s obligation to repay all outstanding
Revolving Credit Loans when due in accordance with the terms of this Agreement.


 


(b)           The obligations of the
Borrower under this Section 3.4 to reimburse the Letter of Credit Issuer
with respect to Unpaid Drawings (including, in each case, interest thereon)
shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment that the
Borrower or any other Person may have or have had against the Letter of Credit
Issuer, the Administrative Agent or any Lender (including in its capacity as an
L/C Participant), including any defense based upon the failure of any drawing
under a Letter of Credit (each a “Drawing”) to conform to the terms of
the Letter of Credit or any non-application or misapplication by the
beneficiary of the proceeds of such Drawing and without regard to any adverse
change in the relevant exchange rates or in the availability of the Alternative
Currency to the Borrower or in the relevant currency markets generally, provided
that the Borrower shall not be obligated to reimburse the Letter of Credit
Issuer for any wrongful


 


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payment made by the Letter of
Credit Issuer under the Letter of Credit issued by it as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of
the Letter of Credit Issuer.


 


3.5.          Increased Costs. If
after the date hereof, the adoption of any applicable law, rule or regulation,
or any change therein, or any change in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or actual compliance
by the Letter of Credit Issuer or any L/C Participant with any request or
directive made or adopted after the date hereof (whether or not having the
force of law), by any such authority, central bank or comparable agency shall
either (a) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar requirement against letters of credit issued by the Letter
of Credit Issuer, or any L/C
Participant’s L/C Participation therein, or (b) impose on the Letter of Credit
Issuer or any L/C Participant any other conditions affecting its obligations
under this Agreement in respect of Letters of Credit or L/C Participations
therein or any Letter of Credit or such L/C Participant’s L/C Participation
therein, and the result of any of the foregoing is to increase the cost to the
Letter of Credit Issuer or such L/C Participant of issuing, maintaining or
participating in any Letter of Credit, or to reduce the amount of any sum
received or receivable by the Letter of Credit Issuer or such L/C Participant
hereunder (other than any such increase or reduction attributable 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) or (c) of the definition of Excluded
Taxes) in respect of Letters of Credit or L/C Participations therein, then,
promptly after receipt of written demand to the Borrower by the Letter of
Credit Issuer or such L/C Participant, as the case may be (a copy of which
notice shall be sent by the Letter of Credit Issuer or such L/C Participant to
the Administrative Agent (with respect to Letter of Credit issued on account of
the Borrower)), the Borrower shall pay to the Letter of Credit Issuer or such
L/C Participant such additional amount or amounts as will compensate the Letter
of Credit Issuer or such L/C Participant for such increased cost or reduction, it
being understood and agreed, however, that the Letter of Credit Issuer or an
L/C Participant shall not be entitled to such compensation as a result of such
Person’s compliance with, or pursuant to any request or directive to comply
with, any such law, rule or regulation as in effect on the date hereof. A
certificate submitted to the Borrower by the relevant Letter of Credit Issuer
or an L/C Participant, as the case may be (a copy of which certificate shall be
sent by the Letter of Credit Issuer or such L/C Participant to the
Administrative Agent), setting forth in reasonable detail the basis for the
determination of such additional amount or amounts necessary to compensate the
Letter of Credit Issuer or such L/C Participant as aforesaid shall be conclusive
and binding on the Borrower absent clearly demonstrable error.


 


3.6.          New or Successor
Letter of Credit Issuer.


 


(a)           The Letter of Credit
Issuer may resign as a Letter of Credit Issuer upon 60 days’ prior written
notice to the Administrative Agent, the Lenders and the Borrower. The Borrower
may replace a Letter of Credit Issuer for any reason upon written notice to the
Administrative Agent and the Letter of Credit Issuer. The Borrower may add
Letter of Credit Issuers at any time upon notice to the Administrative Agent. If
the Letter of Credit Issuer shall resign or be replaced, or if the Borrower
shall decide to add a new Letter of Credit Issuer under this Agreement, then
the Borrower may appoint from among the Lenders a successor issuer of Letters
of Credit or a new Letter of Credit Issuer, as the case may be, or, with the
consent of the Administrative Agent (such consent not to be unreasonably
withheld), another successor or new issuer of Letters of Credit, whereupon such
successor issuer shall succeed to the rights, powers and duties of the replaced
or resigning Letter of Credit Issuer under this Agreement and the other Credit
Documents, or such new issuer of Letters of Credit shall be granted the rights,
powers and duties of a Letter of Credit Issuer hereunder, and the term “Letter
of Credit Issuer” shall mean such successor or such new issuer of Letters of
Credit effective upon such appointment. At the time such resignation or
replacement shall become effective, the
Borrower shall pay to the resigning or replaced Letter of 


 


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Credit Issuer all accrued and unpaid fees
pursuant to Sections 4.1(c) and 4.1(d). The acceptance of any
appointment as a Letter of Credit Issuer hereunder whether as a successor issuer
or new issuer of Letters of Credit in accordance with this Agreement, shall be
evidenced by an agreement entered into by such new or successor issuer of
Letters of Credit, in a form satisfactory to the Borrower and the
Administrative Agent and, from and after the effective date of such agreement,
such new or successor issuer of Letters of Credit shall become a “Letter of
Credit Issuer” hereunder. After the resignation or replacement of a Letter of
Credit Issuer hereunder, the resigning or replaced Letter of Credit Issuer
shall remain a party hereto and shall continue to have all the rights and obligations
of a Letter of Credit Issuer under this Agreement and the other Credit
Documents with respect to Letters of Credit issued by it prior to such
resignation or replacement, but shall not be required to issue additional
Letters of Credit. In connection with any resignation or replacement pursuant
to this clause (a) (but, in case of any such resignation, only to the
extent that a successor issuer of Letters of Credit shall have been appointed),
either (i) the Borrower, the resigning or replaced Letter of Credit Issuer and
the successor issuer of Letters of Credit shall arrange to have any outstanding
Letters of Credit issued by the resigning or replaced Letter of Credit Issuer replaced
with Letters of Credit issued by the successor issuer of Letters of Credit or
(ii) the Borrower shall cause the successor issuer of Letters of Credit, if
such successor issuer is reasonably satisfactory to the replaced or resigning
Letter of Credit Issuer, to issue “back-stop” Letters of Credit naming the
resigning or replaced Letter of Credit Issuer as beneficiary for each
outstanding Letter of Credit issued by the resigning or replaced Letter of
Credit Issuer, which new Letters of Credit shall be denominated in the same
currency as, and shall have a face amount equal to, the Letters of Credit being
back-stopped and the sole requirement for drawing on such new Letters of Credit
shall be a drawing on the corresponding back-stopped Letters of Credit. After
any resigning or replaced Letter of Credit Issuer’s resignation or replacement
as Letter of Credit Issuer, the provisions of this Agreement relating to a
Letter of Credit Issuer shall inure to its benefit as to any actions taken or omitted
to be taken by it (A) while it was a Letter of Credit Issuer under this
Agreement or (B) at any time with respect to Letters of Credit issued by such
Letter of Credit Issuer.


 


(b)           To the extent that
there are, at the time of any resignation or replacement as set forth in clause
(a) above, any outstanding Letters of Credit, nothing herein shall be
deemed to impact or impair any rights and obligations of any of the parties
hereto with respect to such outstanding Letters of Credit (including, without
limitation, any obligations related to the payment of Fees or the reimbursement
or funding of amounts drawn), except that the Borrower, the resigning or
replaced Letter of Credit Issuer and the successor issuer of Letters of Credit
shall have the obligations regarding outstanding Letters of Credit described in
clause (a) above.


 


3.7.          Role of Letter of
Credit Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the Letter of Credit Issuer shall not have
any responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the Letter of
Credit Issuer, the Administrative Agent, any of their respective Affiliates nor
any correspondent, participant or assignee of the Letter of Credit Issuer shall
be liable to any Lender for (i) any action taken or omitted in connection
herewith at the request or with the
approval of the Required Revolving Credit Lenders; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document. The Borrower
hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided that
this assumption is not intended to, and shall not, preclude the Borrower’s
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the Letter of Credit
Issuer, the Administrative Agent, any of their respective Affiliates nor any
correspondent, participant or assignee of the Letter of Credit Issuer shall be
liable or responsible for any of the matters described in Section 3.3(e);
provided that


 


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anything in such Section to the contrary
notwithstanding, the Borrower may have a claim against the Letter of Credit
Issuer, and the Letter of Credit Issuer may be liable to the Borrower, to the
extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Borrower which the Borrower proves were
caused by the Letter of Credit Issuer’s willful misconduct or gross negligence
or the Letter of Credit Issuer’s willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the Letter of
Credit Issuer may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary, and the Letter of Credit Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason.


 


3.8.          Cash Collateral.


 


(a)           Upon the request of the
Required Revolving Credit Lenders if, as of the L/C Maturity Date, there are
any Letters of Credit Outstanding, the Borrower shall immediately Cash
Collateralize the then Letters of Credit Outstanding.


 


(b)           The Administrative
Agent acting in its reasonable discretion, may, at any time and from time to
time after the initial deposit of Cash Collateral, request that additional Cash
Collateral be provided in the event such Cash Collateral previously provided is
inadequate as a result of exchange rate fluctuations.


 


(c)           If any Event of Default
shall occur and be continuing, the Administrative Agent or the Revolving Credit
Lenders with Letter of Credit Exposure representing greater than 50% of the
total Letter of Credit Exposure may require that the L/C Obligations be Cash
Collateralized.


 


(d)           For purposes of this Section
3.8, “Cash Collateralize” means to pledge and
deposit with or deliver to the Administrative Agent, for the benefit of the
Letter of Credit Issuer and the Lenders, as collateral for the L/C Obligations,
cash or deposit account balances in the currencies in which the Letters of
Credit Outstanding are denominated and in an amount equal to the amount of the
Letters of Credit Outstanding required to be Cash Collateralized pursuant to
documentation in form and substance reasonably satisfactory to the
Administrative Agent and the Letter of Credit Issuer (which documents are
hereby consented to by the Lenders). Derivatives of such term have
corresponding meanings. The Borrower hereby grants to the Administrative Agent,
for the benefit of the Letter of Credit Issuer and the L/C Participants, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, interest bearing deposit accounts with the Administrative Agent.


 


3.9.          Applicability of ISP
and UCP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrower when a Letter of Credit is issued (including any such agreement
applicable to an Existing Secured Letter of Credit), (i) the rules of the ISP
shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance, shall apply to each
commercial Letter of Credit.


 


3.10.        Conflict with Issuer
Documents. In the event of any conflict between the terms hereof and the
terms of any Issuer Document, the terms hereof shall control.


 


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3.11.          Letters of Credit
Issued for Restricted Subsidiaries. Notwithstanding that a Letter of Credit
issued or outstanding hereunder is in support of any obligations of, or is for
the account of, a Restricted Subsidiary, the Borrower shall be obligated to
reimburse the Letter of Credit Issuer hereunder for any and all drawings under
such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Restricted Subsidiaries inures to the
benefit of the Borrower, and that the Borrower’s business derives substantial
benefits from the businesses of such Restricted Subsidiaries.


 


SECTION 4.                Fees; Commitments


 


4.1.            Fees.


 


(a)             The Borrower agrees to
pay to the Administrative Agent in Dollars, for the account of each Revolving
Credit Lender (in each case pro rata according
to the respective Revolving Credit Commitments of all such Lenders), a
commitment fee (the “Commitment Fee”)
for each day from the Closing Date to the Revolving Credit Termination Date. Each
Commitment Fee shall be payable (x) quarterly in arrears on the last Business
Day of each March, June, September and December (for the three-month period (or
portion thereof) ended on such day for which no payment has been received) (provided
that, the first such payment shall be on December 31, 2007 and shall relate to
the period from the Closing Date and ended on such date) and (y) on the
Revolving Credit Termination Date (for the period ended on such date for which
no payment has been received pursuant to clause (x) above), and shall be
computed for each day during such period at a rate per annum equal to the Commitment Fee Rate in effect on such
day on the Available Commitment in effect on such day.


 


(b)             The Borrower agrees to
pay to the Administrative Agent in Dollars, for the account of each Delayed
Draw Term Loan Lender (in each case pro rata according to the respective Delayed
Draw Term Loan Commitments of all such Lenders), a commitment fee (the “Delayed Draw Commitment Fee”) for each day from the Closing Date
to the Delayed Draw Term Loan Commitment Termination Date. Except as provided
below, each Delayed Draw Commitment Fee shall be payable (x) quarterly in
arrears on the last Business Day of each March, June, September and December
(for the three-month period (or portion thereof) ended on such day for which no
payment has been received) (provided that, the first such payment shall be on
December 31, 2007 and shall relate to the period from the Closing Date and
ended on such date) and (y) on the Delayed Draw Term Loan Commitment
Termination Date (for the period ended on such date for which no payment has
been received pursuant to clause (x) above), and shall be computed for
each day during such period at a rate per
annum equal to the Delayed Draw Commitment Fee Rate in effect on
such day on the Available Delayed Draw Commitment in effect on such day.


 


(c)             The Borrower agrees to
pay to the Administrative Agent in Dollars for the account of the Revolving
Credit Lenders pro rata on the
basis of their respective Letter of Credit Exposure, a fee in respect of each
Letter of Credit (the “Letter of Credit Fee”),
for the period from the date of issuance of such Letter of Credit to the
termination date of such Letter of Credit computed at the per annum rate for each day equal to the
Applicable LIBOR Margin for Revolving Credit Loans minus 0.125% per annum on the average daily Stated
Amount of such Letter of Credit (provided that in no event shall the
payment of Letter of Credit Fees in excess of the amounts payable pursuant to
the last two sentences of this subclause (b) be required). Except as
provided below, such Letter of Credit Fees shall be due and payable (x)
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 and shall relate to the period from the Closing Date and ended on such
date) and (y) on the date upon which the Total Revolving Credit Commitment
terminates and the Letters of Credit Outstanding shall have been reduced to
zero.


 


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(d)             The Borrower agrees to
pay to the Administrative Agent in Dollars, for its own account, administrative
agent fees as have been previously agreed in writing or as may be agreed in writing
from time to time.


 


(e)             The Borrower agrees to
pay to each Letter of Credit Issuer a fee in Dollars in respect of each Letter
of Credit issued by it (the “Fronting Fee”),
for the period from the date of issuance of such Letter of Credit to the
termination date of such Letter of Credit, computed at the rate for each day
equal to 0.125% per annum on the average daily
Stated Amount of such Letter of Credit (or at such other rate per annum as
agreed in writing between the Borrower and the Letter of Credit Issuer). Such
Fronting Fees shall be due and payable (x) 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 and shall relate to the period from the Closing Date and ended on such
date) and (y) on the date upon which the Total Revolving Credit Commitment
terminates and the Letters of Credit Outstanding shall have been reduced to
zero.


 


(f)              The Borrower agrees
to pay directly to the Letter of Credit Issuer in Dollars upon each issuance
of, drawing under, and/or amendment of, a Letter of Credit issued by it such
amount as the Letter of Credit Issuer and the Borrower shall have agreed upon
for issuances of, drawings under or amendments of, letters of credit issued by
it.


 


(g)             Notwithstanding the
foregoing, the Borrower shall not be obligated to pay any amounts to any
Defaulting Lender pursuant to this Section 4.1.


 


4.2.            Voluntary Reduction
of Revolving Credit Commitments. Upon at least one Business Day’s prior
written notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent at the Administrative Agent’s Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), the
Borrower shall have the right, without premium or penalty, on any day,
permanently to terminate or reduce the Revolving Credit Commitments in whole or
in part, provided that (a) any such reduction shall apply
proportionately and permanently to reduce the Revolving Credit Commitment of
each of the Lenders, (b) any partial reduction pursuant to this Section 4.2
shall be in the amount of at least $5,000,000 and (c) after giving effect to
such termination or reduction and to any prepayments of the Loans made on the
date thereof in accordance with this Agreement, the aggregate amount of the
Lenders’ Revolving Credit Exposures shall not exceed the Total Revolving Credit
Commitment.


 


4.3.            Mandatory
Termination of Commitments.


 


(a)             The Initial Term Loan
Commitments shall terminate at 5:00 p.m. (New York City time) on the Closing
Date.


 


(b)             The Delayed Draw Term
Loan Commitments shall terminate at 5:00 p.m. (New York City time) on the
Delayed Draw Term Loan Maturity Date.


 


(c)             The Euro Tranche Term
Loan Commitments shall terminate at 5:00 p.m. (New York City time) on the
Closing Date.


 


(d)             The Revolving Credit
Commitment shall terminate at 5:00 p.m. (New York City time) on the Revolving
Credit Maturity Date.


 


(e)             The Swingline
Commitment shall terminate at 5:00 p.m. (New York City time) on the Swingline
Maturity Date.


 


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(f)              The New Term Loan
Commitment for any Series shall, unless otherwise provided in the applicable
Joinder Agreement, terminate at 5:00 p.m. (New York City time) on the Increased
Amount Date for such Series.


 


SECTION 5.                Payments


 


5.1.            Voluntary
Prepayments.


 


(a)             The Borrower shall
have the right to prepay its Term Loans, Revolving Credit Loans and Swingline
Loans, in each case, without premium or penalty, subject to clause (b)
below, 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 denominated in Dollars, three Business Days prior to, (ii) in the
case of LIBOR Loans denominated in an Alternative Currency, four Business Days
prior to, (iii) in the case of ABR Loans (other than Swingline Loans), one
Business Day prior to or (iv) in the case of Swingline Loans, on, the date of
such prepayment and shall promptly be transmitted by the Administrative Agent
to each of the Lenders or the Swingline Lender, as the case may be; (b) each
partial prepayment of (i) any Borrowing of LIBOR Loans denominated in Dollars
or any Alternative Currency other than Euro shall be in a minimum amount of
$5,000,000 (or the Dollar Equivalent thereof) and in multiples of $1,000,000 (or the Dollar Equivalent thereof) in excess thereof, (ii) any ABR Loans (other
than Swingline Loans) shall be in a minimum amount of $1,000,000 and in multiples of $100,000  in
excess thereof, (iii) any Loans denominated in Euro shall be in a minimum
amount of €5,000,000 and in
multiples of €1,000,000 in
excess thereof and (iv) Swingline Loans shall be in a minimum amount of $500,000
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 the applicable Minimum Borrowing Amount for such LIBOR Loans 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 Term Loans pursuant to this Section
5.1 shall be (a) applied to the Class or Classes of Term Loans as the
Borrower may specify and (b) applied to reduce Initial Term Loan Repayment
Amounts, Delayed Draw Repayment Amounts, Euro Tranche Repayment Amounts and/or
any New Term Loan Repayment Amounts, as the case may be, in each case, in such
order as the Borrower may specify. At the Borrower’s election in connection
with any prepayment pursuant to this Section 5.1, such prepayment shall
not be applied to any Term Loan or Revolving Credit Loan of a Defaulting
Lender.


 


(b)             In the event that the
Initial Tranche B-3 Term Loans are repaid (the “Repaid
Tranche B-3 Loans”) prior to the date
which is 3.25 years following the Closing Date in whole or in part pursuant to Section
5.1(a), the Borrower shall pay to Term Lenders having such Repaid Tranche
B-3 Loans, the Applicable Premium as of the date of such prepayment; provided
that prior to the date which is 3.25 years following the Closing Date, the
Borrower may, at its option, on one or more occasions repay up to 35% of the
aggregate principal amount of the Initial Tranche B-3 Term Loans subject to a
prepayment premium on the principal amount of Initial Tranche B-3 Term Loans
being prepaid equal to the LIBOR Rate for an interest period of three months plus
the Applicable LIBOR Margin in effect on such date, plus accrued and
unpaid interest thereon to the date of such repayment, with the Net Cash
Proceeds of one or more Equity Offerings; provided that (i) that at
least 50% of the sum of the original aggregate principal amount of Initial
Tranche B-3 Term Loans remains outstanding immediately after the occurrence


 


77

















 


of each such repayment and (ii)
that each such repayment occurs within 90 days of the date of closing of each
such Equity Offering.


 


5.2.            Mandatory
Prepayments.


 


(a)             Term Loan
Prepayments. (i) (A) On each occasion that a Prepayment Event occurs, the
Borrower shall, within three Business Days after its receipt of the Net Cash
Proceeds of a Debt Incurrence Prepayment Event and within seven Business Days
after the occurrence of any other Prepayment Event (or, in the case of Deferred
Net Cash Proceeds, within seven Business Days after the Deferred Net Cash
Proceeds Payment Date), prepay, in accordance with clause (c) below and
subject to clause (B) of this Section 5.2(a)(i), Term Loans with
a Dollar Equivalent principal amount equal to 100% of the Net Cash Proceeds
from such Prepayment Event. (B)  In the event that any Initial Tranche
B-2 Term Loans are repaid (the “Repaid  Tranche B-2  Loans”) prior
to the third anniversary of the Closing Date pursuant to this Section
5.2(a)(i), the Borrower shall pay to Term Lenders having such Repaid
Tranche B-2 Loans, a prepayment premium as follows:  (x) 3.00% of such amount so repaid if such
prepayment occurs on or after the Closing Date but prior to the first
anniversary of the Closing Date, (y) 2.00% of such amount so repaid if such
prepayment occurs on or after the first anniversary of the Closing Date but
prior to the second anniversary of the Closing Date and (z) 1.00% of such
amount so repaid if such prepayment occurs on or after the second anniversary
of the Closing Date but on or prior to the third anniversary of the Closing
Date.


 


(ii)             Not later than the
date that is ninety days after the last day of any fiscal year (commencing with
and including the fiscal year ending December 31, 2008), the Borrower shall
prepay, in accordance with clause (c) below, Term Loans with a Dollar
Equivalent principal amount equal to (x) 50% of Excess Cash Flow for such
fiscal year, provided that (A) the percentage in this Section
5.2(a)(ii) shall be reduced to 25% if the ratio of Consolidated Total Debt
on the date of prepayment (prior to giving effect thereto and as certified by
an Authorized Officer of the Borrower) to Consolidated EBITDA for the most
recent Test Period ended prior to such
prepayment date is less than or equal to 7.0 to 1.0 but greater than 6.0 to 1.0
and (B) no payment of any Term Loans shall be required under this Section
5.2(a)(ii) if the ratio of Consolidated Total Debt on the date of
prepayment (prior to giving effect thereto and as certified by an Authorized
Officer of the Borrower) to Consolidated EBITDA for the most recent Test Period
ended prior to such prepayment date is less than or equal to 6.0 to 1.00, minus
(y) the Dollar Equivalent principal amount of Term Loans voluntarily prepaid
pursuant to Section 5.1 during such fiscal year.


 


(b)             Repayment of
Revolving Credit Loans. (i)  If on
any date the aggregate amount of the Lenders’ Revolving Credit Exposures
(collectively, the “Aggregate Revolving
Credit Outstandings”) for any reason exceeds 100% of the
Total Revolving Credit Commitment then in effect, the Borrower shall forthwith
repay on such date the principal amount of Swingline Loans and, after all
Swingline Loans have been paid in full, Revolving Credit Loans in an amount
equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and Revolving Credit Loans, the Aggregate Revolving
Credit Outstandings exceed the Total Revolving Credit Commitment then in effect,
the Borrower shall Cash Collateralize the Letters of Credit Outstanding to the
extent of such excess.


 


(ii)             If on any date the
aggregate amount of the Lenders’ Multicurrency Exposures (collectively, the “Aggregate Multicurrency Exposures”) for any reason exceeds
105% of the Multicurrency Sublimit as then in effect, the Borrower shall forthwith
repay on such date Revolving Credit Loans denominated in Alternative Currencies
in a principal amount such that, after giving effect to such repayment, the Aggregate
Multicurrency Exposures do not exceed 100% of the Multicurrency Sublimit. If,
after giving effect to the prepayment of all outstanding Revolving Credit Loans
denominated in Alternative Currencies, the Aggregate Multicurrency Exposures
exceed 100% of the Multicurrency Sublimit, the


 


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Borrower shall
Cash Collateralize the Letters of Credit Outstanding in respect of Letters of
Credit denominated in Alternative Currencies to the extent of such excess.


 


(c)             Application to
Repayment Amounts. Subject to Section 5.2(h), each prepayment of
Term Loans required by Section 5.2(a)(i) or (ii) shall be allocated pro rata among the Initial Term Loans, the
Delayed Draw Term Loans and the Euro Tranche Term Loans based on the applicable
remaining Repayment Amounts due thereunder and shall be applied to the unpaid Repayment Amounts due in respect of
such Term Loans in direct order of maturity thereof; provided that,
subject to the pro rata application to Repayment Amounts within any Class of
Term Loans, the Borrower may allocate such prepayment in its sole discretion
among the Class or Classes of Term Loans as the Borrower may specify. 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 and which shall include a calculation of the amount of
such prepayment to be applied to each Class of Term Loans) requesting that the
Administrative Agent provide notice of such prepayment to each Initial Term
Loan Lender, Delayed Draw Term Loan Lender or Euro Tranche Term Loan Lender, as
applicable.


 


(d)             Application to Term Loans. With respect to each prepayment of Term
Loans required by Section 5.2(a), the Borrower may, if applicable,
designate the Types of Loans that are to be prepaid and the specific
Borrowing(s) pursuant to which made; provided, that if any Lender has
provided a Rejection Notice in compliance with Section 5.2(h), such prepayment
shall be applied with respect to the Term Loans to be prepaid on a pro rata
basis across all outstanding Classes of such Term Loans in proportion to the
percentage of such outstanding Term Loans to be prepaid represented by each
such Class. In the absence of a Rejection Notice or 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)             Application to
Revolving Credit Loans. With respect to each prepayment of Revolving Credit
Loans required by Section 5.2(b), the Borrower may designate (i) the
Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant to
which made and (ii) the Revolving Credit Loans to be prepaid, provided
that (y) each prepayment of any Loans made pursuant to a Borrowing shall be
applied pro rata among such
Loans; and (z) notwithstanding the provisions of the preceding clause (y),
no prepayment of Revolving Credit Loans shall be applied to the Revolving
Credit Loans of any Defaulting Lender unless otherwise agreed in writing by the
Borrower. 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.


 


(f)              [Reserved]


 


(g)             Minimum Amount.
No prepayment shall be required pursuant to Section 5.2(a)(i) (i) in the
case of any Disposition yielding Net Cash Proceeds of less than $1,000,000 in
the aggregate and (ii) unless and until the amount at any time of Net Cash Proceeds from Prepayment Events required to
be applied at or prior to such time pursuant to such Section and not yet
applied at or prior to such time to prepay Term Loans pursuant to such Section
exceeds (x) $10,000,000 for a
single Prepayment Event or (y) $50,000,000 in the aggregate for all Prepayment Events (other than those which are
either under the threshold specified in subclause (i) or over the
threshold specified in subclause (ii)(x)) in any one fiscal year, at
which time all such Net Cash Proceeds referred to in this subclause (y)
with respect to such fiscal year shall be applied as a prepayment in accordance
with this Section 5.2.


 


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(h)             Rejection Right. The Borrower shall
notify the Administrative Agent in writing of any mandatory prepayment of Term
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 Term Loans of the contents of the Borrower’s
prepayment notice and of such Lender’s pro
rata share of the prepayment. Each Term Loan 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
Term Loans required to be made pursuant to Section 5.2(a) by providing
written notice (each, a “Rejection Notice”)
to the Administrative Agent and the Borrower no later than 5:00 p.m. (New York
time) one Business Day after the date of such Lender’s receipt of notice from
the Administrative Agent regarding such prepayment. 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 Term Loans to be rejected, any such failure will be deemed an acceptance
of the total amount of such mandatory prepayment of Term Loans. Any Declined
Proceeds remaining thereafter shall be retained by the Borrower (“Retained
Declined Proceeds”).


 


(i)              Foreign Asset
Sales. Notwithstanding any other provisions of this Section 5.2, (i)
to the extent that any or all of the Net Cash Proceeds from a Casualty Event
of, or any asset sale by a Restricted Foreign Subsidiary giving rise to an
Asset Sale Prepayment Event (a “Foreign Asset Sale”) or any amount
included in Excess Cash Flow and attributable to Foreign Subsidiaries are
prohibited or delayed by applicable local law from being repatriated to the
United States, such portion of the Net Cash Proceeds or Excess Cash Flow so
affected will not be required to be applied to repay Term Loans at the times
provided in this Section 5.2 but may be retained by the applicable
Restricted Foreign Subsidiary so long, but only so long, as the applicable
local law will not permit repatriation to the United States (the Borrower
hereby agreeing to cause the applicable Restricted Foreign Subsidiary to
promptly take all actions required by the applicable local law to permit such
repatriation), and once such repatriation of any of such affected Net Cash
Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be
immediately effected and such repatriated Net Cash Proceeds will be promptly
(and in any event not later than two Business Days after such repatriation)
applied (net of additional taxes payable or reserved against as a result
thereof) to the repayment of the Term Loans as required pursuant to this Section
5.2 and (ii) to the extent that the Borrower has determined in good faith
that repatriation of any of or all the Net Cash Proceeds of any Foreign Asset
Sale or Excess Cash Flow would have a material adverse tax consequence with
respect to such Net Cash Proceeds or Excess Cash Flow, the Net Cash Proceeds or
Excess Cash Flow so affected may be retained by the applicable Restricted
Foreign Subsidiary, provided that, in the case of this clause (ii),
on or before the date on which any Net Cash Proceeds or Excess Cash Flow so
retained would otherwise have been required to be applied to reinvestments or
prepayments pursuant to Section 5.2(a), (x) the Borrower applies an
amount equal to such Net Cash Proceeds or Excess Cash Flow to such
reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow
had been received by the Borrower rather than such Restricted Foreign
Subsidiary, less the amount of additional taxes that would have been payable or
reserved against if such Net Cash Proceeds or Excess Cash Flow had been
repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would
be calculated if received by such Foreign Subsidiary) or (y) such Net Cash
Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a
Restricted Foreign Subsidiary.


 


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 (or, (i) in the
case of the Swingline Loans to the Swingline Lender and (ii) in the case of
Additional Swingline Loans to the Additional Swingline Lender)


 


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entitled thereto, the Letter of
Credit Issuer entitled thereto, as the case may be, 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 (or, (i) in the case of the Swingline Loans, at such
office as the Swingline Lender shall specify for such purpose by Notice to the
Borrower and (ii) in the case of Additional Swingline Loans, at such office as
the Additional Swingline Lender 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 the currency in which such Loans are denominated and all other
payments under each Credit Document shall, unless otherwise specified in such
Credit 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
or Fees 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
Agents sole discretion (or, in the case of the Swingline Loans or the
Additional Swingline Loans, at the Swingline Lender’s or Additional Swingline
Lender’s, as the case may be, sole discretion). Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day, the
due date thereof shall be extended to the next succeeding Business Day and,
with respect to payments of principal, interest shall be payable 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 Credit 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 shall be
increased as necessary so that after making all required deductions and
withholdings (including deductions or withholdings applicable to additional
sums payable under this Section 5.4) the applicable Agent or Lender, as
the case may be, receives an amount equal to the sum it would have received had
no such deductions or withholdings been made, (ii) the Borrower, such Guarantor
or the Administrative Agent, as applicable shall make such deductions or
withholdings and (iii) the Borrower, such Guarantor or the Administrative
Agent, as applicable shall timely pay the full amount deducted or withheld to
the relevant Governmental Authority within the time allowed and in accordance
with applicable Requirements of Law. Whenever any Indemnified Taxes are payable
by the Borrower or any Guarantor, as promptly as possible thereafter, the
Borrower or such Guarantor shall send to the Administrative Agent for its own
account or for the account of a Lender or Agent, as the case may be, a certified
copy of an original official receipt (or other evidence acceptable to such
Lender or Agent, acting reasonably) received by the Borrower or such Guarantor
showing payment thereof.


 


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


 


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(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, the Collateral 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 Credit 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
with respect to the Initial Term Loan, Delayed Draw Term Loan, Euro Tranche
Term Loan or any other Loan made to the Borrower shall, to the extent it is
legally entitled to do so:


 


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


 


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


 


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


 


(e)             [Reserved].


 


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


 


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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, the
Administrative Agent or the Collateral Agent, as the case may be, shall
reimburse the Borrower for such amount (together with any interest received
thereon) as the Lender, Administrative Agent or the Collateral 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 Credit Party in connection with this clause (h) or
any other provision of this Section 5.4.


 


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


 


(i)              Each Lender and Agent
with respect to the Initial Term Loan, Euro Tranche Term Loan, Delayed Draw
Term Loan and any other Loan made to the Borrower 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.


 


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(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 and Fees.


 


(a)             Except as provided in
the next succeeding sentence, interest on LIBOR Loans and ABR Loans shall be
calculated on the basis of a 360-day year for the actual days elapsed. Interest
on ABR Loans in respect of which the rate of interest is calculated on the
basis of the Administrative Agent’s prime rate, interest on LIBOR Loans
denominated in Sterling 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.


 


(b)             Fees and the average
daily Stated Amount of Letters of Credit shall be calculated on the basis of a
360-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 Credit Documents would obligate the Borrower to make any payment of
interest or other amount payable to any Lender in an amount or calculated at a
rate that would be prohibited by any applicable law, rule or regulation, then
notwithstanding such provision, such amount or rate shall be deemed to have
been adjusted with retroactive effect to the maximum amount or rate of
interest, as the case may be, as would not be so prohibited by law, such
adjustment to be effected, to the extent necessary, by reducing the amount or
rate of interest required to be paid by the Borrower to the affected Lender
under Section 2.8.


 


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


 


SECTION 6.                Conditions Precedent to Initial
Borrowing


 


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


 


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


 


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


 


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


 


(c)             the Pledge Agreement, executed and
delivered by a duly authorized officer of each pledgor party thereto; and


 


(d)             the Security Agreement, executed and
delivered by a duly authorized officer of each grantor party thereto.


 


6.2.            Collateral. Except
for any items referred to on Schedule 9.14(d):


 


(a)             (i) All outstanding equity interests
in whatever form of each Restricted Subsidiary directly owned by or on behalf
of any Credit Party and required to be pledged pursuant to the Pledge Agreement
shall have been pledged pursuant thereto and (ii) the Collateral Agent shall
have received all certificates representing securities pledged under the Pledge
Agreement to the extent certificated, accompanied by instruments of transfer
and undated stock powers endorsed in blank;


 


(b)             All documents and instruments,
including Uniform Commercial Code or other applicable personal property and
financing statements, reasonably requested by the Collateral Agent to be filed,
registered or recorded to create the Liens intended to be created by any
Security Document and perfect such Liens to the extent required by, and with
the priority required by, such Security Document shall have been delivered to
the Collateral Agent for filing, registration or recording;


 


(c)             The Borrower shall deliver to the
Collateral Agent a completed Perfection Certificate, executed and delivered by
an Authorized Officer of the Borrower, together with all attachments contemplated
thereby; and


 


(d)             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 H-1, (b) David Money, General Counsel
of the Borrower, substantially in the form of Exhibit H-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
Credit Parties and the Administrative Agent hereby instruct such counsel to
deliver such legal opinions.


 


6.4.            [Reserved].


 


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 Credit
Parties, dated the Closing Date, substantially in the form of Exhibit I,
with appropriate insertions, executed by the President or any Vice President
and the Secretary or any Assistant Secretary of each Credit Party, and
attaching the documents referred to in Section 6.7.


 


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6.7.            Authorization of
Proceedings of Each Credit 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
Credit Party (or a duly authorized committee thereof) authorizing (a) the
execution, delivery and performance of the Credit 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 Credit 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, the representations and warranties made by
the Credit Parties in Section 8.1(a), Section 8.2, Section 8.5
and Section 8.7, as they relate to the Credit 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.


 


SECTION 7.                Conditions Precedent to All Credit
Events


 


The agreement
of each Lender to make any Loan requested to be made by it on any date
(excluding Mandatory Borrowings and Revolving Credit Loans required to be made
by the Revolving Credit Lenders in respect of Unpaid Drawings pursuant to Sections
3.3 and 3.4) and the obligation of the Letter of Credit Issuer to
issue Letters of Credit on any date is subject to the satisfaction of the following
conditions precedent:


 


7.1.            No Default;
Representations and Warranties. At the time of each Credit Event and also
after giving effect thereto (other than any Credit Event on the Closing Date)
(a) no Default or Event of Default shall have occurred and be continuing and
(b) all representations and warranties made by any Credit Party contained
herein or in the other Credit Documents shall be true and correct in all material
respects with the same effect as though such representations and warranties had
been made on and as of the date of such Credit Event (except where such
representations and warranties expressly relate to an


 


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earlier date, in which case
such representations and warranties shall have been true and correct in all
material respects as of such earlier date).


 


7.2.            Notice of Borrowing;
Letter of Credit Request.


 


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


 


(b)             Prior to the making of
each Revolving Credit Loan (other than any Revolving Credit Loan made pursuant
to Section 3.4(a)) and each Swingline Loan, the Administrative Agent
shall have received a Notice of Borrowing (whether in writing or by telephone)
meeting the requirements of Section 2.3.


 


(c)             Prior to the issuance
of each Letter of Credit, the Administrative Agent and the Letter of Credit
Issuer shall have received a Letter of Credit Request meeting the requirements
of Section 3.2(a).


 


The acceptance
of the benefits of each Credit Event shall constitute a representation and
warranty by each Credit Party to each of the Lenders that all the applicable
conditions specified in Section 7 above have been satisfied as of that
time.


 


SECTION 8.                Representations, Warranties and
Agreements


 


In order to
induce the Lenders to enter into this Agreement, to make the Loans and issue or
participate in Letters of Credit as provided for herein, the Borrower makes (on
the Closing Date and on each other date as required or otherwise set forth in
this Agreement) 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 and the issuance of the Letters of
Credit (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 Credit Party has the corporate or other organizational
power and authority to execute, deliver and carry out the terms and provisions
of the Credit 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 Credit Documents to which it is a party. Each Credit
Party has duly executed and delivered each Credit Document to which it is a
party and each such Credit Document constitutes the legal, valid and binding
obligation of such Credit Party enforceable in accordance with its terms
(provided, that, with respect to the creation and perfection of security
interests with respect to Stock and Stock Equivalents of Foreign Subsidiaries,
only to the extent enforceability of such obligation with respect to which
Stock and Stock Equivalents of Foreign Subsidiaries is governed by the Uniform
Commercial Code), 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.


 


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8.3.            No Violation. Neither
the execution, delivery or performance by any Credit Party of the Credit
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 in 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 Credit Party or
any of the Restricted Subsidiaries (other than Liens created under the Credit
Documents) pursuant to, the terms of any material indenture, loan agreement,
lease agreement, mortgage, deed of trust, agreement or other material
instrument to which such Credit 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 Credit Party or any of the Restricted Subsidiaries.


 


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


 


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


 


8.6.            Governmental
Approvals. The execution, delivery and performance of the Acquisition
Agreement or any Credit 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, (ii) filings and recordings in respect of the Liens created pursuant to
the Security Documents and (iii) such licenses, approvals, authorizations or
consents the failure of which to obtain or make 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/or any Lender on or before
the Closing Date (including all such information and data contained in (i) the
Confidential Information Memorandum (as updated prior to the Closing Date and
including all information incorporated by reference therein) and (ii) the
Credit 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.


 


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(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. (a) The unaudited historical consolidated financial
information of the Borrower as set forth in the Confidential Information
Memorandum, and (b) the Historical Financial Statements, in each case 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 respective periods covered thereby. The unaudited pro forma
consolidated balance sheet of the Borrower and its Subsidiaries as at June 30,
2007 (including the notes thereto) (the “Pro Forma Balance Sheet”)
and the unaudited pro forma consolidated statement of operations of the Borrower
and its Subsidiaries for the 12-month period ending on such date (together with
the Pro Forma Balance Sheet, the “Pro Forma  Financial Statements”), copies of which have heretofore been
furnished to the Administrative Agent, have been prepared based on (x) the
Historical Financial Statements and (y) the unaudited historical consolidated
financial information described in clause (a) of this Section 8.9
and have been prepared in good faith, based on assumptions believed by the
Borrower to be reasonable as of the date of delivery thereof, and present
fairly in all material respects on a Pro Forma Basis the estimated financial
position of the Borrower and its Subsidiaries as at June 30, 2007 and their
estimated results of operations for the period covered thereby. The financial
statements referred to in clause (b) of 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,


 


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4062, 4063, 4064, 4069, 4201 or
4204 of ERISA or Section 4971 or 4975 of the Code or has been notified in
writing that it will incur any liability under any of the foregoing Sections
with respect to any Plan; no proceedings have been instituted (or are
reasonably likely to be instituted) to terminate or to reorganize any Plan or
to appoint a trustee to administer any Plan, and no written notice of any such
proceedings has been given to the Borrower or any ERISA Affiliate; and no lien
imposed under the Code or ERISA on the assets of the Borrower or any ERISA
Affiliate exists (or is reasonably likely to exist) nor has the Borrower or any
ERISA Affiliate been notified in writing that such a lien will be imposed on
the assets of the Borrower or any ERISA Affiliate on account of any Plan,
except to the extent that a breach of any of the representations, warranties or
agreements in this Section 8.11 (a) would not result, individually or in
the aggregate, in an amount of liability that would be reasonably likely to
have a Material Adverse Effect. No Plan (other than a Multiemployer Plan) has
an Unfunded Current Liability that would, individually or when taken together
with any other liabilities referenced in this Section 8.11(a), be
reasonably likely to have a Material Adverse Effect. With respect to Plans that
are Multiemployer Plans (as defined in Section 3(37) of ERISA), the
representations and warranties in this Section 8.11(a), other than any
made with respect
to (i) liability under Section 4201 or 4204 of ERISA or (ii) liability for
termination or reorganization of such Plans under ERISA, are made to the best
knowledge of the Borrower.


 


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


 


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.


 


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8.15.        Properties.


 


(a)           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 and (b) no Mortgage encumbers
improved Real Estate that is located in an area that has been identified by the Secretary of Housing
and Urban Development as an area having special flood hazards within the
meaning of the National Flood Insurance Act of 1968 unless flood insurance
available under such Act has been obtained in accordance with Section 9.3(b).


 


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.              Affirmative Covenants


 


The Borrower
hereby covenants and agrees that on the Closing Date and thereafter, until the
Commitments, the Swingline Commitment and each Letter of Credit have terminated
and the Loans and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder (other than contingent indemnity obligations),
are paid in full:


 


9.1.          Information Covenants.
The Borrower will furnish to the Administrative Agent (which shall promptly
make such information available to the Lenders in accordance with its customary
practice):


 


(a)           Annual Financial Statements. As soon as available and in any
event within 5 days after the date on which such financial statements are
required to be filed with the SEC (after giving effect to any permitted
extensions) (or, if such financial statements are not required to be filed with
the SEC, on or before the date that is 90 days after the end of each such fiscal
year), the consolidated balance sheets of the Borrower and the Subsidiaries
and, if different, the Borrower and the Restricted Subsidiaries, in each case
as at the end of such fiscal year, and the related consolidated statements of
operations and cash flows for such fiscal year, setting forth comparative
consolidated figures for the preceding fiscal years (or, in lieu of such
audited financial statements of the Borrower and the Restricted Subsidiaries, a
detailed reconciliation, reflecting such financial information for the Borrower
and the Restricted Subsidiaries, on the one hand, and the Borrower and the
Subsidiaries, on the other hand), all in reasonable detail and prepared in
accordance with GAAP, and, in each case, certified by independent certified
public accountants of recognized national standing whose opinion shall not be
qualified as to the scope of audit or as to the status of the Borrower or any
of the Material Subsidiaries (or group of Subsidiaries that together would
constitute a Material Subsidiary) as a going concern, together in any event
with a certificate of such accounting firm stating that in the course of either
(i) its regular audit of the consolidated business of the Borrower, which audit
was conducted in accordance with U.S. generally accepted auditing standards or
(ii) performing certain other procedures permitted by professional standards,
such accounting firm has obtained no knowledge of any Event of Default relating
to Section 10.9 that has occurred and is continuing or, if in the
opinion of such accounting firm such an Event of Default has occurred and is
continuing, a statement as to the nature thereof.


 


(b)           Quarterly Financial Statements. As soon as available and in any
event within 5 days after the date on which such financial statements are
required to be filed with the SEC (after giving effect to any permitted
extensions) with respect to each of the first three quarterly accounting 


 


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periods in each fiscal year
of the Borrower (or, if such financial statements are not required to be filed
with the SEC, on or before the date that is 45 days after the end of each such
quarterly accounting period), the consolidated balance sheets of the Borrower
and the Subsidiaries and, if different, the Borrower and the Restricted
Subsidiaries, in each case as at the end of such quarterly period and the
related consolidated statements of operations for such quarterly accounting
period and for the elapsed portion of the fiscal year ended with the last day
of such quarterly period, and the related consolidated statement of cash flows
for such quarterly accounting period and for the elapsed portion of the fiscal
year ended with the last day of such quarterly period, and setting forth comparative
consolidated figures for the related periods in the prior fiscal year or, in
the case of such consolidated balance sheet, for the last day of the prior
fiscal year (or, in lieu of such unaudited financial statements of the Borrower
and the Restricted Subsidiaries, a detailed reconciliation reflecting such
financial information for the Borrower and the Restricted Subsidiaries, on the
one hand, and the Borrower and the Subsidiaries, on the other hand), all of
which shall be certified by an Authorized Officer of the Borrower as fairly
presenting in all material respects the financial condition, results of
operations, stockholders’ equity and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP, subject to changes resulting from audit
and normal year end audit adjustments.


 


(c)           Budgets. Within 90 days after the
commencement of each fiscal year of the Borrower, a budget of the Borrower in
reasonable detail for such fiscal year as customarily prepared by management of
the Borrower for its internal use consistent in scope with the financial
statements provided pursuant to Section 9.1(a), setting forth the
principal assumptions upon which such budget is based (collectively, the “Projections”), which Projections shall in each case be accompanied
by a certificate of an Authorized Officer stating that such Projections have
been prepared in good faith on the basis of the assumptions stated therein,
which assumptions were believed to be reasonable at the time of preparation of
such Projections, it being understood that actual results may vary from such
Projections.


 


(d)           Officer’s Certificates. At the time of the delivery of the
financial statements provided for in Sections 9.1 (a) and (b), a
certificate of an Authorized Officer of the Borrower to the effect that no
Default or Event of Default exists or, if any Default or Event of Default does
exist, specifying the nature and extent thereof, which certificate shall set
forth a specification of any change in the identity of the Restricted
Subsidiaries and Unrestricted Subsidiaries as at the end of such fiscal year or
period, as the case may be, from the Restricted Subsidiaries and Unrestricted
Subsidiaries, respectively, provided to the Lenders on the Closing Date or the
most recent fiscal year or period, as the case may be, (ii) the then applicable
Status and (iii) the amount of any Pro Forma Adjustment not previously set
forth in a Pro Forma Adjustment Certificate or any change in the amount of a
Pro Forma Adjustment set forth in any Pro Forma Adjustment Certificate
previously provided and, in either case, in reasonable detail, the calculations
and basis therefor. At the time of the delivery of the financial statements
provided for in Section 9.1(a), (i) a certificate of an Authorized
Officer of the Borrower setting forth in reasonable detail the Applicable
Amount as at the end of the fiscal year to which such financial statements
relate and (ii) a certificate of an Authorized Officer of the Borrower setting
forth the information required pursuant to Section 1(a) of the Perfection
Certificate or confirming that there has been no change in such information
since the Closing Date or the date of the most recent certificate delivered
pursuant to this clause (c)(ii), as the case may be.


 


(e)           Notice of Default or Litigation. Promptly after an Authorized
Officer of the Borrower or any of the Subsidiaries obtains knowledge thereof,
notice of (i) the occurrence of any event that constitutes a Default or Event
of Default, which notice shall specify the nature thereof, 


 


92

















 


the period of
existence thereof and what action the Borrower proposes to take with respect
thereto and (ii) any litigation or governmental proceeding pending against the
Borrower or any of the Subsidiaries that could reasonably
be expected to be determined adversely and, if so determined, to result in a
Material Adverse Effect.


 


(f)            Environmental Matters. Promptly after obtaining knowledge
of any one or more of the following environmental matters, unless such
environmental matters would not, individually or when aggregated with all other
such matters, be reasonably expected to result in a Material Adverse Effect,
notice of:


 


(i)      any pending or threatened Environmental Claim against any Credit
Party or any Real Estate;


 


(ii)     any condition or occurrence
on any Real Estate that (x) could reasonably be expected to result in
noncompliance by any Credit Party with any applicable Environmental Law or (y)
could reasonably be anticipated to form the basis of an Environmental Claim
against any Credit Party or any Real Estate;


 


(iii)    any condition or occurrence on
any Real Estate that could reasonably be anticipated to cause such Real Estate
to be subject to any restrictions on the ownership, occupancy, use or transferability
of such Real Estate under any Environmental Law; and


 


(iv)    the conduct of any
investigation, or any removal, remedial or other corrective action in response
to the actual or alleged presence, release or threatened release of any
Hazardous Material on, at, under or from any Real Estate.


 


All such notices shall describe in reasonable
detail the nature of the claim, investigation, condition, occurrence or removal
or remedial action and the response thereto. The term “Real Estate”  shall mean land, buildings and
improvements owned or leased by any Credit Party, but excluding all operating
fixtures and equipment, whether or not incorporated into improvements.


 


(g)           Other Information. Promptly upon filing thereof,
copies of any filings (including on Form 10-K, 10-Q or 8-K) or registration
statements with, and reports to, the SEC or any analogous Governmental
Authority in any relevant jurisdiction by the Borrower or any of the
Subsidiaries (other than amendments to any registration statement (to the
extent such registration statement, in the form it becomes effective, is
delivered to the Administrative Agent), exhibits to any registration statement
and, if applicable, any registration statements on Form S-8) and copies of all
financial statements, proxy statements, notices and reports that the Borrower
or any of the Subsidiaries shall send to the holders of any publicly issued
debt of the Borrower and/or any of the Subsidiaries (including the Notes
(whether publicly issued or not)), in their capacity as such holders, lenders
or agents (in each case to the extent not theretofore delivered to the
Administrative Agent pursuant to this Agreement) and, with reasonable
promptness, such other information (financial or otherwise) as the
Administrative Agent on its own behalf or on behalf of any Lender (acting
through the Administrative Agent) may reasonably request in writing from time
to time.


 


(h)           Pro Forma Adjustment Certificate. Not later than any date on which
financial statements are delivered with respect to any Test Period in which a
Pro Forma Adjustment is made as a result of the consummation of the acquisition
of any Acquired Entity or Business by the Borrower or any Restricted Subsidiary
for which there shall be a Pro Forma Adjustment, a certificate of an Authorized
Officer of the Borrower setting forth the amount of such Pro Forma Adjustment
and, in reasonable detail, the calculations and basis therefor.


 


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Notwithstanding
the foregoing, the obligations in clauses (a) and (b) of this Section
9.1 may be satisfied with respect to financial information of the Borrower
and the Restricted Subsidiaries by furnishing (A) the applicable financial
statements of any direct or indirect parent of the Borrower or (B) the Borrower’s
(or any direct or indirect parent thereof), as applicable, Form 10-K or 10-Q,
as applicable, filed with the SEC; provided that, with respect to each
of subclauses (A) and (B) of this paragraph, to the extent such
information relates to a parent of the Borrower, such information is
accompanied by consolidating or other 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 the Restricted
Subsidiaries on a standalone basis, on the other hand.


 


9.2.          Books, Records and
Inspections. The Borrower will, and will cause each Restricted Subsidiary
to, permit officers and designated representatives of the Administrative Agent
or the Required Lenders to visit and inspect any of the properties or assets of
the Borrower and any such Subsidiary in whomsoever’s possession to the extent
that it is within such party’s control to permit such inspection (and shall use
commercially reasonable efforts to cause such inspection to be permitted to the
extent that it is not within such party’s control to permit such inspection),
and to examine the books and records of the Borrower and any such Subsidiary
and discuss the affairs, finances and accounts of the Borrower and of any such
Subsidiary with, and be advised as to the same by, its and their officers and
independent accountants, all at such reasonable times and intervals and to such
reasonable extent as the Administrative Agent or the Required Lenders may
desire (and subject, in the case of any such meetings or advice from such
independent accountants, to such accountants’ customary policies and
procedures); provided that, excluding any such visits and inspections
during the continuation of an Event of Default (a) only the Administrative
Agent on behalf of the Required Lenders may exercise rights of the Administrative
Agent and the Lenders under this Section 9.2, (b) the Administrative
Agent shall not exercise such rights more than two times in any calendar year
and (c) only one such visit shall be at the Borrower’s expense; provided
further that when an Event of Default exists, the Administrative Agent
(or any of its respective representatives or independent contractors) or any
representative of the Required Lenders may do any of the foregoing at the
expense of the Borrower at any time during normal business hours and upon
reasonable advance notice. The Administrative Agent and the Required Lenders
shall give the Borrower the opportunity to participate in any discussions with
the Borrower’s independent public accountants.


 


9.3.          Maintenance of
Insurance. (a) The Borrower will, and will cause each Material Subsidiary
to, at all times maintain in full force and effect, pursuant to self-insurance
arrangements or with insurance companies that the Borrower believes (in the
good faith judgment of the management of the Borrower) are financially sound
and responsible at the time the relevant coverage is placed or renewed,
insurance in at least such amounts (after giving effect to any self-insurance
which the Borrower believes (in the good faith judgment of management of the Borrower) is reasonable and prudent in
light of the size and nature of its business) and against at least such risks
(and with such risk retentions) as the Borrower believes (in the good faith
judgment of management of the Borrower) is reasonable and prudent in light of
the size and nature of its business; and will furnish to the Administrative
Agent, upon written request from the Administrative Agent, information
presented in reasonable detail as to the insurance so carried and (b)
with respect to each Mortgaged Property, Borrower will obtain flood insurance
in such total amount as the Administrative Agent may from time to time
reasonably require, if at any time the area in which any improvements located
on any Mortgaged Property is designated a “flood hazard area” in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), and otherwise comply with the National Flood Insurance
Program as set forth in the Flood Disaster Protection Act of 1973, as amended
from time to time.


 


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9.4.          Payment of Taxes.
The Borrower will pay and discharge, and will cause each of the Subsidiaries to
pay and discharge, all material taxes, assessments and governmental charges or
levies imposed upon it or upon its income or profits, or upon any properties
belonging to it, prior to the date on which material penalties attach thereto,
and all lawful material claims in respect of any Taxes imposed, assessed or
levied that, if unpaid, could reasonably be expected to become a material Lien
upon any properties of the Borrower or any of the Restricted Subsidiaries, provided
that neither the Borrower, nor any of the Subsidiaries shall be required to pay
any such tax, assessment, charge, levy or claim that is being contested in good
faith and by proper proceedings if it has maintained adequate reserves (in the
good faith judgment of management of the Borrower) with respect thereto in accordance
with GAAP and the failure to pay could not reasonably be expected to result in
a Material Adverse Effect.


 


9.5.          Consolidated
Corporate Franchises. The Borrower will do, and will cause each Material Subsidiary
to do, or cause to be done, all things necessary to preserve and keep in full
force and effect its existence, corporate rights and authority, except to the
extent that the failure to do so could not reasonably be expected to have a
Material Adverse Effect; provided, however, that the Borrower and
its Subsidiaries may consummate any transaction permitted under Section 10.3,
10.4 or 10.5.


 


9.6.          Compliance with
Statutes, Regulations, Etc. The Borrower will, and will cause each
Subsidiary to, comply with all applicable laws, rules, regulations and orders
applicable to it or its property, including all governmental approvals or
authorizations required to conduct its business, and to maintain all such
governmental approvals or authorizations in full force and effect, in each case
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect.


 


9.7.          ERISA. Promptly
after the Borrower or any ERISA Affiliate knows or has reason to know of the
occurrence of any of the following events that, individually or in the
aggregate (including in the aggregate such events previously disclosed or
exempt from disclosure hereunder, to the extent the liability therefor remains
outstanding), would be reasonably likely to have a Material Adverse Effect, the
Borrower will deliver to the Administrative Agent a certificate of an
Authorized Officer or any other senior officer of the Borrower setting forth
details as to such occurrence and the action, if any, that the Borrower or such
ERISA Affiliate is required or proposes to take, together with any notices
(required, proposed or otherwise) given to or filed with or by the Borrower
such ERISA Affiliate, the PBGC, a Plan participant (other than notices relating
to an individual participant’s benefits) or the Plan administrator with respect
thereto:  that a Reportable Event has
occurred; that an accumulated funding deficiency has been incurred or an
application is to be made to the Secretary of the Treasury for a waiver or
modification of the minimum funding standard (including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan; that
a Plan having an Unfunded Current Liability has been or is to be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA
(including the giving of written notice thereof); that a Plan has an Unfunded
Current Liability that has or will result in a lien under ERISA or the Code;
that proceedings will be or have been instituted to terminate a Plan having an
Unfunded Current Liability (including the giving of written notice thereof);
that a proceeding has been instituted against the Borrower or an ERISA Affiliate
pursuant to Section 515 of ERISA to collect a delinquent contribution to a
Plan; that the PBGC has notified the Borrower or any ERISA Affiliate of its
intention to appoint a trustee to administer any Plan; that the Borrower or any
ERISA Affiliate has failed to make a required installment or other payment
pursuant to Section 412 of the Code with respect to a Plan; or that the
Borrower or any ERISA Affiliate has incurred or will incur (or has been
notified in writing that it will incur) any liability (including any contingent
or secondary 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.


 


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9.8.          Maintenance of
Properties. The Borrower will, and will cause each of the Restricted
Subsidiaries to, keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted,
except to the extent that the failure to do so could reasonably be expected to
have a Material Adverse Effect.


 


9.9.          Transactions with
Affiliates. The Borrower will conduct, and cause each of the Restricted
Subsidiaries to conduct, all transactions with any of its Affiliates (other
than the Borrower and the Restricted Subsidiaries) on terms that are
substantially as favorable to the Borrower or such Restricted Subsidiary as it
would obtain in a comparable arm’s-length transaction with a Person that is not
an Affiliate, provided that the foregoing restrictions shall not apply
to (a) the payment of customary fees to the Sponsor for management, consulting
and financial services rendered to the Borrower and the Subsidiaries and
customary investment banking fees paid to the Sponsor for services rendered to
the Borrower and the Subsidiaries in connection with divestitures,
acquisitions, financings and other transactions, (b) transactions permitted by Section
10.6, (c) the payment of the Transaction Expenses, (d) the issuance of
Stock or Stock Equivalents of Holdings to the management of the Borrower (or
any direct or indirect parent thereof) or any of its Subsidiaries in connection
with the Transactions or pursuant to arrangements described in clause (f)
of this Section 9.9, (e) loans, advances and other transactions between
or among the Borrower, any Subsidiary or any joint venture (regardless of the
form of legal entity) in which the Borrower or any Subsidiary has invested (and
which Subsidiary or joint venture would not be an Affiliate of the Borrower but
for the Borrower’s or a Subsidiary’s ownership of Stock or Stock Equivalents in
such joint venture or Subsidiary) to the extent permitted under Section 10,
(f) employment and severance arrangements between the Borrower and the
Subsidiaries and their respective officers, employees or consultants (including
management and employee benefit plans or agreements, stock option plans and
other compensatory arrangements) in the ordinary course of business, (g)
payments by the Borrower (and any direct or indirect parent thereof) and the
Subsidiaries pursuant to the tax sharing agreements among the Borrower (and any
such parent) and the Subsidiaries on customary terms to the extent attributable
to the ownership or operation of the Borrower and the 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
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, (h) the payment
of customary fees and reasonable out of pocket costs to, and indemnities
provided on behalf of, directors, managers, consultants, officers, employees of
the Borrower (or any direct or indirect parent thereof) and the Subsidiaries in
the ordinary course of business to the extent attributable to the
ownership or operation of the Borrower and the Subsidiaries, and (i) transactions pursuant to permitted
agreements in existence on the Closing Date and set forth on Schedule 9.9
or any amendment thereto to the extent such an amendment is not adverse, taken
as a whole, to the Lenders in any material respect.


 


9.10.        End of Fiscal Years;
Fiscal Quarters. The Borrower will, for financial reporting purposes, cause
(a) each of its, and each of its Subsidiaries’, fiscal years to end on December
31 of each year and (b) each of its, and each of its Subsidiaries’, fiscal
quarters to end on dates consistent with such fiscal year-end and the Borrower’s
past practice; provided, however, that the Borrower may, upon
written notice to the Administrative Agent change the financial reporting
convention specified above to any other financial reporting convention
reasonably acceptable to the Administrative Agent, in which case the Borrower
and the Administrative Agent will, and are hereby authorized by the Lenders to,
make any adjustments to this Agreement that are necessary in order to reflect
such change in financial reporting.


 


9.11.        Additional Guarantors
and Grantors. Subject to any applicable limitations set forth in the
Security Documents, the Borrower will cause each direct or indirect Domestic
Subsidiary (excluding any Excluded Subsidiary) formed or otherwise purchased or
acquired after the date hereof (including 


 


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pursuant to a
Permitted Acquisition) and each other Domestic Subsidiary that ceases to
constitute an Excluded Subsidiary to, within 30 days from the date of such formation,
acquisition or cessation, as applicable (or such longer period as the
Administrative Agent may agree in its reasonable discretion), execute a
supplement to each of the Guarantee, the Pledge Agreement and the Security
Agreement in order to become a Guarantor under the Guarantee and a grantor
under such Security Documents or, to the extent reasonably requested by the
Collateral Agent, enter into a new Security Document substantially consistent
with the analogous existing Security Documents and otherwise in form and
substance reasonably satisfactory to such Collateral Agent and take all other
action reasonably requested by the Collateral Agent to grant a perfected
security interest in its assets to substantially the same extent as created by
the Credit Parties on the Closing Date.


 


9.12.        Pledge of Additional
Stock and Evidence of Indebtedness.


 


(a)           Subject to any
applicable limitations set forth in the Security Documents or with respect to
which, in the reasonable judgment of the Administrative Agent (confirmed in
writing by notice to the Borrower), the cost or other consequences (including
any adverse tax consequences) of doing so shall be excessive in view of the
benefits to be obtained by the Lenders therefrom, the Borrower will cause (i)
all certificates representing Stock and Stock Equivalents of any Subsidiary
(other than (x) any Excluded Stock and Stock Equivalents and (y) any Stock and Stock Equivalents
issued by any Subsidiary for so long as such Subsidiary does not (on a
consolidated basis with its Restricted Subsidiaries) have property, plant and
equipment with a book value in excess of $10,000,000 or a contribution to Consolidated EBITDA for
any four fiscal quarter period that includes any date on or after the Closing
Date in excess of $10,000,000)
held directly by the Borrower or any Guarantor, (ii) all evidences of
Indebtedness in excess of $10,000,000 received by the Borrower or any of the Guarantors in connection with
any disposition of assets pursuant to Section 10.4(b) and (iii) any
promissory notes executed after the date hereof evidencing Indebtedness in
excess of $10,000,000 of the
Borrower or any Subsidiary that is owing to the Borrower or any Guarantor, in
each case, to be delivered to the Collateral Agent as security for the Obligations
under the Pledge Agreement.


 


(b)           The Borrower agrees
that all Indebtedness in excess of $10,000,000 of the Borrower or any
Subsidiary that is owing to any Credit Party shall be evidenced by one or more
promissory notes.


 


9.13.        Use of Proceeds.


 


(a)           The Borrower will use
the proceeds of the Initial Term Loans, the Euro Tranche Term Loans, the Senior
Interim Loans, the Senior Subordinated Interim Loans and up to $200,000,000 of
the proceeds of the Revolving Credit Loans to effect the Transactions.


 


(b)           The Borrower will use
Letters of Credit, Revolving Credit Loans and Swingline Loans for working
capital and general corporate purposes (including Permitted Acquisitions).


 


(c)           The Borrower will use the proceeds of the Delayed Draw Term Loans to
refinance certain existing indebtedness not tendered on or before the Closing
Date.


 


9.14.        Further Assurances.


 


(a)           The Borrower will, and
will cause each other Credit Party to, execute any and all further documents,
financing statements, agreements and instruments, and take all such further actions (including the filing and recording of
financing statements, fixture filings, mortgages, deeds of trust and other
documents) that may be required under any applicable law, or that the
Collateral Agent or the Required


 


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Lenders may reasonably request, in order to
grant, preserve, protect and perfect the validity and priority of the security
interests created or intended to be created by the applicable Security
Documents, all at the expense of the Borrower and the Restricted Subsidiaries.


 


(b)           Except with respect to
which, in the reasonable judgment of the Administrative Agent (confirmed in
writing by written notice to the Borrower), the cost or other consequences
(including any tax consequence) of doing so shall be excessive in view of the
benefits to be obtained by the Lenders therefrom and subject to applicable
limitations set forth in the Security Documents, if any assets (including any
real estate or improvements thereto or any interest therein but excluding Stock
and Stock Equivalents of any Subsidiary) with a book value or fair market value
in excess of $10,000,000 are acquired by the Borrower or any other Credit Party
after the Closing Date (other than assets constituting Collateral under a
Security Document that become subject to the Lien of the applicable Security
Document upon acquisition thereof) that are of a nature secured by a Security
Document, the Borrower will notify the Collateral Agent, and, if requested by
the Collateral Agent, the Borrower will cause such assets to be subjected to a
Lien securing the applicable Obligations and will take, and cause the other
applicable Credit Parties to take, such actions as shall be necessary or
reasonably requested by the Collateral Agent, as soon as commercially
reasonable but in no event later than 90 days, unless extended by the
Administrative Agent in its sole discretion, to grant and perfect such Liens
consistent with the applicable requirements of the Security Documents, including
actions described in clause (a) of this Section 9.14.


 


(c)           Any Mortgage delivered
to the Collateral Agent in accordance with the preceding clause (b)
shall, if requested by the Collateral Agent, be accompanied by (x) a policy or
policies (or an unconditional binding commitment therefor to be replaced by a
final title policy as soon as reasonably practicable) of title insurance issued
by a nationally recognized title insurance company insuring the Lien of each
Mortgage as a valid first Lien on the Mortgaged Property described therein,
free of any other Liens except as expressly permitted by Section 10.2,
together with such endorsements, coinsurance and reinsurance as the Collateral
Agent may reasonably request, (y) such existing surveys, existing abstracts and
existing appraisals in the possession of Borrower and such other documents as
the Collateral Agent may reasonably request with respect to any such Mortgaged
Property and (z) an opinion of local counsel to the mortgagor in form and
substance reasonably acceptable to the Collateral Agent.


 


(d)           The Borrower agrees
that it will, or will cause its relevant Subsidiaries to, complete each of the
actions described on Schedule 9.14(d) as soon as commercially reasonable
and by no later than the date set forth in Schedule 9.14(d) with respect
to such action or such later date as the Administrative Agent may reasonably
agree.


 


SECTION 10.            Negative Covenants


 


The Borrower
hereby covenants and agrees that on the Closing Date (immediately after
consummation of the Merger) and thereafter, until the Commitments, the Swingline Commitment and each Letter of
Credit have terminated and the Loans and Unpaid Drawings, together with
interest, Fees and all other Obligations incurred hereunder (other than
contingent indemnity obligations), are paid in full:


 


10.1.        Limitation on
Indebtedness. The Borrower will not, and will not permit any of the
Restricted Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, provided that the Borrower and any Restricted Subsidiary
(other than a Restricted Foreign Subsidiary) may incur Indebtedness (and all
premiums (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest with regard to such Indebtedness)
if immediately before and after giving effect to such incurrence, (x) no
Default shall have occurred and be continuing and (y) the Borrower shall be in
compliance, on a Pro Forma Basis, with the Senior Secured Leverage Test, provided,
further, that 


 


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Restricted Subsidiaries that
are not Guarantors may not incur Indebtedness pursuant to the foregoing proviso
in an aggregate principal amount outstanding at any time, when combined with
the total amount of Indebtedness incurred by Restricted Subsidiaries that are
not Guarantors pursuant to Sections 10.1(d), (j), (k) and (n),
exceeding $2,000,000,000.


 


Notwithstanding
the foregoing, the limitations set forth in the immediately preceding paragraph
shall not apply to any of the following items:


 


(a)           Indebtedness arising under the
Credit Documents;


 


(b)           subject to compliance with Section
10.5, Indebtedness of the Borrower or any Restricted Subsidiary owed to the
Borrower or any Restricted Subsidiary; provided that all such Indebtedness
of any Credit Party owed to any Person that is not a Credit Party shall be
subordinated to the Obligations on terms reasonably satisfactory to the
Administrative Agent;


 


(c)           Indebtedness in respect of any
bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or
similar facilities entered into in the ordinary course of business (including
in respect of workers compensation claims, health, disability or other employee
benefits or property, casualty or liability insurance or self-insurance or
other Indebtedness with respect to reimbursement-type obligations regarding
workers compensation claims);


 


(d)           subject to compliance with Section 10.5,
Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect
of Indebtedness of the Borrower or other Restricted Subsidiaries that is
permitted to be incurred under this Agreement (except that a Restricted
Subsidiary that is not a Credit Party may not, by virtue of this Section 10.1(d)
guarantee Indebtedness that such Restricted Subsidiary could not otherwise
incur under this Section 10.1) and (ii) the Borrower in respect of
Indebtedness of Restricted Subsidiaries that is permitted to be incurred under
this Agreement; provided that (i) if the Indebtedness being guaranteed
under this Section 10.1(d) is subordinated to the Obligations, such
Guarantee Obligations shall be subordinated to the Guarantee of the Obligations
on terms at least as favorable to the Lenders as those contained in the
subordination of such Indebtedness, (ii) no guarantee by any Restricted
Subsidiary of the Senior Notes, Senior Interim Loans, Senior Subordinated
Notes, Senior Subordinated Interim Loans or any Permitted Additional Debt shall
be permitted unless such Restricted Subsidiary shall have also provided a guarantee
of the Obligations substantially on the terms set forth in the Guarantee and
(iii) the aggregate amount of Guarantee Obligations incurred by Credit Parties
under this clause (d) in respect of obligations owed by Persons
that are not Credit Parties and the aggregate amount of Guarantee Obligations
incurred by Restricted Subsidiaries that are not Guarantors under this clause (d),
when combined with the total amount of Indebtedness incurred by Restricted
Subsidiaries that are not Guarantors pursuant to the proviso in the first
paragraph of this Section 10.1 and Sections 10.1  (j),
(k) and (n), shall not exceed $2,000,000,000 at any time outstanding;


 


(e)           Guarantee Obligations (i) incurred
in the ordinary course of business in respect of obligations of (or to)
suppliers, customers, franchisees, lessors and licensees or (ii) otherwise
constituting Investments permitted by Sections 10.5(d), 10.5(g), 10.5(i),
10.5(q), 10.5(r), and 10.5(t);


 


(f)            (i) Indebtedness (including Indebtedness arising under
Capital Leases) incurred within 270 days of the acquisition, construction,
repair, replacement, expansion or improvement of fixed or capital assets to
finance the acquisition, construction, repair, replacement expansion, or
improvement of such fixed or capital assets; provided, that the
aggregate amount of Indebtedness incurred pursuant to this subclause (i)
at any time outstanding, when combined with the aggregate 


 


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amount of
Indebtedness outstanding under subclause (iii) below, shall not exceed
$1,000,000,000, (ii) Indebtedness arising under Capital Leases entered into in
connection with Permitted Sale Leasebacks, (iii)
Indebtedness arising under Capital Leases, other than Capital Leases in effect
on the date hereof and Capital Leases entered into pursuant to subclause
(ii) above, provided, that the aggregate amount of Indebtedness
incurred pursuant to this clause (iii) at any time outstanding, when
combined with the aggregate amount of Indebtedness outstanding under subclause
(i) above, shall not exceed $1,000,000,000 and (iv) any modification,
replacement, refinancing, refunding, renewal or extension of any Indebtedness
specified in subclause (i),  (ii) or (iii) above, provided
that, except to the extent otherwise expressly permitted hereunder, the
principal amount thereof does not exceed the principal amount thereof
outstanding immediately prior to such modification, replacement, refinancing,
refunding, renewal or extension except by an amount equal to the unpaid accrued
interest and premium thereon plus the reasonable amounts paid in respect of
fees and expenses incurred in connection with such modification, replacement,
refinancing, refunding, renewal or extension;


 


(g)           Indebtedness outstanding on the date
hereof listed on Schedule 10.1 and any modification, replacement,
refinancing, refunding, renewal or extension thereof; provided that
except to the extent otherwise expressly permitted hereunder, in the case of
any such modification, replacement, refinancing, refunding, renewal or
extension, (w) the principal amount thereof does not exceed the principal
amount thereof outstanding immediately prior to such modification, replacement,
refinancing, refunding, renewal or extension except by an amount equal to the
unpaid accrued interest and premium thereon plus the reasonable amounts paid in
respect of fees and expenses incurred in connection with such modification, replacement,
refinancing, refunding, renewal or extension, (x) the direct and contingent
obligors with respect to such Indebtedness are not changed, (y) no portion of
such Indebtedness matures prior to original maturity date applicable thereto
and (z) no portion of such Indebtedness shall be issued by or guaranteed by any
Restricted Subsidiary unless such Restricted Subsidiary is a Guarantor;


 


(h)           Indebtedness in respect of Hedge
Agreements;


 


(i)            Indebtedness in respect of (x) the
Senior Interim Loans and/or the Senior Notes in an aggregate principal amount
not to exceed $6,500,000,000 plus, in respect of any Senior Interim PIK
Loans and/or PIK Notes, the PIK Interest Amount, plus in the event of
any refinancing of any Senior Interim Loans with Senior Notes, the aggregate
amount of fees, underwriting discounts, premiums and other costs and expenses
incurred in connection with such refinancing and (y) the Senior Subordinated
Interim Loans and/or the Senior Subordinated Notes in an aggregate principal
amount not to exceed $2,500,000,000, plus in the event of any
refinancing of any Senior Subordinated Interim Loans with Senior Subordinated
Notes, the aggregate amount of fees, underwriting discounts, premiums and other
costs and expenses incurred in connection with such refinancing;


 


(j)            (i) 
Indebtedness of a Person or Indebtedness attaching to assets of a Person
that, in either case, becomes a Restricted Subsidiary (or is a Restricted
Subsidiary that survives a merger with such Person) or Indebtedness attaching
to assets that are acquired by the Borrower or any Restricted Subsidiary, in
each case after the Closing Date as the result of a Permitted Acquisition; provided
that


 


(x)            such Indebtedness existed at the time such
Person became a Restricted Subsidiary or at the time such assets were acquired
and, in each case, was not created in anticipation thereof,


 


100

















 


(y)           such Indebtedness is not guaranteed in any
respect by the Borrower or any Restricted Subsidiary (other than by any such
Person that so becomes a Restricted Subsidiary or is the survivor of a merger
with such Person or any of its Subsidiaries), and


 


(z)            (A) the Stock and Stock Equivalents of such
Person are pledged to secure the Obligations, to the extent required under Section
9.12 and (B) such Person executes a supplement to the applicable Guarantee
and Security Documents (or alternative guarantee and security agreements in
relation to the Obligations reasonably acceptable to the Collateral Agent) to
the extent required under Section 9.11 or 9.12, as applicable;


 


(ii)           any modification,
replacement, refinancing, refunding, renewal or extension of any Indebtedness
specified in subclause (i) above, provided that, except to the
extent otherwise expressly permitted hereunder, (x) the principal amount of any
such Indebtedness does not exceed the principal amount thereof outstanding
immediately prior to such modification, replacement, refinancing, refunding,
renewal or extension except by an amount equal to the unpaid accrued interest
and premium thereon plus the reasonable amounts paid in respect of fees and
expenses incurred in connection with such modification, replacement,
refinancing, refunding, renewal or extension, (y) the direct and contingent
obligors with respect to such Indebtedness are not changed and (z) if the
Indebtedness being refinanced, or any guarantee thereof, constituted
Subordinated Indebtedness, then such replacement or refinancing Indebtedness,
or such guarantee, respectively, shall be subordinated to the Obligations to
substantially the same extent; and


 


(iii)          the
aggregate amount of Indebtedness (A) incurred under this clause (j)
shall not exceed $250,000,000 at any time outstanding and (B) incurred by
Restricted Subsidiaries that are not Guarantors under this clause (j),
when combined with the total amount of Indebtedness incurred by Restricted Subsidiaries
that are not Guarantors pursuant to the proviso in the first paragraph of this Section
10.1 and Sections 10.1(d), (k) and (n), shall not
exceed $2,000,000,000 at any time outstanding;


 


(k)           (i) 
Permitted Additional Debt incurred to finance a Permitted Acquisition; provided
that (x) the Borrower or another Credit Party pledges the Stock and Stock
Equivalents of such acquired Person to secure the Obligations to the extent
required under Section 9.12, (y) such acquired Person executes a
supplement to the applicable Guarantee and Security Documents (or alternative
guarantee and security arrangements in relation to the Obligations reasonably
acceptable to the Collateral Agent) to the extent required under Section
9.11 or 9.12, as applicable; and (z) (A) the
aggregate principal amount of Indebtedness incurred under this clause (k)
shall not exceed $500,000,000 at any time outstanding when, on a Pro Forma
Basis after giving effect to the incurrence of such Indebtedness and the
application of proceeds thereof, the Consolidated Total Debt to Consolidated
EBITDA Ratio is greater than 7.5 to 1.0 and (B) no portion of such Indebtedness
is issued or guaranteed by a Person that is, or as a result of such acquisition
becomes, a Restricted Subsidiary that is not a Guarantor; and


 


(ii)           any
modification, replacement, refinancing, refunding, renewal or extension of any
Indebtedness specified in subclause (i) above, provided that,
except to the extent otherwise expressly permitted hereunder, (w) the principal
amount of any such Indebtedness does not exceed the principal amount thereof
outstanding immediately prior to such modification, replacement, refinancing,
refunding, renewal or extension except by an amount equal to the unpaid accrued
interest and premium thereon plus other reasonable amounts paid and fees and
expenses incurred in connection with such modification, replacement,
refinancing, refunding, renewal or extension, (x) the direct and contingent
obligors with respect to such Indebtedness are not changed 


 


101

















 


and (y) if the
Indebtedness being refinanced, or any guarantee thereof, constituted
Subordinated Indebtedness, then such replacement or refinancing Indebtedness,
or such guarantee, respectively, shall be subordinated to the Obligations to
substantially the same extent; and


 


(iii)          notwithstanding
the foregoing, that Restricted Subsidiaries that are not Guarantors may not
incur Indebtedness pursuant to this clause (k) in an aggregate principal
amount, when combined with the total amount of Indebtedness incurred by
Restricted Subsidiaries that are not Guarantors pursuant to the proviso in the
first paragraph of this Section 10.1 and Sections 10.1(d), (j)
and (n), in excess of $2,000,000,000 at any time outstanding;


 


(l)            Indebtedness in respect of
performance bonds, bid bonds, appeal bonds, surety bonds and completion
guarantees and similar obligations not in connection with money borrowed, in
each case provided in the ordinary course of business, including those incurred
to secure health, safety and environmental obligations in the ordinary course
of business;


 


(m)          Settlement Indebtedness;


 


(n)           (i) additional Indebtedness and (ii)
any refinancing, refunding, renewal or extension of any Indebtedness specified
in subclause (i) above; provided that the aggregate amount of
Indebtedness incurred and remaining outstanding pursuant to this clause (n)
shall not at any time exceed $500,000,000; provided  further that
the aggregate amount of Indebtedness incurred by Restricted Subsidiaries that
are not Guarantors under this clause (n), when combined with the total
amount of Indebtedness incurred by Restricted Subsidiaries that are not
Guarantors pursuant to the proviso in the first paragraph of this Section
10.1 and Sections 10.1(d), (j) and (k), shall not
exceed $2,000,000,000 at any time outstanding;


 


(o)           Indebtedness in respect of (i)
Permitted Additional Debt to the extent that the Net Cash Proceeds therefrom
are, immediately after the receipt thereof, applied to the prepayment of Term
Loans in accordance with Section 5.2 and (ii) any refinancing,
refunding, renewal or extension of any Indebtedness specified in subclause
(i) above, provided that, except to the extent otherwise permitted
hereunder, (x) the principal amount of any such Indebtedness is not
increased above the principal amount thereof outstanding immediately prior to
such refinancing, refunding, renewal or extension, (y) the direct and
contingent obligors with respect to such Indebtedness are not changed and (z)
if the Indebtedness being refinanced, or any guarantee thereof, constituted
Subordinated Indebtedness, then such replacement or refinancing Indebtedness,
or such guarantee, respectively, shall be subordinated to the Obligations to
substantially the same extent;


 


(p)           Indebtedness in respect of overdraft
facilities, employee credit card programs, netting services, automated
clearinghouse arrangements and other cash management and similar arrangements
in the ordinary course of business;


 


(q)           Indebtedness incurred in the
ordinary course of business in respect of obligations of the Borrower or any
Restricted Subsidiary to pay the deferred purchase price of goods or services
or progress payments in connection with such goods and services; provided
that such obligations are incurred in connection with open accounts extended by
suppliers on customary trade terms in the ordinary course of business and not
in connection with the borrowing of money or Hedge Agreements;


 


(r)            Indebtedness arising from agreements
of the Borrower or any Restricted Subsidiary providing for indemnification,
adjustment of purchase price or similar obligations (including 


 


102

















 


earn-outs), in
each case entered into in connection with Permitted Acquisitions, other
Investments and the disposition of any business, assets or Stock permitted
hereunder;


 


(s)           Indebtedness of the Borrower or any
Restricted Subsidiary consisting of (i) obligations to pay insurance premiums
or (ii) take or pay obligations contained in supply agreements, in each case
arising in the ordinary course of business and not in connection with the
borrowing of money or Hedge Agreements;


 


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


 


(u)           Indebtedness consisting of
promissory notes issued by the Borrower or any Guarantor to current or former
officers, managers, consultants, directors and employees (or their respective
spouses, former spouses, successors, executors, administrators, heirs, legatees
or distributees) to finance the purchase or redemption of Stock or Stock
Equivalents of the Borrower (or any direct or indirect parent thereof)
permitted by Section 10.6(b);


 


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


 


(w)          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;


 


(x)            additional Indebtedness of Foreign
Subsidiaries in an aggregate principal amount that at the time of incurrence
does not cause the aggregate principal amount of Indebtedness incurred in
reliance on this clause (x) outstanding at any time to exceed 5% of
Total Assets of the Foreign Subsidiaries, taken as a whole (determined at the
time of incurrence);


 


(y)           Indebtedness in respect of Permitted
Receivables Financings; and


 


(z)            Indebtedness of the Borrower or any
Restricted Subsidiary to any joint venture (regardless of the form of legal
entity) that is not a Subsidiary arising in the ordinary course of business in
connection with the cash management operations (including with respect to
intercompany self-insurance arrangements) of the Borrower and its Restricted
Subsidiaries.


 


For purposes
of determining compliance with this Section 10.1, in the event that an
item of Indebtedness meets the criteria of more than one of the categories of
Indebtedness described in clauses (a) through (z) above, the
Borrower shall, in its sole discretion, classify and reclassify or later
divide, classify or reclassify such item of Indebtedness (or any portion
thereof) and will only be required to include the amount and type of such
Indebtedness in one or more of the above clauses; provided that (i) all
Indebtedness outstanding under the Credit Documents will be deemed at all times
to have been incurred in reliance only on the exception in clause (a) of
Section 10.1 and (ii) all Indebtedness outstanding under the Notes,
the Senior Interim Loan Agreement and the Senior Subordinated Interim Loan
Agreement will be deemed at all times to have been incurred in reliance only on
the exception of clause (i) of Section 10.1.


 


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10.2.        Limitation on Liens.
The Borrower will not, and will not permit any of the Restricted Subsidiaries
to, create, incur, assume or suffer to exist any Lien upon any property or
assets of any kind (real or personal, tangible or intangible) of the Borrower
or any Restricted Subsidiary, whether now owned or hereafter acquired, except:


 


(a)           Liens arising under the Credit
Documents;


 


(b)           [Reserved];


 


(c)           [Reserved];


 


(d)           Permitted Liens;


 


(e)           (i) Liens securing Indebtedness
permitted pursuant to Section 10.1(f), provided that (x) such
Liens attach concurrently with or within two hundred and seventy (270) days
after completion of the acquisition, construction, repair, replacement or
improvement (as applicable) of the property subject to such Liens and (y) such
Liens attach at all times only to the assets so financed except (1) for
accessions to the property financed with the proceeds of such Indebtedness and
the proceeds and the products thereof and (2) that individual financings of
equipment provided by one lender may be cross collateralized to other
financings of equipment provided by such lender, and, and (ii) Liens on the
assets of a Restricted Subsidiary that is not a Credit Party securing
Indebtedness permitted pursuant to Section 10.1(n), (p), or (x);


 


(f)            Liens existing on the date hereof, provided
that any Lien securing Indebtedness in excess of (x) $5,000,000 individually or
(y) $10,000,000 in the aggregate (when taken together with all other Liens
securing obligations outstanding in reliance on this clause (f) that are
not listed on Schedule 10.2) shall only be permitted to the extent such
Lien is listed on Schedule 10.2;


 


(g)           the modification, replacement,
extension or renewal of any Lien permitted by clauses (a) through (f)
and clause (h) of this Section 10.2 upon or in the same assets
theretofore subject to such Lien (or upon or in after-acquired property that is
affixed or incorporated into the property covered by such Lien or any proceeds
or products thereof) or the replacement, extension or renewal (without increase
in the amount or change in any direct or contingent obligor except to the
extent otherwise permitted hereunder) of the Indebtedness secured thereby, to
the extent such replacement, extension or renewal is permitted by Section
10.1;


 


(h)           Liens existing on the assets of any
Person that becomes a Restricted Subsidiary (or is a Restricted Subsidiary that
survives a merger with such Person) pursuant to a Permitted Acquisition or
other Investment permitted by Section 10.5, or existing on assets
acquired after the Closing Date to the extent the Liens on such assets secure
Indebtedness permitted by Section 10.1(j); provided that such
Liens (i) are not created or incurred in connection with, or in contemplation
of, such Person becoming such a Restricted Subsidiary or such assets being
acquired and (ii) attach at all times only to the same assets to which such
Liens attached (and after-acquired property that is affixed or incorporated
into the property covered by such Lien), and secure only the same Indebtedness
or obligations that such Liens secured, immediately prior to such Permitted
Acquisition and any modification, replacement, refinancing, refunding, renewal
or extension thereof permitted by Section 10.1(j);


 


(i)            [Reserved];


 


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(j)            Liens securing Indebtedness or other
obligations (i) of the Borrower or a Restricted Subsidiary in favor of a Credit
Party and (ii) of any Restricted Subsidiary that is not a Credit Party in favor
of any Restricted Subsidiary that is not a Credit Party;


 


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


 


(l)            Liens (i) on cash advances in favor
of the seller of any property to be acquired in an Investment permitted
pursuant to Section 10.5 to be applied against the purchase price for
such Investment, and (ii) consisting of an agreement to sell, transfer, lease
or otherwise dispose of any property in a transaction permitted under Section
10.4, in each case, solely to the extent such Investment or sale,
disposition, transfer or lease, as the case may be, would have been permitted
on the date of the creation of such Lien;


 


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


 


(n)           Liens deemed to exist in connection
with Investments in repurchase agreements permitted under Section 10.5;


 


(o)           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;


 


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


 


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


 


(r)            Liens on insurance policies and the
proceeds thereof securing the financing of the premiums with respect thereto
incurred in the ordinary course of business;


 


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


 


(t)            Liens on assets not constituting
Collateral securing letters of credit issued on behalf of any Subsidiary that
is not a Credit Party in a currency other than Dollars permitted by Section
10.1(c) in an aggregate amount at any time outstanding not to exceed
$25,000,000;


 


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(u)           additional Liens so long as the
aggregate principal amount of the obligations secured thereby at any time
outstanding does not exceed $500,000,000; and


 


(v)           additional Liens securing
Indebtedness permitted under the first paragraph of Section 10.1, provided
that to the extent such Liens are contemplated to be on assets that constitute
Collateral, at the time such Indebtedness is incurred, the holders of such
Indebtedness shall have entered into intercreditor arrangements reasonably
satisfactory to the Administrative Agent providing that the Liens securing such
Indebtedness shall rank junior to the Lien securing the Obligations.


 


10.3.        Limitation
on Fundamental Changes. The Borrower will not, and will not permit any of
the Restricted Subsidiaries to, enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all its business units, assets or
other properties, except that:


 


(a)           so long as (i) no Default or Event
of Default has occurred and is continuing or would result therefrom and (ii)
both before and after giving effect to such transaction the Borrower shall be
in compliance with the covenant set forth in Section 10.10, any
Subsidiary of the Borrower or any other Person may be merged, amalgamated or
consolidated with or into the Borrower, provided that (A) the Borrower
shall be the continuing or surviving corporation or (B) if the Person formed by
or surviving any such merger, amalgamation or consolidation is not the Borrower
(such other Person, the “Successor Borrower”),
(1) the Successor Borrower shall be an entity organized or existing under the
laws of the United States, any state thereof, the District of Columbia or any
territory thereof, (2) the Successor Borrower shall expressly assume all the
obligations of the Borrower under this Agreement and the other Credit Documents
pursuant to a supplement hereto or thereto in form reasonably satisfactory to
the Administrative Agent, (3) each Guarantor, unless it is the other party to
such merger or consolidation, shall have by a supplement to the Guarantee
confirmed that its guarantee thereunder shall apply to any Successor Borrower’s
obligations under this Agreement, (4) each Subsidiary grantor and each
Subsidiary pledgor, unless it is the other party to such merger or
consolidation, shall have by a supplement to the Security Agreement or the Pledge
Agreement, as applicable, affirmed that its obligations thereunder shall apply
to its Guarantee as reaffirmed pursuant to clause (3), (5) each
mortgagor of a Mortgaged Property, unless it is the other party to such merger
or consolidation, shall have affirmed that its obligations under the applicable
Mortgage shall apply to its Guarantee as reaffirmed pursuant to clause (3)
and (6) the Successor Borrower shall have delivered to the Administrative Agent
(x) an officer’s certificate stating that such merger or consolidation and such
supplements preserve the enforceability of the Guarantee and the perfection and
priority of the Liens under the applicable Security Documents and (y) if
requested by the Administrative Agent, an opinion of counsel to the effect that
such merger or consolidation does not violate this Agreement or any other
Credit Document and that the provisions set forth in the preceding clauses
(3) through (5) preserve the enforceability of the Guarantee and the
perfection and priority of the Liens created under the applicable Security
Documents (it being understood that if the foregoing are satisfied, the
Successor Borrower will succeed to, and be substituted for, the Borrower under
this Agreement);


 


(b)           so long as no Default or Event of
Default has occurred and is continuing or would result therefrom, any
Subsidiary of the Borrower or any other Person (in each case, other than the
Borrower) may be merged, amalgamated or consolidated with or into any one or
more Subsidiaries of the Borrower, provided that (i) in the case of any
merger, amalgamation or consolidation involving one or more Restricted
Subsidiaries, (A) a Restricted Subsidiary shall be 


 


106

















 


the continuing
or surviving Person or (B) the Borrower shall take all steps necessary to cause
the Person formed by or surviving any such merger, amalgamation or
consolidation (if other than a Restricted Subsidiary) to become a Restricted
Subsidiary, (ii) in the case of any merger, amalgamation or consolidation
involving one or more Guarantors, a Guarantor shall be the continuing or
surviving Person or the Person formed by or surviving any such merger,
amalgamation or consolidation (if other than a Guarantor) shall execute a
supplement to the Guarantee Agreement and the relevant Security Documents in
form and substance reasonably satisfactory to the Administrative Agent in order
to become a Guarantor and pledgor, mortgagor and grantor, as applicable,
thereunder for the benefit of the Secured Parties, (iii) no Default or Event of
Default has occurred and is continuing or would result from the consummation of
such merger, amalgamation or consolidation and (iv) Borrower shall have
delivered to the Administrative Agent an officers’ certificate stating that such
merger, amalgamation or consolidation and any such supplements to any Security
Document preserve the enforceability of the Guarantees and the perfection and
priority of the Liens under the applicable Security Documents;


 


(c)           the Merger may be consummated;


 


(d)           any Restricted Subsidiary that is
not a Credit Party may sell, lease, transfer or otherwise dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to the Borrower or any
other Restricted Subsidiary;


 


(e)           any Subsidiary may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to any Credit Party, provided that the
consideration for any such disposition by any Person other than a Guarantor
shall not exceed the fair value of such assets;


 


(f)            any Restricted Subsidiary may
liquidate or dissolve if (i) the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders and (ii) to the extent such
Restricted Subsidiary is a Credit Party, any assets or business of such
Restricted Subsidiary not otherwise disposed of or transferred in accordance
with Section 10.4 or 10.5 or, in the case of any such business,
discontinued, shall be transferred to, or otherwise owned or conducted by, a
Credit Party after giving effect to such liquidation or dissolution;


 


(g)           to the extent that no Default or
Event of Default would result from the consummation of such disposition or
investment, the Borrower and the Restricted Subsidiaries may consummate a
merger, dissolution, liquidation, consolidation, investment or disposition, the
purpose of which is to effect a disposition permitted pursuant to Section
10.4 or an investment permitted pursuant to Section 10.5; and


 


(h)           IPS and its Subsidiaries may
liquidate, dissolve or wind-down.


 


10.4.        Limitation
on Sale of Assets. The Borrower will not, and will not permit any of the
Restricted Subsidiaries to, (i) convey, sell, lease, assign, transfer or otherwise
dispose of any of its property, business or assets (including receivables,
Stock and Stock Equivalents of any other Person) and leasehold interests),
whether now owned or hereafter acquired or (ii) sell to any Person (other than
the Borrower or a Guarantor) any shares owned by it of any Restricted
Subsidiary’s Stock and Stock Equivalents, except that:


 


107

















 


(a)           the Borrower and the Restricted
Subsidiaries may sell, transfer or otherwise dispose of (i) inventory, used or
surplus equipment, vehicles and other assets (including Merchant Agreements and
Settlement Assets) in the ordinary course of business, and (ii) Permitted Investments;


 


(b)           the Borrower and the Restricted
Subsidiaries may sell, transfer or otherwise dispose of assets (each of the
foregoing, a “Disposition”), excluding any
Disposition of accounts receivable except in connection with the Disposition of
any business to which such accounts receivable relate, for fair value, provided
that (i) to the extent required, the Net Cash Proceeds thereof to the Borrower
and the Restricted Subsidiaries are promptly applied to the prepayment of Term
Loans as provided for in Section 5.2, (ii) after giving effect to any
such sale, transfer or disposition, no Default or Event of Default shall have
occurred and be continuing, (iii) with respect to any Disposition pursuant to
this clause (b) for a purchase price in excess of $10,000,000, the
Person making such Disposition shall receive not less than 75% of such consideration
in the form of cash or Permitted Investments; provided that for the
purposes of this subclause (iii) the following shall be deemed to be
cash: (A) any liabilities (as shown on the Borrower’s or such Restricted
Subsidiary’s most recent balance sheet provided hereunder or in the footnotes
thereto) of the Borrower or such Restricted Subsidiary, other than liabilities
that are by their terms (1) subordinated to the payment in cash of the
Obligations or (2) not secured by the assets that are the subject of such
Disposition, that are assumed by the transferee with respect to the applicable
Disposition and for which the Borrower and all of the Restricted Subsidiaries
shall have been validly released by all applicable creditors in writing, (B)
any securities received by the Person making such Disposition from the
purchaser that are converted by such Person into cash (to the extent of the
cash received) within 180 days following the closing of the applicable
Disposition, (C) any Designated Non-Cash Consideration received by the Person
making such Disposition having an aggregate fair market value, taken together
with all other Designated Non-Cash Consideration received pursuant to this Section
10.4(b) that is at that time outstanding, not in excess of $100,000,000
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, (iv) any non-cash proceeds received are pledged to the
Collateral Agent to the extent required under Section 9.12 and (v) the
aggregate consideration for all Dispositions made pursuant to this clause
(b) shall not exceed 10% of Consolidated Total Assets since the Closing
Date;


 


(c)           (i) the Borrower and the Restricted
Subsidiaries may make Dispositions to the Borrower or any other Credit Party
and (ii) any Restricted Subsidiary that is not a Credit Party may make
Dispositions to the Borrower or any other Subsidiary, provided that with
respect to any such Dispositions, such sale, transfer or disposition shall be
for fair value;


 


(d)           the Borrower and any Restricted
Subsidiary may effect any transaction permitted by Section 10.3, 10.5
or 10.6;


 


(e)           the Borrower and the Restricted
Subsidiaries may lease, sublease, license or sublicense real, personal or
intellectual property in the ordinary course of business;


 


(f)            the Borrower and the Restricted
Subsidiaries may make Dispositions of property (including like-kind exchanges)
to the extent that (i) such property is exchanged for credit against the
purchase price of similar replacement property or (ii) the proceeds of such
Disposition are applied to the purchase price of such replacement property, in
each case under Section 1031 of the Code or otherwise;


 


108

















 


(g)           the Borrower and the Restricted
Subsidiaries may make Dispositions of property pursuant to Permitted Sale
Leaseback transactions;


 


(h)           the Borrower and the Restricted
Subsidiaries may make Dispositions of Investments in joint ventures and Merchant
Acquisition and Processing Alliances (regardless of the form of legal entity)
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;


 


(i)            the Borrower and the Restricted
Subsidiaries may make 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;


 


(j)            customary Dispositions in connection
with any Permitted Receivables Financing;


 


(k)           the Borrower and the Restricted
Subsidiaries may make Dispositions listed on Schedule 10.4 (“Scheduled
Dispositions”);


 


(l)            transfers of property subject to a
Casualty Event upon receipt of the Net Cash Proceeds of such Casualty Event;


 


(m)          the Borrower and the Restricted
Subsidiaries may make Dispositions of accounts receivable or other obligations
owing to the Borrower or any Restricted Subsidiary in connection with the
collection, compromise or realization thereof;


 


(n)           the Borrower and the Restricted
Subsidiaries may effect the unwinding of any Hedge Agreement;


 


(o)           the Borrower and the Restricted
Subsidiaries may make Dispositions (excluding any Disposition of accounts
receivable except in connection with the Disposition of any business to which
such accounts receivable relate), for fair value to the extent that (i) the
aggregate consideration for all Dispositions made pursuant to this clause
(o) shall not exceed 15% of Consolidated Total Assets since the Closing
Date and (ii) the Net Cash Proceeds of all Dispositions made pursuant to this clause
(o) are promptly applied to the prepayment of Term Loans as provided in Section
5.2 without giving effect to any reinvestment rights under clause (iv)
of the definition of “Net Cash Proceeds”;


 


(p)           the Borrower and any Restricted
Subsidiaries may sell, transfer or otherwise dispose of any Foreign Subsidiary
to any other Foreign Subsidiary; and


 


(q)           the Borrower and the Restricted
Subsidiaries may make Dispositions of any assets between or among the Borrower
and/or its Restricted Subsidiaries as a substantially concurrent interim
Disposition in connection with a Disposition otherwise permitted pursuant to clauses(a)
through (p) above.


 


10.5.        Limitation
on Investments. The Borrower will not, and will not permit any of the
Restricted Subsidiaries to make any Investment except:


 


(a)           extensions of trade credit and asset
purchases in the ordinary course of business;


 


(b)           Investments that were Permitted
Investments when such Investments were made;


 


109

















 


(c)           loans and advances to officers,
directors and employees of the Borrower (or any direct or indirect parent thereof)
or any of its Subsidiaries (i) for reasonable and customary business-related
travel, entertainment, relocation and analogous ordinary business purposes
(including employee payroll advances), (ii) in connection with such Person’s
purchase of Stock or Stock Equivalents of the Borrower (or any direct or
indirect parent thereof); provided that, to the extent such loans and
advances are made in cash, the amount of such loans and advances used to acquire
such Stock or Stock Equivalents shall be contributed to the Borrower in cash
and (iii) for purposes not described in the foregoing subclauses (i) and
(ii); provided that the aggregate principal amount outstanding
pursuant to this subclause (iii) shall not exceed $10,000,000;


 


(d)           Investments existing on, or made
pursuant to legally binding written commitments in existence on, the date
hereof as set forth on Schedule 10.5 and any extensions, renewals or
reinvestments thereof, so long as the amount of any Investment made pursuant to
this clause (d) is not increased at any time above the amount of such
Investment set forth on Schedule 10.5;


 


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


 


(f)            Investments to the extent that
payment for such Investments is made with Stock or Stock Equivalents of
Holdings;


 


(g)           Investments (i) (a) by the Borrower
or any Restricted Subsidiary in any Credit Party, (b) between or among
Restricted Subsidiaries that are not Credit Parties, and (c) consisting of
intercompany Investments incurred in the ordinary course of business in
connection with the cash management operations (including with respect to
intercompany self-insurance arrangements) among the Borrower and the Restricted
Subsidiaries (provided that any such intercompany Investment in
connection with cash management arrangements by a Credit Party in a Subsidiary
that is not a Credit Party is in the form of an intercompany loan or advance
and the Borrower or such Restricted Subsidiary complies with Section 9.12
to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary
that is not a Credit Party, to the extent that the aggregate amount of all
Investments made on or after the Closing Date pursuant to this subclause
(ii), when valued at the fair market value (determined by the Borrower
acting in good faith) of each such Investment at the time each such Investment
was made, would not exceed the sum of (x) $750,000,000, when taken together
with Investments outstanding at such time in reliance on Section 10.5(i)(x)
plus (y) if the Borrower shall be in compliance with the Senior Secured
Leverage Test, both before and after giving effect, on a Pro Forma Basis to the
making of such Investment, the Applicable Amount at such time and (iii) by
Credit Parties in any Restricted Subsidiary that is not a Credit Party so long
as such Investment is part of a series of simultaneous Investments by
Restricted Subsidiaries in other Restricted Subsidiaries that result in the
proceeds of the initial Investment being invested in one or more Credit
Parties;


 


(h)           Investments constituting Permitted
Acquisitions;


 


(i)            Investments (including but not
limited to (i) minority Investments and Investments in Unrestricted
Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal
entity) or similar Persons that do not constitute Restricted Subsidiaries,
(iii) Investments in Merchant Acquisition and Processing Alliances (regardless
of the form of legal entity) and (iv) Investments in Subsidiaries that are not
Credit Parties), in each case valued at the fair market value (determined by
the Borrower acting in good faith) of such Investment at the time each such


 


110

















 


Investment is
made, in an aggregate amount pursuant to this clause (i) that, at the
time each such Investment is made, would not exceed the sum of (x) $750,000,000
when taken together with Investments outstanding at such time in reliance on Section
10.5(g)(ii)(x)  plus (y) if the Borrower shall be in compliance with
the Senior Secured Leverage Test, both before and after giving effect, on a Pro
Forma Basis to the making of such Investment, the Applicable Amount at such
time plus (z) without duplication of any amount that increased the JV
Distribution Amount, an amount equal to any repayments, interest, returns,
profits, distributions, income and similar amounts actually received in cash in
respect of any such Investment (which amount referred to in this subclause
(z) shall not exceed the amount of such Investment valued at the fair
market value of such Investment at the time such Investment was made);


 


(j)            Investments constituting non-cash
proceeds of Dispositions of assets to the extent permitted by Section 10.4;


 


(k)           Investments made to repurchase or
retire Stock or Stock Equivalents of the Borrower or any direct or indirect
parent thereof owned by any employee or any stock ownership plan or key
employee stock ownership plan of the Borrower (or any direct or indirect parent
thereof);


 


(l)            Investments consisting of dividends
permitted under Section 10.6;


 


(m)          loans and advances to any direct or
indirect parent of the Borrower in lieu of, and not in excess of the amount of,
dividends to the extent permitted to be made to such parent in accordance with Section
10.6;


 


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


 


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


 


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


 


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


 


(r)            Investments held by a Person
acquired (including by way of merger or consolidation) after the Closing Date
otherwise in accordance with this Section 10.5 to the extent that such
Investments were not made in contemplation of or in connection with such
acquisition, merger or consolidation and were in existence on the date of such
acquisition, merger or consolidation;


 


(s)           Investments in Hedge Agreements
permitted by Section 10.1;


 


(t)            Investments arising out of or in
connection with any Permitted Receivables Financing;


 


(u)           Investments
in the ordinary course of business in connection with Settlements;


 


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(v)           other Investments, that, at the time
each such Investment is made, would not exceed the sum of (x) $600,000,000 plus
(y) if the Borrower shall be in compliance with the Senior Secured Leverage
Test, both before and after giving effect, on a Pro Forma Basis, to the making
of such Investment, the Applicable Amount;


 


(w)          Investments in connection with any
transaction permitted by Section 10.3; and


 


(x)            Investments consisting of licensing
of intellectual property with other Persons in the ordinary course of business;
and


 


(y)           Investments constituting
contributions or other dispositions of any Foreign Subsidiary to another
Foreign Subsidiary.


 


10.6.        Limitation
on Dividends. The Borrower will not declare or pay any dividends (other
than dividends payable solely in its Qualified Equity Interests) or return any
capital to its stockholders (including any option holders) or make any other
distribution, payment or delivery of property or cash to its stockholders as
such, or redeem, retire, purchase or otherwise acquire, directly or indirectly,
for consideration, any shares of any class of its Stock or Stock Equivalents or
the Stock or Stock Equivalents of any direct or indirect parent now or
hereafter outstanding, or set aside any funds for any of the foregoing
purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise
acquire for consideration (other than in connection with an Investment
permitted by Section 10.5) any Stock or Stock Equivalents of the
Borrower, now or hereafter outstanding (all of the foregoing, “dividends”),
provided that, so long as no Default or Event of Default exists
or would exist after giving effect thereto:


 


(a)           the Borrower may (or may pay
dividends to permit any direct or indirect parent thereof to) redeem in whole
or in part any of its Stock or Stock Equivalents for another class of its (or
such parent’s) Stock or Stock Equivalents or with proceeds from substantially
concurrent equity contributions or issuances of new Stock or Stock Equivalents,
provided that such new Stock or Stock Equivalents contain terms and
provisions at least as advantageous to the Lenders in all respects material to
their interests as those contained in the Stock or Stock Equivalents redeemed
thereby;


 


(b)           the Borrower may (or may pay
dividends to permit any direct or indirect parent thereof to) repurchase shares
of its (or such parent’s) Stock or Stock Equivalents held by any present or
former officer, director or employee (or their respective Affiliates, estates
or immediate family members) of the Borrower and its Subsidiaries or any parent
thereof, so long as such repurchase is pursuant to, and in accordance with the
terms of, management and/or employee stock plans, stock subscription agreements
or shareholder agreements or any other management or employee benefit plan or
agreement;


 


(c)           the Borrower may pay dividends on
its Stock or Stock Equivalents, provided that the amount of all such
dividends paid from the Closing Date pursuant to this clause (c), when
aggregated with (i) all aggregate principal amounts paid pursuant to Section
10.7(a) from the Closing Date and (ii) all loans and advances made to any
direct or indirect parent of the Borrower pursuant to Section 10.5(m) in
lieu of dividends permitted by this clause (c) shall not exceed an
amount equal to (x) $400,000,000 plus (y) if the Borrower shall be
in compliance with the Senior Secured Leverage Test, both before and after
giving effect, on a Pro Forma Basis, to the payment of such dividend, the Applicable
Amount; and


 


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(d)           the Borrower may pay dividends:


 


(i)      the proceeds of which will
be used to pay income tax liability attributable to the Borrower and the
Restricted Subsidiaries in respect of consolidated, combined, unitary or
affiliated tax returns filed by a direct or indirect parent of the Borrower in
an amount not to exceed the income tax liability of the Borrower and the
Restricted Subsidiaries were they to file as a stand-alone group, reduced by
any such income taxes paid directly by the Borrower or the Restricted
Subsidiaries;


 


(ii)     the proceeds of which shall
be used to allow any direct or indirect parent of the Borrower to pay (A) its
operating expenses incurred in the ordinary course of business and other
corporate overhead costs and expenses (including administrative, legal,
accounting and similar expenses provided by third parties), which are
reasonable and customary and incurred in the ordinary course of business and
attributable to the ownership or operations of the Borrower, not to exceed $3,500,000
in any fiscal year plus (B) any reasonable and customary indemnification
claims made by directors or officers of the Borrower (or any parent thereof)
attributable to the ownership or operations of the Borrower and its Restricted
Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower
or any of its Restricted Subsidiaries and permitted to be paid by the Borrower
or such Restricted Subsidiary under this Agreement (including in respect of any
initial public offering);


 


(iii)    the proceeds of which shall be
used to pay franchise and excise taxes and other fees, taxes and expenses
required to maintain the corporate existence of any direct or indirect parent
of the Borrower; and


 


(iv)    to any direct or indirect
parent of the Borrower to finance any Investment permitted to be made by the
Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided
that (A) such dividend shall be made
substantially concurrently with the closing of such Investment, (B) such parent
shall, immediately following the closing thereof, cause (1) all property
acquired (whether assets, Stock or Stock Equivalents) to be contributed to the
Borrower or such Restricted Subsidiary or (2) the merger (to the extent
permitted in Section 10.5) of the Person formed or acquired into the
Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall
comply with Sections 9.11 and 9.12 to the extent applicable.


 


(e)           [Reserved];


 


(f)            the Borrower or any of the
Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in
connection with any dividend, split or combination thereof or any Permitted
Acquisition and (ii) honor any conversion request by a holder of convertible
Indebtedness and make cash payments in lieu of fractional shares in connection
with any such conversion and may make payments on convertible Indebtedness in
accordance with its terms;


 


(g)           the Borrower may pay 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;


 


(h)           the Borrower may declare and pay
dividends on the Borrower’s common stock following the first public offering of
the Borrower’s common stock or the common stock of any of its direct or indirect
parents after the Closing Date, of up to 6% per annum of the net proceeds 


 


113

















 


received by or
contributed as common equity to the Borrower in or from any such public
offering to the extent such net proceeds are not utilized in connection with
other transactions permitted by Section 10.5, 10.6 or 10.7;
and


 


(i)            the Borrower may pay dividends in an
amount equal to withholding or similar Taxes payable or expected to be payable
by any present or former employee, director, manager or consultant (or their
respective Affiliates, estates or immediate family members) and any repurchases
of Stock or Stock Equivalents in consideration of such
payments including deemed repurchases in connection with the exercise of stock
options;


 


Notwithstanding
anything to the contrary contained in this Section 10 (including Section 10.5
and this Section 10.6), 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 Stock or Stock Equivalents or purchase or
otherwise acquire for cash any Stock or Stock Equivalents 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 any Stock or
Stock Equivalents of the Borrower or any direct or indirect parent of the
Borrower for cash from the Sponsor, or guarantee any Indebtedness of any
Affiliate of the Borrower for the purpose of paying such dividend, making such
distribution or so acquiring such Stock or Stock Equivalents to or from the
Sponsor, in each case by means of utilization of the cumulative dividend and
investment credit provided by the use of the Applicable Amount or the
exceptions provided by Sections 10.5(i), (m) and (v), Sections
10.6(c) and (g) and Section 10.7(a), unless at the time and
after giving effect to such payment, the Consolidated Total Debt to
Consolidated EBITDA Ratio would be equal to or less than 7.5 to 1.0.


 


10.7.        Limitations
on Debt Payments and Amendments.


 


(a)           The Borrower will not,
and will not permit any Restricted Subsidiary to, prepay, repurchase or redeem
or otherwise defease any Senior Notes, Senior Interim Loans, Senior
Subordinated Notes, Senior Subordinated Interim Loans or any Permitted
Additional Debt; provided, however, that so long as no Default or
Event of Default shall have occurred and be continuing at the date of such
prepayment, repurchase, redemption or other defeasance or would result
therefrom, the Borrower or Restricted Subsidiary may prepay, repurchase or
redeem Senior Notes, Senior Interim Loans, Senior Subordinated Notes, Senior
Subordinated Interim Loans or Permitted Additional Debt (i) in an aggregate
amount from the Closing Date, when aggregated with (A) the aggregate amount of
dividends paid pursuant to Section 10.6(c) from the Closing Date
and (B) all loans and advances to any direct or indirect parent of the Borrower
made pursuant to Section 10.5(m), not in excess of the sum of (1)
$400,000,000 plus (2) if the Borrower shall be in compliance with the
Senior Secured Leverage Test, both before and after giving effect, on a Pro
Forma Basis, to the making of such prepayment, repurchase or redemption, the
Applicable Amount at the time of such prepayment, repurchase or redemption; provided
that to the extent that the Indebtedness being prepaid, repurchased, redeemed
or otherwise defeased pursuant to this clause (i) comprises Senior
Subordinated Notes and such prepayment, repurchase or redemption is made from
the proceeds of other Indebtedness incurred by the Borrower or its Restricted
Subsidiaries, such Indebtedness shall be subordinated to the Obligations on
terms at least as favorable to the Lenders as the Senior Subordinated Notes;
(ii) in the case of Senior Notes with the proceeds of Senior Notes described in
clause (b) of the definition thereof; (iii) in the case of Senior Subordinated
Notes, with the proceeds of Senior Subordinated Notes described in clause (b)
of the definition thereof, (iv) in the case of Senior Interim Loans with the proceeds
of Senior Notes described in clause (a) of the definition thereof, (v)
in the case of Senior Subordinated Interim Loans, with the proceeds of Senior
Subordinated Notes described in clause (a) of the definitions thereof
(vi)  in the case of Permitted Additional
Debt, with the proceeds of other Permitted Additional Debt. For the avoidance
of doubt, nothing in this Section 10.7 shall restrict (i) any prepayment,


 


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repurchase, redemption or
defeasance made after the Closing Date in connection with the Debt Repayment or
(ii) the making of any prepayment of accrued but unpaid interest and/or
original issue discount in respect of the Senior Interim PIK Loans and/or the
PIK Notes in accordance with the “Optional Interest Repayment” provisions
thereof as of the end of any accrual period ending after the fifth anniversary
of the Closing Date.


 


(b)           The Borrower will not
waive, amend, modify, terminate or release any Senior Notes, Senior Interim
Loans, Senior Subordinated Notes, Senior Subordinated Interim Loans or
Permitted Additional Debt to the extent that any such waiver, amendment,
modification, termination or release would be adverse to the Lenders in any
material respect.


 


10.8.        Limitations
on Sale Leasebacks. The Borrower will not, and will not permit any of the
Restricted Subsidiaries to, enter into or effect any Sale Leasebacks other than
Permitted Sale Leasebacks.


 


10.9.        Changes
in Business. The Borrower and the Subsidiaries, taken as a whole, will not
fundamentally and substantively alter the character of their business, taken as
a whole, from the business conducted by the Borrower and the Subsidiaries,
taken as a whole, on the Closing Date and other business activities incidental
or reasonably related to any of the foregoing.


 


10.10.      Consolidated
Senior Secured Debt to Consolidated EBITDA Ratio. The Borrower will not
permit the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio for
any Test Period ending during any period set forth below to be greater than the
ratio set forth below opposite such period:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  October 1, 2008 to September 30, 2009

  	
   

  	
  7.25 to 1.00

  	
   

  
	
  October 1, 2009 to September 30, 2010

  	
   

  	
  7.00 to 1.00

  	
   

  
	
  October 1, 2010 to September 30, 2011

  	
   

  	
  6.75 to 1.00

  	
   

  
	
  October 1, 2011 to September 30, 2012

  	
   

  	
  6.50 to 1.00

  	
   

  
	
  October 1, 2012 to September 30, 2013

  	
   

  	
  6.25 to 1.00

  	
   

  
	
  Thereafter

  	
   

  	
  6.00 to 1.00

  	
   

  



 


Any provision
of this Agreement that contains a requirement for the Borrower to be in
compliance with the covenant contained in this Section 10.10 prior to
the time that this covenant is otherwise applicable shall be deemed to require
that the Consolidated Total Debt to Consolidated EBITDA Ratio for the applicable
Test Period not be greater than 8.75 to 1.00.


 


SECTION 11.            Events of Default


 


Upon the
occurrence of any of the following specified events (each an “Event of Default”):


 


11.1.        Payments.
The Borrower shall (a) default in the payment when due of any principal of the
Loans or (b) default, and such default shall continue for five or more days, in
the payment when due of any interest on
the Loans or any Fees or any Unpaid Drawings or of any other amounts owing
hereunder or under any other Credit Document; or


 


11.2.        Representations,
Etc.Any representation, warranty or statement made or deemed made by any
Credit Party herein or in any other Credit Document or any certificate
delivered or required 


 


115

















 


to be delivered pursuant hereto or thereto shall prove to be untrue in
any material respect on the date as of which made or deemed made; or


 


11.3.        Covenants.
Any Credit Party shall:


 


(a)           default in the due performance or
observance by it of any term, covenant or agreement contained in Section 9.1(e),
9.5 (solely with respect to the Borrower) or Section 10; or


 


(b)           default in the due performance or
observance by it of any term, covenant or agreement (other than those referred
to in Section 11.1 or 11.2 or clause (a) of this Section
11.3) contained in this Agreement or any Security Document and such default
shall continue unremedied for a period of at least 30 days after receipt of
written notice by the Borrower from the Administrative Agent or the Required
Lenders; or


 


11.4.        Default
Under Other Agreements. (a) The Borrower or any of the Restricted
Subsidiaries shall (i) default in any payment with respect to any Indebtedness
(other than the Obligations) in excess of $100,000,000 in the aggregate, for
the Borrower and such Restricted Subsidiaries, beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness was
created or (ii) default in the observance or performance of any agreement or
condition relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist (other than, with respect to Indebtedness consisting
of any Hedge Agreements, termination events or equivalent events pursuant to
the terms of such Hedge Agreements), the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, any such Indebtedness to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity; or (b) without limiting the provisions of clause (a) above,
any such Indebtedness shall be declared to be due and payable, or required to
be prepaid other than by a regularly scheduled required prepayment or as a
mandatory prepayment (and, with respect to Indebtedness consisting of any Hedge
Agreements, other than due to a termination event or equivalent event pursuant
to the terms of such Hedge Agreements), prior to the stated maturity thereof; provided
that this clause (b) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness, if such sale or transfer is permitted
hereunder and under the documents providing for such Indebtedness; or


 


11.5.        Bankruptcy,
Etc.The Borrower or any Specified Subsidiary shall commence a voluntary
case, proceeding or action concerning itself under (a) Title 11 of the United
States Code entitled “Bankruptcy”, or (b) in the case of any Foreign Subsidiary
that is a Specified Subsidiary, any domestic or foreign law relating to
bankruptcy, judicial management, insolvency, reorganization, administration or
relief of debtors in effect in its jurisdiction of incorporation, in each case
as now or hereafter in effect, or any successor thereto (collectively, the “Bankruptcy Code”); or an involuntary case, proceeding or
action is commenced against the Borrower
or any Specified Subsidiary and the petition is not controverted within 30 days
after commencement of the case, proceeding or action; or an involuntary case,
proceeding or action is commenced against the Borrower or any Specified Subsidiary and the petition is not dismissed
within 60 days after commencement of the case, proceeding or action; or a
custodian (as defined in the Bankruptcy Code), judicial manager, receiver,
receiver manager, trustee, administrator or similar person is appointed for, or
takes charge of, all or substantially all of the property of the Borrower or any Specified Subsidiary; or the
Borrower or any Specified Subsidiary
commences any other voluntary proceeding or action under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency,
administration or liquidation or similar law of any jurisdiction whether now or
hereafter 


 


116

















 


in effect relating to the Borrower or any Specified Subsidiary; or
there is commenced against the Borrower or any Specified Subsidiary any such
proceeding or action that remains undismissed for a period of 60 days; or the
Borrower or any Specified Subsidiary is adjudicated insolvent or bankrupt; or
any order of relief or other order approving any such case or proceeding or
action is entered; or the Borrower or any Specified Subsidiary suffers any
appointment of any custodian receiver, receiver manager, trustee, administrator
or the like for it or any substantial part of its property to continue
undischarged or unstayed for a period of 60 days; or the Borrower or any
Specified Subsidiary makes a general assignment for the benefit of creditors;
or any corporate action is taken by the Borrower or any Specified Subsidiary
for the purpose of effecting any of the foregoing; or


 


11.6.        ERISA.
(a) Any Plan shall fail to satisfy the minimum funding standard required for
any plan year or part thereof or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code; any
Plan is or shall have been terminated or is the subject of termination
proceedings under ERISA (including the giving of written notice thereof); an
event shall have occurred or a condition shall exist in either case entitling
the PBGC to terminate any Plan or to appoint a trustee to administer any Plan
(including the giving of written notice thereof); any Plan shall have an accumulated
funding deficiency (whether or not waived); the Borrower or any ERISA Affiliate
has incurred or is likely to incur a liability to or on account of a Plan under
Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA
or Section 4971 or 4975 of the Code (including the giving of written notice
thereof); (b) there could result from any event or events set forth in clause
(a) of this Section 11.6 the imposition of a lien, the granting of a
security interest, or a liability, or the reasonable likelihood of incurring a
lien, security interest or liability; and (c) such lien, security interest or
liability will or would be reasonably likely to have a Material Adverse Effect;
or


 


11.7.        Guarantee.
Any Guarantee provided by any Credit Party or any material provision thereof
shall cease to be in full force or effect (other than pursuant to the terms
hereof and thereof) or any such Guarantor thereunder or any other Credit Party
shall deny or disaffirm in writing any such Guarantor’s obligations under the
Guarantee; or


 


11.8.        Pledge
Agreement. Any Pledge Agreement pursuant to which the Stock or Stock
Equivalents of the Borrower or any Subsidiary is pledged or any material
provision thereof shall cease to be in full force or effect (other than
pursuant to the terms hereof or thereof or as a result of acts or omissions of
the Collateral Agent or any Lender) or any pledgor thereunder or any Credit
Party shall deny or disaffirm in writing any pledgor’s obligations under any
Pledge Agreement; or


 


11.9.        Security
Agreement. The Security Agreement or any other Security Document pursuant
to which the assets of the Borrower or any Subsidiary are pledged as Collateral
or any material provision thereof shall cease to be in full force or effect
(other than pursuant to the terms hereof or thereof or as a result of acts or
omissions of the Collateral Agent or any Lender) or any grantor thereunder or
any Credit Party shall deny or disaffirm in writing any grantor’s obligations
under the Security Agreement or any other Security Document; or


 


11.10.      Mortgages.
Any Mortgage or any material provision of any Mortgage relating to any material
portion of the Collateral shall cease to be in full force or effect (other than
pursuant to the terms hereof or thereof or as a result of acts or omissions of
the Collateral Agent or any Lender) or any mortgagor thereunder or any Credit
Party shall deny or disaffirm in writing any mortgagor’s obligations under any
Mortgage; or


 


11.11.      Judgments.
One or more judgments or decrees shall be entered against the Borrower or any
of the Restricted Subsidiaries involving a liability of $100,000,000 or more in
the aggregate for all such judgments and decrees for the Borrower and the
Restricted Subsidiaries (to the extent not paid 


 


117

















 


or covered by
insurance provided by a carrier not disputing coverage) and any such judgments
or decrees shall not have been satisfied, vacated, discharged or stayed or
bonded pending appeal within 60 days after the entry thereof; or


 


11.12.      Change
of Control. A Change of Control shall occur; or


 


11.13.      Subordination.
The Senior Subordinated Notes, the Senior Subordinated Interim Loans or any
other Subordinated Indebtedness (other than such Subordinated Indebtedness that
may be validly outstanding under Section 10.1 on a non-subordinated
basis) or any guarantees of the foregoing shall cease, for any reason, to be
validly subordinated to the Obligations or the obligations of the Credit
Parties under the Guarantee and the other Security Documents, as the case may
be, as provided in the Senior Subordinated Notes Indenture, the Senior
Subordinated Interim Loan Agreement or the instruments governing the terms of
any such other Subordinated Indebtedness;


 


then, and in
any such event, and at any time thereafter, if any Event of Default shall then
be continuing, the Administrative Agent may and, upon the written request of
the Required Lenders, shall, by written notice to the Borrower, take any or all
of the following actions, without prejudice to the rights of the Administrative
Agent or any Lender to enforce its claims against the Borrower, except as
otherwise specifically provided for in this Agreement (provided that, if
an Event of
Default specified in Section 11.5 shall occur with respect to the
Borrower, the result that would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i), (ii) and (iv)
below shall occur automatically without the giving of any such notice):  (i) declare the Total Revolving Credit
Commitment, Swingline Commitment and Total Delayed Draw Term Loan Commitments
terminated, whereupon the Revolving Credit Commitment,  Swingline Commitment and Delayed Draw Term
Loan Commitment, if any, of each Lender (including, without limitation, each Delayed
Draw Term Loan Lender) or the Swingline Lender, as the case may be, shall
forthwith terminate immediately and any Fees theretofore accrued shall
forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest and fees in respect of all
Loans and all Obligations owing hereunder and thereunder to be, whereupon the
same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; (iii) terminate any Letter of Credit that may be terminated in
accordance with its terms; and/or (iv) direct the Borrower to pay (and the Borrower
agrees that upon receipt of such notice, or upon the occurrence of an Event of
Default specified in Section 11.5 with respect to the Borrower, it will pay) to the Administrative
Agent at the Administrative Agent’s Office such additional amounts of cash, to
be held as security for the Borrower’s respective reimbursement obligations for
Drawings that may subsequently occur thereunder, equal to the aggregate Stated
Amount of all Letters of Credit issued and then outstanding. In connection with
any acceleration of the Obligations as contemplated by clause (ii)
above, the Designated Obligations shall, automatically and with no further
action required by the Administrative Agent, any Credit Party or any Lender, be
converted into the Dollar Equivalent, determined using the Spot Rate calculated
as of the date of such acceleration (or, in the case of any Unpaid Drawings
following the date of such acceleration, as of the date of drawing under the
applicable Letter of Credit) and from and after such date all amounts accruing
and owed to the Lenders in respect of such Designated Obligations shall accrue
and be payable in Dollars at the rate otherwise applicable hereunder.


 


11.14.      Application
of Proceeds. Any amount received by the Administrative Agent or the
Collateral Agent from any Credit Party (or from proceeds of any Collateral)
following any acceleration of the Obligations under this Agreement or any Event
of Default with respect to the Borrower under Section 11.5 shall be applied:


 


118

















 


(i)      first, to the payment of all reasonable
and documented costs and expenses incurred by the Administrative Agent or
Collateral Agent in connection with any collection or sale or otherwise in
connection with any Credit 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 or the Collateral Agent hereunder
or under any other Credit Document on behalf of any Credit 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 Credit Document;


 


(ii)     second, to the
Secured Parties, an amount (x) equal to all Obligations owing to them on the
date of any distribution and (y) sufficient to Cash Collateralize all Letters
of Credit Outstanding on the date of any distribution, and, if such moneys
shall be insufficient to pay such amounts in full and Cash Collateralize all
Letters of Credit Outstanding, then ratably (without priority of any one over
any other) to such Secured Parties in proportion to the unpaid amounts thereof
and to Cash Collateralize the Letters of Credit Outstanding; and


 


(iii)    third, any surplus then remaining shall be
paid to the applicable Credit 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;


 


provided
that any amount applied to Cash Collateralize any Letters of Credit Outstanding
that has not been applied to reimburse the Letter of Credit Borrower for Unpaid
Drawings under the applicable Letters of Credit at the time of expiration of
all such Letters of Credit shall be applied by the Administrative Agent in the
order specified in clauses (i) through (iii) above.


 


11.15.      Right
to Cure.


 


(a)           Notwithstanding
anything to the contrary contained in Section 11.3(a), in the event that
the Borrower fails to comply with the requirement of the covenant set forth in Section
10.10, until the expiration of the tenth day after the date on which the
Section 9.1 Financials with respect to the Test Period in which the covenant
set forth in such Section is being measured are required to be delivered
pursuant to Section 9.1, any holder of Stock or Stock Equivalents of the
Borrower or any direct or indirect parent of the Borrower shall have the right
to make a direct or indirect equity investment (other than in the form of
Disqualified Equity Interests) in the Borrower in cash (the “Cure Right”), and upon the receipt by such Person of net
cash proceeds (the amount of such net cash proceeds, the “Cure Amount”),
the covenant set forth in such Section shall be recalculated, giving effect to
a pro forma increase to Consolidated EBITDA for such Test Period in an amount
equal to such Cure Amount; provided that such pro forma adjustment to
Consolidated EBITDA shall be given solely for the purpose of determining the
existence of a Default or an Event of Default under the covenant set forth in
such Section with respect to any Test Period that includes the fiscal quarter
for which such Cure Right was exercised and not for any other purpose under any
Credit Document.


 


(b)           If, after the exercise
of the Cure Right and the recalculations pursuant to clause (a) above,
the Borrower shall then be in compliance with the requirements of the covenant
set forth in Section 10.10 during such Test Period (including for
purposes of Section 7.1), the Borrower shall be deemed to have satisfied
the requirements of such covenant as of the relevant date of determination with
the same effect as though there had been no failure to comply therewith at such
date, and the applicable Default or Event of Default under Section 11.3
that had occurred shall be deemed cured; provided that (i) in each Test
Period there shall be at least one fiscal quarter in which no Cure Right is
exercised, and (ii) with respect to any exercise of the Cure Right, the Cure
Amount shall be no greater than the amount required to cause the Borrower to be
in compliance with the covenant set forth in Section 10.10.


 


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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 Credit 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 Credit
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Credit 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 Credit Document or otherwise exist against the Administrative
Agent.


 


(b)           The Administrative
Agent, each Lender, the Swingline Lender and the Letter of Credit Issuer hereby
irrevocably designate and appoint the Collateral Agent as the agent with
respect to the Collateral, and each of the Administrative Agent, each Lender,
the Swingline Lender and the Letter of Credit Issuer irrevocably authorizes the
Collateral Agent, in such capacity, to take such action on its behalf under the
provisions of this Agreement and the other Credit Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Collateral Agent by the terms of this Agreement and the other Credit Documents,
together with such other powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary elsewhere in this Agreement, the Collateral Agent
shall not have any duties or responsibilities except those expressly set forth
herein, or any fiduciary relationship with any of the Administrative Agent, the
Lenders, the Swingline Lender or the Letter of Credit Issuers, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Credit Document or otherwise exist
against the Collateral Agent.


 


(c)           Each of the Syndication
Agent, Joint Lead Arrangers and Bookrunners and Joint 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 and the Collateral Agent may each execute any of its
duties under this Agreement and the other Credit 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. Neither the
Administrative Agent nor the Collateral Agent shall 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
Credit 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 Credit Party or any officer thereof
contained in this Agreement or any other Credit Document or in any certificate,
report, statement or other


 


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document referred to or
provided for in, or received by such Agent under or in connection with, this
Agreement or any other Credit Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Credit Document, or the perfection or priority of any Lien or
security interest created or purported to be created under the Security
Documents, or for any failure of the Borrower, any Guarantor or any other
Credit 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 Credit Document, or to inspect the properties,
books or records of any Credit Party or any Affiliate thereof. The Collateral
Agent shall not be under any obligation to the Administrative Agent or 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
Credit Document, or to inspect the properties, books or records of any Credit
Party.


 


12.4.        Reliance by Agents.
The Administrative Agent and the Collateral Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or instruction believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including counsel to
the Borrower), independent accountants and other experts selected by the
Administrative Agent or the Collateral 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 and the Collateral Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Credit 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 and the Collateral
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Credit 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 and Collateral 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 Credit 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. Neither
the Administrative Agent nor the Collateral Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent or Collateral 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 and the Collateral Agent. 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


 


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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, Collateral Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Administrative Agent nor the Collateral
Agent nor any of their 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 or Collateral Agent hereinafter
taken, including any review of the affairs of the Borrower, any Guarantor or
any other Credit Party, shall be deemed to constitute any representation or
warranty by the Administrative Agent or Collateral Agent to any Lender, the
Swingline Lender or any Letter of Credit Issuer. Each Lender, the Swingline
Lender and each Letter of Credit Issuer represents to the Administrative Agent
and the Collateral Agent that it has, independently and without reliance upon
the Administrative Agent, Collateral 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 Credit Party and made its own decision to make its Loans hereunder
and enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent, Collateral
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 Credit 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
Credit Party. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder,
neither the Administrative Agent nor the Collateral Agent shall 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
Credit Party that may come into the possession of the Administrative Agent or
Collateral 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 Credit Parties and without limiting the obligation of the
Credit 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 an Agent in any way relating to or arising out
of the Commitments, this Agreement, any of the other Credit 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 or the Collateral 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 Credit 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


 


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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 Credit Document, or any document contemplated by or referred to
herein, to the extent that such Agent is not reimbursed for such expenses by or
on behalf of the Borrower, provided that such reimbursement by the
Lenders shall not affect the Borrower’s continuing reimbursement obligations
with respect thereto. If any indemnity furnished to any Agent for any purpose
shall, in the opinion of such Agent, be insufficient or become impaired, such
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished; provided,
in no event shall this sentence require any Lender to indemnify any Agent
against any liability, obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement in excess of such Lender’s pro rata portion
thereof; and provided  further, this sentence shall not be deemed
to require any Lender to indemnify any Agent against any liability, obligation,
loss, damage, penalty, action, judgment, suit, cost, expense or disbursement
resulting from such Agent’s gross negligence or willful misconduct. The
agreements in this Section 12.7 shall survive the payment of the Loans
and all other amounts payable hereunder.


 


12.8.        Agents in Their
Individual Capacities. Each Agent and its Affiliates may make loans to,
accept deposits from and generally engage in any kind of business with the
Borrower, any Guarantor, and any other Credit Party as though such Agent were
not an Agent hereunder and under the other Credit Documents. With respect to
the Loans made by it, each Agent shall have the same rights and powers under
this Agreement and the other Credit 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. Each
of the Administrative Agent and Collateral Agent may at any time give notice of
its resignation to the Lenders, the Letter of Credit Issuer 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 or 11.5 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 Agent gives notice of its resignation, then the retiring Agent may on
behalf of the Lenders, appoint a successor Agent meeting the qualifications set
forth above. Upon the acceptance of a successor’s appointment as the
Administrative Agent or Collateral Agent, as the case may be, hereunder, and
upon the execution and filing or recording of such financing statements, or
amendments thereto, and such amendments or supplements to the Mortgages, and
such other instruments or notices, as may be necessary or desirable, or as the
Required Lenders may request, in order to continue the perfection of the Liens
granted or purported to be granted by the Security 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
Credit 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 Credit
Documents, the provisions of this Section 12 (including 12.7) and
Section 13.5 shall continue in effect for the benefit of such retiring


 


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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 Agent was acting as an Agent.


 


Any
resignation by Credit Suisse as Administrative Agent pursuant to this Section
shall also constitute its resignation as Letter of Credit Issuer and Swing Line
Lender. Upon the acceptance of a successor’s appointment as Administrative
Agent hereunder, (a) such successor shall succeed to and become vested with all
of the rights, powers, privileges and duties of the retiring Letter of Credit
Issuer and Swing Line Lender, (b) the retiring Letter of Credit Issuer and
Swing Line Lender shall be discharged from all of their respective duties and
obligations hereunder or under the other Credit Documents, and (c) the successor
Letter of Credit Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to the retiring Letter of Credit Issuer to
effectively assume the obligations of the retiring Letter of Credit Issuer with
respect to such Letters of Credit.


 


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 Security
Documents and Guarantee. Each Secured Party hereby further authorizes the Administrative
Agent or Collateral Agent, as applicable, on behalf of and for the benefit of
the Secured Parties, to be the agent for and representative of the Secured
Parties with respect to the Collateral and the Security Documents. Subject to Section
13.1, without further written consent or authorization from any Secured
Party, the Administrative Agent or Collateral Agent, as applicable, may execute
any documents or instruments necessary to in connection with a sale or
disposition of assets permitted by this Agreement, (i) release any Lien encumbering
any item of Collateral that is the subject of such sale or other disposition of
assets, 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 or (ii) 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 Realize on
Collateral and Enforce Guarantee. Anything contained in any of the Credit
Documents to the contrary notwithstanding, the Borrower, the Agents and each
Secured Party hereby agree that (i) no Secured Party shall have any right
individually to realize upon any of the Collateral or 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 Secured
Parties in accordance with the terms hereof and all powers, rights and remedies
under the Collateral Documents may be exercised solely by the Collateral Agent,
and (ii) in the event of a foreclosure by the Collateral Agent on any of the
Collateral pursuant to a public or private sale or other disposition, the Collateral
Agent or any Lender may be the purchaser or licensor of any or all of such
Collateral at any such sale or other disposition


 


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and the Collateral Agent, as
agent for and representative of the Secured Parties (but not any Lender or
Lenders in its or their respective individual capacities unless Required
Lenders shall otherwise agree in writing) shall be entitled, for the purpose of
bidding and making settlement or payment of the purchase price for all or any
portion of the Collateral sold at any such public sale, to use and apply any of
the Obligations as a credit on account of the purchase price for any collateral
payable by the Collateral Agent at such sale or other disposition.


 


SECTION 13.            Miscellaneous


 


13.1.        Amendments, Waivers and
Releases. Neither this Agreement nor any other Credit 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 and/or the Collateral Agent may, from time to time, (a)
enter into with the relevant Credit Party or Credit Parties written amendments,
supplements or modifications hereto and to the other Credit Documents for the
purpose of adding any provisions to this Agreement or the other Credit
Documents or changing in any manner the rights of the Lenders or of the Credit
Parties hereunder or thereunder or (b) waive in writing, on such terms and
conditions as the Required Lenders or the Administrative Agent and/or
Collateral Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Credit Documents or any Default
or Event of Default and its consequences; 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
Total Debt to Consolidated EBITDA Ratio or Consolidated Senior Secured Debt to
Consolidated EBITDA 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 extend the final expiration date of any
Letter of Credit beyond the L/C Maturity Date, 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 (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”, “Required
Revolving Credit Lenders”, “Required Euro Tranche Term Loan Lenders”, “Required
Initial Term Loan Lenders”, “Required Delayed Draw Term Loan Lenders”, consent
to the assignment or transfer by the Borrower of its rights and obligations under any Credit Document to
which it is a party (except as permitted pursuant to Section 10.3) or
alter the order of application set forth in Section 11.14, in each case
without the written consent of each Lender directly and adversely affected
thereby, or (iii) amend, modify or waive any provision of Section 12
without the written consent of the then-current Administrative Agent and
Collateral Agent in a manner that directly and adversely affects such Person,
or (iv) amend, modify or waive any provision of Section 3 with respect
to any Letter of Credit without the written consent of the Letter of Credit
Issuer, or (v) amend, modify or waive any provisions hereof relating to
Swingline Loans without the written consent of the Swingline Lender in a manner
that directly and adversely affects such Person, or (vi) change any Revolving
Credit Commitment to a Term Loan Commitment, or change any Term Loan Commitment
to a Revolving Credit Commitment, in each case without the prior written
consent of each Lender directly and adversely affected thereby, or (vii)
release all or substantially all of the Guarantors under the Guarantees


 


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(except as expressly permitted by the
Guarantees or this Agreement) or release all or substantially all of the
Collateral under the Security Documents (except as expressly permitted by the
Security Documents or this Agreement) without the prior written consent of each
Lender, or (viii) amend Section 2.9 so as to permit Interest Period intervals
greater than six months without regard to availability to Lenders, without the
written consent of each Lender directly and adversely affected thereby, or (ix)
decrease the amount or allocation of any mandatory prepayment to be received by
any Initial Tranche Term Loan Lender without the written consent of the Required
Initial Term Loan Lenders, (x)(i) decrease the Initial Term Loan Repayment
Amount applicable to Initial Tranche B-1 Term Loans, extend any scheduled
Initial Term Loan Repayment Date applicable to Initial Tranche B-1 Term Loans,
decrease the amount or allocation of any mandatory prepayment to be received by
any Initial Tranche B-1 Term Loan Lender in a manner disproportionately adverse
to the interests of the Initial Tranche B-1 Term Loan Lenders in relation to
the Initial Term Loan Lenders of any other Class of Initial Term Loans, in each
case without the written consent of the Required Initial Tranche B-1 Term Loan
Lenders, (ii) decrease the Initial Term Loan Repayment Amount applicable to
Initial Tranche B-2 Term Loans, extend any scheduled Initial Term Loan Repayment
Date applicable to Initial Tranche B-2 Term Loans, decrease the amount or
allocation of any mandatory prepayment or any prepayment premium to be received
by any Initial Tranche B-2 Term Loan Lender in a manner disproportionately
adverse to the interests of the Initial Tranche B-2 Term Loan Lenders in
relation to the Initial Term Loan Lenders of any other Class of Initial Term
Loans, in each case without the written consent of the Required Initial Tranche
B-2 Term Loan Lenders or (iii) decrease the Initial Term Loan Repayment Amount
applicable to Initial Tranche B-3 Term Loans, extend any scheduled Initial Term
Loan Repayment Date applicable to Initial Tranche B-3 Term Loans, decrease the
amount or allocation of any mandatory prepayment or any prepayment premium to
be received by any Initial Tranche B-3 Term Loan Lender in a manner
disproportionately adverse to the interests of the Initial Tranche B-3 Term
Loan Lenders in relation to the Initial Term Loan Lenders of any other Class of
Initial Term Loans, in each case without the written consent of the Required
Initial Tranche B-3 Term Loan Lenders, or (xi) decrease any Delayed Draw Repayment
Amount, extend any scheduled Delayed Draw Repayment Date or decrease the amount
or allocation of any mandatory prepayment to be received by any Delayed Draw
Term Loan Lender, in each case without the written consent of the Required
Delayed Draw Term Loan Lenders or (xii) decrease any Euro Tranche Repayment
Amount, extend any scheduled Euro Tranche Repayment Date or decrease the amount
or allocation of any mandatory prepayment to be received by any Euro Tranche
Term Loan Lender, in each case without the written consent of the Required Euro
Tranche Term Loan Lenders. 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 Credit 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.


 


Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to approve
or disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender (it being understood that any Commitments or Loans held or
deemed held by any Defaulting Lender shall be excluded for a vote of the
Lenders hereunder requiring any consent of the Lenders).


 


Notwithstanding
the foregoing, in addition to any credit extensions and related Joinder
Agreement(s) effectuated without the consent of Lenders in accordance with Section
2.14, this Agreement


 


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


 


In addition,
notwithstanding the foregoing, this Agreement may be amended with the written
consent of the Administrative Agent, the Borrower and the Lenders providing the
relevant Replacement Term Loans (as defined below) to permit the refinancing of
all outstanding Term Loans of any Class (“Refinanced Term Loans”)
with a replacement term loan tranche (“Replacement Term Loans”) hereunder; provided
that (a) the aggregate principal amount of such Replacement Term Loans shall
not exceed the aggregate principal amount of such Refinanced Term Loans, (b)
the Applicable ABR Margin and Applicable LIBOR Margin for such Replacement Term
Loans shall not be higher than the Applicable ABR Margin and Applicable LIBOR
Margin for such Refinanced Term Loans, (c) the weighted average life to
maturity of such Replacement Term Loans shall not be shorter than the weighted
average life to maturity of such Refinanced Term Loans at the time of such
refinancing (except to the extent of nominal amortization for periods where
amortization has been eliminated as a result of prepayment of the applicable
Term Loans) and (d) all other terms applicable to such Replacement Term Loans
shall be substantially identical to, or less favorable to the Lenders providing
such Replacement Term Loans than those applicable to such Refinanced Term
Loans, except to the extent necessary to provide for covenants and other terms
applicable to any period after the latest final maturity of the Term Loans of
such Class in effect immediately prior to such refinancing.


 


The Lenders
hereby irrevocably agree that the Liens granted to the Collateral Agent by the
Credit Parties on any Collateral shall be automatically released (i) in full,
upon the termination of this Agreement and the payment of all Obligations
hereunder (except for contingent indemnification obligations in respect of
which a claim has not yet been made), (ii) upon the sale or other disposition
of such Collateral (including as part of or in connection with any other sale
or other disposition permitted hereunder) to any Person other than another Credit Party, to the extent
such sale or other disposition is made in compliance with the terms of this
Agreement (and the Collateral Agent may rely conclusively on a certificate to
that effect provided to it by any Credit Party upon its reasonable request
without further inquiry), (iii) to the extent such Collateral is comprised of
property leased to a Credit Party, upon termination or expiration of such
lease, (iv) if the release of such Lien is approved, authorized or ratified in
writing by the Required Lenders (or such other percentage of the Lenders whose
consent may be required in accordance with this Section 13.1), (v) to
the extent the property constituting such Collateral is owned by any Guarantor,
upon the release of such Guarantor from its obligations under the applicable
Guarantee (in accordance with the following sentence) and (vi) as required to
effect any sale or other disposition of Collateral in connection with any
exercise of remedies of the Collateral Agent pursuant to the Collateral
Documents. Any such release shall not in any manner discharge, affect, or
impair the Obligations or any Liens (other than those being released) upon (or
obligations (other than those being released) of the Credit Parties in respect
of) all interests retained by the Credit Parties, including the proceeds of any
sale, all of which shall continue to constitute part of the Collateral except
to the extent otherwise released in accordance with the provisions of the
Credit Documents. Additionally, the Lenders hereby irrevocably agree that the
Guarantors shall be released from the Guarantees upon consummation of any
transaction resulting in such Subsidiary ceasing to constitute a Restricted
Subsidiary. The Lenders hereby authorize the Administrative Agent and the
Collateral Agent, as applicable, to execute and deliver any instruments, documents,
and agreements necessary or desirable to evidence and confirm the release of
any Guarantor or


 


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Collateral 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
Credit Document shall be in writing (including by facsimile transmission). All
such written notices shall be mailed, faxed or delivered to the applicable
address, facsimile number or electronic mail address, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be
made to the applicable telephone number, as follows:


 


(a)           if to the Borrower, the
Administrative Agent, the Collateral Agent, the Letter of Credit Issuer or the
Swingline Lender, 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 other Lender, to the
address, facsimile number, electronic mail address or telephone number
specified in its Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be designated by
such party in a notice to the Borrower, the Administrative Agent, the
Collateral Agent, the Letter of Credit Issuer and the Swingline Lender.


 


All such
notices and other communications shall be deemed to be given or made upon the
earlier to occur of (i) actual receipt by the relevant party hereto and (ii)
(A) if delivered by hand or by courier, when signed for by or on behalf of the
relevant party hereto; (B) if delivered by mail, 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, 4.2 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, the Collateral Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Credit 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 Credit 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 Credit
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


 


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any rights under this
Agreement, the other Credit Documents and any such other documents, including
the reasonable fees, disbursements and other charges of Cahill Gordon &
Reindel LLP, as counsel to the Agents, or such other counsel retained with the
Borrower’s consent (such consent not to be unreasonably withheld), (c) to pay,
indemnify, and hold harmless each Lender and Agent from, any and all recording
and filing fees and (d) to pay, indemnify, and hold harmless each Lender and
Agent and their respective Affiliates, directors, officers, employees,
trustees, investment advisors and agents from and against any and all other
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever, including reasonable and documented fees, disbursements and other
charges of one primary counsel and one local counsel in each relevant
jurisdiction to such indemnified Persons (unless there is an actual or
perceived conflict of interest or the availability of different claims or
defenses in which case each such Person may retain its own counsel), related to
the Transactions (including, without limitation, the Merger) or, with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the other Credit 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 Related Parties (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 Credit 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 Credit 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 Credit 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 (including any
Affiliate of the Letter of Credit Issuer that issues any Letter of Credit),
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 (including any Affiliate of the Letter
of Credit Issuer that issues any Letter of Credit), Participants (to the extent
provided in


 


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clause (c)
of this Section 13.6) and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the Collateral Agent,
the Letter of Credit Issuer 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 (including participations in
L/C Obligations or Swingline 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 or Section 11.5 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), and, in
the case of Revolving Credit Commitments or Revolving Credit Loans only, the
Swingline Lender and the applicable Letter of Credit Issuer, provided
that no consent of the Administrative Agent, the Swingline Lender or the Letter
of Credit Issuer, as applicable, shall be required for an assignment of any
Term 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 of any Class, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 (or, in the case of (x)
an Initial Term Loan Commitment, Delayed Draw Term Loan Commitment, Initial
Term Loan or Delayed Draw Term Loan, $1,000,000 and (y) Euro Tranche Term Loan
Commitment or a Euro Tranche Term Loan, €1,000,000), and increments of
$1,000,000 in excess thereof (or, in the case of Euro Tranche Term Loan
Commitments or Euro Tranche Term Loans increments of €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 or Section 11.5 has occurred and is
continuing; provided  further that contemporaneous assignments to
a single assignee made by Affiliates of Lenders and related Approved Funds
shall be aggregated for purposes of meeting the minimum assignment amount
requirements stated above;


 


(B)           each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement, provided that this
clause


 


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shall not be construed to prohibit the assignment of a proportionate
part of all the assigning Lender’s rights and obligations in respect of one
Class of Commitments or Loans;


 


(C)           The parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance via an electronic settlement system reasonably acceptable to the
Administrative Agent, together with a processing and recordation fee in the
amount of $3,500; provided that the Administrative Agent may, in its
sole discretion, elect to waive such processing and recordation fee in the case
of any assignment; and


 


(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 forms.


 


(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, 3.5,
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, and the
Commitments of, and principal amount of the Loans and any payment made by the
Letter of Credit Issuer under any Letter of Credit 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, the Collateral Agent, the Letter of Credit Issuer 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, the Collateral Agent, the Letter of Credit Issuer and any
Lender, at any reasonable time and from time to time upon reasonable prior notice.


 


(v)           Upon its receipt of a duly completed
Assignment and Acceptance executed by an assigning Lender and an assignee, the
assignee’s completed Administrative Questionnaire and applicable tax forms
(unless the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in clause (b) of this Section 13.6
and any written consent to such assignment required by clause (b) of
this Section 13.6, the Administrative Agent shall promptly accept such
Assignment and Acceptance and record the information contained therein in the
Register.


 


(c)           (i)  Any Lender may, without the consent of the
Borrower, any Administrative Agent, the Letter of Credit Issuer or the
Swingline Lender, 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,


 


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the Administrative Agent, the Letter of
Credit Issuer 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 Credit 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 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 K-1-A, K-1-B,
K-1-C, K-2, K-3 or K-4, as the case may be, evidencing
the Initial Term Loans, Delayed Draw Term Loans and New Term Loans, Euro
Tranche Term Loans and Revolving Credit Loans and Swingline Loans, respectively,
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.


 


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(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 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, 3.5 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, 3.5 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


 


133





















 


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.


 


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 11.5, 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.


 


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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 Credit Documents represent the agreement of the
Borrower, the Collateral Agent, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Borrower, the Administrative Agent, the
Collateral Agent nor any Lender relative to subject matter hereof not expressly
set forth or referred to herein or in the other Credit Documents.


 


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
Credit 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.


 


135

















 


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 Credit
Documents;


 


(b)           (i) the credit facilities 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 Credit Document) are an arm’s-length
commercial transaction between the Borrower, on the one hand, and the
Administrative Agent, the Lenders and the other Agents on the other hand, and
the Borrower and the other Credit 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 Credit 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 Credit 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 Credit 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 Credit Document (irrespective of whether
the Administrative Agent or other Agent has advised or is currently advising
the Borrower, the other Credit Parties or their respective Affiliates on other
matters) and neither the Administrative Agent or other Agent has any obligation
to the Borrower, the other Credit Parties or their respective Affiliates with
respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Credit 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 Credit 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 Credit 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 CREDIT 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 


 


136





















 


(“Confidential Information”), confidential in accordance with its customary
procedure for handling confidential information of this nature and (in the case
of a Lender that is a bank) in accordance with safe and sound banking practices
and in any event may make disclosure as required or requested by any
governmental, regulatory or self-regulatory agency or representative thereof or
pursuant to legal process or applicable law or regulation or (a) to such Lender’s
or the Administrative Agent’s or other Agent’s attorneys, professional
advisors, independent auditors, trustees or Affiliates, (b) to an investor or
prospective investor in a Securitization that agrees its access to information
regarding the Credit Parties, the Loans and the Credit 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 Credit Parties, the Loans and Credit 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 Credit 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 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 Credit Agreement and/or any borrowing or other
extension of credit thereunder (all such non-excluded communications being
referred to herein collectively as “Communications”),
by transmitting the Communications in an electronic/soft medium in a format
reasonably acceptable to the Administrative Agent to the Administrative Agent at an email address provided by
the Administrative Agent from time to time; provided that (i) upon
written request by the Administrative Agent, the Borrower shall deliver paper
copies of such documents to the Administrative Agent for further distribution
to each Lender until a written request to cease delivering paper copies is
given by the Administrative Agent and (ii) the Borrower shall notify (which may
be by facsimile or electronic mail) the Administrative Agent of the posting of
any such documents and provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. Each Lender shall be solely
responsible for timely accessing posted documents or requesting delivery of
paper copies of such documents from the Administrative Agent and maintaining
its copies of such documents. Nothing in this Section 13.17 shall
prejudice the right of the Borrower, the Administrative Agent, any


 


137





















 


other Agent or any Lender to
give any notice or other communication pursuant to any Credit Document in any
other manner specified in such Credit 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 Credit 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 Credit 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, 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, the Letter of Credit Issuer 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 Credit Documents.


 


(d)           The Borrower and each
Lender acknowledge that certain of the Lenders may be “public-side” Lenders
(Lenders that do not wish to receive material non-public information with
respect to the Borrower, its Subsidiaries or their securities) and, if
documents or notices required to be delivered pursuant to the Credit 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.


 


138





















 


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 Credit
Party, which information includes the name and address of each Credit Party and
other information that will allow such Lender to identify each Credit 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 Credit 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 Credit Documents shall, notwithstanding any judgment in a currency
(the “Judgment
Currency”) other than that in which such sum is denominated
in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the
Business Day following receipt by the Administrative Agent of any sum adjudged
to be so due in the Judgment Currency, the Administrative Agent may in accordance
with normal banking procedures purchase the Agreement Currency with the
Judgment Currency. If the amount of the Agreement Currency so purchased is less
than the sum originally due to the Administrative Agent from the Borrower in
the Agreement Currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or the
Person to whom such obligation was owing against such loss. If the amount of
the Agreement Currency so purchased is greater than the sum originally due to
the Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any excess to the
Borrower (or to any other Person who may be entitled thereto under applicable
law).


 


13.20.      Payments Set Aside. To
the extent that any payment by or on behalf of the Borrower is made to any
Agent or any Lender, or any Agent or any Lender exercises its right of setoff,
and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by such Agent or
such Lender in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding or otherwise, then (a) to the extent
of such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its applicable
share of any amount so recovered from or repaid by any Agent, plus interest
thereon from the date of such demand to the date such payment is made at a rate
per annum equal to the applicable Overnight Rate from time to time in effect.


 


139
















 


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/ Kimberly S. Patmore

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Kimberly S. Patmore

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President

  and Chief Financial Officer

  
					



 


S-1

















 


	
   

  	
  CREDIT
  SUISSE, CAYMAN ISLANDS

  BRANCH, as Administrative Agent, Collateral

  Agent, Swingline Lender, Letter of Credit Issuer

  and a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William O’Daly

  	
   

  
	
   

  	
   

  	
  Name:

  	
  William O’Daly

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mikhail Faybusovich

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Mikhail Faybusovich

  
	
   

  	
   

  	
  Title:

  	
  Associate

  
					



 


S-2

















 


	
   

  	
  CITIBANK
  N.A., as Syndication 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-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

















 


	
   

  	
  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-5

















 


	
   

  	
  HSBC BANK
  USA, NATIONAL ASSOCIATION,

  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter G. Nealon

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Peter G. Nealon

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
					



 


S-6

















 


	
   

  	
  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-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